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EXHIBIT 4.1
THE ADVEST THRIFT PLAN
Amended and Restated
Effective as of January 1, 1999
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TABLE OF CONTENTS
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PAGE
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ARTICLE I ESTABLISHMENT OF THE PLAN.....................1
1.1 Establishment of the Plan.........................1
1.2 Applicability of the Plan.........................1
ARTICLE II DEFINITIONS...................................1
ARTICLE III ADMINISTRATION................................5
3.1 Committee 5
3.2 Named Fiduciary...................................5
3.3 Powers of the Committee...........................5
3.4 Delegation of Duties..............................5
3.5 Administrator.....................................5
3.6 Agent for Service.................................5
3.7 Action by Majority................................5
3.8 Secretary; Action by Single Member................5
3.9 Member's Own Participation........................5
3.10 Records .......................................5
3.11 Compensation; Agents..............................6
3.12 Bonding; Liability of Committee...................6
3.13 Fiduciary Responsibility..........................6
ARTICLE IV PARTICIPATION AND ENROLLMENT..................6
4.1 Service Requirement...............................6
4.2 Entry .......................................6
4.3 Termination of Active Participation...............6
4.4 Re-entry After Ceasing to be an Active
Participant...........................6
ARTICLE V CONTRIBUTIONS.................................6
5.1 Employer Contributions............................6
5.2 Employee Contributions............................7
5.3 Actual Deferral Percentage Test...................7
5.4 Adjustment to Actual Deferral Percentage
Tests.................................8
5.5 Actual Contribution Percentage Tests..............9
5.6 Adjustment to Actual Contribution Percentage
Tests................................10
5.7 Crediting of 401(k) Account Contributions to
Participants.........................11
5.8 Allocations of ESOP Contributions................11
5.9 Release of Shares for Allocation.................11
5.10 Allocation of Dividends..........................11
5.11 Pass-Through of Dividends........................11
5.12 Rollovers and Transfers..........................12
5.13 Allocation of Forfeitures........................12
5.14 Limitation ......................................12
5.15 Special Transfers................................12
ARTICLE VI VESTING......................................12
6.1 Vesting ......................................12
ARTICLE VII INVESTMENT ELECTIONS.........................13
7.1 Investment of Contributions......................13
ARTICLE VIII WITHDRAWALS..................................13
8.1 Hardship Withdrawals.............................13
ARTICLE IX LOANS........................................14
9.1 Loans ......................................14
9.2 Rate of Interest.................................14
9.3 Committee Approval...............................14
9.4 Loan Collateral..................................15
9.5 USERRA Compliance................................15
ARTICLE X PAYMENT OF BENEFITS..........................15
10.1 Payment Options..................................15
10.2 Commencement of Benefit Payments.................15
10.3 Form of Payment to Participants..................15
10.4 Put Option ......................................16
10.5 Protections and Rights...........................16
10.6 Protections and Rights Nonterminable.............16
10.7 Fair Market Value................................16
10.8 Special Distribution and Payment
Requirements.........................16
10.9 Special Distributions to Qualified Participants..17
10.10 Change of Payment Method.........................17
10.11 Consent to Distributions.........................17
10.12 Direct Transfers.................................17
10.13 Forfeitures......................................17
ARTICLE XI DEATH BENEFITS...............................18
11.1 Distribution Upon Death..........................18
11.2 Designation of Beneficiary.......................18
ARTICLE XII STOCK RIGHTS OF PARTICIPANTS.................19
12.1 Voting Rights....................................19
12.2 Rights on Tender or Exchange Offer...............19
12.3 Rights in Event of Default.......................19
ARTICLE XIII TERMINATION OF PLAN..........................19
13.1 Termination......................................19
13.2 Distribution.....................................19
13.3 Final Expenses...................................19
ARTICLE XIV AMENDMENT OF PLAN............................20
14.1 Amendment ......................................20
14.2 Trustee ......................................20
14.3 Change in Vesting................................20
ARTICLE XV CLAIMS PROCEDURE.............................20
15.1 Claims ......................................20
15.2 Notice of Denial.................................20
15.3 Review ......................................20
ARTICLE XVI THE TRUSTEE..................................21
ARTICLE XVII MISCELLANEOUS PROVISIONS.....................21
ARTICLE XVIII TOP-HEAVY PLAN PROVISIONS....................21
18.1 Compensation.....................................21
18.2 Key Employee.....................................21
18.3 Top-Heavy Plan...................................22
18.4 Top-Heavy Ratio..................................22
18.5 Permissive Aggregation Group.....................22
18.6 Required Aggregation Group.......................22
18.7 Determination Date...............................22
18.8 Determination Period.............................22
18.9 Valuation Date...................................22
18.10 Special Provisions...............................22
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THE ADVEST THRIFT PLAN
ARTICLE I
ESTABLISHMENT OF THE PLAN
1.1 ESTABLISHMENT OF THE PLAN. The Advest Group, Inc. hereby amends
and restates The Advest Thrift Plan (hereinafter referred to as the "Plan"),
effective as of January 1, 1999.
1.2 APPLICABILITY OF THE PLAN. The provisions set forth herein are
applicable only to Employees in the employ of the Company on or after the
Effective Date (except as otherwise indicated).
ARTICLE II
DEFINITIONS
When used herein, each of the following terms shall have the corresponding
meaning set forth below unless a different meaning is plainly required by the
context in which a term is used:
2.1 "ACCOUNT" shall mean the 401(k) Account and ESOP Account of a
Participant whether or not such accounts have actually been combined into one
account.
2.2 "ACCRUED BENEFIT" shall mean the balance of a Participant's
Account.
2.3 "ACT" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and all regulations issued pursuant thereto.
2.4 "ACTIVE PARTICIPANT" shall mean an Employee who is eligible to
participate in the Plan and has become and continues to be an Active Participant
in the Plan under the terms of Article IV hereof; provided, however, that for
purposes of Section 5.1, an "Active Participant" shall mean an Employee who is
eligible to be allocated Employer contributions under Section 5.1.
2.5 "ADMINISTRATOR" shall mean the person or persons designated by
the Committee, pursuant to Section 3.5 hereof, as the Administrator of the Plan,
within the meaning of Section 3 (16)(a) of the Act.
2.6 "AFFILIATE" shall mean (i) a member of a controlled group of
corporations, as defined in Section 1563(a) of the Code, determined without
regard to Sections 1563(a)(4) and 1563(e)(3)(C), of which the Company is a
member or (ii) an unincorporated trade or business which is under common control
with the Company as determined in accordance with Section 414(c) of the Code.
Notwithstanding the foregoing, for purposes of applying the contribution
limitation set forth in Section 5.14 hereof, any determination under Section
1563 of the Code shall be made assuming the phrase "more than 50 percent" was
substituted for the phrase "at least 80 percent" each place it appears in
Section 1563(a)(1) of the Code.
2.7 "BENEFICIARY" shall mean a Participant's surviving spouse, if
any, or any other person designated by a Participant who is entitled to receive
any benefits payable hereunder upon the Participant's death pursuant to Section
11.2 hereof, or the executor or administrator of the Participant's estate if
there is no surviving spouse and if no other Beneficiary shall have been
effectively designated by the Participant.
2.8 "BOARD" shall mean the Board of Directors of the Company or its
Executive Committee.
2.9 "1-YEAR BREAK IN SERVICE" shall mean the failure of an
individual to complete more than 500 Hours of Service in a Plan Year; provided,
however, that for the short Plan Year beginning October 1, 1992 and ending
December 31, 1992, a 1-Year Break in Service shall mean the period from January
1, 1992 to December 31, 1992 during which an Employee fails to complete more
than 500 Hours of Service. For purposes of this Section 2.9 only, an Employee
who is absent from work will be credited with an Hour of Service either during
the Plan Year in which such absence commences, or, if the Employee would not
have incurred a 1-Year Break in Service in such Plan Year without regard to this
sentence, during the following Plan Year, for each hour, based on the Employer's
standard work week and work day as in effect from time to time, during which
such Employee is absent from work by reason of (i) the pregnancy of the
Employee, (ii) the birth of a child of the Employee, (iii) the placement of a
child with the Employee in connection with the Employee's adoption of such
child, or (iv) the need for caring for a child referred to in clause (ii) or
(iii) immediately following such birth or placement, but only if the Participant
has furnished to the Administrator such timely information as may be reasonably
required to establish that the absence from work is for one or more of the
reasons described in clauses (i) through (iv).
2.10 "CODE" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and all regulations issued pursuant thereto.
2.11 "CODE SECTION 415 COMPENSATION" shall mean the Participant's
wages and salaries for personal services actually rendered in the course of
employment with the Employer maintaining the Plan paid or accrued during the
Plan Year. Code Section 415 Compensation shall exclude (a)(1) contributions made
by the Employer to a plan of deferred compensation to the extent that, before
the application of the Code Section 415 limitations to the Plan, the
contributions are not includable in the gross income of the Employee for the
taxable year in which contributed, (2) Employer contributions made on behalf of
an Employee to a simplified employee pension plan described in Code Section
408(k) to the extent such contributions are excludable from the Employee's gross
income, and (3) any distributions from a plan of deferred compensation
regardless of whether such amounts are includable in the gross income of the
Employee when distributed except any amounts received by an Employee pursuant to
an unfunded non-qualified plan to the extent such amounts are includable in the
gross income of the
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Employee; (b) amounts realized from the exercise of a non-qualified stock option
or when restricted stock (or property) held by an 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 accounts which receive special tax
benefits, such as premiums for group term life insurance (but only to the extent
that the premiums are not includable in the gross income of the Employee), or
contributions made by the Employer (whether or not under a salary reduction
agreement) towards the purchase of any annuity contract described in Code
Section 403(b) (whether or not the contributions are excludable from the gross
income of the Employee).
For purposes of this Section, the determination of "415 Compensation"
shall be made by including amounts which are contributed by the Employer
pursuant to a salary reduction agreement and which are not includable in the
gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions.
2.12 "COMMITTEE" shall mean the Administrative Committee established
pursuant to Section 3.1 hereof.
2.13 "COMPANY" shall mean The Advest Group, Inc. or any successor
corporation or business organization that assumes the obligations of the Plan
with respect to its employees.
2.14 "COMPENSATION" shall mean the base pay, plus any premiums for
overtime or night work, plus any additional compensation under any bonus or
incentive plans paid to an Employee during the Plan Year, including any salary
deferrals under a plan intended to meet the requirements of either Section
401(k) or Section 125 of the Code, but excluding any deferrals under
nonqualified plans.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, the annual
Compensation of each Employee taken into account under the Plan shall not exceed
the OBRA '93 annual compensation limit. The OBRA '93 annual compensation limit
is $150,000, as adjusted by the Commissioner for increases in the cost of living
in accordance with Code Section 401(a)(17)(B). The cost-of-living adjustment in
effect for a calendar year applies to any period, not exceeding 12 months, over
which Compensation and 414(s) Compensation is determined (a "determination
period") beginning in such calendar year. If a determination period consists of
fewer than 12 months, the OBRA '93 annual compensation limit will be multiplied
by a fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is 12.
Any reference in this Plan to the limitation under Code Section 401(a)(17)
shall mean the OBRA '93 annual compensation limit set forth in this provision.
2.15 "EFFECTIVE DATE" shall mean January 1, 1999.
2.16 "EMPLOYEE" shall mean any person employed by the Employer,
excluding any person hired or retained on a contract basis.
2.17 "EMPLOYER" shall mean the Company and each Affiliate that has
adopted the Plan or otherwise agreed to participate in the Plan, provided that
the Board has approved the participation of such Affiliate under the Plan.
2.18 "ENTRY DATE" shall mean the first day of any month.
2.19 "ESOP ACCOUNT" shall mean the account kept for a Participant,
which reflects amounts attributable to contributions made to the Plan prior to
December 31, 1992, amounts transferred to the Plan from The Advest Group, Inc.
Employees' Retirement Plan attributable to amounts transferred to such plan from
The Advest Group, Inc. Employee Stock Ownership Plan which was in effect on
September 30, 1984, any amounts contributed to the Plan on or after December 31,
1992 pursuant to Section 5.1(a), and any forfeitures of any such amounts
allocated pursuant to Section 5.13.
2.20 "ESOP COMPENSATION" shall mean the total payments received by a
Participant from the Employer during the Plan Year and reportable on his
Internal Revenue Service Form W-2, including any amounts deferred by a
Participant under a qualified cash or deferred arrangement maintained by the
Employer pursuant to Section 401(k) of the Code and the amount of any reduction
in a Participant's compensation under a cafeteria plan maintained by the
Employer pursuant to Section 125 of the Code, and excluding amounts in excess of
$60,000, multiplied by the sum of one (1) plus a fraction, the numerator of
which is the Participant's Years of Service (not to exceed twenty (20)) and the
denominator of which is forty (40).
2.21 "FIDUCIARY" shall mean any person (i) who exercises any
discretionary authority or discretionary control respecting management of the
Plan or any authority or control respecting management or disposition of assets
held under the Plan but shall not include a Participant exercising such
authority or control solely by reason of investment of his own Account under
Article VII of this Plan; (ii) who renders investment advice, direct or
indirect, as to assets held under the Plan or has any authority or
responsibility to do so; or (iii) who has any discretionary authority or
discretionary responsibility in the administration of the Plan, within the
meaning of Section 4975(e)(3) of the Code.
2.22 "401(k) ACCOUNT" shall mean the account kept for a Participant,
which reflects the Participant's Account excluding the Participant's ESOP
Account.
