(Reg. No. 33-58102)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
POST-EFFECTIVE AMENDMENT NO. 2 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
(exact name of registrant as specified in its charter)
Vermont 03-0111290
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
77 Grove Street
Rutland, Vermont 05701
(Address of principal executive offices)
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
EMPLOYEE SAVINGS AND INVESTMENT PLAN
(Full Title of the Plan)
Thomas C. Webb With a copy to:
President Denise J. Deschenes, Esq.
Central Vermont Public Service Primmer & Piper, P.C.
Corporation 52 Summer Street
77 Grove Street P.O. Box 159
Rutland, VT 05701 St. Johnsbury, VT 05819
(802) 773-2711 (802) 748-5061
(Name, address and telephone number, including
area code, of agent for service)
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 6. Indemnification of Directors and Officers.
(a) Company By-laws. The amended By-laws of Central Vermont Public Service
Corporation contain the following provision for the indemnification of
officers, directors and employees:
(Replaces previously filed text of Article XI of the Company's By-Laws.)
ARTICLE XI.
Indemnification of Directors, Officers and Employees
Section 1. Permissive Indemnification. To the extent legally permissible,
the Company may indemnify any of its Directors, officers and employees who, as
a result of such position, was or is a party or is threatened to be made a
party to any contemplated, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and whether formal or
informal against expenses, actually and reasonably incurred by him or her in
connection with such action, suit or proceeding. The term Expenses, as used
in this Article, includes reasonable attorney's fees, damages, judgments,
fines, amounts paid in settlement and costs including the costs of
investigation and defense. Such indemnification against Expenses shall be
payable only if (a) the Director, officer or employee acted in good faith, (b)
the Director reasonably believed: (A) in the case of conduct in the
Director's official capacity with the Company, that the Director's conduct was
in its best interests; and (B) in all other cases, that the Director's conduct
was at least not opposed to its best interests; and (c) with respect to any
proceeding brought by a governmental entity, the Director had no reasonable
cause to believe his or her conduct was unlawful, and the Director is not
finally found to have engaged in a reckless or intentional unlawful act.
Notwithstanding the foregoing and except as otherwise provided by law, the
Company may not indemnify any Director, officer, or employee for any Expenses
in any action by or in right of the Company in which such individual is
adjudged liable to the Company.
Any indemnification under this section (unless ordered by a court) shall be
made by the Company only upon a determination that indemnification of the
Director, officer or employee is proper because he or she has acted in good
faith in conformance with the applicable standard of conduct as set forth
herein. Such determination shall be made (a) by the Board of Directors by a
majority vote of a quorum consisting of Directors who are not parties to such
action, suit or proceeding or (b) if such a quorum is not obtainable, by
majority vote of a committee duly designated by the Board of Directors (in
which designation Directors who are parties to the action, suit or proceeding
may participate), consisting solely of two or more Directors not at the time
parties to the action, suit or proceeding; (c) by written opinion of special
legal counsel: (A) selected by the Board of Directors or its committee in the
manner prescribed in clause (a) or (b); or (B) if a quorum of the Board of
Directors cannot be obtained under clause (a) and a committee cannot be
designated under clause (b), selected by majority vote of the full Board of
Directors (in which selection Directors who are parties to the action, suit or
proceeding may participate); or (d) by the shareholders, but shares owned by
or voted under the control of Directors who are at the time parties to the
action, suit or proceeding may not be voted on the determination.
Authorization of indemnification and evaluation as to reasonableness of
Expenses shall be made in the same manner provided above as the determination
that indemnification is permissible, except that if the determination is made
by special legal counsel, authorization of indemnification and evaluation as
to reasonableness of Expenses shall be made by those entitled under clause (c)
above to select such counsel.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea no nolo contendere or its equivalent,
shall not of itself create a presumption that the person did not act in good
faith in conformance with the applicable standard of conduct as set forth
above.
Section 2. Mandatory Indemnification. To the extent that a Director, officer
or employee of the Company has been wholly successful on the merits or
otherwise in defense of any action, suit, proceeding, claim, issue, or matter
referred to in Section 1 of this Article, he or she shall be indemnified to
the extent legally permissible against Expenses reasonably incurred by him or
her in connection therewith.
Section 3. Right To Rely On Corporate Information. In discharging his or her
duty, any Director, when acting in good faith in conformance with the
applicable standard of conduct as set forth above, may rely upon information,
opinions, reports, or statements, including financial statements and other
financial data, if prepared or presented by: (a) one or more officers or
employees of the Company whom the Director reasonably believes to be reliable
and competent in the matters presented; (b) legal counsel, public accountants,
or other persons as to matters the Director reasonably believes are within the
person's professional or expert competence; or (c) a committee of the Board of
Directors of which the Director is not a member if the Director reasonably
believes the committee merits confidence.
Section 4. Advance Payment of Expenses. Expenses incurred by a Director,
officer or employee in connection with any of the matters with respect to
which indemnification may be sought pursuant hereto may be paid from time to
time by the Company in advance of the final disposition of any such matter if
the following conditions are met: (a) the Director furnishes the Company
written affirmation of his or her good faith belief that he or she has met the
standard of conduct described in Section 1 of this Article; (b) the Director
furnishes the Company a written undertaking, executed personally or on the
Director's behalf, to repay the advance if it is ultimately determined that
the Director did not meet the standard of conduct; and (c) a determination is
made that the facts then known to those making the determination would not
preclude indemnification under this subchapter.
Determinations and authorizations of payments under this Section 4 shall be
made in the manner specified in Section 1 of this Article.
The Board of Directors may authorize counsel (which may be either Company
counsel or outside counsel) to represent such individual in any action, suit
or proceeding, whether or not the Company is a party to such action, suit or
proceeding.
Section 5. Procedure For Indemnification. Subject to compliance with any
applicable procedures in Sections 1 or 4, as the case may be, any
indemnification of a Director, officer or employee of the Company or advance
of Expenses to such an individual under the terms of this Article shall be
made promptly. If the Company unreasonably denies a written request for
indemnity or the advance payment of Expenses, either in whole or in part, or
if payment in full pursuant to such request is not made promptly, the right to
indemnification or advances as granted by this Article shall be enforceable by
such individual in any court of competent jurisdiction. Such individual's
costs and expenses including reasonable attorney's fees incurred in connection
with successfully establishing his or her right to indemnification in any such
action shall also be indemnified by the Company.
Section 6. Non-Exclusivity of Indemnification Rights. The right of
indemnification hereby provided shall not be deemed exclusive of or otherwise
affect any other rights to which any individual seeking indemnification may be
entitled by law, or under any agreement, vote of stockholders or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a Director, officer or employee and shall inure to the benefit of
the heirs, executors and administrators of such a person.
Section 7. Other Organizations. The indemnification provisions of this
Article shall extend to any Director, officer or employee who serves at the
Company's request as director, officer or trustee of another organization,
including, without limitation, an employee benefit plan, in which the Company
has or had an interest as a stockholder, creditor, sponsor or otherwise. The
right to rely on corporate information conferred in Section 3 of this Article
shall also extend to the records, books of accounts and reports of any such
other organization of which the individual serves as director, officer or
trustee.
Section 8. Survival. The foregoing indemnification provisions shall be
deemed to be a contract between the Company and each individual who serves in
any capacity as a Director, officer or employee of the Company at any time
while these provisions are in effect. Except as may otherwise be required as
a result of changes in the law governing indemnification of officers,
directors and employees of Vermont corporations, any repeal or modification of
the foregoing provisions shall not affect any right or obligation then
existing and such "contract rights" may not be modified retroactively without
the consent of such Director, officer or employee.
(b) Indemnity Agreements. In addition to the foregoing By-law provisions,
the Company has entered into an Indemnity Agreement with each of its officers
and directors. These Agreements implement the By-law provision and may not be
amended without the individual's consent. The Agreements also obligate the
officer or director to repay any advances by the Company if it is later
determined that such officer or director was not entitled to be indemnified.
(c) Vermont Law. Chapter 8, subchapter 5 of Title 11A of the Vermont
Statutes Annotated provides that indemnification of directors and officers may
be provided so long as the director or officer conducted himself or herself in
good faith and he or she reasonably believed (I) in the case of conduct in the
director's or officer's official capacity, that his or her conduct was in the
corporation's best interests, and (ii) in all other cases, that his or her
conduct was at least not opposed to the corporation's best interests.
Indemnification is not permitted in connection with (I) a proceeding by or in
right of the corporation in which the director or officer is adjudged liable
to the corporation or (ii) any proceeding in which the director or officer is
adjudged liable on the basis that he or she improperly received a personal
benefit.
(d) Insurance Coverage. The Company maintains a Directors' and Officers'
liability policy with the AEGIS Insurance Services, Ltd., which provides
coverage for certain liabilities incurred by the Company's officers and
directors by virtue of their position with the Company.
(e) Commission Policy on Indemnification. Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
Item 8. Exhibits. (Filed herewith.)
* Denotes originally filed in May, 1990, Reg. No. 33-58102, refiling under
Rule 102(e) of Regulation S-T.
** Denotes originally filed om February, 1993, Reg. No. 33-58102, refiling
under Rule 102(e) of Regulation S-T.
EX-4
*(a) Employee Savings and Investment Plan (amended and restated as of
January 1, 1989).
(a.1) Amendment No. 1 to Central Vermont Public Service Corporation
Employee Savings and Investment Plan, dated April 9, 1992.
(a.2) Amendment No. 2 to Central Vermont Public Service Corporation
Employee Savings and Investment Plan, dated March 8, 1994.
(a.3) Amendment No. 3 to Central Vermont Public Service Corporation
Employee Savings and Investment Plan, dated June 23, 1995.
**(b) Administrative Services Agreement for Central Vermont Public Service
Corporation Employee Savings and Investment Plan Company Stock Pooled Account,
dated January 1, 1990.
**(b.1) Amendment No. 1 to The Administrative Services Agreement for Central
Vermont Public Service Corporation Employee Savings and Investment Plan
Company Stock Pooled Account, dated August 9, 1990.
(b.2) Amendment No. 2 to The Administrative Services Agreement for Central
Vermont Public Service Corporation Employee Savings and Investment Plan
Company Stock Pooled Account, effective June 19, 1995.
(d) Investment Guidelines for IDS Trust Research 150 Collective Equity
Fund, dated May 26, 1994 (replaces previously filed Exhibit).
**(e) 1989 Amended Declaration of Trust - IDS Trust Collective Investment
Funds for Employee Benefit Trusts. dated April 25, 1989.
**(f) Amendments to the 1989 Amended Declaration of Trust - IDS Trust
Collective Investment Funds for Employee Benefit Trusts dated November 27,
1989, July 1, 1991 and October 28, 1991.
(f.1) Amendment to the 1989 Declaration of Trust--IDS Trust Collective
Investment Funds for Employee Benefit Trusts, effective January 23, 1992.
(g) IDS Trust Collective Cash Fund Summary of Investment Guidelines,
dated July 1, 1991.
(h) IDS Trust Qualified Plan Services, Administrative Services Agreement
effective January 1, 1992.
(h.1) Amendment No. 1 to the Qualified Plan Services Administrative
Services Agreement, dated October 19, 1994.
(h.2) Amendment No. 2 to the Qualified Plan Services Administrative
Services Agreement, effective June 28, 1995.
EX-23 Consents of Experts and Counsel
(a) Consent of Arthur Andersen & Co., Independent Public Accountants.
EX-99 Additional Exhibits
(a) Enrollment/Change Form.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this amendment to its registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Rutland, State of
Vermont, on the 5th day of June, 1995.
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
(Registrant)
By: /s/ Thomas C. Webb
Thomas C. Webb, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the registration statement has been signed by the following
persons in the capacities indicated on the 5th day of June, 1995.
Frederic H. Bertrand /s/ Frederic H. Bertrand
Director
Robert P. Bliss, Jr. /s/ Robert P. Bliss, Jr.
Director
Elizabeth Coleman
Director
Luther F. Hackett /s/ Luther F. Hackett
Director
F. Ray Keyser, Jr. /s/ F. Ray Keyser, Jr.
Director
Mary Alice McKenzie /s/ Mary Alice McKenzie
Director
Gordon P. Mills /s/ Gordon P. Mills
Director
James M. Pennington /s/ James M. Pennington
Controller and
Principal Accounting Officer
Preston Leete Smith /s/ Preston Leete Smith
Director
Robert D. Stout /s/ Robert D. Stout
Director
Thomas C. Webb /s/ Thomas C. Webb
President, Chief
Executive Officer and
Director
Robert H. Young /s/ Robert H. Young
Executive Vice President,
Chief Operating Officer
and Principal Financial
Officer
<PAGE>
(Reg. No. 33-58102)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
POST-EFFECTIVE AMENDMENT NO. 2 TO
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
___________________
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
EMPLOYEE SAVINGS AND INVESTMENT PLAN
__________________
EXHIBITS
<PAGE>
EXHIBIT INDEX
Exhibit (Filed herewith.)