2.23 "414(s) COMPENSATION" shall mean, with respect to any Employee,
his deferred compensation plus Code Section 415 Compensation paid during a Plan
Year. The
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amount of 414(s) Compensation with respect to any Employee shall include 414(s)
Compensation during the twelve (12) month period ending on the last day of the
Plan Year, except that for Plan Years beginning prior to January 1, 1990, 414(s)
Compensation shall only be recognized as of an Employee's effective date of
participation in the Plan.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, the annual
414(s) Compensation of each Employee taken into account under the Plan shall not
exceed the OBRA '93 annual compensation limit. The OBRA '93 annual compensation
limit is $150,000, as adjusted by the Commissioner for increases in the cost of
living in accordance with Code Section 401(a)(17)(B). The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding 12
months, over which Compensation and 414(s) Compensation is determined
(determination period) beginning in such calendar year. If a determination
period consists of fewer than 12 months, the OBRA '93 annual compensation limit
will be multiplied by a fraction, the numerator of which is the number of months
in the determination period, and the denominator of which is 12.
Any reference in this Plan to the limitation under Code Section 401(a)(17)
shall mean the OBRA '93 annual compensation limit set forth in this provision.
2.24 "HIGHLY COMPENSATED EMPLOYEE" shall mean an Employee who
performed services for the Employer during the determination year and is in one
or more of the following groups:
(a) Employees who at any time during the determination year or look-back
year were five-percent owners of the Employer. Five-percent owner means
any person who owns (or is considered as owning within the meaning of
Section 318 of the Code) more than five percent of the outstanding
stock of the Employer or stock possessing more than five percent of the
total combined voting power of all stock of the Employer. In
determining percentage ownership hereunder, employers that would
otherwise be aggregated under Sections 414(b), (c), (m) or (o) of the
Code shall be treated as separate employers.
(b) Employees who received Code Section 415 Compensation during the
look-back year from the Employer in excess of $80,000 (as adjusted at
the same time and in the same manner as provided under Section 415(d)
of the Code).
The "determination year" shall be the Plan Year for which testing is being
performed, and the "look-back year" shall be the immediately preceding
twelve-month period.
The dollar threshold amount specified in (b) above shall be adjusted at
such time and in the same manner as under Code Section 415(d), except that the
base period shall be the calendar quarter ending September 30, 1996. In the case
of such an adjustment, the dollar limit which shall be applied is the limit for
the calendar year in which the "look-back year" begins.
2.25 "HIGHLY COMPENSATED PARTICIPANT" shall mean any Highly
Compensated Employee who is eligible to participate in the Plan.
2.26 "HOUR OF SERVICE" shall mean (i) each hour for which an
individual is directly or indirectly paid, or entitled to payment, by the
Company or an Affiliate, for the performance of duties, such hours to be
credited to the individual for the Plan Year in which the duties were performed,
the foregoing not to include holiday, vacation, sickness or disability time;
(ii) each hour for which an individual is directly or indirectly paid, or
entitled to payment, by the Company or an Affiliate for reasons (such as
holidays, vacation, sickness or disability) other than the performance of duties
(to be credited in accordance with Labor Department Regulation Section
2530.200b-2(c) or any successor regulation); (iii) each hour, for which the
individual is not otherwise credited, for which back pay, irrespective of
mitigation of damages, has been either awarded or agreed to by the Company or an
Affiliate, such hours to be credited to the individual for the Plan Year to
which the award or agreement pertains rather than the Plan Year in which the
award, agreement or payment is made, and (iv) each hour, based on the Company's
or an Affiliate's standard work week and work day as in effect from time to
time, during which the individual is absent from work on account of:
(a) a leave of absence granted by the Company or an Affiliate for sickness
or disability, provided the individual returns to work with the Company
or an Affiliate within one week after the expiration of such leave of
absence; and
(b) a leave of absence granted by the Company or an Affiliate for service
in the Armed Forces, provided the individual returns to work with the
Company or an Affiliate, under circumstances in which his rights to
return are protected under the terms of applicable Federal law, within
90 days, either:
(1) after having become entitled to release from active
service in the Armed Forces; or
(2) after release from hospitalization continuing for a
period of not more than one year after discharge from
active service in the Armed Forces.
such hours to be credited to the individual for the Plan Year in which the
absence occurred. In determining Hours of Service for the purpose of clause (ii)
above, the provisions of Labor Department Regulation Section 2530.200b-2(b) or
any successor regulation shall be applicable.
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2.27 "INVESTMENT DATE" shall mean the scheduled purchase dates
determined by the Committee, occurring not less frequently than once per month.
2.28 "INVESTMENT VEHICLE" shall mean one or more of the following:
(a) "EQUITY FUNDS" which shall be invested in common stock and other equity
securities. Equity funds can include funds generally viewed as
conservative, growth oriented or aggressive.
(b) "BALANCED FUNDS" which shall be invested in a balanced mixture of
equity and fixed income securities. Balanced Funds can include funds
generally viewed as conservative or growth oriented.
(c) "FIXED FUNDS" which shall be invested in fixed income securities. Fixed
Funds can include funds generally viewed as conservative.
(d) "CASH FUNDS" shall include money market funds and interest bearing
accounts.
(e) "GIC FUNDS" which shall be invested in guaranteed investment contracts
(GICs) issued by insurance companies.
(f) Any securities which the Committee may determine to be a permissible
investment, subject to the conditions set forth in Section 7.1 hereof;
provided, that until the Committee otherwise determines, the following
shall be permissible investments: any investment in U.S. Treasury
bills, notes and other obligations; certificates of deposit; and zero
coupon instruments.
2.29 "NON-HIGHLY COMPENSATED PARTICIPANT" shall mean any Participant
who is not a Highly Compensated Employee.
2.30 "NORMAL RETIREMENT DATE" shall mean the date of a Participant's
65th birthday.
2.31 "PARTICIPANT" shall mean an individual (i) who is an Active
Participant or (ii) is a former Active Participant with an interest under the
Plan.
2.32 "PLAN YEAR" shall mean each twelve-month period ending on
December 31.
2.33 "SHARES" shall mean shares of common stock of the Company,
which are "qualifying employer securities" within the meaning of Sections 409(l)
and 4975(e)(8) of the Code, or any successor sections.
2.34 "STOCK OBLIGATION" shall mean indebtedness arising from any
extension of credit to the Plan or the Trust obtained for the purpose of buying
Shares.
2.35 "TOTAL DISABILITY" shall mean that disability which qualifies
an Employee to be considered a total and permanently disabled Employee as
determined by the Social Security Administration to be eligible to receive
disability income benefits under Title II of the Social Security Act, as amended
from time to time.
2.36 "TRUST" shall mean the trust created by the trust agreement, as
amended from time to time, entered into by the Company and the Trustee for the
purpose of holding the Trust Fund.
2.37 "TRUSTEE" shall mean the person or persons who may at any time
be acting as trustee or trustees of the Trust.
2.38 "TRUST FUND" shall mean all funds received by the Trustee from
the Employer or any Participant or as a rollover amount as defined in Section
402(a)(5), 403(a)(4), 408(d)(3) or 409(b)(3)(C) of the Code, pursuant to the
terms hereof, together with all income, profits and increments thereon, and less
any expenses, losses and payments therefrom.
2.39 "USERRA" means the Uniformed Services Employment and
Reemployment Rights Act of 1994. Notwithstanding any provision of this Plan to
the contrary, contributions, benefits and service credit with respect to
qualified military service will be provided in accordance with Code Section
414(u).
2.40 "UNALLOCATED STOCK ACCOUNT" shall mean the account maintained
pursuant to Section 5.9 hereof.
2.41 "VALUATION DATE" shall mean the close of business on the last
business day of each month, and such other date or dates determined by the
Committee, in its discretion. The assets of the Plan shall be valued, and each
Participant's Account shall be adjusted for income or loss on each Valuation
Date.
2.42 "YEAR OF SERVICE" shall mean each Plan Year during which the
Employee has completed not less than 1,000 Hours of Service, including any such
Plan Year prior to the Effective Date. For the short Plan Year which commenced
October 1, 1992, an individual shall be credited with a Year of Service upon
completion of 1,000 Hours of Service during the 12-month period that began
January 1, 1992 and ended December 31, 1992.
Years of Service with Ironwood Capital Partners Ltd. and its affiliated
corporations shall be recognized for purposes of eligibility and vesting. Years
of Service with Newhard, Cook & Co. Incorporated shall be recognized for
purposes of eligibility. In addition, the Committee may designate in writing
other organizations for which Years of Service with will be recognized for
purposes of eligibility and/or vesting.
Except when otherwise indicated by the context, any masculine terminology
herein shall also include the feminine, and the definition of any term herein in
the singular shall also include the plural.
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ARTICLE III
ADMINISTRATION
3.1 COMMITTEE. The Board shall appoint the members of a Committee
to be known as the Administrative Committee, which members shall hold office at
the pleasure of the Board. Said Committee shall consist of not less than 3 nor
more than 10 members, any one or more of whom may, but need not, be an officer
of the Company or any Affiliate. If there is at any time a vacancy on the
Committee for any reason, the Board or Chief Executive Officer of the Company
shall fill such vacancy, but the Committee may act notwithstanding the existence
of vacancies as long as there shall continue to be at least three members of the
Committee. The Committee may select a Chairman from among its members.
3.2 NAMED FIDUCIARY. The Committee is hereby designated the Named
Fiduciary of the Plan, within the meaning of Section 402(a) of the Act, and
subject to the provisions hereof, shall have the authority to control and manage
the operation and administration of the Plan.
3.3 POWERS OF THE COMMITTEE. The Committee shall have all powers
necessary to determine in its sole discretion all questions concerning the
administration of the Plan, including without limitation questions of
eligibility of Employees, funding policy and the amount of any benefits payable
hereunder. In addition, the Committee shall have full authority to interpret and
apply the provisions hereof, including without limitation authority to correct
any defects or omissions or reconcile any inconsistencies herein, in such a
manner and to such an extent as it shall deem necessary or desirable to
effectuate the Plan. The Committee may make such rules and regulations for the
administration of the Plan and the interpretation and application of the
provisions hereof, as it deems necessary or desirable. Subject to the provisions
of Article XIV hereof, any determination by the Committee within the scope of
its authority and any action taken thereon in good faith shall be conclusive and
binding on all persons.
3.4 DELEGATION OF DUTIES. The Committee shall have authority in its
sole discretion to designate or appoint, from time to time, in writing (i)
persons to render advice to it with regard to any responsibility it has under
the Plan, and (ii) persons to carry out specified fiduciary responsibilities for
the operation and administration of the Plan, other than any responsibility
concerning the assets of the Plan provided for in the trust agreement creating
the Trust. Any such person shall serve at the pleasure of the Committee and may
delegate any of its powers and duties to any person referred to in clause (ii)
above, subject to the limitation contained therein. Any such delegation of
powers and duties shall be made and acknowledged in writing.
3.5 ADMINISTRATOR. The Committee shall designate an Administrator
of the Plan who may, but need not be, an officer of the Company or any
Affiliate. In addition to carrying out any duties required of the Administrator
by applicable provisions of the Act, the Administrator shall prepare and file,
or cause to be prepared and filed, such reports, descriptions, summaries and
statements (which may consist of copies of regularly issued broker-dealer
statements with respect to the accounts) to Participants and Beneficiaries as
may be necessary or desirable, within the time specified thereof. Any delegation
of duties to the Administrator by the Committee shall be made and acknowledged
in writing. The Administrator shall serve at the pleasure of the Committee and
may resign by delivering written notice to the Committee. If at any time there
shall be a vacancy in the position of the Administrator, the Chairman of the
Committee shall serve as Administrator until said position has been filled as
herein provided, (or, if no Chairman has been designated, the Director of Human
Resources at Advest).
3.6 AGENT FOR SERVICE. The Administrator shall be the agent for
service of legal process in connection with any claim or proceeding relating to
the Plan.
3.7 ACTION BY MAJORITY. Any action which the Committee is
authorized or required to take may be taken by a majority of the members of the
Committee then holding office. The action of such majority of the members of the
Committee, expressed by a vote at a meeting, or in writing without a meeting,
shall constitute the action of the Committee, and shall have the same effect for
all purpose as if assented to by all the members of the Committee then holding
office.
3.8 SECRETARY; ACTION BY SINGLE MEMBER. The Committee may from time
to time appoint a Secretary, who may or may not be a member of the Committee and
who shall serve at the pleasure of the Committee and may resign by delivering
written notice to the Committee. The Committee may from time to time authorize
any one or more of its members to execute any document on behalf of the
Committee. The Committee shall certify to the Trustee the name of any such
member authorized to act for it in its relationship with the Trustee and the
extent and duration of such authorization.
3.9 MEMBER'S OWN PARTICIPATION. The member of the Committee who is
also a Participant shall not vote on the exercise of any rights or options or
any other matter with respect to his individual rights as a Participant;
provided, however, that this prohibition shall not be construed as preventing
such member from voting on matters which affect all or a broad category of
Participants.
3.10 RECORDS. The Committee shall keep such records of its
proceedings and acts as may in its discretion be necessary or desirable for the
proper administration of the Plan. The Committee shall make available to each
Participant or Beneficiary, for examination at its principal office or such
other place as the Committee may in its sole discretion decide is necessary or
desirable to make available all pertinent records to such Participant or
Beneficiary, such of its records
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as may pertain to such Participant or Beneficiary, and such Participant or
Beneficiary shall have the right to examine the same during normal business
hours. The Company may at any time inspect the records of the Committee or have
the same inspected by an agent or Employee and may at any time demand an
accounting from the Committee.
3.11 COMPENSATION; AGENTS. Any members of the Committee may be paid
such reasonable compensation for attending meetings of the Committee as may be
voted by the Board in its sole discretion. All expenses properly attributable to
the operations and administration of the Plan, including fees paid to agents,
advisors, counsel, investment managers and other persons designated or appointed
by the Committee to assist it, shall be paid by the Employer.
3.12 BONDING; LIABILITY OF COMMITTEE. The Committee, or the
Administrator, if so directed by the Committee, shall insure that each Fiduciary
of the Plan, including each member of the Committee, is bonded in accordance
with applicable laws, rules or regulations, including without limitation Section
412 of the Act. The Employer shall indemnify and hold harmless each member of
the Committee, the Administrator, and any other Fiduciary with respect to the
Plan, if he is, or was at the time of the acts or failure to act in question, a
director, officer or Employee of the Employer, from any liability, claim,
demand, suit or action of any type, including without limitation reasonable
attorneys' fees, arising from any action or failure to act, provided that such
persons acted in good faith, in a manner he reasonably believed to be in the
best interests of the Plan and consistent with the provisions of the Plan and,
with respect to any criminal action or proceeding, that he had no reasonable
cause to believe his conduct was unlawful.
3.13 FIDUCIARY RESPONSIBILITY. Any Fiduciary with respect to the
Plan shall discharge his duties solely in the interest of the Participants and
Beneficiaries for the exclusive purpose of providing benefits to Participants
and Beneficiaries and defraying reasonable expenses of administering the Plan.
In addition, any Fiduciary with respect to the Plan shall discharge his duties
with the care, skill, prudence and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar with such
matters would use in the conduct of any enterprise of a like character with like
aims.
ARTICLE IV
PARTICIPATION AND ENROLLMENT
4.1 SERVICE REQUIREMENT. Effective April 1, 1999, every Employee of
the Employer who is scheduled to work at least 20 hours per week and who is not
classified by the Employer as a "temporary employee" shall be eligible to
participate in the Plan as of the Entry Date coinciding with or next following
the date the Employee first becomes an Employee. Notwithstanding the foregoing,
an Employee shall not be eligible to be allocated Employer contributions under
Section 5.1, and an Employee scheduled to work less than 20 hours per week or
who is classified by the Employer as a "temporary employee" shall not be
eligible to participate in the Plan at all, until the Entry Date coinciding with
or next following the date one year following the date the Employee first
completed an Hour of Service if he has completed 1,000 Hours of Service within
that consecutive 12-month period, or if he has not completed 1,000 Hours of
Service during that initial 12 consecutive months, the end of the first Plan
Year in which he completes at least 1,000 Hours of Service.
If an individual associated with an Affiliate that has not adopted the
Plan meets the requirements of the preceding paragraph but is not an Employee of
the Employer on the applicable Entry Date, he shall be eligible to participate
in the Plan in accordance with the preceding paragraph as of the date he
subsequently becomes an Employee of the Employer.
4.2 ENTRY. Every Employee on the Effective Date who met the
requirement of Section 4.1 hereof shall be eligible to participate in the Plan
as of that date. Each Employee who is eligible to participate in the Plan shall
become an Active Participant as of the first Entry Date after he becomes
eligible. The Committee shall notify each Employee of his eligibility to
participate in the Plan as of the applicable Entry Date upon meeting the
requirement of Section 4.1 hereof.
4.3 TERMINATION OF ACTIVE PARTICIPATION. If an Employee who is an
Active Participant in the Plan ceases to be an Employee he shall cease to be an
Active Participant.
4.4 RE-ENTRY AFTER CEASING TO BE AN ACTIVE PARTICIPANT. If an
Active Participant ceases to be an Employee but thereafter again becomes an
Employee, he shall again become an Active Participant as of the date on which he
again becomes an Employee.
ARTICLE V
CONTRIBUTIONS
5.1 EMPLOYER CONTRIBUTIONS.
(a) The Employer shall contribute to the Plan (for allocation to
Participants' ESOP Accounts) for each Plan Year, within the time
prescribed by law for filing of the income tax return for the Company's
fiscal year, including any extensions thereof, in cash or Shares as
determined by the Board, such amount as shall be determined by the
Board; provided, however, that the Employer shall contribute in cash to
the Plan hereunder amounts sufficient to pay, as they become due, all
currently maturing obligations under any Stock Obligation and all
amounts required under any contributions agreement between the Employer
and the Trustee.
(b) The Employer shall contribute to the Plan (for allocation to
Participant's 401(k) Accounts) for each
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Plan Year, within the time prescribed by law for filing of the income
tax return for the Company's fiscal year, including extensions thereof,
an amount on behalf of each Active Participant, as determined by the
Board, subject to the limitations of Section 5.14 hereof, according to
one or both of the following formulas:
(1) THE EMPLOYER PERCENTAGE CONTRIBUTION FORMULA. The Employer
shall contribute an amount determined by the Board, which
shall be allocated among the 401(k) Accounts of each Active
Participant in proportion to such Active Participant's
Compensation earned while an Active Participant. Such
contribution made for any month shall only be allocated to
Participants who receive pay on the last pay day of such month
and such contribution made for any year shall only be
allocated to Participants who receive pay on the last pay day
of such year.
(2) THE EMPLOYER MATCHING CONTRIBUTION FORMULA. The Employer shall
contribute to the Plan an amount to be allocated among the
401(k) Accounts of each Active Participant for each Active
Participant equal to such Active Participant's Employee
contributions, not in excess of 2% of such Active Participant's
Compensation earned while an Active Participant, which are
collected by payroll deduction. Such contribution shall only be
allocated to Participants with respect to Employer
contributions made for a month if such Participants receive pay
on the last pay day of such month and with respect to Employer
contributions made for a year if such Participants receive pay
on the last pay day of such year.
5.2 EMPLOYEE CONTRIBUTIONS. Each Active Participant may contribute
to the Plan in any Plan Year such amount as he may determine to be desirable;
provided, however, that such contributions may not exceed $7,000 in a calendar
year (as adjusted at the same time and in the same manner as provided under
Section 415(d) of the Code in accordance with Treasury Regulations).
Notwithstanding the above, the amount of each Active Participant's
contribution for any Plan Year which is collected for the Plan by payroll
deductions shall not exceed 15% of such Active Participant's Compensation or
such other percentage as the Committee may from time to time determine. The
minimum payroll deduction amount shall be determined by the Committee but shall
in no event be less than $20.00 a month. Within the permissible limits, each
Participant shall determine the amount of his payroll deduction by written
direction to the Committee within 30 days after becoming a Participant.
Thereafter, the Active Participant may change the amount of his payroll
deduction contribution quarterly, or more frequently as permitted on a uniform
basis by the Committee, by filing another written direction with the Committee
within 30 days after the Plan's Entry Dates, or at such other times permitted by
the Committee. Such contributions shall be paid by the Employer to the Active
Participant's 401(k) Account not less frequently than once every 30 days.
In addition to, or exclusive of, payroll deduction contributions, Active
Participants may make lump-sum contributions from specific payroll periods to
the Plan by written direction to the Committee at time periods as determined by
the Committee and within the time prescribed by law for filing of the income tax
return of the Company's fiscal year, including extensions.
5.3 ACTUAL DEFERRAL PERCENTAGE TEST.
(a) For this Article V to maintain its status as a qualified cash or
deferred arrangement pursuant to Section 401(k) of the Code, the Actual
Deferral Percentage for Highly Compensated Participants (as defined
below) for each Plan Year must bear a relationship to the Actual
Deferral Percentage for all other eligible employees for such Plan Year
which meets ONE of the following tests:
(1) The Actual Deferral Percentage of the Highly Compensated
Participant group shall not be more than the Actual Deferral
Percentage of the Non-Highly Compensated Participant group
multiplied by 1.25, or
(2) The excess of the Actual Deferral Percentage of the Highly
Compensated Participant group over the Actual Deferral
Percentage of the Non-Highly Compensated Participant group
shall not be more than two percentage points. Additionally, the
Actual Deferral Percentage of the Highly Compensated
Participant group shall not exceed the Actual Deferral
Percentage of the Non-Highly Compensated Participant group
multiplied by 2. The provisions of Section 401(k)(3) of the
Code and Treasury Regulations Section 1.401(k)-1(b) are
incorporated herein by reference. In order to prevent the
multiple use of the alternative method described in this
paragraph and in Section 401(m)(9)(A) of the Code, any Highly
Compensated Participant eligible to make Employee contributions
pursuant to
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this Plan or to receive Employer matching contributions under
this Plan or under any other plan maintained by the Employer or
an Affiliate shall have his actual contribution ratio reduced
pursuant to Treasury Regulations Section 1.401(m)-2, the
provisions of which are incorporated herein by reference.
(b) For the purpose of this Section 5.3, "Actual Deferral Percentage" for a
Plan Year means, with respect to the Highly Compensated Participant
group and Non-Highly Compensated Participant group, the average of the
ratios, (calculated separately for each Active Participant in such
group) of:
(1) The Employee contributions and Employer contributions
designated as Employee contributions (if any) allocated to each
Highly Compensated Participant's Account for such Plan Year
(and contributed to the Plan within 12 months following the end
of the Plan Year) and to each Non-Highly Compensated
Participant's Elective Account for the preceding Plan Year (and
contributed to the Plan within 12 months following the end of
the Plan Year); to
(2) The Active Participant's 414(s) Compensation for such Plan Year
or preceding Plan Year respectively.
The actual deferral ratio for each Active Participant and the Actual
Deferral Percentage for each group shall be calculated to the nearest
one-hundredth of one percent. Employee contributions allocated to
each Non-Highly Compensated Employee's Account for the preceding Plan
Year shall be reduced by excess Employee contributions for the
preceding Plan Year to the extent such excess amounts arise under
this Plan or any other plan maintained by the Employer.
(c) For the purpose of this Section, a Highly Compensated Participant and a
Non-Highly Compensated Participant shall include any Employee eligible
to make a payroll deduction pursuant to Section 5.2, whether or not
such contribution was made or amended.
(d) For purposes of this Section, if two or more plans of the Employer
(other than an employee stock ownership plan as defined in Section
4975(e)(7) of the Code), which include cash or deferred arrangements,
are considered one plan for the purposes of Section 401(a)(4) or 410(b)
of the Code (other than the average benefits test under Section
410(b)(2)(A)(ii) of the Code), the cash or deferred arrangements
included in such plans shall be treated as one arrangement.
(e) For the purposes of this Section, if a Highly Compensated Participant
is an Active Participant under two or more cash or deferred
arrangements of the Employer or an Affiliate (other than a cash or
deferred arrangement which is part of an employee stock ownership
plan), all such cash or deferred arrangements shall be treated as one
cash or deferred arrangement for the purpose of determining the
deferral percentage with respect to such Highly Compensated
Participant. However, if the cash or deferred arrangements have
different plan years, this paragraph shall be applied by treating all
cash or deferred arrangements ending with or within the same calendar
year as a single arrangement.
5.4 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS.
(a) In the event that the initial allocations of the Employee contributions
and Employer contributions designated as Employee contributions (if
any) do not satisfy one of the tests set forth above, the Committee
shall adjust excess contributions pursuant to the options set forth
below:
(1) Within 12 months after the end of the Plan Year, the Employer
may make an additional Employer contribution, designated as an
Employee contribution on behalf of Non-Highly Compensated
Participants in an amount sufficient to satisfy one of the
tests set forth in Section 5.3. Such contribution shall be
allocated in proportion to each such Non-Highly Compensated
Participant's Compensation, and shall be treated as an Employee
contribution for purposes of Articles VI and VIII of the Plan;
or
(2) On or before the fifteenth day of the third month following the
end of each Plan Year, the Highly Compensated Participant
having the largest amount of Employee contributions and
Employer contributions designated as Employee contributions (if
any) shall have his portion of excess Employee contributions
distributed to him until one of the tests set forth above is
satisfied, or until his amount of Employee contributions and
Employer contributions designated as Employee contributions (if
any) equals the amount of Employee contributions and Employer
contributions desig-
<PAGE> 11
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nated as Employee contributions (if any) of the Highly
Compensated Participant having the second largest amount. This
process shall continue until one of the tests set forth above
is satisfied. For each Highly Compensated Participant, the
amount of excess contributions is equal to the Employee
contributions and applicable Employer contributions (if any)
used to satisfy the Actual Deferral Percentage tests on behalf
of such Highly Compensated Participant (determined prior to the
application of this paragraph) minus the amount determined by
multiplying the Highly Compensated Participant's actual
deferral ratio (determined after application of this paragraph)
by his 414(s) Compensation. However, in determining the amount
of excess Employee contributions to be distributed with respect
to an affected Highly Compensated Participant as determined
herein, such amount shall be reduced by any excess Employee
contributions previously distributed to such affected Highly
Compensated Participant for his taxable year ending with or
within such Plan Year.
With respect to the distribution of excess Employee
contributions, such distribution:
(A) may be postponed but not later than the close of the
succeeding Plan Year;
(B) shall be made first from unmatched Employee contributions
and, thereafter, simultaneously from Employee
contributions which are matched (if any) and Employer
matching contributions (if any) which relate to such
Employee contributions provided, however, that any
Employer matching contributions that are not vested, shall
be forfeited in lieu of distribution;
(C) shall be adjusted for income; and
(D) shall be designated by the Employer as a distribution of
excess Employee contributions and income.