* Denotes originally filed in May, 1990, Reg. No. 33-58102, refiling under
Rule 102(e) of Regulation S-T.
** Denotes originally filed om February, 1993, Reg. No. 33-58102, refiling
under Rule 102(e) of Regulation S-T.
EX-4
*(a) Employee Savings and Investment Plan (amended and restated as of
January 1, 1989).
(a.1) Amendment No. 1 to Central Vermont Public Service Corporation
Employee Savings and Investment Plan, dated April 9, 1992.
(a.2) Amendment No. 2 to Central Vermont Public Service Corporation
Employee Savings and Investment Plan, dated March 8, 1994.
(a.3) Amendment No. 3 to Central Vermont Public Service Corporation
Employee Savings and Investment Plan, dated June 23, 1995.
**(b) Administrative Services Agreement for Central Vermont Public Service
Corporation Employee Savings and Investment Plan Company Stock Pooled Account,
dated January 1, 1990.
**(b.1) Amendment No. 1 to The Administrative Services Agreement for Central
Vermont Public Service Corporation Employee Savings and Investment Plan
Company Stock Pooled Account, dated August 9, 1990.
(b.2) Amendment No. 2 to The Administrative Services Agreement for Central
Vermont Public Service Corporation Employee Savings and Investment Plan
Company Stock Pooled Account, effective June 19, 1995.
(d) Investment Guidelines for IDS Trust Research 150 Collective Equity
Fund, dated May 26, 1994 (replaces previously filed Exhibit).
**(e) 1989 Amended Declaration of Trust - IDS Trust Collective Investment
Funds for Employee Benefit Trusts. dated April 25, 1989.
**(f) Amendments to the 1989 Amended Declaration of Trust - IDS Trust
Collective Investment Funds for Employee Benefit Trusts dated November 27,
1989, July 1, 1991 and October 28, 1991.
(f.1) Amendment to the 1989 Declaration of Trust--IDS Trust Collective
Investment Funds for Employee Benefit Trusts, effective January 23, 1992.
(g) IDS Trust Collective Cash Fund Summary of Investment Guidelines,
dated July 1, 1991.
(h) IDS Trust Qualified Plan Services, Administrative Services Agreement
effective January 1, 1992.
(h.1) Amendment No. 1 to the Qualified Plan Services Administrative
Services Agreement, dated October 19, 1994.
(h.2) Amendment No. 2 to the Qualified Plan Services Administrative
Services Agreement, effective June 28, 1995.
EX-23 Consents of Experts and Counsel
(a) Consent of Arthur Andersen & Co., Independent Public Accountants.
EX-99 Additional Exhibits
(a) Enrollment/Change Form.
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
EMPLOYEE SAVINGS AND INVESTMENT PLAN
Amended and Restated January 1, 1989
January, 1990
INDEX
INTRODUCTION
ARTICLE I DEFINITIONS
ARTICLE II ELIGIBILITY AND MEMBERSHIP
ARTICLE III CONTRIBUTIONS
ARTICLE IV INVESTMENT AND VALUATION OF MEMBERS' ACCOUNTS
ARTICLE V WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT
ARTICLE VI LOANS
ARTICLE VII RETIREMENT
ARTICLE VIII DISABILITY
ARTICLE IX DEATH
ARTICLE X TERMINATION OF EMPLOYMENT
ARTICLE XI METHOD OF PAYMENT
ARTICLE XII FUNDING
ARTICLE XIII ADMINISTRATION
ARTICLE XIV FIDUCIARY RESPONSIBILITIES
ARTICLE XV AMENDMENT AND TERMINATION OF THE PLAN
ARTICLE XVI TOP HEAVY REQUIREMENTS
ARTICLE XVII GENERAL PROVISIONS
INTRODUCTION
This Plan shall be known as the central Vermont Public
service Corporation Employee savings and Investment Plan.
The purpose of this Plan is to provide a convenient way for
employees of Central Vermont Public service corporation and
its affiliates to save on a regular and long-term basis in
order to provide benefits payable to an employee upon his
retirement, death, disability, termination of employment or
on other certain occasions.
This Plan constitutes an amendment to, restatement of, and
continuation of the Plan as originally effective January 1,
1985. This amendment and restatement is effective January 1,
1989 except to the extent otherwise specifically provided
herein. It is intended that the Plan meet the requirements
of the Employee Retirement Income Security Act of 1974 to be
qualified and exempt under Sections 401(a) and 501(a) of the
Internal Revenue code of 1986, as amended from time to time,
and meet the requirements of Section 401(k) of the Internal
Revenue code of 1986, as amended from time to time.
ARTICLE I
DEFINITIONS
For the purposes of the Plan, the following terms shall have
the following meanings unless a different meaning is plainly
required by the context:
1.1 "Account" shall mean the credit balance of a Member in
the Trust Fund represented by his Pre-Tax Contribution
Account and his Matching Employer contribution Account.
1.2 "Affiliated Employer" shall mean any company which is
included with the Employer in a controlled group of
corporations, as determined in accordance with Section 1563
(without regard to sections (a)(4) and (e)(3)(c) thereof) of
the Internal Revenue code of 1986, as it may be amended from
time to time, except that for purposes of Section 1563 the
phrase "more than 50 percent" shall be substituted for the
phrase "at least 80 percent" wherever it appears in said
Section. The Employer may from time to time also designate
other companies as Affiliated Employers under the Plan.
Solely for determining a Member's Years of Service, the
following are Affiliated Employers as of the Effective Date:
Vermont Yankee Nuclear Power Corporation
Connecticut valley Electric company, Inc.
Vermont Electric Power Company, Inc.
Central Vermont Public Service Corporation - Bradford
Hydroelectric, Inc.
Central Vermont Public Service Corporation - East Barnet
Hydroelectric, Inc.
CV Realty, Inc.
CV Energy Resources, Inc.
CV Energy Services, Inc.
CV Champlain Investments, Inc.
CV Rumford, Inc.
1.3 "Beneficiary" shall mean the person designated by a
Member to receive benefits under the Plan in the event of
the Member's death. In the absence of an effective
designation at the time of the Member's death, the
Beneficiary shall be the spouse of the Member or, if the
Member does not have a living spouse, then any benefits
payable under the Plan shall be included in the Member's
estate. A designation under this Section 1.3 of a
Beneficiary who is not the designating Member's spouse is
effective only if the Member's spouse consents to the
designation in writing, the consent is witnessed by a notary
public, and the spouse's consent acknowledges the effect of
the designation. Such spousal consent is not required,
however, if the Member establishes to the satisfaction of
the Committee that the consent may not be obtained because
there is no spouse or the spouse cannot be located. Any
consent by a spouse (or establishment that consent may not
be obtained) is effective only with respect to that spouse.
1.4 "Board" shall mean the Board of Directors of the
Employer, as from time to time constituted.
1.5 "Break in Service" shall mean a Computation Period
during which an Employee is credited with less than 501
Hours of Service. A break in Service shall not occur if the
Employee is still employed by the Employer on the date the
Break in service would otherwise occur.
1.6 "Code" shall mean the Internal Revenue Code of 1986 as
amended from time to time and any regulations issued
thereunder. Reference to any section of the code shall
include any successor provision thereto.
1.7 "Committee" shall mean the person or persons designated
by the Employer to administer the Plan in accordance with
Section 13.1.
1.8 "Compensation" shall mean the basic salary, wages and
commissions paid to a Member by the Employer and shall
include the Member's Pre-Tax Contribution. Overtime pay,
bonuses, directors' fees, reimbursement of expenses and
other additional forms of earnings, including contribution
made by the Employer to or under any other form of employee
benefit program are excluded. Compensation shall also
include any payments from the Employer severance pay plan
that are determined to be basic salary or wages, such
determination being made on a consistent and non-
discriminatory basis.
In addition to other applicable limitations which may be set
forth in the Plan and notwithstanding any other contrary
provision of the Plan, Compensation taken into account under
the Plan shall not exceed $200,000, adjusted for changes in
the cost of living as provided in Section 415(d) of the
Internal Revenue Code, for the purpose of calculating a
Member's accrued benefit including the right to any optional
benefit provided under the Plan) for any Plan Year
commencing after December 31, 1988. However, the accrued
benefit determined in accordance with this provisions shall
not be less than the accrued benefit determined on May 31,
1989 without regard to this provision.
Notwithstanding the preceding sentence, the accrued benefit
of any Member who is a highly compensated employee, within
the meaning of Section 414(q) of the Internal Revenue code,
shall be reduced to the extent a benefit has accrued with
respect to Compensation in excess of $200,000 during the
1989 Plan Year before the later of the adoption or effective
date of this provision.
1.9 "Computation Period" shall mean, for the initial
Computation Period the 12-month period commencing with the
Employee's Employment Commencement Date. Each subsequent
Computation Period shall mean the first full Plan Year after
the Employee's Employment Commencement Date and each Plan
Year thereafter.
1.10 "Deferred" Retirement Date" shall mean the date on
which a Member retires with a deferred retirement benefit
under the Plan, as determined in accordance with Section
7.2.
1.11 "Effective Date" shall mean January 1, 1989, the
effective date of this amendment and restatement of the
Plan. The Plan was originally effective January 1, 1985.
1.12 "Eligible Employee" shall mean an Employee of the
Employer who is included in the eligible class described
in Section 2.1.
1.13 "Employee" shall mean any person who is employed by
the Employer or an Affiliated Employer who is not a
member of a collective bargaining unit, unless such unit
has been included in the Plan as a result of the
collective bargaining process. Employee shall also mean
any person employed by the Employer who becomes disabled
in accordance with Section 8.1.
The term "Employee" shall include any person who
performs services for the Employer or an Affiliated
Employer as a leased employee as described in section
414(n)(2) of the Code for the purpose of determining the
number of Highly Compensated Employees of the Employer
and for the purpose of the requirements set forth in
Section 414(n)(3) of the Code. Leased employees shall
not be eligible to participate in the Plan. In the event
that a leased Employee as described in section 414(n)(2)
of the code should later become an Employee as defined
herein, all employment with the Employer or an
Affiliated Employer shall be credited for purposes of
determining Years of Service.
1.14 "Employer" shall mean Central Vermont Public
Service Corporation and any successor company which
shall continue the Plan.
1.15 "Employment Commencement Date" shall be the first
day on which an Employee is credited with an Hour of
Service.
1.16 "Entry Date" shall mean the Effective Date and each
January 1, April 1, July 1, and October 1 thereafter.
1.17 "Fiduciary" shall mean any person who exercises any
discretionary authority or discretionary control
respecting the management of the Plan, assets held under
the Plan or disposition of Plan assets; who renders
investment advice for a fee or other compensation,
direct or indirect, with respect to assets held under
the Plan or has any authority or responsibility to do
so; or who has any discretionary authority or
discretionary responsibility in the administration of
the Plan. Any person who exercises authority or has
responsibility of a fiduciary nature as described above
shall be considered a Fiduciary under the Plan.
1.18 "Highly Compensated Group" shall mean, subject to
the provisions of Section 414(q) of the Internal Revenue
code, the group made up of each Employee eligible to
participate in the Plan under Article II who at any time
during the current or preceding Plan Year:
(a) was a 5% owner (as defined in Section 416(i)(1) of
the Code) of the Employer or Affiliated Employer,
(b) received Compensation from the Employer or
Affiliated Employer in excess of $75,000 (as indexed
pursuant to applicable regulations under the Internal
Revenue code),
(c) received Compensation from the Employer or
Affiliated Employer in excess of $50,000 (as indexed
pursuant to applicable regulations under the Internal
Revenue Code) and was in the group consisting of the top
20% of all Employees when ranked on the basis of Compen-
sation received during such Plan Year, or
(d) was at any time an officer who received compensation
in excess of 50% of the amount in effect under Section
415(b)(1)(A) of the Internal Revenue code for such Plan
Year.
Any such Eligible Employee not described in paragraphs
(b), (c), and (d) above for the preceding Plan Year
shall not be a member of the Highly compensated Group if
he is not one of the top 100 Employees when ranked by
compensation for the Plan Year in question. For purposes
of this Section 1.18, "Compensation" shall mean
compensation as defined in section 414(q)(7) of the Code
and each member of the Highly Compensated Group as
defined herein may be referred to as a "Highly
Compensated Employee" throughout this Plan.