Any distribution of less than the entire amount of excess
Employee contributions shall be treated as a pro rata
distribution of excess Employee contributions and income.
For purposes of this Section 5.4, "income" means the income or losses
allocable to excess contributions which shall equal the allocable gain or loss
for the Plan Year. The income allocable to excess contributions for the Plan
Year is determined by multiplying the income for the Plan Year by a fraction.
The numerator of the fraction is the excess contribution for the Plan Year. The
denominator of the fraction is the total Participant's 401(k) Account
attributable to Employee contributions as of the end of the Plan Year, reduced
by the gain allocable to such total amount for the Plan Year and increased by
the loss allocable to such total amount for the Plan Year.
5.5 ACTUAL CONTRIBUTION PERCENTAGE TESTS.
(a) For this Plan to maintain its qualified status, the Actual Contribution
Percentage for the Highly Compensated Participant group shall not
exceed the greater of:
(1) 125% of such percentage of the Non-Highly Compensated
Participant group; or
(2) the lesser of 200% of such percentage of the Non-Highly
Compensated Participant group, or such percentage of the
Non-Highly Compensated Participant group plus two percentage
points. However, to prevent the multiple use of the alternative
method described in this paragraph and Code Section
401(m)(9)(A), any Highly Compensated Participant eligible to
make Employee contributions pursuant to Section 5.2 or any
other cash or deferred arrangement maintained by the Employer
or an Affiliate and to receive Employer matching contributions
under this Plan or under any other plan maintained by the
Employer or an Affiliate shall have his actual contribution
ratio reduced pursuant to Treasury Regulations Section
1.401(m)-2. The provisions of Section 401(m) of the Code and
Treasury Regulations Sections 1.401(m)-1(b) and 1.401(m)-2 are
incorporated herein by reference.
(b) For the purpose of this Section 5.5, "Actual Contribution Percentage"
for a Plan Year means, with respect to the Highly Compensated
Participant group and Non-Highly Compensated Participant group, the
average of the ratios (calculated separately for each Participant in
each group) of:
(1) the Employer matching contributions (if any) made pursuant to
Section 5.1(b) on behalf of each such Highly Compensated
Participant for such Plan Year and each Non-Highly Compensated
Participant group for the preceding Plan Year; to
(2) the Active Participant's 414(s) Compensation for such Plan Year
or preceding Plan Year respectively.
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The actual contribution ratio must be rounded to the nearest
one-hundredth of one percent.
(c) For purposes of determining the Actual Contribution Percentage and the
amount of excess matching contributions pursuant to Section 5.6, only
Employer matching contributions (excluding Employer matching
contributions forfeited pursuant to Section 3.4(a)(2)) contributed to
the Plan prior to the end of the succeeding Plan Year shall be
considered.
(d) For purposes of this Section, if two or more plans of the Employer
(other than an employee stock ownership plan as defined in Section
4975(e)(7) of the Code) to which matching contributions or elective
deferrals are made are treated as one plan for purposes of Section
401(a)(4) or 410(b) of the Code (other than the average benefits test
under Section 410(b)(2)(A)(ii) of the Code), such plans shall be
treated as one plan for purposes of this Section 5.5. In addition, two
or more plans of the Employer to which matching contributions or
elective deferrals are made may be considered as a single plan for
purposes of this Section. In such a case, the aggregated plans must
satisfy Code Sections 401(a)(4) and 410(b) as though such aggregated
plans were a single plan. Notwithstanding the above, contributions to
an employee stock ownership plan as defined in Code Section 4975(e)(7)
shall not be aggregated with this Plan.
(e) If a Highly Compensated Participant participates in two or more plans
(other than an employee stock ownership plan) which are maintained by
the Employer or an affiliate to which matching contributions or
elective deferrals are made, all such contributions on behalf of such
Highly Compensated Participant shall be aggregated for purposes of this
Section 5.5.
(f) For purposes of Sections 5.5(a) and 5.6, the terms "Highly Compensated
Participant" and "Non-Highly Compensated Participant" shall include any
Employee eligible to have Employer matching contributions pursuant to
Section 5.1(b) (whether or not a deferral election was made or
suspended pursuant to Sections 5.2 and 8.2) allocated to his Account
for the Plan Year.
5.6 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS.
(a) In the event that the Actual Contribution Percentage for the Highly
Compensated Participant group exceeds the Actual Contribution
Percentage for the Non-Highly Compensated Participant group pursuant to
Section 5.5(a), the Committee (on or before the fifteenth day of the
third month following the end of the Plan Year, but in no event later
than the close of the following Plan Year) shall direct the Trustee to
distribute to the Highly Compensated Participant having the largest
amount of Employer matching contributions, his vested portion of excess
matching contributions (and income allocable to such contributions)
and, if forfeitable, forfeit such non-vested Employer matching
contributions (and income allocable to such forfeitures) until either
one of the tests set forth in Section 5.5(a) is satisfied, or until his
remaining amount equals the amount of Employer matching contributions
of the Highly Compensated Participant having the second largest amount.
This process shall continue until one of the tests set forth in Section
5.5(a) is satisfied. The distribution of excess matching contributions
shall be made in the following order:
(1) Employer matching contributions distributed pursuant to Section
5.4(a);
(2) Remaining Employer matching contributions.
(b) Any distribution of less than the entire amount of excess matching
contributions and income shall be treated as a pro rata distribution of
excess matching contributions and income. Distribution of excess
matching contributions shall be designated by the Employer as a
distribution of excess matching contributions and income.
(c) Excess matching contributions including forfeited matching
contributions shall be treated as Employer contributions for purposes
of Code Sections 404 and 415 even if distributed from the Plan.
(d) For each Highly Compensated Participant, the amount of excess matching
contributions is equal to the total Employer matching contributions
made pursuant to Section 5.1(b) minus the amount determined by
multiplying the Highly Compensated Participant's actual contribution
ratio (determined after application of this paragraph) by his 414(s)
Compensation. In no case shall the amount of excess matching
contributions with respect to any Highly Compensated Participant exceed
the amount of Employer matching contributions made pursuant to Section
5.1(b) on behalf of such Highly Compensated Participant for such Plan
Year.
(e) The determination of the amount of excess matching contributions with
respect to any Plan Year shall be made after first determining the
excess contributions, if any, to be treated as employee contributions
due to recharacterization for the plan year of any other qualified cash
or deferred arrangement (as defined in Code Section 401(k)) maintained
by the Employer that ends with or within the Plan Year of this Plan.
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For purposes of this Section 5.6, "income" means the income or losses
allocable to excess matching contributions which shall equal the allocable gain
or loss for the Plan Year. The income allocable to excess matching contributions
for the Plan Year is determined by multiplying the income for the Plan Year by a
fraction. The numerator of the fraction is the excess matching contribution for
the Plan Year. The denominator of the fraction is the total Participant's 401(k)
Account attributable to Employer matching contributions as of the end of the
Plan Year, reduced by the gain allocable to such total amount for the Plan Year
and increased by the loss allocable to such total amount for the Plan Year.
5.7 CREDITING OF 401(k) ACCOUNT CONTRIBUTIONS TO PARTICIPANTS. The
Employer contributions identified in Section 5.1(b) above and the Employee
contributions identified in Section 5.2 above for each Plan Year shall be
credited as of the date of receipt by the Trust Fund to the 401(k) Accounts of
Participants on whose behalf or by whom they were made.
5.8 ALLOCATIONS OF ESOP CONTRIBUTIONS. Subject to the limitations
of Section 5.14, as of the last day of a Plan Year, the sum of (a) the Shares
released from the Unallocated Stock Account for that year pursuant to Section
5.9 which have not been allocated pursuant to Section 5.10, plus (b) any
Employer contributions under Section 5.1(a) for that year not applied against
Stock Obligations or allocated pursuant to Section 5.10, shall be allocated
among the ESOP Accounts of the Participants on the basis of the percentage that
each Participant's ESOP Compensation during all or that part of the Plan Year in
which he was a Participant is of the total ESOP Compensation of all Participants
for all or that portion of the Plan Year in which they were Participants.
Notwithstanding the foregoing, no allocation shall be made pursuant to
this Section 5.8 to the ESOP Account of a Participant who was not a Participant
on the last day of the Plan Year; provided that a Participant who retires,
incurs a Total Disability or dies prior to the end of a Plan Year shall be
included in the allocation made pursuant to this Section 5.8.
5.9 RELEASE OF SHARES FOR ALLOCATION. An Unallocated Stock Account
shall be maintained in which the Plan's holdings of Shares which have been
purchased on credit, whether or not the Shares are pledged as collateral, shall
be segregated until payments on the corresponding Stock Obligations permit the
release of the Shares for allocation to Participants in accordance with this
Section 5.9. Any dividends with respect to such segregated Shares which are paid
by the Company in the form of additional Shares shall also be segregated in the
Unallocated Stock Account and thereafter treated in the same manner as the
underlying segregated Shares. For each Plan Year for which Employer
contributions or earnings on contributions are applied to satisfy a portion of a
Stock Obligation, a certain number of Shares held in the Unallocated Stock
Account shall be released for allocation among the Participants. The number of
Shares released shall bear the same ratio to the number of Shares attributable
to the Stock Obligation which are then in the Unallocated Stock Account (prior
to the release) as (a) the principal and interest payments made on the Stock
Obligation for the Plan Year bears to (b) the payments described in clause (a)
plus the total remaining principal and interest payments required (or projected
to be required on the basis of the interest rate in effect at the end of the
Plan Year) to satisfy the Stock Obligation. For this purpose, each Stock
Obligation, the Shares purchased in connection with it, and any stock dividends
on such Shares, shall be considered separately. Notwithstanding the foregoing,
if a Stock Obligation provides for equal annual principal payments, and has a
term not in excess of ten years, the number of Shares to be released may be
determined solely with reference to principal payments made for a Plan Year. In
addition, if the Stock Obligation is not made by or guaranteed by a disqualified
person (as defined in Section 4975(e)(2) of the Code), the number of Shares to
be released shall be determined in accordance with the terms of any pledge
agreement entered into in connection with the Stock Obligation.
5.10 ALLOCATION OF DIVIDENDS. Any cash dividends received on Shares
allocated to Participants' ESOP Accounts, at the discretion of the Board, (a)
shall be used to satisfy Stock Obligations, (b) shall be allocated to the
Participants' respective ESOP Accounts or (c) shall be allocated to the
Participants' respective 401(k) Accounts. In the event that the fair market
value of all Shares released from the Unallocated Stock Account is less than the
aggregate amount of cash dividends on Shares allocated to Participant's ESOP
Accounts for a Plan Year used to satisfy Stock Obligations, then the Employer
shall contribute an amount equal to the difference which shall be allocated
among the ESOP Accounts of Participants so that the sum of the fair market value
of shares released from the Unallocated Stock Account and such Employer
contributions allocated to each Participant's ESOP Account equals the cash
dividends on Shares allocated to such Participant's ESOP Account used to satisfy
Stock Obligations. Any dividends in the form of additional Shares received on
Shares allocated to Participants' ESOP Accounts shall be allocated to the same
ESOP Accounts. Any cash dividends received on Shares held in the Unallocated
Stock Account which are not used to satisfy Stock Obligations shall be included
in the net income (or loss) of the Trust for the Plan Year. Notwithstanding the
foregoing, any cash dividends received on Shares which are distributed to
Participants pursuant to Section 5.11 shall not be allocated to their accounts.
5.11 PASS-THROUGH OF DIVIDENDS. Any cash dividends received by the
Trust on Shares allocated to Participants' ESOP Accounts shall be paid in cash
to such Participants, rather than being allocated to Participants' ESOP Accounts
pursuant to Section 5.10, not later than 90 days after the close of the Plan
Year in which such dividends are paid, if the Board so directs the Trustee.
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5.12 ROLLOVERS AND TRANSFERS. An Employee may, with the consent of
the Committee, which shall be granted or withheld in a nondiscriminatory manner,
roll over to the Employee's 401(k) Account within 60 days of his receipt
thereof, all or any part of the amount distributed to him in cash or in kind
within one taxable year of the Employee as a rollover amount, as defined in
Section 402(a)(5), 403(a)(4), 408(d)(3) or 409(b)(3)(C) of the Code, or from a
conduit individual retirement account under Sections 402 and 408 of the Code, to
the extent permitted by the Code; provided, however, that no such rollover
amount may include any amounts constituting the Employee's contributions. The
Committee may require such information or documentation with respect to any such
rollover contribution hereunder as it deems necessary or desirable. Any expenses
related to such rollover account shall be allocated to such 401(k) Account.
Amounts may be transferred by the Employer from other tax qualified plans
under Section 401(a) of the Code maintained by the Employer provided that the
trust from which such funds are transferred permits the transfer to be made and
the transfer will not jeopardize the tax exempt status of the Plan or create
adverse tax consequences for the Employer. The amounts transferred shall be
placed in the Participant's 401(k) Account. This Plan shall not accept any
direct or indirect transfers (as that term is defined and interpreted under Code
Section 401(a)(11) and the regulations thereunder) from a defined benefit plan,
money purchase plan (including a target benefit plan), stock bonus or profit
sharing plan which would otherwise have provided for a life annuity form of
payment to the Participant. Notwithstanding anything herein to the contrary, a
transfer directly to this Plan from another qualified plan (or a transaction
having the effect of such a transfer) shall only be permitted if it will not
result in the violation of Code Section 411(d)(6).
5.13 ALLOCATION OF FORFEITURES. As of the end of each Plan Year, the
Administrator shall determine the value of forfeitures, pursuant to Section
10.13 hereof, during the Plan Year then ending. The Administrator shall use the
portion of such forfeitures attributable to Employer contributions pursuant to
Section 5.1(b) and earnings thereon to reduce the Employer contribution
calculated pursuant to Section 5.1(b) for the Plan Year in which such
forfeitures occur. The Administrator shall apply the portion of such forfeitures
attributable to amounts held in Participants' ESOP Accounts to the payment of
administration of the Trust Fund, with any remaining balance allocated among the
ESOP Accounts of Active Participants in proportion to each Active Participant's
ESOP Compensation for such Plan Year.
5.14 LIMITATION. Anything to the contrary herein notwithstanding, in
no event shall the sum of annual additions to an Active Participant's Account in
any Plan Year attributable to (1) Employer contributions (including
contributions made by the Employer pursuant to Section 401(k) of the Code) and
forfeitures and (2) Employee contributions, when combined with any annual
additions to such Active Participant's account under any other defined
contribution plan maintained by the Employer, be greater than the lesser of (1)
$30,000 (as adjusted under Section 415(d) of the Code), or (2) 25% of all the
Active Participant's Compensation from the Employer. For any Plan Year in which
no more than one-third (1/3) of the Employer contributions are allocated to
Participants who are highly compensated employees within the meaning of Section
414(q) of the Code, for purposes of this Section 5.14, "Annual Additions" shall
not include forfeitures of Shares acquired with the proceeds of a Stock
Obligation and contributions that are deductible under Section 404(a)(9)(B) of
the Code and are charged against the Participant's ESOP Account. For purposes of
this Section 5.14, Employer contributions used to repay principal and interest
on a Stock Obligation shall be treated as a contribution of Shares to the Plan.
Any excess amount hereunder (i) to the extent of Employee contributions in such
Plan Year pursuant to Section 5.2 shall be returned to such Active Participant;
and (ii) to the extent of Employer contributions pursuant to Section 5.1 shall
be applied to reduce any further Employer contributions under this Plan.
Amounts allocated to an individual medical account, as defined in Section
415(l)(1) of the Code, which is part of a defined benefit plan maintained by the
Employer, are treated as annual additions to a defined contribution plan. Also,
amounts derived from contributions paid or accrued 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 Section 419A(d)(3) of
the Code, under a welfare benefit fund, as defined in Section 419(e) of the
Code, maintained by the Employer, are treated as annual additions to a defined
contribution plan.
5.15 SPECIAL TRANSFERS. Except for purposes of Section 5.3 and 5.4
hereof, all amounts transferred to the Plan from the Ironwood Capital Partners
Ltd. 401(k) Plan, and such other plans as may be designated in writing by the
Committee, shall be treated as Employee contributions pursuant to Section 5.2 of
the Plan.
ARTICLE VI
VESTING
6.1 VESTING. An Active Participant shall have a vested right to any
Employer contributions and earnings thereon, in accordance with the following
schedule:
<TABLE>
<CAPTION>
YEARS OF SERVICE NON-FORFEITABLE PERCENTAGE
---------------- --------------------------
<S> <C>
1 10%
2 25%
3 40%
4 55%
5 70%
6 85%
7 or more 100%
</TABLE>
<PAGE> 15
THE ADVEST THRIFT PLAN PAGE 13
--------------------------------------------------------------------------------
(b) Notwithstanding the foregoing, the following contributions
shall at all times be fully vested and non-forfeitable:
(1) All Employee contributions made by a Participant;
(2) All amounts transferred to the Trust Fund representing
a Participant's interest in The Advest Group, Inc.
Employees' Retirement Plan;
(3) All amounts transferred to the Trust Fund representing
a Participant's interest in The Advest Group, Inc.
Incentive Savings Plan; and
(4) All Employer contributions made on behalf of an Active
Participant who has attained his Normal Retirement
Date, or in the event of his Total Disability or death.
ARTICLE VII
INVESTMENT ELECTIONS
7.1 INVESTMENT OF CONTRIBUTIONS. Each Participant shall elect with
respect to amounts held in his 401(k) Account to have such funds invested in any
one or more of the Investment Vehicles. Each Participant shall make such
election by filing an investment selection form with the Committee upon becoming
a Participant. Such investment selection for contributions may be changed
effective as of any Investment Date, provided that a properly completed
investment selection form is received by the Committee not less than 10 days
prior to such Investment Date or otherwise as permitted by the Committee in a
nondiscriminatory manner.
In the event that a Participant wishes to liquidate his investment in any
Investment Vehicle and reinvest in another, he must so indicate on a properly
completed investment selection form or otherwise as permitted by the Committee
in a nondiscriminatory manner. Such changed investment selection will be
effective as of any Investment Date, provided that the properly completed
investment selection form is received by the Committee not less than 10 days
prior to such Investment Date or otherwise as permitted by the Committee in a
nondiscriminatory manner. The liquidation of the previous Investment Vehicle
will occur within 5 business days of receipt of the properly completed
investment selection form by the Committee.
Investments in the Investment Vehicles described in Section 2.27(f)
hereof shall be subject to the following conditions:
(a) All purchases and sales of securities must be executed by the
Company as broker or must be principal transactions between the
Plan and the Company, to the extent permitted by the Act, the
Code and other applicable laws;
(b) If brokerage commissions are charged by the Company, such
commissions will be charged by the Company to the Account for
which a securities transaction is executed, and such charges
will comply with the recapture provisions of Department of
Labor Prohibited Transaction Class Exemption 86-128 which
permits the Company to execute securities transactions for the
Plan provided that it credits to the Plan all charges relating
to effecting or executing the securities transactions, less
reasonable and necessary expenses, including reasonable and
direct expenses (such as overhead costs) properly allocated to
the performance of these transactions under generally accepted
accounting principles, and further provided that the notice and
record keeping requirements of PTCE 86-128 are complied with;
and
(c) Investments shall be made in accordance with such rules as may
be established by the Committee from time to time.
Pending the investment of contributions in, or the shifting of
investments among, the Investment Vehicles, funds shall be invested in such
short-term investment vehicle(s) as the Committee shall determine.
ARTICLE VIII
WITHDRAWALS
8.1 HARDSHIP WITHDRAWALS. The Committee, at the election of an
Active Participant, shall direct the Trustee to distribute to any Active
Participant in any one Plan Year all or part of the vested portion of his 401(k)
Account (excluding post-1988 earnings on Employee contributions to the Plan and
to The Advest Group, Inc. Incentive Savings Plan that have been transferred to
the Plan). For purposes of this Section 8.1, a withdrawal shall be authorized
only if the distribution is on account of:
(a) Expenses for medical care described in Code Section 213(d)
previously incurred by the Active Participant, his spouse, or
any of his dependents (as defined in Code Section 152) or
necessary for these persons to obtain the medical care
described in Section 213(d);
(b) Costs directly related to the purchase of a principal residence
for the Active Participant (excluding mortgage payments);
(c) Funeral expenses for a member of the Active Participant's
Family;
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(d) Payment of tuition, related educational fees and room and board
expenses for the next 12 months of post-secondary education for
the Active Participant, his spouse, children or dependents; or
(e) The need to prevent the eviction of the Active Participant from
his principal residence or foreclosure on the mortgage of the
Active Participant's principal residence.
No distribution shall be made pursuant to this Section unless the
Committee, based upon the Active Participant's representation and such other
facts as are known to the Committee, determines that all of all of the following
conditions are satisfied:
(a) The distribution is not in excess of the amount of the
immediate and heavy financial need of the Active Participant;
and
(b) The Active Participant has obtained all distributions, other
than hardship distributions, and all nontaxable loans currently
available under all plans maintained by the Employer, including
the Plan; provided, however, that the Active Participant will
not be required to obtain a nontaxable loan if the loan would
disqualify the Active Participant from obtaining other
necessary financing.
8.2 If an Active Participant receives a hardship withdrawal
pursuant to Section 8.1, such Active Participant's Employee contributions will
be suspended until January 1 of the second calendar year after receipt of the
hardship withdrawal.
Application for withdrawal shall be made on such forms as the Committee
prescribes and shall contain the information required by such forms, including
the Investment Vehicle(s) from which the withdrawal is to be made. Only one such
withdrawal shall be permitted in any six month period.
The withdrawal shall be paid to the Participant within 30 days after the
Active Participant's application form is approved by the Committee. The Active
Participant's 401(k) Account shall be charged accordingly as of such date.
No make-up contributions will be permitted.
ARTICLE IX
LOANS
9.1 LOANS. The Committee may, upon receipt of a completed loan
application form by an Active Participant or a Participant who is a "party in
interest" as defined in Section 3(14) of the Act, direct the Trustee to make a
loan to such Participant from the Investment Vehicle(s) credited to the 401(k)
Account of such Participant as the Participant directs. Employees who are not
Active Participants shall also be eligible to request loans, and all references
to Participants in this Article IX shall include such Employees. Each
Participant may have no more than 2 loans outstanding at one time, and no loan
may be for less than $500. No Participant may receive more than 2 loans in any
twelve-month period. In no event shall the total of any such loan or loans to
any one Participant (when aggregated with other loans under this Plan or any
other qualified plan of the Employer) exceed the lesser of:
(a) $50,000 reduced by the excess (if any) of the highest outstanding
balance of loans from the Plan to the Participant during the one year
period ending on the day before the date on which such loan is made,
over the outstanding balance of loans from the Plan to the Participant
on the date on which such loan was made, or
(b) 50% of the present value of the nonforfeitable Accrued Benefit of the
Employee attributable to his 401(k) Account.
The balance of the Participant's 401(k) Account will be determined as of
the date the application is approved by the Committee.
Any loan, shall, by its terms, require that repayment (principal and
interest) be amortized in level payments, not less frequently than monthly, over
a period not extending beyond five years from the date of the loan, unless such
loan is used to acquire a dwelling unit which, within a reasonable time
(determined at the time the loan is made) will be used as the principal
residence of the Participant. Any such loan shall provide for monthly payments
of not less than $20 each and shall be immediately due and payable in full upon
death, disability or separation from service.
9.2 RATE OF INTEREST. Each loan shall bear a reasonable rate of
interest, determined by the Committee. The Committee, in determining the
interest rate, shall take into consideration the rates of interest currently
being charged by lenders. Loans may bear different interest rates, if in the
Committee's opinion, the difference is justified by different terms for
repayment or changes in economic conditions. The rate of interest need not be
fixed for the term of the loan. In no event shall the interest rate exceed the
maximum legal rate that may be charged to individuals for loans of this nature.
All interest and principal payments shall be credited to the 401(k) Account of
the Participant to whom the loan is made.
Every Participant with an outstanding loan from the Plan shall receive a
clear statement (which may consist of copies of the periodic statements issued
with respect to the Participant's Account) of the charges involved.
9.3 COMMITTEE APPROVAL. The Committee shall approve loan
applications and determine rate of interest in a uniform and nondiscriminatory
manner. Loans shall be available to all such Participants on a reasonably
equivalent basis as determined by the Committee, and, in approving such loans,
the Committee shall not discriminate in favor of Highly
<PAGE> 17
THE ADVEST THRIFT PLAN PAGE 15
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Compensated Employees or officers of the Company as to the amount of such loans
in proportion to the Participant's 401(k) Account or the rate of interest. All
loans shall comply with the requirements of Section 408(b)(1) of ERISA as
amended.
9.4 LOAN COLLATERAL. Each loan shall be made against the collateral
of the assignment of 50% of the Participant's entire right, title and interest
in and to his 401(k) Account. In addition to the assignment of the Participant's
401(k) Account, the Committee may, in its discretion, require such additional
collateral as it may deem necessary from time to time to adequately secure such
loan. In the event of a default by a Participant in the repayment of any loan
provided for hereunder and the Participant has not supplied other satisfactory
collateral, the Participant's 401(k) Account under this Plan shall be charged
with the full unpaid balance of the loan, together with any accrued but unpaid
interest thereon (up to an amount equal to the collateral), at the time of the
earlier of the Participant's termination of service with the Employer, his
retirement or his disability.
For purposes of this Section, a loan made to a Participant shall not be
treated as an assignment or alienation of any benefit due to the fact that the
loan will be secured by the Participant's 401(k) Account and will be exempt from
the tax imposed on prohibited transactions according to Section 4975(d)(1) of
the Code.
No distribution under the Plan, other than withdrawals made pursuant to
Article VIII, shall be made to any Participant or to the Beneficiary of any such
Participant unless and until all unpaid loans, including accrued interest
hereto, have been liquidated. The Committee shall have the right to apply to the
repayment of any loan and the accrued interest thereon the amount of any
distribution from the Trust Fund to which the Participant or his Beneficiary
becomes entitled to satisfy the liquidation of such loan.
9.5 USERRA COMPLIANCE. Loan repayments will be suspended under this
Plan, as permitted under Code Section 414(u).
ARTICLE X
PAYMENT OF BENEFITS
10.1 PAYMENT OPTIONS. The Administrator, pursuant to the election of
the Participant, shall direct the Trustee to distribute to the Participant or
his Beneficiary the Participant's vested Accrued Benefit under the Plan in one
or more of the following methods:
(a) One lump-sum payment in cash or in kind to the extent the Participant
so elects; or
(b) For an amount in a Participant's Account equal to the balance of such
Participant's Accounts under The Advest Group, Inc. Incentive Savings
Plan and The Advest Group, Inc. Employees' Retirement Plan on September
30, 1989, payments over a period certain in monthly, quarterly,
semiannual, or annual installments, in cash or in kind to the extent
the Participant so elects, not extending beyond the Participant's life
expectancy (or the life expectancy of the Participant and his
designated Beneficiary).