1.19 "Hour of Service" shall mean:
(a) Each hour for which an Employee is directly or
indirectly paid, or entitled to payment by the Employer
or Affiliated Employer for the performance of duties.
The hours shall be credited to the Employee for the
Computation Period or Periods in which the duties are
performed; and
(b) Each hour for which an Employee is directly or
indirectly paid, or entitled to payment, by the Employer
or Affiliated Employer on account of a period of time,
during which no duties are performed (irrespective of
whether the employment relationship has terminated) due
to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave
of absence; provided, however, that no more than 501
Hours of Service shall be credited to an Employee on
account of any single continuous period during which the
Employee performs no duties. In addition, no Hours of
Service shall be credited to an Employee for a payment
which solely reimburses the Employee for medically
related expenses incurred by the Employee or which is
made or due under a plan maintained solely for the
purpose of complying with applicable workers'
compensation, unemployment compensation or disability
insurance laws. These hours shall be credited to the
Employee for the Computation Period or Periods in which
payment is made or amounts payable to the Employee
became due; and
(c) Each hour for which back pay, irrespective of
mitigation of damages, has been either awarded or agreed
to by the Employer or an Affiliated Employer, provided
that no more than 501 Hours of Service shall be credited
to an Employee on account of any single continuous
period during which the Employee performs no duties.
Such hours shall be credited to the Employee for the
Computation Period or Periods to which the award or
agreement pertains rather than the Computation Period in
which the award, agreement or payment is made; and
(d) Each hour not already included under clause (a), (b)
or (c) above during which an Employee is on a maternity
or paternity leave of absence; provided, however, that
no more than 501 Hours of Service shall be credited to
an Employee on account of any single period of maternity
or paternity leave of absence, such Hours of service to
be credited in the Plan Year in which the leave begins,
if necessary to avoid a Break in Service, or otherwise
in the next Plan Year; and
(e) Each hour for which an Employee is not directly or
indirectly paid by the Employer or Affiliated Employer
during periods of approved leave of absence (including
service in the Armed Forces of the United States or
Canada); provided, however, that such Employee returns
to employment following such period of absence. These
hours shall be credited to the Employee in accordance
with Treasury Department Regulations. The above
provisions shall be construed so as to resolve any
ambiguities in favor of crediting Employees with Hours
of Service.
(f) An absence from work for "maternity or paternity
leave" means an absence (1) by reason of the pregnancy
of the individual, (2) by reason of the birth of a child
of the individual, (3) by reason of the placement of a
child with the individual in connection with the
adoption of such child by such individual, or (4) for
the purposes of caring for such child for a period
beginning immediately following such birth or placement.
1.20 "Matching Employer Contribution" shall mean the
Employer contribution made on behalf of a Member
pursuant to Section 3.2.
1.21 "Matching Employer Contribution Account" shall mean
a Member's interest in the Trust Fund attributable to
Matching Employer contributions.
1.22 "Member" shall mean any Employee of the Employer
who has met the requirements for, and elected to
participate in, the Plan and whose participation has not
been suspended or terminated as provided in the Plan.
1.23 "Normal Retirement Date" shall mean a member's 65th
birthday.
1.24 "Plan" shall mean the Central Vermont Public
Service Corporation Employee Savings and Investment Plan
as described herein and as it may be amended from time
to time.
1.25 "Plan Year" shall mean the 12-month period
beginning January 1 and ending on the following December
31.
1.26 "Pre-Tax Contribution" shall mean the contribution
made on behalf of a Member pursuant to Section 3.1.
1.27 "Pre-Tax Contribution Account" shall mean a
Member's interest in the Trust Fund attributable to
Pre-Tax Contributions.
1.28 "Rollover Contribution" shall mean a contribution
made by a Member pursuant to Section 3.11.
1.29 "Rollover Contribution Account" shall mean a
Member's interest in the Trust Fund attributable to
Rollover contributions.
1.30 "Trust Fund" shall mean all assets held by the
Trustee in accordance with this Plan.
1.31 "Trustee" shall mean the individual, individuals or
institution appointed by the Board of Directors of
Central Vermont Public Service Corporation to act in
accordance with the applicable provisions of the Plan.
1.32 "Valuation Date" shall mean the end of each month
and any other date designated as a Valuation Date by the
Committee.
1.33 "Years of Service" shall mean a 12-month period
commencing on an Employee's Employment Commencement Date
and each anniversary thereof, or any Plan Year, during
which an Employee is credited with 1,000 or more Hours
of Service.
ARTICLE II
ELIGIBILITY AND MEMBERSHIP
2.1 Eligible Class. Each Employee shall become an
Eligible Employee on the first Entry Date coinciding
with or otherwise next following the date on which he
completes one Year of Service.
2.2 Enrollment Procedure. After meeting the requirement
of Section 2.1 above, an Employee may elect to
participate in the Plan, beginning on any Entry Date, by
authorizing contributions from his Compensation in
accordance with Section 3.1. Such authorization and
direction shall be on a form to be provided by the
Committee and shall be signed by the Employee and
delivered to the Committee at least 20 days prior to
such Entry Date, unless a longer period may be specified
by the Committee according to such uniform and
nondiscriminatory rules as it may adopt.
2.3 Reemployment. An Eligible Employee whose employment
ceases and who is subsequently reemployed shall be
reinstated as an Eligible Employee on the Entry Date
coincident with or next following the reemployment date
on which he completes one Hour of Service with the
Employer.
A terminated Employee who was not an Eligible Employee
and who did not service, and who resumes active
employment with the Employer shall retain the Hours of
Service he had prior to his date of termination and
shall become an Eligible Employee in accordance with
Section 2.1.
A terminated Employee who was not an Eligible Employee
on his termination date, who incurs a break in Service
and who resumes employment with the Employer shall be
treated as a new Employee.
<PAGE>
CONTRIBUTIONS
3.1 Amount of contributions. An Eligible Employee may
authorize the Employer to make a Pre-Tax contribution on
his behalf of from 1% to 15% of his Compensation in
multiplies of 1 percent. Such Pre-Tax Contribution shall
continue until the Member terminates employment with the
Employer, ceases to be an Eligible Employee or suspends
or changes the Pre-Tax Contribution in accordance with
Sections 3.5 and 3.6.
The above notwithstanding, effective January 1, 1987, an
Eligible Employee may not authorize a Pre-Tax
contribution percentage that would result in Pre-Tax
Contributions exceeding $7,000 per calendar year. This
$7,000 limit will be adjusted, commencing in 1988,
pursuant to Section 402(j)(5) of the code. In the event
an Employee's Pre-Tax Contributions should exceed the
above limit for a calendar year, the excess, plus any
investment earnings and less any losses allocable
thereto, shall be returned to the Employee by no later
than April 15 following the calendar year for which the
excess contribution was made.
In the event an Employee's Pre-Tax Contributions for a
calendar year under this Plan, together with his Pre-Tax
Contributions under another plan which meets the
requirements of Section 401(k) of the Internal Revenue
Code, exceed the $7,000 limit as adjusted, the Employee
may treat a portion of such excess as having been
contributed to this Plan and request a return of such
excess, plus any investment earnings and less any loss
allocable thereto. Any such request shall be made no
later than March 1 following the calendar year for which
the excess contribution was made and the return of such
excess shall be made no later than the immediately
following April 15.
Contributions shall be rounded to the nearest whole
dollar or other amounts acceptable to the Committee and
shall begin with the first payroll period commencing on
or after the Entry Date on which the Eligible Employee
becomes a Member in the Plan.
3.2 Matching Employer Contributions. The Employer shall
contribute for each Member, 100% of the first 3% of
Compensation with respect to which the Member authorizes
a Pre-Tax contribution.
3.3 Reduction in Compensation. A Member's Compensation
shall be reduced by the amount of any Pre-Tax
Contribution made on his behalf, except that the amount
of any Pre-Tax Contribution shall be computed by
applying the applicable percentages before his
compensation is reduced.
3.4 Remittance of Contributions. The Employer shall
remit the Pre-Tax Contributions hereunder to the Trustee
as soon as practicable after each month or more
frequently, at the Employer's discretion. The Matching
Employer Contributions shall be remitted to the Trustee
no later than 30 days following the federal tax filing
deadline for the Employer's taxable year within which
the Plan Year ends.
3.5 Change in Amount of Contributions. A Member may
change, effective as of any Entry Date, the percentage
of his Compensation that he has authorized as his
Pre-Tax contribution, to another permissible percentage
by giving at least 20 days' prior written notice to the
Committee.
In the event of a change in the compensation of a
Member, the percentage of his Compensation that he has
authorized as his Pre-Tax contribution currently in
effect shall be applied as soon as practicable with
respect to such changed Compensation without action by
the Member. This paragraph shall include an Eligible
Employee who received no Compensation during an approved
leave of absence and such Employee shall be eligible to
authorize the Employer to make Pre-Tax Contributions on
his behalf effective as of the first day of the payroll
period coincident with or next following the date on
which such Employee returns from the approved leave of
absence.
3.6 Suspension of contributions. A Member may suspend
his Pre-Tax Contribution at any time providing the
committee at least 20 days' advance written notice of
such suspension. A Member who has suspended a Pre-Tax
contribution may resume his Pre-Tax Contributions on any
Entry Date following the date of suspension by
authorizing a Pre-Tax Contribution in accordance with
Section 3.1 and by providing the Committee with 20 days'
advance written notice.
3.7 Limit on Amount of and Return of Pre-Tax
contributions In Certain Instances.
(a) For each Plan Year beginning on or after January 1,
1987, the "average deferral percentage" authorized by
the Highly Compensated Group as Pre-Tax Contributions
must meet one of the following tests:
(i) The "average deferral percentage" of the Highly
Compensated Group may not exceed 1.25 multiplied by the
average deferral percentage of all Eligible Employees
who are not in such group, or
(ii) The "average deferral percentage" of the Highly
Compensated Group may not exceed 2.0 multiplied by the
average deferral percentage of all other Eligible
Employees who are not in such group, subject to a
maximum differential of two percentage points.
(b) The "average deferral percentage" for a specified
group for a Plan Year shall mean the average of the
ratios (calculated separately for each Eligible Employee
in such group) of (i) over (ii) where:
(i) equals the sum of the Pre-Tax Contributions made on
behalf of the Eligible Employee for the Plan Year
pursuant to Section 3.1; and
(ii) equals the Eligible Employee's compensation for
such Plan Year as defined in Section 414(s) of the
Internal Revenue Code.
For purposes of the foregoing, only Pre-Tax
contributions allocated to the Member's Pre-Tax
Contribution Account on a date within a Plan Year and
paid to the Fund within 12 months following the close of
such Plan Year shall be considered in determining his
"deferral percentage" for such Plan Year. In addition,
only Pre-Tax contributions which are attributable to the
Compensation an Eligible Employee receives from the
Employer during a Plan Year or earned during the Plan
Year and received within two and one-half months
following the close of such Plan Year shall be
considered in determining the Eligible Employee's
deferral percentage for such Plan Year.
For purposes of determining the deferral percentage of a
Member who is a five percent owner or one of the ten
most highly-paid in the Highly Compensated Group, the
Pre-Tax contributions and Compensation of such Member
shall include the Pre-Tax Contributions and Compensation
for the Plan Year of "family members" (as defined in
Section 414(q)(6) of the Code). Family members, with
respect to such Highly Compensated Employees, shall be
disregarded as separate Employees in determining the
average deferral percentage both for Eligible Employees
who are non-Highly Compensated Employees and for
Eligible Employees who are Highly Compensated Employees.
(c) From time to time, the Committee shall review the
Pre-Tax Contributions authorized by Eligible Employees.
If, upon such review, the Committee determines that the
average percentage of such Pre-Tax contributions
applicable to the Highly compensated Group exceeds or is
likely to exceed the maximum average percentage
necessary to comply with the above rules, the Committee
may reduce the Pre-Tax Contributions of the Highly
Compensated Group, to the extent necessary to comply
with such rules. Such reduction shall be effected by
successive reductions of the highest Pre-Tax
contribution percentage authorized by one or more
Members of the Highly compensated Group until the
average percentage applicable to the Highly Compensated
Group does not exceed the maximum average percentage
referred to above.
If after the end of the Plan Year the Committee
determines that the Pre-Tax Contributions made on behalf
of Highly Compensated Employees are in excess of the
amounts allowed under (a)(i) and (a)(ii) above, the
Committee shall return any Pre-Tax Contributions in
excess of the amount permitted above, together with any
investment earnings and less any losses allocable
thereto to the Member until the rules in either (a)(i)
or (a)(ii) above are met. Such "excess contributions"
shall be distributed within two and one-half months, if
practicable, following the end of the Plan Year in which
such Pre-Tax Contributions were made and, in any event,
no later than the close of the following Plan Year.