10.2 COMMENCEMENT OF BENEFIT PAYMENTS. The payment of benefits under
the Plan shall be made or begin on or after the date a Participant terminates
his service with the Employer and not later than the 120th day after the
Participant terminates his service with the Employer (or, in the event of a
Participant's Total Disability, within 120 days after the determination of Total
Disability). In addition, payment of a Participant's benefits may be made or
begin, at the Participant's election, at any time on or after January 1 of the
calendar year in which the Participant attains age 70-1/2. Notwithstanding the
foregoing, payment of a Participant's benefits shall be made or begin not later
than April 1 of the calendar year following the later of (i) the calendar year
in which the Participant attains age 70-1/2, or (ii) the calendar year in which
the Participant retires, provided, however, that this clause (ii) shall not
apply in the case of a Participant who is a "five percent owner" at any time
during the five Plan Year period ending in the calendar year in which he attains
age 70 1/2 or, in the case of a Participant who becomes a "five percent owner"
during any subsequent Plan Year, clause (ii) shall no longer apply and the
required beginning date shall be the April 1st of the calendar year following
the calendar year in which such subsequent Plan Year ends.
10.3 FORM OF PAYMENT TO PARTICIPANTS. A Participant's benefits held
in a Participant's ESOP Account shall generally be paid in Shares. In connection
with a distribution, the Administrator shall cause the portion of the
Participant's interest in his ESOP Account not held in Shares to be used to
purchase Shares on the stock exchange, if any, on which the Shares are primarily
traded, or, if Shares are not primarily traded on a stock exchange, on the
over-the-counter market, or, if neither of the above is applicable, at their
current fair market value as determined pursuant to Section 10.7. Any fractional
shares credited to a Participant's Accounts shall be converted into cash at the
Shares' current fair market value as determined pursuant to Section 10.7.
Notwithstanding the foregoing, a Participant may elect pursuant to rules adopted
by the Committee to receive benefits held in his ESOP Account in the form of
cash. In addition, if a Participant has less than 100 Shares credited to his
ESOP Account, his benefits attributable to his ESOP Account shall be paid in the
form of cash, unless the Participant elects to receive benefits in the form of
Shares. If a Participant is to receive a distribution in cash, the Shares
credited to the Participant's ESOP Account shall be sold on the stock exchange,
if any, on which the Shares are primarily traded, or, if Shares are not
primarily traded on a stock exchange, on the over-the-counter market, or, if
neither of the above is applicable, shall be converted into cash at their
current fair market value as determined pursuant to Section 10.7, and the
Participant shall be paid the proceeds.
<PAGE> 18
THE ADVEST THRIFT PLAN PAGE 16
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10.4 PUT OPTION.
(a) In the event that Shares are distributed pursuant to this Article X,
such Shares shall be subject to a put option, if, when distributed,
such Shares are (i) not listed on a national securities exchange
registered under Section 6 of the Securities Exchange Act of 1934 or
quoted on a system sponsored by a national securities association
registered under section 15A(b) of the Securities Exchange Act
("Publicly Traded") or (ii) subject to a restriction ("Trading
Restriction") under any Federal or state securities law or any
regulation thereunder or under an agreement which makes such Shares not
as freely tradable as Shares not subject to such restriction.
(b) The put option shall be exercisable by the distributee of the Shares.
(c) The put option shall permit the shares to be put to the Company at
their fair market value as determined pursuant to Section 10.7.
(d) The put option shall be exercisable at any time during the 60 day
period commencing on the date of distribution of the Shares. If the
distributee does not exercise the put option within such 60 day period,
the option will temporarily lapse. After the close of the Company's
taxable year in which such temporary lapse occurs and following a
determination of the fair market value of the Shares as of the end of
that taxable year, the Company shall notify each distributee who did
not exercise the initial put option in the preceding year of the fair
market value of the Shares. Each such distributee shall then have the
right to exercise the put option at any time during the 60 day period
following such notice. If the distributee does not then exercise this
put option, the shares will cease to be subject to any put option.
(e) Payment upon exercise of the put option shall be made or commence no
later than 30 days after exercise and, in the discretion of the
Company, shall be in a lump sum or in substantially equal periodic
installments (not less frequently than annually) which shall extend
over a period not to exceed five years from the date of exercise, with
interest at a reasonable rate on the unpaid balance; provided, however,
that if the Shares with respect to which the put option is exercised
were not part of a distribution of the entire Accrued Benefit of the
Participant attributable to the Participant's ESOP Account within one
taxable year of the recipient, payment must be made in a lump sum.
(f) If payment upon exercise of the put option is to be made by the Company
in installments, the Company shall deliver to the distributee its
promissory note which provides to the distributee the right to require
full payment if the Company defaults in the payment of a scheduled
installment. The Company shall also deliver to the distributee adequate
security for the outstanding amount of the promissory note.
10.5 PROTECTIONS AND RIGHTS. Except as provided in Section 10.4 or
as otherwise required by law, no Shares acquired with the proceeds of a Stock
Obligation may be subject to a put, call or other option, or buy-sell or similar
arrangements, while held by or when distributed from the Plan.
10.6 PROTECTIONS AND RIGHTS NONTERMINABLE. The provisions of
Sections 10.4 and 10.5 are nonterminable, and shall continue notwithstanding the
repayment of any Stock Obligation the proceeds of which were used to acquire
Shares and notwithstanding the fact that the Plan ceases to be an employee stock
ownership plan.
10.7 FAIR MARKET VALUE. The fair market value of Shares on a
specified date shall mean the closing price for a Share on the stock exchange,
if any, on which the Shares are primarily traded, but if no Shares were traded
on such date, then on the last previous date on which a Share was so traded, or,
if Shares are not primarily traded on a stock exchange, the average of the high
and low sales prices at which one Share is traded on the over-the-counter
market, as reported on the National Association of Securities Dealers Automated
Quotation System, or, if none of the above is applicable, the value of a Share
as established no less frequently than annually by an independent appraiser that
does not otherwise provide service to the Company and that meets requirements
similar to those contained in Treasury regulations under Section 170(a)(i) of
the Code.
10.8 SPECIAL DISTRIBUTION AND PAYMENT REQUIREMENTS. Notwithstanding
any other provisions of the Plan, other than such provisions as require the
consent of the Participant to a distribution with a present value in excess of
$5,000, a Participant may elect to have the portion of the Participant's ESOP
Account attributable to Shares, distributed as follows:
(a) If the Participant separates from service by reasons of retirement,
death, or Total Disability, the distribution of such portion of the
Participant's ESOP Account will be made not later than one year after
the close of the Plan Year in which such event occurs.
(b) If the Participant separates from service for any reason other than
those enumerated in paragraph (a) above and is not reemployed by the
Employer at the end of the fifth Plan Year following the Plan Year of
such separation from service, distribution of such portion of the
Participant's ESOP Account will begin not later than one year after the
close of the fifth Plan Year following the Plan Year in which the
participant separated from service.
(c) If the Participant separates from service for a reason other than those
described in paragraph (a) above and
<PAGE> 19
THE ADVEST THRIFT PLAN PAGE 17
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is employed by the Employer as of the last day of the fifth Plan Year
following the Plan Year of such separation from service, distribution
to the Participant, prior to any subsequent separation from service,
shall be in accordance with terms of the Plan other than this Section
10.8.
For purposes of this Section 10.8, Shares shall not include any Shares acquired
with the proceeds of a Stock Obligation until the close of the Plan Year in
which such Stock Obligation is repaid in full.
10.9 SPECIAL DISTRIBUTIONS TO QUALIFIED PARTICIPANTS.
(a) DEFINITIONS. For the purposes of this Section 10.9, the following terms
shall have the following meanings:
(i) "Qualified participant" shall mean a Participant who
has attained age 55 and who has completed at least 10
years of participation in the Plan.
(ii) "Qualified Election Period" shall mean the six Plan
Year period beginning with the Plan Year in which the
Participant first becomes a Qualified Participant.
(b) ELECTION BY QUALIFIED PARTICIPANT. Each Qualified Participant shall be
permitted to direct the Plan to distribute up to 25% of the value of
the Participant's ESOP Account balance as of the last day of a Plan
Year attributable to Shares (to the extent such portion exceeds the
amount to which a prior election or elections under this subsection (b)
applies) by written notice delivered to the Committee within 90 days
after the last day of each Plan Year during the Participant's Qualified
Election Period. Within 90 days after the close of the last Plan Year
in the Participant's Qualified Election Period, a Qualified Participant
may direct the Plan to distribute up to 50% of the value of such ESOP
Account balance (to the extent such portion exceeds the amount to which
a prior election or elections under this subsection (b) applies). Such
distribution shall be made by the Plan within 90 days after the last
day of the period during which the election can be made. Such
distribution shall be subject to the put option provisions of Section
10.4 hereof. This Section 10.9 shall apply notwithstanding any other
provision of the Plan other than such provisions as require the consent
of the Participant to a distribution in excess of $5,000. If the
Participant does not consent, such amount shall be retained in the
Plan.
10.10 CHANGE OF PAYMENT METHOD. If benefits are being paid to a
Participant or to a Beneficiary in installments, the Participant (or the
Beneficiary, if the Participant is deceased) may, as of the end of any Plan
Year, direct that the amount then credited to the Account of such Participant be
paid in a lump sum.
10.11 CONSENT TO DISTRIBUTIONS. Notwithstanding anything to the
contrary contained in this Plan, if the value of a Participant's Account exceeds
$5,000, no distribution of such Account shall be made prior to the earlier of
such Participant's attainment of age 65 or such Participant's death unless such
Participant shall consent in writing to such distribution.
10.12 DIRECT TRANSFERS. If a Participant (or Beneficiary) is to be a
recipient of an eligible rollover distribution (as defined in Section
402(f)(2)(A) of the Code) from the Plan and elects to have such distribution
paid directly to an eligible retirement plan and specifies the eligible
retirement plan to which such distribution is to be paid (in such form and at
such time as the Committee may prescribe), then such distribution shall be made
in the form of a direct trustee-to-trustee transfer to the eligible retirement
plan so specified. The above provision shall apply (a) only to the extent that
the eligible rollover distribution would be includable in gross income if not
transferred as provided above (determined without regard to Sections 402(c) and
403(a)(4) of the Code) and (b) only to the extent required by the Code. For
purposes of this Section 10.12, "eligible retirement plan" shall have the
meaning set forth in Section 402(c)(8)(b) of the Code, except that a qualified
trust shall be considered an eligible retirement plan only if it is a defined
contribution plan, the terms of which permit the acceptance of rollover
distributions.
10.13 FORFEITURES. Any portion of the Account of a Participant who
incurs five consecutive 1-Year Breaks in Service other than by reason of death,
retirement or Total Disability, which is not vested at the time of such 1-Year
Breaks in Service, shall be forfeited and allocated pursuant to Section 5.13. In
addition, if a Participant who terminates employment other than by reason of
death, retirement or Total Disability receives a lump sum distribution of the
entire vested portion of his Account no later than the close of the second Plan
Year following the Plan Year in which termination of employment occurs, and
before incurring five consecutive 1-Year Breaks in Service, he shall forfeit the
unvested portion of his Account if either: (1) the amount of the distribution
from his Account is not in excess of $5,000 (or such greater amount that may be
established by Treasury Regulations under Section 411(a)(7)(B) of the Code), or
(2) the Participant requests the lump sum distribution. Any amount forfeited
pursuant to the preceding sentence shall be restored to the Account of the
Participant if he returns to work with the Employer before incurring five
consecutive 1-Year Breaks in Service and repays the entire amount of the
distribution before the fifth anniversary of his date of reemployment. The
amount restored shall be the exact amount forfeited without adjustment for gains
or losses incurred subsequent to the distribution. If restoration is no
<PAGE> 20
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longer permissible under the foregoing rules, the forfeited amounts shall be
allocated pursuant to Section 5.13.
ARTICLE XI
DEATH BENEFITS
11.1 DISTRIBUTION UPON DEATH. In the event a Participant ceases to
be an Employee through the death of the Participant, prior to his retirement,
the Accrued Benefit credited to his Account shall be determined as of the
Valuation Date coinciding with or next following the date of death. The Accrued
Benefit and any amounts that are contributed, pursuant to Article V hereof, to
the Participant's Account for the Plan Year in which the Participant's death
occurs shall be paid to his Beneficiary. In the event of the death of a
Participant after ceasing to be an Employee, but prior to the complete
distribution to him of the balance of his Account, any unpaid amount at the time
of his death shall be payable to his Beneficiary.
The Participant's vested Accrued Benefit shall be paid to the
Participant's Beneficiary by either of the following methods, as elected by the
Participant (or if no election has been made prior to the Participant's death,
by his Beneficiary): (a) One lump-sum payment; or (b) For an amount in a
Participant's Account equal to the balance of such Participants account under
The Advest Group, Inc. Incentive Savings Plan on September 30, 1989, payments
over a period certain in monthly, quarterly, semiannual, or annual cash
installments over a period to be determined by the Participant or his
Beneficiary, and in installments as nearly equal as practicable. After periodic
installments have commenced, the Beneficiary shall have the right to direct the
Trustee to reduce the period over which such periodic installments shall be
made, and the Trustee shall adjust the cash amount of such periodic installments
accordingly.
If a Beneficiary designation designating both a primary and an alternate
Beneficiary is in effect at the time of a Participant's death and the
Participant's vested Accrued Benefit is payable in installments, the
installments shall be paid to the primary Beneficiary for his lifetime if said
primary Beneficiary is living at the death of the Participant, and upon the
death of the primary Beneficiary, or upon the death of the Participant if the
primary Beneficiary is not then living, any unpaid installments shall be paid to
the alternate Beneficiary.
Notwithstanding anything herein to the contrary, if the distribution of a
Participant's vested Accrued Benefit has begun in accordance with a method
selected in Section 10.1 and the Participant dies before his entire interest has
been distributed to him, the remaining portion of such interest shall be
distributed at least as rapidly as under the method of distribution selected
pursuant to Section 10.1 as of his date of death. If a Participant dies before
he has begun to receive any distributions of his vested Accrued Benefit, his
entire vested Accrued Benefit shall be distributed to his Beneficiaries within
five years after his death. This five-year distribution requirement shall not
apply to any portion of the deceased Participant's vested Accrued Benefit which
is payable to or for the benefit of a designated Beneficiary. In such event,
such portion may be distributed over a period not extending beyond the life
expectancy of such designated Beneficiary, provided such distribution begins not
later than one year after the date of the Participant's death, or such later
date as may be prescribed by Treasury Regulations. However, in the event that
the Participant's spouse is his Beneficiary, the requirement that distributions
commence within one year of a Participant's death shall not apply. In lieu
thereof, such distribution must commence no later than the date on which the
deceased Participant would have attained age 70-1/2. If the surviving spouse
dies before the distributions to such spouse begin, then the five-year
distribution requirement shall apply as if the spouse were the Participant. Any
amount paid to a child shall be treated as if paid to the surviving spouse of
the Participant if such amount will become payable to the surviving spouse upon
such child reaching majority (or other designated event permitted under Treasury
Regulations).
11.2 DESIGNATION OF BENEFICIARY. In the event of the death of a
Participant or former Participant, any benefits payable hereunder shall be paid
to the Participant's surviving spouse, if any, or to any other Beneficiary who
may be designated by the Participant as hereinafter provided if such surviving
spouse consents thereto or if there is no surviving spouse. For purposes of
entitlement to receive benefits pursuant to the foregoing sentence, only a
spouse who has been married to the Participant for the 1-year period ending on
the date of the Participant's death shall be considered a surviving spouse
unless otherwise specifically provided by a qualified domestic relations order
pursuant to Section 414(p)(5) of the Code.
The consent of a surviving spouse to the designation of any other
Beneficiary shall be made in writing on a form provided by the Administrator,
which form shall contain the surviving spouse's acknowledgment of the effect of
such consent and shall be witnessed by the Administrator, his representative, or
a notary public. Notwithstanding the foregoing, such written consent shall not
be required if it is established to the satisfaction of the Administrator or his
representative that such consent may not be obtained because there is no spouse,
because the spouse cannot be located, or because of such other circumstances as
the Secretary of the Treasury may by regulations prescribe.
Subject to the foregoing paragraphs of this Section, each Participant
shall have the right at any time to designate a primary and an alternate
Beneficiary to receive any benefits payable hereunder on the death of the
Participant, and from time to time to change any such designation. Each such
designation shall be evidenced by a written instrument filed with the Committee,
signed by the Participant. Such designation or change made pursuant to the first
sentence of this paragraph shall take effect as of the date of execution of such
written instrument, whether or not the Participant is
<PAGE> 21
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living at the time of such filing, but without prejudice to the Trust Fund on
account of any payments made before receipt of such written instrument by the
Committee.
ARTICLE XII
STOCK RIGHTS OF PARTICIPANTS
12.1 VOTING RIGHTS. Each Participant (or, in the event of his death,
his Beneficiary) shall have the right to direct the Trustee as to the manner in
which Shares allocated to his ESOP Account are to be voted on each matter
brought before an annual or special stockholders' meeting of the Company. Before
each such meeting of stockholders, the Trustee shall cause to be furnished to
each Participant (or Beneficiary) a copy of the proxy solicitation material,
together with a form requesting confidential directions on how such Shares
allocated to such Participant's ESOP Account shall be voted on each such matter;
provided, however, that the Committee shall in a timely manner provide the
Trustee with such proxy solicitation material and forms, and shall also provide
the Trustee with the mailing address of each Participant (or Beneficiary). Upon
timely receipt of such directions the Trustee shall on each such matter vote as
directed the number of shares (including fractional Shares) allocated to such
Participant's ESOP Account, and the Trustee shall have no discretion in such
matter. The instructions received by the Trustee from Participants shall be held
by the Trustee in confidence and shall not be divulged or released to any
person, including officers or Employees of the Company or any Affiliate. The
Trustee, to the extent consistent with the Act, shall vote both allocated Shares
for which it has not received direction, as well as unallocated Shares, in the
same proportion as directed Shares are voted, and the Trustee shall have no
discretion in such matter.
12.2 RIGHTS ON TENDER OR EXCHANGE OFFER. Each Participant (or, in
the event of his death, his Beneficiary) shall have the right, to the extent of
the number of Shares allocated to his ESOP Account, to direct the Trustee in
writing as to the manner in which to respond to a tender or exchange offer with
respect to Shares. The Trustee shall use its best efforts to timely distribute
or cause to be distributed to each Participant (or Beneficiary) such information
as will be distributed to stockholders of the Company in connection with any
such tender or exchange offer; provided, however, that the Committee shall in a
timely manner provide the Trustee with all such information, and shall also
provide the Trustee with the mailing address of each Participant (or
Beneficiary). Upon timely receipt of such instructions, the Trustee shall
respond as instructed with respect to Shares. The instructions received by the
Trustee from Participants shall be held by the Trustee in confidence and shall
not be divulged or released to any person, including officers or Employees of
the Company or any Affiliate. If the Trustee shall not receive timely
instruction from a Participant (or Beneficiary) as to the manner in which to
respond to such a tender or exchange offer, the Trustee shall not tender or
exchange any Shares with respect to which such Participant has the right of
direction, and the Trustee shall have no discretion in such matter. Unallocated
Shares shall be tendered or exchanged by the Trustee in the same proportion as
Shares with respect to which Participants (or Beneficiaries) have the right of
direction are tendered or exchanged, and the Trustee shall have no discretion in
such matter.
12.3 RIGHTS IN EVENT OF DEFAULT. Notwithstanding the provisions of
Sections 12.1 and 12.2, the rights provided in those sections with respect to
unallocated Shares may be exercised by the lender under any Stock Obligation,
the proceeds of which were used to purchase such Shares, to the extent provided
by the terms of such Stock Obligation in the event of any default thereunder.
ARTICLE XIII
TERMINATION OF PLAN
13.1 TERMINATION. Although the Company hopes to continue the Plan
and its contributions to the Trust Fund indefinitely, the Company may, by action
of the Board, for any reason, terminate the Plan, in whole or in part, and all
further contributions to the Trust Fund at any time. Any liability of the
Company hereunder shall automatically terminate upon its being legally
dissolved, upon the filing of a petition in bankruptcy (either voluntarily or
involuntarily) or upon its making any general assignment for the benefit of
creditors.
13.2 DISTRIBUTION. Upon (1) the termination, in whole or in part, of
the Plan, (2) the complete discontinuance of contributions by the Employer to
the Trust Fund, or (3) the termination of the liability of the Company, as
provided for in Section 13.1 hereof, the Committee shall make a final allocation
of Employer contributions, if any, and net earnings or losses in the manner
prescribed herein to the Accounts of Participants who are Employees of the
Employer. Thereafter, the funds in the Accounts of each Participant shall be
paid and distributed to such person under any one or more of the options set
forth in Article X hereof, upon the earliest of (1) a date that is not more than
60 days following the later of termination of the Plan or receipt of a favorable
determination letter (if requested) from the Internal Revenue Service following
such termination, but only if another defined contribution plan (other than an
employee stock ownership plan) has not been established or is not maintained by
the Employer, (2) the Participant's attainment of age 59 1/2, (3) the
Participant's termination of employment with the Employer, (4) the Participant's
Total Disability, or (5) the Participant's death. Any final payment or
distribution to any Participant or Beneficiary in accordance with the provisions
hereof shall be in full satisfaction of all claims against the Employer, the
Trust Fund, the Trustee and the Committee.
13.3 FINAL EXPENSES. Notwithstanding anything to the contrary
herein, all expenses of the administration of the Trust Fund, and other expenses
incident to the termination and distribution of the Trust Fund, incurred prior
to or after the
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termination of the Plan, shall be paid from the Trust Fund, unless voluntarily
paid by the Employer.
ARTICLE XIV
AMENDMENT OF PLAN
14.1 AMENDMENT. The Company shall have the right, by action of the
Board, to modify or amend this Plan, in whole or in part, at any time and from
time to time; provided, however, that no such action shall adversely affect
Participants to the extent of their vested benefits, nor shall such action
decrease a Participant's Accrued Benefit or eliminate an optional form of
distribution. Any such modifications or amendments may be made retroactively.
If the Plan shall at any time become a transferee of a plan which is
subject to the requirements of Section 401(a)(11)(A) of the Code, the Plan will
be amended to meet said requirements.
14.2 TRUSTEE. The Committee shall deliver a copy of each amendment
to the Plan, and the Board resolution adopting the same, to the Trustee promptly
after its adoption. No amendment shall be made that would adversely affect the
Trustee or impose additional duties on it without the Trustee's written consent
thereto.
14.3 CHANGE IN VESTING. If an amendment or a change in the top-heavy
status of the Plan changes the vesting schedule of the Plan, as set forth in
Section 6.1 hereof, any Active Participant having three or more years of
service, within the meaning of Section 1.411(a)-8(b)(3) of the Treasury
Regulations, on the date which is 60 days after such amendment or change is
adopted or becomes effective (or, if later, 60 days after written notice of the
amendment or change is given) may, no later than the end of the election period,
elect to remain subject to the vesting schedule in effect prior to such
amendment or change. For purposes of the foregoing, the "election period" shall
begin on the date the amendment changing the vesting schedule is adopted or the
date on which the Plan's top-heavy status is changed and shall end no earlier
than the latest of the following dates (provided that in the case of a change in
the Plan's top-heavy status, only clause (ii) shall apply):
(i) the date which is 60 days after the day the Plan amendment
is adopted;
(ii) the date which is 60 days after the day the Plan amendment
becomes effective or the top-heavy status of the Plan
changes; or
(iii) the date which is 60 days after the day the Participant is
issued written notice of the Plan amendment by the Employer
or the Committee.
ARTICLE XV
CLAIMS PROCEDURE
15.1 CLAIMS. Each Participant and Beneficiary of the Plan shall
submit all claims for benefits, claims relating to the amount or manner of any
distribution, and any other request relating to any Account, in writing, to the
Administrator of the Plan. The Administrator shall within a reasonable period of
time, but not later than 60 days after receipt thereof, either approve or deny
such claim or request, either wholly or in part, and notify the claimant in
writing of the action taken.
15.2 NOTICE OF DENIAL. If such claim or request is wholly or
partially denied, the written notice of the Administrator shall set forth in a
manner calculated to be understood by the claimant:
(a) specific reason for the denial;
(b) specific reference to the pertinent Plan provisions on which the denial
is based;
(c) specific reference to any additional material or information necessary
for the claimant to perfect review of the claim and explanation of why
such material or information is necessary; and
(d) an explanation of the Plan's claims review procedure.
15.3 REVIEW. Upon denial of such a claim or request, the claimant
shall be entitled within 60 days after the receipt of written notice of denial
by the Administrator:
(a) to request, in writing, a review by the Committee of the denial;
(b) to review pertinent documents; and
(c) to submit issues and comments in writing.
This 60-day period may be extended in special circumstances.
The Committee shall render a decision on its review of the denial
promptly, but not later than 60 days after the receipt of the request for
review, unless special circumstances require an extension of time, in which case
a decision shall be rendered not later than 120 days after the receipt of a
request for review.
The decision of the Committee shall be in writing and shall set forth
reasons therefore stated in a manner calculated to be understood by the
claimant, including specific references to the pertinent Plan provisions on
which the decision is based. All interpretations, determinations, decisions and
other actions of the Committee, taken in accordance with the provisions hereof
shall be final, conclusive and binding on all parties.
<PAGE> 23
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ARTICLE XVI
THE TRUSTEE
16.1 All contributions hereunder to the Trust Fund shall be held, in
trust, by such Trustee as may be selected by the Board, from time to time, under
a trust agreement approved by the Board, with such powers in the Trustee as to
investment, reinvestment, control and disbursement of all or part of the Trust
Fund as the Board shall approve and as shall be in accordance with the
provisions hereof. The Board may in its sole discretion remove any Trustee at
any time, upon reasonable notice, and upon such removal or upon the resignation
of any Trustee, the Board shall designate a successor Trustee.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 The Plan and the Trust provided for hereunder are created for
the exclusive benefit of the Participants and their Beneficiaries. Under no
circumstances whatsoever shall any assets of the Trust Fund ever revert to, or
be used or enjoyed by, the Employer, or any successor thereto, nor shall any
such assets ever be used other than for the exclusive benefit of the
Participants or their Beneficiaries.
17.2 No Participant or Beneficiary shall have any legal or equitable
right or interest in the Trust Fund established hereunder, except as expressly
provided for herein, and no Employee shall be deemed to possess a right to share
in any moneys allocated by the Committee as hereinabove set forth, except as
herein provided.