(d) For purposes of determining the investment earnings
or losses to be distributed pursuant to the foregoing
paragraph (c) the following rules shall apply:
The investment earnings or losses allocable to Pre-Tax
Contributions is the sum of: (1) earnings or losses
allocable to the portion of the Member's Account
attributable to his Pre-Tax Contributions for the Plan
Year multiplied by a fraction, the numerator of which is
the Pre-Tax Contributions to be distributed to the
Member for the year and the denominator is the Member's
Account balance attributable to Pre-Tax Contributions
without regard to any investment earnings or losses
occurring during such Plan Year and (2) ten percent of
the amount determined under (1) multiplied by the number
of whole calendar months between the end of the Plan
Year and the date of distribution, counting the month of
distribution if distribution occurs after the 15th of
such month.
In the case of an Eligible Employee who is subject to
the family aggregation rules of section 414(q)(6) of the
Internal Revenue Code because of a five percent owner of
the Employer (or Affiliated Employer) or of one of the
ten most Highly Compensated Employees, the determination
of and return of excess Pre-Tax Contributions under this
Section 3.7 shall be made in accordance with the family
aggregation rules of Section 401(k) of the Internal
Revenue code and pertinent regulations thereunder.
3.8 Limit on Amount of and Return of Matching Employer
Contributions in Certain Instances.
(a) For each Plan Year beginning on or after January 1,
1987, the "average contribution percentage" of the
Highly Compensated Group must meet one of the following
tests:
(i) The "average contribution percentage" of the Highly
Compensated Group may not exceed 1.25 multiplied by the
"average contribution percentage" of all Eligible
Employees who are not in such group.
(ii) The "average contribution percentage" of the Highly
Compensated Group may not exceed 2.0 multiplied by the
"average contribution percentage" of all other Eligible
Employees who are not in such group, subject to a
maximum differential of two percentage points.
(b) For purposes of this Section 3.8, "average
contribution percentage" for a specified group means the
average of the ratios (calculated separately for each
Eligible Employee in such group) of (i) over (ii) where:
(i) equals the sum of the Matching Employer
Contributions made on behalf of the Eligible Employee
for the Plan Year; and
(ii) equals the Eligible Employee's compensation for
such Plan Year as defined in Section 414(8) of the Code.
For purposes of determining the contribution percentage
of an Eligible Employee who is a five percent owner or
one of the ten most highly-paid Highly Compensated
Employees, the Matching Employer contributions and
Compensation of such Eligible Employee shall include the
Matching Employer Contributions and Compensation for the
Plan Year of "Family Members" (as defined in Section
414(g)(6) of the Code). Family members, with respect to
Highly Compensated Employees, shall be disregarded as
separate Employees in determining the contribution
percentage both for Eligible Employees who are
non-Highly compensated Employees and for Eligible
Employees who are Highly Compensated Employees.
If, for any Plan Year the average contribution
percentage for the Highly Compensated Group exceeds the
limits set forth in (a)(i) and (a)(ii) above, the excess
aggregate contributions (as defined in Section
401(m)(6)(B) of the Code) shall be distributed (or
forfeited, if applicable) to the Highly Compensated
Group within two and one-half months, if practicable,
following the end of the Plan Year in which such
contributions were made, and, in any event no later than
the close of the following Plan Year.
Any excess aggregate contributions shall be distributed
so that the Matching Employer Contributions made during
the Plan Year to Highly Compensated Employees shall be
distributed to such Highly Compensated Employees (in the
order of the highest percentages first) until there are
no remaining excess aggregate contributions or until
there are no Matching Employer Contributions which can
be distributed;
(c) The excess aggregate contributions to be distributed
to a Member shall be adjusted for investment earnings or
losses applicable thereto, but shall in no event be less
than the lesser of (i) the Member's Account under the
Plan and (ii) the Member's Matching Employer
Contributions for the Plan Year.
(d) For purposes of determining the investment earnings
or losses to be distributed pursuant to the foregoing
paragraphs, the following rules shall apply:
The investment earnings or losses is the sum of: (1)
investment earnings or losses allocable to the Member's
Matching Employer Contribution Account for the Plan Year
multiplied by a fraction, the numerator of which is
Matching Employer Contributions to be returned to the
Member for the year and the denominator is the Member's
Matching Employer contribution Account balance without
regard to any investment earnings or losses occurring
during such Plan Year; and (2) ten percent of the amount
determined under (1) multiplied by the number of whole
calendar months between the end of the Plan Year and the
date of distribution, counting the month of distribution
if distribution occurs after the 15th of such month.
(e) In the case of an Eligible Employee who is subject
to the family aggregation rules of Section 414(q)(6) of
the Internal Revenue Code because he is a member of a
family of a five percent owner of the Employer (or
Affiliated Employer) or of one of the ten most Highly
Compensated Employees, the determination of and return
of excess aggregate contributions under this section
shall be made in accordance with the family aggregation
rules of Section 401(m) of the Internal Revenue Code and
pertinent regulations thereunder.
3.9 Maximum Annual Additions. Any provision of the Plan
to the contrary notwithstanding, in no event shall the
sum of the Annual Additions to a Member's Account for
any Plan Year under this or any other qualified defined
contribution plan maintained by the Employer or
Affiliated Employer, which is included with the Employer
in a controlled group of corporations pursuant to
Section 1.2, exceed the lesser of (a) 25% of a Member's
annual earnings (as defined by Treasury Regulations
under section 415 of the Internal Revenue code) from the
Employer (or Affiliated Employer) and (b) $30,000,
subject to a cost-of-living adjustment as provided by
Treasury Regulations under Section 415 of the Internal
Revenue Code.
In the event an Annual Addition in excess of the lesser
of (a) or (b) is allocated to a Member for a Plan Year,
such excess shall be deducted from the Member's Account
(as determined by the committee) and held in a suspense
account which shall be applied to reduce the Matching
Employer contributions for the following Plan Year (and
succeeding Plan Years, as necessary) for all Members. No
Matching Employer contributions and no Pre-Tax
Contributions, which would constitute Annual Additions
will be made to the Plan for any period during which a
suspense account is in existence. In the event any
amounts are deducted from a Member's Account
attributable to Pre-Tax Contributions to meet the
requirements of this Section 3.9, the Employer (or
Affiliated Employer) shall directly reimburse the Member
for the amount so deducted.
In the case of a Member who has participated or is
participating in a defined benefit plan maintained by
the Employer or an Affiliated Employer, the sum of the
defined benefit fraction and the defined contribution
fraction for any calendar year shall not exceed 1.0,
where the defined benefit fraction and the defined
contribution fraction are determined as follows:
(a) The defined benefit fraction is a fraction with a
numerator equal to the Member's projected annual
retirement benefit under the defined benefit plan as of
the close of the calendar year, and a denominator equal
to the lesser of (i) 1.25 multiplied by the dollar
limitation in effect under Section 415(b)(1)(A) of the
Code for such year, or (ii) 1.4 multiplied by 100% of
the Member's earnings which may be taken into account
under Section 415(b)(l)(s) of the Code for such year.
In determining the fraction described above, in no event
shall the projected annual benefit of the Member be less
than the benefit accrued under the defined benefit plan
as of the lait day of the plan year beginning in 1982,
and such accrued benefit shall be substituted for the
absolute dollar amount described in Section 415(b)(1)(A)
of the Code if greater than such absolute dollar amount.
(b) The defined contribution fraction is a fraction with
a numerator equal to the sum of the Member's Annual
Additions to the close of the calendar year and a
denominator equal to the sum for each calendar year of
the Member's employment with the Employer or Affiliated
Employer of the lesser of (i) 1.25 multiplied by the
amount determined in accordance with Section
415(c)(1)(A) of the Code for each such year, or (ii) 1.4
multiplied by 25% of the Member's Section 415 earnings
for each such year.
For the purpose of applying this Section 3.9, all
defined benefit plans and all defined contribution plans
now or previously maintained by the Employer and
Affiliated Employers shall be aggregated.
In the event the sum of (a) and (b) above exceeds 1.0
for any limitation year, the Employer shall limit the
benefits under the defined benefit plan if such plan 90
allows, and then reduce or limit benefits under this
Plan if required, provided that such reduction or
limitation shall be made in a non-discriminatory manner.
3.10 Annual Addition. Effective January 1, 1987, the Annual
Addition with respect to a Member for any Plan Year
shall be the sum of the following amounts allocated to
his Member Account for the Plan Year:
(a) Matching Employer Contributions, plus
(b) Pre-Tax Contributions, plus
(c) Any amount applied from the suspense account, plus
(d) Any amount which is considered an Annual Addition
under any other defined contribution plan maintained by
the Employer (or Affiliated Employer which is included
in a controlled group of corporations with the Employer
pursuant to Section 1.2), plus
(e) Excess contributions, excess aggregate
contributions, and excess deferrals as defined in
Internal Revenue code Sections 401(k)(8)(B),
401(m)(6)(s) and 402(g), respectively, plus
(f) Amounts described in Internal Revenue Code Sections
415(1)(1) and 419A(d)(2)
3.11 Rollover Contributions. A Rollover Contribution
means a transfer of funds by an Employee from a plan
maintained by another company to this Plan. Such
transfer may also be made from an Individual Retirement
Account if it involves funds which were previously held
in a plan qualified under Section 401(a) of the Code. A
Rollover contribution may be made by any Employee,
including one who has not yet met the requirements of
Sections 2.1 and 2.2.
The prerequisites for Rollover Contributions to this
Plan are as follows:
(a) written consent by the Committee;
(b) payment of the entire distribution in cash;
(c) submission to the Committee of a letter from the
Employee's former employer stating that the distribution
to the Employee is from a plan qualified under section
401(a) of the code, is being made on account of the
Employee's severance of employment or termination of the
plan, and represents the full amount payable to the
Employee from the Plan (excluding employee
contributions); and
(d) a written statement by the Employee to the Committee
that the Rollover contribution would be made to this
Plan within sixty (60) days of his receipt of the
distribution from the other qualified plan or from a
qualified Individual Retirement Account, that the
Rollover contribution to the best of his knowledge,
meets all applicable requirements for such
contributions, and that he understands the provisions of
this Section 3.11 which govern the investment and
eventual distribution of such Rollover contributions
under this Plan.
An Employee's Rollover contribution shall be credited to
his Rollover Contribution Account and his rights with
respect to the value of such contribution shall be the
same as his Pre-Tax Contribution Account under the Plan.
The Rollover contribution shall be invested at the
Employee's discretion in accordance with the rules in
Article IV.
3.12 Return of Employer Contributions. Notwithstanding
any provision of this Plan, a Pre-Tax Contribution or a
Matching Employer Contribution may be returned to the
Employer if,
(a) the contribution was made by reason of a mistake or
fact, or
(b) the contribution was conditioned upon its
deductibility for income tax purposes and the deduction
was disallowed, and
(c) the return to the Employer of the amount involved
occurs within one year of the mistaken payment of the
contribution or the disallowance of the deduction, as
the case may be.
Contributions may be returned even if such contributions
have been allocated to the Account of a Member which is
non-forfeitable and it is necessary to adjust said
Account to reflect the return of contributions. The
amount which may be returned to the Employer is the
excess of the amount contributed over the amount that
would have been contributed had there not occurred the
circumstances causing the excess. Earnings attributable
to the excess contribution may not be returned to the
Employer, but losses thereto shall reduce the amount to
be 90 returned. Furthermore, if the withdrawal of the
amount attributable to the excess contribution would
cause the balance of the Account of any Member to be
reduced to less than the balance which would have been
in the Account had the excess amount not been
contributed, then the amount to be returned to the
Employer shall be limited to avoid such reduction. The
Employer shall directly reimburse a Member for any
Pre-Tax Contribution amount deducted from such Member's
Account pursuant to the provisions of this Section 3.12.
ARTICLE IV
INVESTMENT AND VALUATION OF MEMBERS' ACCOUNTS
4.1 Establishment of Member Accounts. The Committee
shall establish and maintain a separate accounting for
each Member which shall reflect all Pre-Tax
contributions by the Member, all Rollover contributions
by the Member, all Matching Employer Contributions by
the Employer and any other accounting which the
Committee shall consider necessary to carry out the
purposes of this Plan.
4.2 Investment of Contributions. Each Member shall
direct, at the time he elects to participate in the
Plan, that the contributions from his Compensation be
invested in multiplies of 1% in Funds A, B, or c.
Effective April 1, 1990, each Member may also direct
that his contributions from his Compensation be invested
in multiples of 1% in two additional Funds, D and E.