17.3 Participation in the Plan shall not give any Participant the
right to continue as an Employee of the Employer or any right or claim to a
retirement pension unless the right to such retirement pension is provided for
herein.
17.4 All decisions of the Committee hereunder shall be made in a
uniform, nondiscriminatory manner.
17.5 Whenever the Company or any Affiliate is permitted or required
under the terms of this Plan to take any action, it shall be done by its Board
of Directors or its Executive Committee and shall be evidenced by proper
resolutions certified by the appropriate officers.
17.6 The Plan shall not be automatically terminated by the Company's
acquisition by, or merger into, any other company. The Plan shall be continued
after such merger if the successor company agrees to continue the Plan. All
rights to amend or terminate the Plan shall be transferred to the successor
company, effective as of the date of the merger.
The merger or consolidation with, or transfer of assets and liabilities
to, any other qualified retirement plan shall be permitted only if the benefit
each Participant would receive if the Plan were terminated immediately after
such merger or consolidation, or transfer of assets and liabilities, would be at
least as great as the benefit he would have received had the Plan been
terminated immediately before any such transaction.
17.7 To the extent permitted by law and with the exception of
payments pursuant to a qualified domestic relations order within the meaning of
Section 414(p) of the Code, no benefit payable hereunder shall be subject in any
manner to anticipation, assignment, garnishment, or pledge. Any attempt to
anticipate, assign, garnishee or pledge the same will be of no effect. No such
benefits will be in any manner liable for or subject to the debts, liabilities,
or torts of any Participants, and if any Participant is adjudicated bankrupt or
attempts to anticipate, assign or pledge any such benefits, then such benefits
will, in the discretion of the Committee, cease. In such event, the Committee
will have the authority to cause the same or any part thereof to be held or
applied to or for the benefit of such Participant, his spouse, his children or
other dependents, or any of them, in such manner and in such proportion as the
Committee may in its discretion deem proper.
Notwithstanding any provision of this Section to the contrary, an offset
to a Participant's accrued benefit against an amount that the Participant is
ordered or required to pay the Plan with respect to a judgment, order, or decree
issued, or a settlement entered into, on or after August 5, 1997, shall be
permitted in accordance with Code Sections 401(a)(13)(C) and (D).
17.8 A Participant shall not, with or without cause, be divested of
any Accrued Benefits under the terms of the Plan.
17.9 Notwithstanding any other provisions of the Plan, a former
Participant shall not be entitled to payment of duplicate benefits upon again
becoming a Participant.
17.10 The headings of the Sections herein are for reference only. In
the event of a conflict between such a heading and the content of a Section, the
content of the Section shall control.
17.11 The interpretation of the provisions hereof and the
administration of the Plan shall be governed, to the extent applicable, by the
Act and, to the extent the Act is not applicable, by the laws of Connecticut.
ARTICLE XVIII
TOP-HEAVY PLAN PROVISIONS
(Sections 18.1 - 18.9 provide definitions for Article XVIII)
18.1 COMPENSATION. Compensation of an Employee which is reportable
on Form W-2 for the calendar year ending with or within the Plan year.
18.2 KEY EMPLOYEE. Any Employee or former Employee (and the
Beneficiaries of such Employee) who at any time during the Determination Period
was an officer of the
<PAGE> 24
THE ADVEST THRIFT PLAN PAGE 22
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Employer with Compensation greater than 150% of the dollar limitation under
Section 415(c)(1)(A) of the Code, an owner (or considered an owner under Section
318 of the Code) of one of the ten largest interests in the Employer if such
individual's Compensation exceeds the dollar limitation under Section
415(c)(1)(A) of the Code and such individual's ownership interest exceeds 1/2%,
a 5% owner of the Employer, or a 1% owner of the Employer who has Compensation
of more than $150,000. The determination of who is a Key Employee will be made
in accordance with Section 416(i)(1) of the Code.
18.3 TOP-HEAVY PLAN. This Plan is top-heavy if any of the following
conditions exists:
(a) If the Top-Heavy Ratio for this Plan exceeds 60% and this Plan is not
part of any Required Aggregation Group or Permissive Aggregation Group
of plans.
(b) If this Plan is a part of a Required Aggregation Group of plans (but
which is not part of a Permissive Aggregation Group) and the Top-Heavy
Ratio for the Required Aggregation Group of plans exceeds 60%.
(c) If this Plan is a part of a Required Aggregation Group of plans and
part of a Permissive Aggregation Group and the Top-Heavy Ratio for the
Permissive Aggregation Group exceeds 60%.
18.4 TOP-HEAVY RATIO.
(a) 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 under the
aggregated defined contribution plan or plans of all Key Employees as
of the Determination Date(s) (including any part of any account balance
distributed in the Determination Period(s)), and the denominator of
which is the sum of all account balances (including any part of any
account balance distributed in the Determination Period(s)) under the
aggregated defined contribution plan or plans for all participants,
determined in accordance with Section 416 of the Code and the
Regulations thereunder.
(b) For purposes of (a) above, the value of account balances shall be
determined as of the most recent Valuation Date that falls within or
ends with the 12-month period ending on the Determination Date. The
account balances of a participant (1) who is not a Key Employee but who
was a Key Employee in a prior year, or (2) who has not received any
Compensation from any Employer maintaining the plan at any time during
the Determination Period shall be disregarded. The calculation of the
Top-Heavy Ratio, and the extent to which distributions, rollovers, and
transfers are taken into account shall be made in accordance with
Section 416 of the Code and the Regulations thereunder. Deductible
employee contributions shall not be taken into account for purposes of
computing the Top-Heavy Ratio. When aggregating plans, the value of
account balances shall be calculated with reference to the
Determination Date(s) that falls within the same calendar year.
18.5 PERMISSIVE AGGREGATION GROUP. The Required Aggregation Group of
plans plus any other plan or plans of the Employer which, when considered as a
group with the Required Aggregation Group, would continue to satisfy the
requirements of Sections 401(a)(4) and 410 of the Code.
18.6 REQUIRED AGGREGATION GROUP. (a) Each qualified plan of the
Employer, whether or not terminated, in which at least one Key Employee
participated during the Determination Period, and (b) any other qualified plan
of the Employer which enabled a plan described in (a) to meet the requirements
of Section 401(a)(4) and 410 of the Code during the Determination Period.
18.7 DETERMINATION DATE. For any Plan Year, the last day of the
preceding Plan Year.
18.8 DETERMINATION PERIOD. The Plan Year containing the
Determination Date and the four (4) preceding Plan Years.
18.9 VALUATION DATE. For purposes of computing the Top- Heavy Ratio,
the Valuation Date shall be the normal annual valuation date for the Plan.
18.10 SPECIAL PROVISIONS. If the Plan is or becomes a Top-Heavy Plan,
the following provisions shall supersede any conflicting provisions in the Plan:
(a) MINIMUM ALLOCATIONS
(1) Except as otherwise provided in (2) and (3) below, for any Plan
Year in which this Plan is a Top-Heavy Plan, the Employer
contributions (including salary deferral contributions) and
forfeitures allocated on behalf of any Participant who is not a
Key Employee shall not be less than the lesser of 3% of such
Participant's Compensation or the largest percentage of
Employer contributions (including salary deferral
contributions) and forfeitures, as a percentage of the first
$200,000 of the Key Employee's Compensation, allocated on
behalf of any Key Employee for that year. The minimum
allocation is determined without regard to any Social Security
contribution. This minimum allocation shall be made even
though, under other Plan provisions, the Participant would not
otherwise be entitled to receive an allocation, or would have
received a lesser allocation for the year because of (i) the
Participant's failure to complete 1,000 Hours of Service (or
any equivalent provided in the Plan), or (ii) the Participant's
failure to make
<PAGE> 25
THE ADVEST THRIFT PLAN PAGE 23
--------------------------------------------------------------------------------
mandatory employee contributions to the Plan, or (iii)
Compensation less than a stated amount.
(2) The provision in (1) above shall not apply to any Participant
who was not employed by the Employer on the last day of the
Plan Year.
(3) The provision in (1) above shall not apply to any Participant
to the extent the Participant is covered under any other plan
or plans of the Employer which provide(s) for the minimum
allocation or benefit applicable to Top-Heavy Plans.
(b) VESTING
Notwithstanding the provisions of Section 6.1(a), a Participant shall
vest in his Account in accordance with the following table:
<TABLE>
<CAPTION>
YEARS OF SERVICE NON-FORFEITABLE PERCENTAGE
----------------- --------------------------
<S> <C>
less than 1 0%
1 10%
2 25%
3 40%
4 55%
5 70%
6 100%
</TABLE>
Notwithstanding the foregoing, a Participant shall be fully vested in his
Account to the extent provided in Section 6.1(b).
* * * * * * * * * * * * * * * *
<PAGE> 26
FIRST AMENDMENT TO
THE ADVEST THRIFT PLAN
1. The first paragraph of Section 4.1 of The Advest Thrift Plan
(the "Plan) is hereby amended to read in its entirety as follows, effective as
of the day following the acquisition of The Advest Group, Inc. by MONY
Acquisition Corp. (the "Effective Date"):
"SERVICE REQUIREMENT. Every Employee of the Employer who is
scheduled to work at least 20 hours per week and who is not classified
by the Employer as a "temporary employee" shall be eligible to
participate in the Plan as of the Entry Date coinciding with or next
following the date the Employee first becomes an Employee.
Notwithstanding the foregoing, an Employee shall not be eligible to be
allocated Employer contributions under Sections 5.1 (a) and (b), and an
Employee scheduled to work less than 20 hours per week or who is
classified by the Employer as a "temporary employee" shall not be
eligible to participate in the Plan at all, until the Entry Date
coinciding with or next following the date one year following the date
the Employee first completed an Hour of Service if he has completed
1,000 Hours of Service within that consecutive 12-month period, or if
he has not completed 1,000 Hours of Service during that initial 12
consecutive months, the end of the first Plan Year in which he
completes at least 1,000 Hours of Service."
2. Section 5.1 of the Plan is hereby amended by adding the
following new subsection (c) to the end thereof, to read in its entirety as
follows, effective as of the Effective Date:
3. "(c) THE EMPLOYER DISCRETIONARY CONTRIBUTION FORMULA. The
Employer shall make a contribution to the Plan for the 2000 Plan Year (to be
allocated to the 401(k) Accounts of Active Participants) within the time
prescribed by law for filing of the income tax returns for the Company's fiscal
year, including any extensions thereof, of twenty (20) shares of common stock of
The MONY Group Inc., on behalf of each Active Participant who is in the employ
of the Employer on the earlier of (a) December 31, 2000, or (b) the date of
merger of the Company with and into MONY Acquisition Corp."
<PAGE> 27
SECOND AMENDMENT TO
THE ADVEST THRIFT PLAN
Effective as of January 1, 2001
1. Section 2.1 of The Advest Thrift Plan (the "Plan") is hereby
amended to read in its entirety as follows:
"2.1 'Account" shall mean the account kept for a Participant."
2. The Plan is hereby amended to substitute the word "Account" for
"401(k) Account" wherever it appears therein.
3. Sections 2.19. 2.20, 2.22, 2.34, 2.40, 5.1(a), 5.8, 5.9, 5.10
and 5.11 of the Plan are hereby deleted.
4. Section 2.33 of the Plan is hereby amended by deleting the
phrase "of common stock of the Company," where it appears.
5. Section 5.13 of the Plan is hereby amended by deleting the last
sentence thereof.
6. Section 6.1(a) of the Plan is hereby amended to read in its
entirety as follows:
"(a) An Active Participant shall have a vested right to any
Employer contributions and earnings thereon, in
accordance with the following schedule:
<TABLE>
<CAPTION>
Years of Vesting Service Nonforfeitable Percentage
------------------------ -------------------------
<S> <C>
Less than 2 years 0%
2 25%
3 50%
4 75%
5 or more 100%
</TABLE>
Notwithstanding the vesting schedule above, a
Participant's nonforfeitable percentage shall not be
less than the Participant's nonforfeitable percentage
attained as of December 31, 2000."
7. Section 6.1(b) of the Plan is hereby amended by changing the
"." after paragraph (4) to "; and" and by adding a new paragraph (5) to read in
its entirety as follows:
<PAGE> 28
"(5) All amounts attributable to amounts held in a Participant's
"ESOP Account" prior to January 1, 2001."
8. Section 10.3 of the Plan is hereby amended to read in its
entirety as follows:
"10.3 Form of Payment to Participants. A Participant's benefits shall
generally be paid in cash. Notwithstanding the foregoing, a Participant may
elect pursuant to rules adopted by the Committee to receive benefits equal in
value to the value of the Participant's "ESOP Account" as of December 31, 2000
in the form of Shares, by using such portion of the Participant's Account to
purchase Shares on the stock exchange on which they are primarily traded."
9. Sections 10.4, 10.5, 10.6, 10.7 and 10.8 of the Plan are hereby
deleted.
10. Section 10.9 of the Plan is hereby amended to read in its
entirety as follows:
"10.9 Special Distributions. Each Participant who has attained the
age of 55 shall be permitted to direct the Plan to distribute up to 50% of the
amount held in such Participant's "ESOP Account" under the Plan on December 31,
2000, reduced by any prior distributions pursuant to this Section 10.9
(including distributions made pursuant to this Section 10.9 prior to its
amendment effective January 1, 2001).
11. Sections 12.1 and 12.2 of the Plan are hereby amended to delete
the word "ESOP" wherever it appears therein, and the last sentence of Section
12.2 is hereby deleted.
12. Section 12.3 of the Plan is hereby deleted.
-2-