Matching Employer contributions made on his behalf will
be invested in the same manner as the Pre-Tax
contributions from his Compensation. Funds A, B, C, D
and E are described below:
Fund A - This fund is to be invested in a combination of
Guaranteed Investment Contracts (GIC's) and in high
quality money market investments. The GIC's will be
issued for a fixed period of time, usually two to five
years with the insurance company promising to pay a
stated rate of interest over the life of the contract.
The money market investments will consist primarily of
bank Certificates of Deposits (CD's) and U.S. Government
obligations, such as T-Bills.
Fund B - This fund shall be comprised primarily of
common stock, convertible notes, convertible debentures
or preferred stock, debentures accompanied by warrants
to purchase common or capital stock, and other equity
investments.
Fund C - This fund shall be comprised primarily of the
common stock of the Employer. Shares will provide full
voting rights and rights of ownership for the Member.
Any shares held in this Fund C that are not voted by the
Members shall be voted by the Trustee in the same
proportion as those shares that are voted by the
Members.
Fund D - This fund shall be primarily comprised of
common stock of domestic companies which show potential
for significant growth in fields that exhibit excellence
and the potential for dynamic economic and technical
changes. This fund may also invest in securities of
foreign issuers, cash or cash equivalents, highly
quality short-term corporate notes and obligations, and
futures contracts and options.
Fund E - This Fund will be primarily invested in common
stock of domestic companies. The fund will hold a
proportionate number and weighting of those stocks which
comprise the Standard & Poor's 500 Index.
4.3 Change in Investment Options. Any investment
direction given by a Member shall continue in effect
until changed by the Member. A Member may change his
investment direction as to future Pre-Tax Contributions
and Matching Employer Contributions effective as of any
Entry Date by giving at least 20 days' advance written
notice of the change to the Committee. Effective April
1, 1990, a Member may change his investment direction as
to future Pre-Tax Contributions and Matching Employer
Contributions at any time.
In addition, a Member may change the investment
allocation of his existing Account effective as of any
Entry Date, by providing the Committee with 20 days'
advance written notice of the change. Effective April 1,
1990, a Member may change the investment allocation of
his existing Account at any time.
4.4 Other Investment Rules. The following rules shall
govern all aspects of this Article:
(a) Any investment direction given by a Member shall
continue in effect for the Member's entire Account until
changed by the Member.
(b) In the absence of any written designation of
investment preference, the Trustee shall invest all
funds received on behalf of any such Member in Fund A.
(c) Notwithstanding any instruction from any Member for
investment of funds as provided in this Section, the
Trustee shall have the right to hold uninvested, or
invested in short-term fixed income investments, any
funds intended for investment or reinvestment as
otherwise provided in this Section for such time as the
Trustee, in its sole discretion, deems advisable.
(d) The Committee may limit changes otherwise permitted
hereunder in the investment allocation of a Member's
Account to the extent a change is precluded as a result
of a temporary period of adverse liquidity with respect
to a fund or to the extent a change would adversely
affect the investment return of Accounts of other
Members.
4.5 Valuation of Funds. The funds shall be valued by the
Trustee as of each valuation Date on the basis of its
fair market value.
4.6 Valuation of Accounts. On the basis of each
valuation, Members' Accounts shall be adjusted to
reflect the contributions, withdrawals, loans,
distributions, income, realized and unrealized gains and
losses, and expenses applicable to the fund or funds
where such Accounts are invested since the preceding
Valuation Date. such adjustments shall be based upon the
proportion that each Member's Account invested in a fund
ARTICLE V
WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT
5.1 Non-Hardship Withdrawals. A Member or inactive
Member who has attained age 59-1/2 may withdraw all or a
portion of his Account for any reason. A Member who has
not attained age 59-1/2 may withdraw all or a portion of
his Matching Employer Contribution Account, except that
no withdrawal shall be made from the portion of his
Account attributable to Matching Employer contributions
made on his behalf during the two-year period preceding
the withdrawal unless (a) he commenced participation in
the Plan five or more years prior to the date of the
withdrawal or (b) the withdrawal is necessary to meet a
financial hardship as defined in Section 5.3. A maximum
of one withdrawal may be made in accordance with this
Section 5.1 in any Plan Year.
5.2 Hardship Withdrawals. A Member shall have the right
to withdraw all or a portion of the balance of his
Pre-Tax Contribution Account, Rollover Contribution
Account and Matching Employer Contribution Account to
the extent necessary to meet a financial hardship
resulting from medical expenses of the Member or his
immediate family, the purchase of a primary residence
for the Member or his immediate family, education of the
Member or his immediate family, expenses related to a
death in the Member's immediate family, or loss of the
Member's earnings occasioned by illness or injury. The
above notwithstanding, a Member who has not attained age
59-1/2 may not withdraw that portion of his Pre-Tax
contribution Account which is attributable to investment
earnings which are credited to such Account after
December 31, 1988.
Prior to April 1, 1989, the Committee shall determine,
in a uniform and non-discriminatory manner, whether a
financial hardship exists to warrant a withdrawal under
this Section 5.2, and if such hardship exists, the
amount of the withdrawal necessary to meet the hardship.
Effective April 1, 1989, the Committee shall determine
whether a financial hardship exists in accordance with
Section 5.3.
5.3 Determination of Financial Hardship. For the
purposes of this Article V, effective April 1, 1989, a
financial hardship shall mean an immediate and heavy
financial need that cannot be satisfied from other
resources of the Employee.
(a) The following conditions shall be deemed to cause a
financial hardship:
(i) uninsured medical expenses described in Section
213(d) of the Internal Revenue Code incurred by the
Employee and/or his dependents;
(ii) the purchase of the Employee's principal residence,
excluding mortgage payments thereon;
(iii) tuition payments for the next semester or quarter
of post-secondary education for the Employee and/or his
dependents; and
(iv) the need to prevent eviction from, or mortgage
foreclosure on, the Employee's principal residence.
In addition to the conditions listed above, the
Committee shall reserve the right to determine whether a
financial hardship exists based on the facts and
circumstances of the situation, and such determination
shall be made on a uniform and nondiscriminatory
(b) Effective April 1, 1989, an Employee shall be deemed
to lack other resources to satisfy the financial
hardship if the following conditions are satisfied:
(i) the Employee has withdrawn all amounts available as
a non-hardship withdrawal under all of the Employer's
(or Affiliated Employer's) qualified plans;
(ii) the Employee has borrowed any amounts available to
him pursuant to Article VI;
(iii) if any portion of a hardship withdrawal is from
the Employee's Pre-Tax Contribution Account, the
Employee's Pre-Tax Contributions to the Plan are
suspended for the 12-month period immediately following
the date of the hardship withdrawal;
(iv) if any portion of a hardship withdrawal is from the
Employee's Pre-Tax Contribution Account, the Employee's
maximum Pre-Tax Contribution permitted under Section 3.1
for the Plan Year following the Plan Year in which the
hardship withdrawal was made is reduced by the amount of
the Employee's Pre-Tax Contributions made during the
Plan Year in which the hardship withdrawal occurred; and
(v) the amount of the withdrawal does not exceed the
amount necessary to meet the Employee's financial
hardship.
5.4 Rules Relating to Withdrawals.
(a) A Member or inactive Member shall request a
withdrawal hereunder by providing the Committee with at
least 20 days' advance written notice of the withdrawal.
(b) Payment to a Member or inactive Member of a
withdrawal pursuant to this Article V shall be effective
as of the valuation Date coinciding with or next
following the date the Committee approves the withdrawal
and will be payable in a lump sum as soon as practicable
thereafter.
(c) A withdrawal pursuant to this Article V shall only
by payable in cash.
<PAGE>
(d) The minimum amount to be withdrawn under this
Article V shall not be less than $500, except that a
Member may elect to withdraw his entire vested Account
subject to the rules of this Article V.
(e) To the extent permitted by the rules of this Article
V, withdrawals shall be made from a Member's Account
from first his Matching Employer Contribution Account,
second from his Rollover Contribution Account, and third
from his Pre-Tax Contribution Account.
(f) Prior to the attainment of age 59-1/2, a Member or
inactive Member shall not be permitted to withdraw
earnings credited on and after January 1, 1989
attributable to his Pre-Tax Contributions.
(g) A withdrawal shall be debited to Funds A, B, C, D
and E in the same proportion as such Account is then
invested in Funds A, B, C, D and E.
(h) The Committee shall maintain a separate accounting
with respect to each portion of a Member's Account which
may be withdrawn pursuant to this Article V.
ARTICLE
LOANS
6.1 Conditions For Loans. A Member shall have the right
to borrow all or a portion of the balance of his Pre-Tax
Contribution Account, Rollover Contribution Account and
Hatching Employer Contribution Account for any reason. A
Member shall have a maximum of one loan outstanding in
accordance with this Article VI at any one time.
6.2 Loan Terms. Any loan made in accordance with Section
6.1 prior to October 18, 1989 will be evidenced by a
promissory note payable by the Member to the Plan and
will be secured by the Member's Account under the Plan.
The aggregate of the principal at any time outstanding
as a loan shall not exceed the greater of:
(a) 100% of his Pre-Tax contribution, Rollover
Contribution and Matching Employer Contribution
Accounts, if the value of such Accounts is $10,000 or
less;
(b) $10,000, if the value of his Pre-Tax Contribution,
Rollover Contribution and Matching Employer Contribution
Accounts is greater than $10,000, but less than or equal
to $20,000; and
(c) the lesser of $50,000 or 50% of the value of his
Pre-Tax Contribution, Rollover Contribution and Matching
Employer Contribution Accounts, if the value of such
Accounts is greater than $20,000. The above $50,000
figure, however, shall be reduced by the highest
outstanding loan balance to the Member during the 12
months preceding the date on which tho loan is made.
The above notwithstanding, for any loans granted or
renewed on or after October 18, 1989, the aggregate of
the principal of any time outstanding as a loan shall
not exceed the lesser of $50,000 or 50% of the value of
his total vested Account. The above $50,000 figure,
however, shall be reduced by the highest outstanding
loan balance to the Member during the 12 months
preceding the date on which the loan is made.
The Committee shall establish the terms and conditions
on which loans will be made; provided, however, that the
rate of interest charged for the term of a loan will be
equal to the rate of interest being credited to Fund A
two months immediately preceding the first day of the
quarter in which the loan is made (rounded to the
nearest .25%). The Committee shall periodically review
whether the basis on which the above interest rate is
determined is reasonable and complies with the
guidelines established by applicable government
regulations. The Committee reserves the right to amend
the basis on which the interest rate is determined, if
such a change is deemed necessary by the Committee.
The term of the loan will be no greater than five years
and such repayment of the loan shall be made based on a
level amortization of the loan amount. However, a loan
used to acquire a principal residence of the Member may
be paid over a term of up to 30 years. The period of
repayment for any loan shall be arrived at by mutual
agreement between the Committee, or its delegate, ant
the Member, but subject to the aforementioned 5-year (or
30 year) maximum loan term and repayments shall be made
at least quarterly.
Loans may be prepaid in full at any time without
penalty. The minimum amount that may be borrowed under
the Plan is in increments of $1,000.
6.3 Rules for Loan. All loans shall comply with the
following terms and conditions:
(a) A Member shall request a loan hereunder by providing
the Committee with 20 days' advance written notice,
except that the Committee may agree to accept a later
notice in accordance with such uniform and
non-discriminatory rules as it may adopt.
(b) Loans shall be effective as of the valuation Date
coinciding with or immediately following the date the
Committee approves the loan.
(c) The amount of any loan will be paid in a lump sum to
the Mmber as soon as practicable after approval of the
loan by the Committee.
(d) The Committee shall make loans available hereunder
on a reasonably equivalent basis. The Committee shall
apply objective criteria in a uniform, nondiscriminatory
manner to determine whether a loan application should be
approved. such criteria shall be limited to those
factors which would be considered by a commercial lender
in the business of making similar types of loans.
(e) The Committee may adopt such other rules and
regulations relating to loans as it may deem
appropriate.
6.4 Failure to Make Timely Repayment of Loan. In the
event that a loan is not repaid on or before maturity or
in the event a scheduled payment of principal and
interest is not made when due, the Committee shall pro-
vide the Member with written notice of such default in
payment, and if the default is not remedied within 30
days from the date of such notice, the Member's Account
shall be reduced by the amount of the unpaid balance of
the loan, together with the interest thereon, and the
Member's indebtedness shall thereupon be discharged.
6.5 Definition of Loans. All loans shall be debited to a
Member's Account first from his Matching Employer
contribution Account, second from his Pre-Tax
Contribution Account and then from his Rollover
Contribution Account.
All loans shall be debited to the investment of a
Member's Account in the same proportion as such Account
is then invested in Funds A, B, C, D or E.
6.6 Disposition of Loan Repayments and Interest. Upon
receipt of a loan repayment and associated interest, the
Trustee shall deposit such repayment in Funds A, B, C, D
or E in accordance with the Member's investment
designation at the time of the repayment. The Trustee
shall also credit such repayment in the reverse order in
which the Member's Account was debited.
6.7 Withdrawals from Plan while Loan is Outstanding. The
amount otherwise available as a withdrawal from the Plan
under Article V shall be reduced by the amount of any
loan outstanding at the time a withdrawal request is
made, and no withdrawal shall be permitted under Article
V to the extent that such withdrawal would cause the
aggregate of the loans outstanding to exceed the limits
expressed in Section 6.2.
6.8 Disposition of Loan Upon Certain Events. In the
event of the retirement, termination of employment,
disability, or death of a Member before the Member
repays any outstanding loan, the Trustee shall reduce
the Member's Account by the amount of the Member's
outstanding loan and associated interest before making a
distribution to the Member or his Beneficiary.
ARTICLE VII
RETIREMENT
7.1 Normal Retirement Date. A Member's Normal Retirement
Date shall be his 65th birthday.
7.2 Deferred Retirement Date. A Member may continue in
employment beyond his Normal Retirement Date to a
Deferred Retirement Date which is the date he terminates
employment after his Normal Retirement Date. He shall
continue as a Member in the Plan until his Deferred
Retirement Date and shall be able to participate in the
Plan on the same basis as any other Employee. A Member
who works beyond his normal Retirement Date may be
required to commence retirement payments pursuant to
section 11.10.
7.3 Distribution at Retirement. Distribution of the
value of any Member's Account pursuant to this Article
VII will be made in accordance with Article XI.
7.4 Application for Retirement. As a prerequisite to the
commencement of a normal retirement benefit or a
deferred retirement benefit hereunder, a Member shall
file with the Committee an application for such benefit
at least 20 days prior to the Member's Normal Retirement
Date or Deferred Retirement Date, whichever is
applicable.
ARCTICLE VIII
DISABILITY
8.1 Definition of Disability. A Member will be deemed to
have become disabled for purposes of the Plan if he
becomes entitled to disability benefits under the
Employer's Short-Term Disability Plan or Long-Term
Disability Plan on or after June 1, 1984.
8.2 Disability Benefits. If a Member is deemed disabled
in accordance with Section 8.1, he shall continue to be
a Member under the Plan as long as he continues to
authorize Pre-Tax Contributions in accordance with
Section 3.1.
8.3 Distribution at Disability. A Member who is disabled
in accordance with section 8.1 will cease to be a Member
on the earliest of the following dates:
(a) his Normal Retirement Date;
(b) the date his disability benefits cease; or
(c) the date he ceases to authorize Pre-Tax
Contributions in accordance with section 3.1.
An individual who ceases to be a Member pursuant to this
section 8.3 shall receive a distribution of the value of
his Account pursuant to the provisions of Article XI.
ARTICLE IX
DEATH
9.1 Death Prior to Retirement. If a Member or inactive
Member dies prior to retirement, the Beneficiary
designated by the Member or inactive Member will be
entitled to 100% of the value of the Member's Account.
Distribution of the value of the Member's Account shall
be in accordance with Article XI.
9.2 Death After Retirement. If a Member or inactive
Member dies after retirement, any benefit payable to the
beneficiary shall be distributed in accordance with
Article XI, based on the form of payment elected by the
Member.
ARTICLE X
TERMINATION OF EMPLOYMENT
10.1 Vesting. A Member's Account attributable to both
his Pre-Tax Contributions and his Matching Employer
Contributions shall be 100% vested and nonforfeitable at
all times.
10.2 Method of Payment. When a Member terminates
employment with the Employer, his Account shall be
distributed in accordance with Article XI.
ARTICLE XI
METHOD OF PAYMENT
11.1 Form of Payment. At the election of a Member or
inactive Member, or in the case of the Member's death,
at the election of the Member's beneficiary, made in
accordance with procedures prescribed by the Committee,
distribution of a Member's Account will be in one or
more of the following forms:
(a) a lump sum payment; or
(b) quarterly or annual installments over a period not
to exceed 10 years; or
(c) an annuity, based on the amount applied to provide
the annuity and the form of the annuity selected by the
Member or, if applicable, the Member's beneficiary, and
purchased from a legal reserve life insurance company.
For distributions from Fund C, the Member shall choose
between cash or shares of the common stock of the
Employer.
11.2 Automatic Contingent Annuitant Annuity. In the
event a married Member directs the Committee to
distribute his benefit in a form described in Section
ll.l(c) above which includes a life contingency, such
benefit shall be provided to the Member through the
purchase of a 50% Contingent Annuitant Annuity described
in section 11.4, with his spouse as contingent
annuitant, unless the Member elects not to receive a 50%
Contingent Annuitant Annuity pursuant to the election
procedure described in Section 11.3 below.
11.3 Election Procedure for Married Members. The
Committee shall provide a married Member with written
notification of the Member's right to elect or revoke
the 50% Contingent Annuitant Annuity described in
section 11.4. Such written notification shall include:
(a) a general explanation of the 50% Contingent
Annuitant Annuity;
(b) a statement that the Member may elect not to receive
the 50% Contingent Annuitant Annuity;
(c) a general explanation of the relative financial
impact of the 50% contingent Annuitant Annuity;
(d) a statement of additional information concerning the
50% Contingent Annuitant Annuity will be made upon the
request of the Member.
The Committee shall provide the Member within 30 days
after receiving a written request for additional
information which will include an explanation, in
non-technical language, of the terms and conditions of
the 50% Contingent Annuitant Annuity and the financial
effect of the 50% Contingent Annuitant Annuity upon the
Member's monthly benefit.
An election under this Section 11.3 not to receive the
50% Contingent Annuitant Annuity with the spouse as
contingent annuitant is effective only if the Member's
spouse consents to the election in writing, the consent
is witnessed by a notary public, and the spouse's
consent acknowledges the effect of the election. Such
spousal consent is not required, however, if the Member
establishes to the satisfaction of the Committee that
the consent may not be obtained because there is no
spouse or the spouse cannot be located. Any consent by a
spouse (or establishment that consent may not be
obtained) is effective only with respect to that spouse.
A Member may make an election in accordance with this
Section to revoke an election previously made at any
time prior to the date his benefit payments commence. In
no event, however, will the period for making such an
election or revocation expire to the 90th day following
the date the Member receives the written notification
or, if applicable, the additional information, described
in this Section 11.3. The benefit commencement date
otherwise applicable to a Member may be delayed to
accommodate any extension of the election period under
this Section. In any event, the period for making such
an election or revocation will include the 90-day period
ending on the Member's benefit commencement date.
A Member's election or revocation under this Section
shall be in writing and shall clearly indicate his
intention to receive or not to receive the 50%
Contingent Annuitant Annuity.
11.4 50% Contingent Annuitant Annuity. The 50%
Contingent Annuitant Annuity provides the Member with a
monthly benefit for his lifetime and continues 50% of
such benefit to his spouse, if living, after the
Member's death. The monthly payments to the spouse shall
commence on the first day of the month following the
month in which the Member's death occurs
and shall cease with the last payment due for the month
in which the spouse's death occurs.
11.5 Pre-Retirement Death Benefits. In the event of the
death of a Member after termination of employment,
disability, or retirement, but prior to the date his
benefit had commenced to be distributed pursuant to
Section 11.1, his Account shall be paid to his
beneficiary in one lump sum, unless the Beneficiary
elects another form of distribution pursuant to Section
11.1.
In the event of the death of a Member who had continued
his employment with the Employer and whose benefit had
not commenced to be distributed pursuant to Section
11.1, his Account shall be applied to purchase a life
annuity for his spouse unless the Member (with the
written consent of his spouse) had elected not to
receive a 50% Contingent Annuitant
Annuity pursuant to Section 11.3 above, or unless the
spouse elects not to receive such life annuity after
receiving the information described in Section 11.3
above. In the event such Member is not married at the
time of his death, or if such Member is married and has
elected not to receive the 50% Contingent Annuitant
Annuity, his Account shall be paid in one lump sum to
his beneficiary unless the Beneficiary elects another
form of distribution pursuant to Section 11.1.
11.6 Death Benefits After Retirement. In the event of
the death of a Member after distribution of his benefits
has commenced in the form described in Section ll.l(b),
the remaining value of the Member's Account shall be
payable to his beneficiary in one lump sum. In the event
of the death of a Member whose benefits have commenced
in the form described in Section ll.l(c), the terms and
conditions of the annuity contract shall govern whether
or not any death benefit is payable to the beneficiary.
If a Member elected and received his retirement benefits
in the form described in Section ll.l(a), no additional
death benefits shall be payable from this Plan.
11.7 Date of Payment. Unless otherwise elected by a
Member, or his beneficiary if applicable, any payment of
his benefit from this Plan shall be based on the Account
as of the Valuation Date coinciding with or next
following his termination date, and made as soon as
practicable after such valuation Date. Any Member who
terminates from this Plan, or his Beneficiary, if
applicable, who elects to defer payment of his benefit
from this Plan, may not be permitted to defer the
payment of such benefit beyond the Valuation Date
coincident with or next following the Member's Normal
Retirement Date.
Notwithstanding the foregoing, distribution shall
commence no later than 60 days after the close of the
latest Plan Year in which (i) the Member or inactive
Member attains age 65, or (ii) the 10th anniversary of
the Member's commencement of membership occurs, or (iii)
the Member or inactive Member terminated employment.
Notwithstanding the above, the Committee will pay a
Member's Account in a single lump sum as soon as
practicable after the Valuation Date following his
termination of employment if the amount of such lump sum
is not more than $3,500.
11.8 Special Rules for Installments. If a Member or
inactive Member elects to have benefits payable in
accordance with section ll.l(b) or in the case where a
benefit is payable but the Member or Beneficiary has not
elected to receive such benefits, the Committee may
direct the Trustees to segregate the Member's or
beneficiary's interest in the Plan and invest such
amounts separately. Amounts invested in this manner
shall share the earnings, on a pro rata basis,
attributable to such investments, but not in the
earnings attributable to the balance of the Trust Fund.
Expenses of the Plan and the Trust shall continue to be
charged against the amounts so invested.
11.9 General Limitation. Anything in the foregoing to
the contrary notwithstanding, no method of distribution
under Section 11.1 may be made if it would result in the
value of interest of a beneficiary who is not a spouse
of the Member, exceeding 50% of the value of the
Member's interest, both such values being determined as
of the Valuation Date coincident with or next following
the event which resulted in the distribution. No
distribution of benefits may be made which could result
in payment of a benefit over a period longer than the
life expectancy (or life) of a Member, or in the case of
a Member who has designated a beneficiary, over the
joint life expectancies (or joint lives) of the Member
and his beneficiary.
11.10 Additional Limitation. Upon the death of a Member
any remaining interest he may have in the Plan shall be
distributed by the later of five years after his death
or the death of his Beneficiary unless another form of
payment was already in effect at the time of his death.
If a Member dies after payment of his benefits has
commenced but prior to distribution of his entire
interest under this Plan, the remaining portion of his
benefit shall be distributed at least as rapidly as
required by the method in effect as of the date of the
Member's death.
Notwithstanding anything herein to the contrary, payment
of a Member's benefits prior to January l, 1989 will
begin not later than the April 1 of the calendar year
next following the later of:
(a) the calendar year in which the Member attains age
70-1/2, or
(b) the calendar year in which the Member retires
(except that this paragraph (b) shall not apply to a
Member who is a 5% owner with respect to the Plan Year
ending in the calendar year in which he attains age
70-1/2).
Any Member or inactive Member who attains age 70-1/2
after December 31, 1987, distribution of a Member's
Account may not be deferred beyond April 1, 1990 or the
April 1 following the calendar year in which the Member
attains age 70-1/2, if later.
11.11 Missing Persons. If the Committee shall be unable,
within two years after any amount becomes due and
payable from the Plan to a Member or beneficiary, to
make payment because the identity or whereabouts of such
person cannot be ascertained, the Committee may mail a
notice by registered mail to the last known address of
such person outlining the following action to be taken
unless such person makes written reply to the Committee
60 days from the mailing of such notice. The Committee
may direct that such amount and all further benefits
with respect to such person shall be forfeited and all
liability for the payment thereof shall terminate;
provided, however, that in the event of the subsequent
reappearance of the Member or beneficiary prior to
termination of the Plan, the benefit which was forfeited
shall be reinstated in full. Any benefits forfeited
shall be applied to decrease Matching Employer
contributions.
Reinstatement of any benefit forfeited under this
section 11.11 shall be made first from any forfeitures
or expense account existing at the time of reinstatement
but which have not yet been applied to decrease Matching
Employer Contributions. To the extent forfeitures and
amounts in the suspense account are not sufficient to
reinstate the benefit in full, the Employer shall make
an additional contribution to the Plan.
ARTICLE XII
FUNDING
12.1 Trust Agreement. The Employer shall enter into a
Trust Agreement with the Trustee under the Plan. If the
Board of Directors so determines, the Employer may enter
into a Trust Agreement or Trust Agreements with
additional Trustees. Any Trust Agreement entered into
may be amended by the Employer or Trustee from time to
time in accordance with its terms. Any Trust Agreement
shall provide, as a minimum, that all funds received by
the Trustee thereunder will be held, administered,
invested and distributed by the Trustee, and that no
part of the corpus or income of the trust held by the
Trustee shall be used for or diverted to, purposes other
than for the exclusive benefit of Members or inactive
Members or their beneficiaries. The Employer may remove
any Trustee or any successor Trustee, and any Trustee or
any successor Trustee may resign. Upon removal or
resignation of a Trustee, the Employer shall appoint a
successor Trustee.
12.2 Establishment of Trust Fund. The Trust Fund shall
consist of all assets held under the Plan, including all
investment gains and income thereon. The Trust Fund
shall be held, administered and invested by the Trustee
in accordance with the terms of the Trust Agreement.
12.3 Investment of Trust Fund. The Trustee shall invest
and reinvest the Trust Fund in its discretion in
accordance with the general principles established by
the State of Vermont and federal laws, subject to any
provisions of the Plan or Trust Agreement which limit
the discretion of the Trustee as to investments.
12.4 Administrative Expenses. The Employer may elect to
pay the administrative expenses of the Plan and fees and
retainers of the Plan's Trustee, consultant,
administrator, auditors, counsel and other advisers or
service providers. If the Employer does not elect to pay
all or part of such expenses, the Trustee shall pay
these expenses and charge the payment thereof against
the Trust Fund for the Plan Year in which the expenses
were incurred. Any expense directly relating to the
investments of the Trust Fund, such as taxes, brokerage
commissions, registration charges, etc., shall always be
paid from the Trust Fund.
12.5 Exclusive Benefit. No part of the Trust Fund shall
be used for, or diverted to, purposes other than the
exclusive benefit of Members and beneficiaries. Except
as provided in Section 3.12, under no circumstances
shall any assets of the Trust Fund revert to the
Employer.
ARTICLE XIII
ADMINISTRATION
13.1 Appointment of Committee. The Plan shall be
administered by a committee appointed by the Employer.
The Committee may, but need not, consist of Plan Members
or Employees of the Employer and the number of persons
serving on the Committee at any time will be determined
by the Employer and may be changed from time to time.
The members of the Committee shall serve without
compensation from the assets of the Trust Fund, and may
be removed by the Employer at any time, with or without
cause. A member of the Committee may resign at any time
upon delivery of a written resignation to the Employer.
All reasonable expenses incurred by the members of the
Committee in the performance of their duties shall be
paid by the Employer.
The Employer shall notify the Trustees in writing of
each committee member's appointment, and the Trustee may
assume such appointment continues in effect until
written notice to the contrary is given by the Employer.
13.2 Procedures of Committee. The Committee shall hold
meetings upon such notice, at such place or places, and
at such times as its members may from time to time
determine. A majority of its members at the time in
office shall constitute a quorum for the transaction of
business. All action taken by the Committee at any
meeting shall be by vote of the majority of its members
present at such meeting, except that the Committee may
also act without a meeting by a consent signed by a
majority of its members. No member may vote on any
question relating exclusively to himself. In the event
that the remaining members are unable to agree as to any
such matter or in the event there be but one remaining
member of the Committee, the decision with respect to
any matter will be made by the Committee.
The Committee at its option may elect any Committee
member or other person to serve as Secretary, and may
remove him at any time. The Committee will notify the
Trustees in writing of such election and the Trustees
may assume his authority to act as Secretary continues
until written notice to the contrary is given by the
Committee. The secretary, or a majority of the Committee
members then in office, will have the authority to
execute all instruments or memoranda necessary or
appropriate to carry out the actions and decisions of
the whole committee; and any person may rely upon any
instrument or memoranda so executed as evidence of the
Committee action or decision indicated thereby.
13.3 Powers of Committee. The Committee shall control
and manage the operation and administration of the Plan
and will select and monitor the Trustee and any
investment managers, subject to the approval of the
Board. The Committee will also communicate such
information to the Trustee and investment managers as
they may need for the proper performance of their
duties.
The Committee shall have such powers as may be necessary
to discharge its duties under the Plan, including but
not limited to, the power:
(a) to construe and interpret the Plan, decide all
questions of eligibility and determine the amount,
manner and time of distributions hereunder;
(b) to prescribe procedures to be followed and forms to
be used for the administration of the Plan;
(c) to prepare and distribute to Members information
explaining the Plan;
(d) to appoint or employ individuals to assist in the
administration of the Plan and any other agents it deems
advisable, including legal, accounting, and clerical and
medical services;
(e) to instruct the Trustees to make payments pursuant
to the Plan;
(f) to receive and review reports of receipts and
disbursements from the Trust Fund made by the Trustees;
and
(g) to receive from the Employer and from Members such
information as may be necessary for the administration
of the Plan.
The Committee shall not add to, subtract from or modify
the terms of the Plan, or to change or add to any
benefits provided by the Plan, or to waive or to fail to
apply requirements for eligibility for benefits under
the Plan.
13.4 Records and Reports. The Committee shall keep such
decisions, accounts, records and data pertaining to the
administration of the Plan which shall be subject to the
inspection or audit of the Employer. The Employer will
supply all information required by the Committee to
administer the Plan, and the Committee may rely upon the
accuracy of such information. The committee shall
prepare, file and submit such reports, Plan
descriptions, statements and forms to any government
agency, Employee, Member or beneficiary as may be
required by law.
13.5 Claims Procedures. If any application for a
distribution or withdrawal under the Plan shall be
denied, the Committee shall notify the claimant within
90 days after receipt of such claim or, 180 days if the
Committee determines that special circumstances exist
which require additional time to process a claim of such
denial setting forth the specific reasons therefore and
afford such claimant a reasonable opportunity for a full
and fair review of the decision denying his claim.
Notice of such denial, in addition to the specific
reasons for the denial, shall include the following:
(a) reference to pertinent provisions of the Plan;
(b) such additional information as may be relevant to
denial of the claim;
(c) an explanation of the claims review procedure; and
(d) an explanation of such claimant's right to request
the opportunity to review pertinent Plan documents and
submit a statement of issues and comments.
Within sixty (60) days following advice of denial of his
claim, upon request made by any claimant for a review of
such denial, the committee shall take appropriate steps
to review its decision in light of any further
information or comments submitted by such claimant. The
Committee shall be empowered to hold a hearing at which
such claimant shall be entitled to present the basis of
his claim for review and at which he may be represented
by counsel. The Committee shall render a decision within
sixty (60) days after claimant's request for review or,
120 days if the Committee determines that special
circumstances exist which require an extension of time
for processing the application for review, and shall
advise claimant in writing of its decision on such
review, specifying its reasons and identifying
appropriate provisions of the Plan.
13.6 Responsibilities and Authority of Trustee. The
Trustee will manage and control the assets of the Plan,
except to the extent that such responsibilities are
either:
(a) specifically assigned hereunder to the Board or to
the committee; or
(b) delegated to one or more investment managers by the
Committee.
13.7 Responsibilities of the Board. The Board shall have
the following responsibilities and authority with
respect to the control and management of the Plan and
its assets:
(a) to amend the Plan;
(b) to merge or consolidate the Plan with, or transfer
all or part of the assets or liabilities to, any other
plan;
(c) establish a funding policy;
(d) to appoint, remove and replace the Committee
members; and
(e) to perform such additional duties as are imposed by
law.
13.8 Reliance Upon Others. The committee, Trustee or the
Board shall be entitled to rely conclusively upon all
tables, valuations, certificates, opinions and reports
which may be furnished by any accountant, consultant or
attorney who is engaged for such purposes and, except as
provided by law, shall be fully protected with respect
to any action taken in good faith and in reliance upon
such information.
13.9 Liability. Any person or persons who serves on the
Committee, Board or as a Trustee shall not be personally
liable for any error of omission or commission unless
such error results from his own gross negligence,
willful misconduct, or lack of good faith; nor shall any
such individual be personally liable for any act of
gross negligence, willful misconduct, or lack of good
faith of any other individual or individuals, except as
provided by law.
ARTICLE XIV
FIDUCIARY RESPONSIBILITIES
14.1 Basic Responsibilities. Any Fiduciary under the
Plan, whether specifically designated or not, shall:
(a) discharge all duties solely in the interest of
Members, inactive Members, and Beneficiaries, and for
the exclusive purpose of providing benefits and
defraying reasonable administrative expenses under the
Plan;
(b) discharge his responsibilities with the care, skill,
prudence and diligence a prudent man would use in
similar circumstances: and
(c) conform with the provisions of the Plan.
14.2 Actions of Fiduciaries. Any Fiduciary:
(a) may serve in more than one fiduciary capacity with
respect to the Plan;
(b) may employ one or more persons to render advice with
regard to or to carry out any responsibility that such
Fiduciary has under the Plan; and
(c) may rely upon any direction, information or action
of any other Fiduciary, acting within the scope of its
responsibilities under the Plan, as being proper under
the Plan.
14.3 Indemnification. The Board, to the extent permitted
by law, will indemnify and hold harmless every person
serving as a Fiduciary against any and all liabilities
arising by reason of any act or failure to act made in
good faith pursuant to the provisions of the Plan,
including expenses reasonably incurred in the defense of
any claim relating thereto. The preceding sentence shall
not apply to a corporate Trustee or to an investment
manager, unless the Board and such corporate Trustee or
investment manager may otherwise agree in writing.
ARTICLE XV
AMENDMENT AND TERMINATION OF THE PLAN
15.1 Amendment and Modification. The Plan may be amended
or modified by the Employer at any time and from time to
time; provided, however, that no such amendment or
modification shall make it possible for any part of the
corpus or income of the Fund to be used for or diverted
to purposes other than for the exclusive benefit of
Members, inactive Members or their beneficiaries under
the Plan. No amendment will deprive a Member, inactive
Member or beneficiary of any portion of his Member
Account. Any such amendment or modification may make
changes in the Plan, including retroactive changes,
which may be deemed necessary or desirable to continue
the qualified status of the Plan under section 401(a) of
the Internal Revenue Code of 1986, as amended from time
to time, or any similar successor provisions of the law,
or to confirm to governmental regulations.
No amendment shall be adopted which eliminates an
optional method of payment with respect to a Member's
Account as of the date the amendment is adopted unless
the amendment permits another form of payment substan-
tially equivalent to the form eliminated.
15.2 Termination or Suspension. The Employer hopes and
expects to continue the Plan indefinitely. Nevertheless,
the Employer maintains the right to suspend, terminate,
or completely discontinue Employer contributions. In the
event of full or partial termination of the Plan, or
upon permanent discontinuance of Employer contributions
under the Plan, either in whole or part, the Member
Account of each affected Member or inactive Member shall
be nonforfeitable and shall be distributed to him no
later than 60 days after the end of the Plan Year of
such termination or discontinuance.
15.3 Valuation of Assets. In determining the value of
the Accounts of the Members as of the date of the
termination of the Plan, the assets of the Trust Fund
shall be valued by the Trustees at fair market value as
of the close of business on the termination date. The
Member's Accounts shall be adjusted in the manner
provided in Article IV, and the balance of any suspense
account shall be applied for the Plan Year in which the
Plan is terminated.
15.4 Distribution of Assets. If both the Plan and Trust
are terminated, the Trustee shall distribute to the
Members or their beneficiaries, all assets remaining in
the Fund after payment of any expenses properly
chargeable to the Fund. Such distribution shall equal
the value of the Members' Accounts as of the termination
date of the Plan adjusted for any earnings and expenses
of the Trust Fund and Plan between such date and the
date of distribution. Payment will be made in cash or in
kind, or partly in cash and partly in kind, or in such
manner as may be required by applicable law.
ARCTICLE XVI
TOP HEAVY REQUIREMENTS
16.1 General Rule. For any Plan Year for which this Plan
is a "top-heavy plan" as defined in Section 16.6 below,
any other provisions of this Plan to the contrary
notwithstanding, this Plan shall be subject to the
following provisions:
(a) The minimum contribution provisions of Section 16.2.
(b) The limitation on compensation set by Section 16.3.
(c) The limitation on benefits set by Section 16.4.
16.2 Minimum Contributions Provisions. Each Eligible
Employee as defined in Sections 2.1 and 2.2 who is a
non-key employee (as defined in section 16.8) and is
employed on the last day of the Plan Year shall, whether
or not he has completed 1,000 Hours of Service in such
Plan Year, be entitled to have a contribution made on
his behalf by the Employer of not less than 3 percent
(the "minimum contribution percentage") of the
Employee's compensation (as defined in section 3.9).
The minimum contribution percentage set forth above for
any Plan Year shall not exceed the percentage at which
contributions are made (or required to be made and
including Pre-Tax Contributions) under the plan for the
Plan Year for the key employee (as defined in Section
16.7) for whom such percentage is the highest for such
Plan Year. For this purpose, the percentage with respect
to a key employee shall be determined by dividing the
contributions for such key employee, including Pre-Tax
contributions, by so much of his total compensation for
the Plan Year as does not exceed $200,000 (subject to
adjustment in the same manner as set forth below).
Contributions taken into account under the two preceding
sentences shall include contributions under this Plan
and under all other defined contribution plans required
to be included in an aggregation group (as defined in
section 16.6 below) but shall not include any plan
required to be included in such aggregation group if
such plan enables a defined benefit plan required to be
included in such group to meet the prohibition against
discrimination in benefits or contributions under Code
section 401(a)(4) or the requirements with respect to
participation or coverage under Code Section 410.
Contributions taken into account under this Section
shall not include any contributions under the Federal
Insurance contributions Act or any other Federal or
state law.
The Committee may prohibit or limit Pre-Tax
contributions by key employees for any Plan Year in
which this Plan is a top-heavy plan.
The minimum contribution requirements shall not apply to
a Member who participates in a defined benefit plan
maintained by the Employer or an Affiliated Employer and
which is considered a top-heavy plan which meets the
requirements of Code section 416 pertaining to a
top-heavy defined benefit plan.
16.3 Limitation on Compensation. Annual compensation
taken into account under this Section and under Article
III for purposes of computing benefits under this Plan
shall be determined in accordance with Section 16.7
below and shall not exceed $200,000, provided that such
limit shall be adjusted automatically for each Plan Year
to the amount prescribed by the Secretary of the
Treasury or his delegate pursuant to regulations for the
calendar year in which such Plan Year commences.
16.4 Limitation on Contributions. In the event that the
Employer also maintains a defined benefit plan on behalf
of Eligible Employees under this Plan, one of the two
following provisions shall apply:
(a) If for the Plan Year this Plan would not be a
"top-heavy plan" as defined in Section 16.6 below if "90
percent" were substituted for "60 percent," then Section
16.2 shall apply for such Plan Year as if amended so
that "four percent" were substituted for "three
percent".
(b) If for the Plan Year this Plan would continue to be
a "top-heavy" plan as defined in Section 16.6 below if
"90 percent" were substituted for "60 percent", then the
denominator of both the defined contribution plan
fraction and the defined-benefit plan fraction as these
are defined pursuant to Section 415 of the Code shall be
calculated for the limitation year ending in such Plan
Year by substituting "1.0" for "1.25" in each place such
figure appears, except with respect to any individual
for whom there are no Employer contributions,
forfeitures or voluntary nondeductible contributions or
any accruals for such individual under the defined
benefit plan.
16.5 Coordination With Other Plans. In the event that
another defined contribution or defined benefit plan
maintained by the Employer provides contributions or
benefits on behalf of Eligible Employees under this
Plan, such other plan shall be treated as a part of this
Plan pursuant to applicable principles (such as Rev.
Rul. 81-202 or any successor ruling) in determining
whether this Plan satisfies the requirements of Sections
16.2 and 16.3. Such determination shall be made by the
Committee.
16.6 Top-Heavy Plan Definition. This Plan shall be a
"top-heavy plan" for any Plan Year if, as of the
determination date (as defined in paragraph (a) below),
the aggregate of the Accounts under the Plan for
Members, (including former Members) who are key
employees (as defined in section 16.7) exceeds 60
percent of the present value of the aggregate of the
Accounts for all Members, excluding former key
employees, or if this Plan is required to be in an
aggregation group (as defined in paragraph (c) below)
which for such Plan Year is a top-heavy group (as
defined in paragraph (d) below).
(a) "Determination Date" means for any Plan Year the
last day of the immediately preceding Plan Year, except
in the case of the first Plan Year, Determination Date
means the last day of such year. For the purposes of
determining whether a Plan is top-heavy for a particular
Plan Year, the Accounts under the Plan shall be valued
as of the Determination Date with respect to that Plan
Year.
(b) The present value shall be the sum of (a) the
Account determined as of the most recent valuation date
that is within the twelve-month period ending on the
determination date, and (b) the adjustment for
contributions due as of the determination date, and as
described in the regulations under the code.
(c) "Aggregation Group" means the group of plans, if
any, that includes both the group of plans that are
required to be aggregated and the group of plans that
are permitted to be aggregated.
(i) The group of plans that are required to be
aggregated (the "required aggregation group") includes
(A) Each plan of the Employer (as defined in Section
16.9 in which a key employee is a participant, including
collectively-bargained plans, and
(B) Each other plan, including collectively-bargained
plans of the Employer (as defined in Section 16.9) which
enables a plan in which a key employee is a participant
to meet the requirements of the Code prohibiting
discrimination as to contributions or benefits in favor
of Employees who are officers, shareholders or the
highly-compensated or prescribing the minimum
participation standards.
(ii) The group of plans that are permitted to be
aggregated (the "permissive aggregation group") includes
the required aggregation group plus one or more plans of
the Employer (as defined in Section 16.9) that is not
part of the required aggregation group and that the
Committee certifies as constituting a plan within the
permissive aggregation group.
Such plan or plans may be added to the permissive
aggregation group only if, after the addition, the
aggregation group as a whole continues not to
discriminate as to contributions or benefits in favor of
officers, shareholders or other highly-compensated and
to meet the minimum participation standards under the
code.
(d) "Top-heavy group" means the aggregation group, if as
of the applicable termination date, the sum of the
present value of the cumulative accrued benefit for key
employees under all defined benefit plans included in
the aggregation group plus the aggregate accounts of key
employees under all defined contribution plans included
in the aggregation group exceeds 60 percent of the sum
of the present value of the cumulative accrued benefit
for all employees, excluding former key employees, under
all such defined benefit plans plus the aggregate
accounts for all employees, excluding former key
employees, under such defined contribution plans. For
the purposes of making this determination, the present
value of the accrued benefits of an Employee who has not
performed services for the Employer (or Affiliated
Employer) at any time during the five-year period ending
on the Determination Date shall be disregarded. If the
aggregation group that is a top-heavy group is a
required aggregation group, each plan in the group will
be top heavy. If the aggregation group that is a
top-heavy group is a permissive aggregation group, only
those plans that are part of the required aggregation
group will be treated as top-heavy. If the aggregation
group is not a top-heavy group, no plan within such
group will be top-heavy.
(e) In determining whether this Plan constitutes a
"top-heavy plan," the Committee (or it's agent) shall
make the following adjustments in connection therewith:
(i) When more than one plan is aggregated, the Committee
shall determine separately for each plan as of each
plan's determination date the present value of the
accrued benefits or account balance. The results shall
then be aggregated by adding the results of each plan as
of the determination dates for such plans that fall
within the same calendar
(ii) In determining the present value of the cumulative
accrued benefit or the amount of the account of any
Employee, such present value or account shall include
the amount in dollar value of the aggregate
distributions made to such Employee under the applicable
plan during the five-year period ending on the
determination date, unless reflected in the value of the
accrued benefit or account balance as of the most recent
valuation date. Such amounts shall include distributions
to Employees which represented the entire amount
credited to their accounts under the applicable plan.
(iii) Further, in making such determination, such
present value or such account shall include any rollover
contribution (or similar transfer), as follows:
(A) If the rollover contribution (or similar transfer)
is initiated by the Employee and made to or not
maintained by the Employer, as defined in Section 16.9,
the plan providing the distribution shall include such
distribution in the present value of such account; the
plan accepting the distribution shall not include such
distribution in the present value of such account unless
the plan accepted it before December 31, 1983.
(B) If the rollover contribution (or similar transfer)
is not initiated by the Employee or is made from a plan
maintained by the Employer, as defined in section 16.9,
the plan accepting the distribution shall include such
distribution in the present value of such account,
whether the plan accepted the distribution before or
after December 31, 1983; the plan making the
distribution shall not include the distribution in the
present value of such account.
(iv) Further, in making such determination, in any case
where an individual is a "non-key employee", as defined
in Section 16.8, with respect to an applicable plan, but
was a key employee with respect to such plan for any
prior plan year, any accrued benefit and any account of
such employee shall be altogether disregarded. For this
purpose, to the extent that a key employee is deemed to
be a key employee if he met the definition of key
employee within any of the four preceding plan years,
this provisions shall apply following the end of such
period of time.
(f) Solely for the purpose of determining if the Plan,
or any other plan included in a required aggregation
group of which this Plan is a part, is top-heavy (within
the meaning of Section 416(g) of the Code) the accrued
benefit of an Employee other than a "key employee" (as
defined in Section 16.7) shall be determined under (a)
the method, if any, that uniformly applies for accrual
purposes under all plans maintained by the Employer (as
defined in Section 16.9), or (b) if there is no such
method, as if such benefit accrued not more rapidly than
the slowest accrual rate permitted under the fractional
accrual rule of Section 411(b)(l)(C) of the Code.
16.7 Key Employee. The term "key employee" means any
Employee or former Employee under this Plan who, at any
time during the Plan Year containing the Determination
Date or during any of the four preceding Plan Years, is
or was one of the following:
(a) An officer of the Employer (as defined in Section
16.9). Whether an individual is an officer shall be
determined by the Committee on the basis of all the
facts and circumstances, such as an individual's
authority, duties and term of office, not on the mere
fact that the individual has the title of an officer.
For any such Plan Year, there shall be treated as
officers no more than the lesser of:
(i) 50 employees, or
(ii) the greater of three Employees or 10 percent of the
Employees.
For this purpose, the highest-paid officers shall be
selected. However, an Employee will not be considered an
officer for a Plan Year if the Employee earns no more
than fifty percent (50%) of the amount in effect under
code section 415(b)(1)(A) for the calendar year in which
the Determination Date falls. Business organizations
other than corporations shall be deemed to have no
officers.
(b) One of the ten Employees owning (or considered as
owning, within the meaning of the constructive ownership
rules of the code) the largest interests in the Employer
(as defined in Section 16.9). An Employee who has some
ownership interest is considered to be one of the top
ten owners unless he owns no more than a one-half
percent interest or at least ten other Employees own a
greater interest than that Employee. However, an
Employee will not be considered a top ten owner for a
Plan Year if the Employee earns less than the maximum
dollar limitation on contributions and other annual
additions to a Member's account in a defined
contribution plan under the code as in effect for the
calendar year in which the Determination Date falls.
(c) Any person who owns (or is considered as owning
within the meaning of the constructive ownership rules
of the Code) more than five percent of the outstanding
stock of the Employer or stock possessing more than five
percent of the combined total voting power of all stock
of the Employer.
(d) A one percent owner of the Employer having an annual
compensation from the Employer of more than $150,000.
For purposes of this subsection, compensation means all
items includable as compensation for purposes of
applying the limitations on contributions and other
annual additions to a Member's account in a defined
contribution plan and the maximum benefit payable under
a defined benefit plan under the Code as amended.
For purposes of parts (i), (ii) and (iii) and (iv) of
this definition, a beneficiary of a key employee shall
be treated as a key employee. For purposes of parts
(iii) and (iv), each Employer is treated separately
(without regard to the definition in Section 16.9) in
determining ownership percentages; but, in determining
the amount of compensation, the definition of Employer
in Section 16.9 is taken into account.
16.8 Non-kev Emplovee. The term "non-key employee" means
any Employee (and any beneficiary of an Employee) who is
not a Key employee.
16.9 Emplover. The term "Employer" means the definition
of Employer in section 1.13 of this Plan and includes
any Affiliated Employer as defined in Section 1.2 of
this Plan.
16.10 Collective Bargaining Rules. The provisions of
Sections 16.2 and 16.3 above do not apply with respect
to any employee included in a unit of employees covered
by a collective bargaining agreement unless the
application of such subsections has been agreed upon
with the collective bargaining agent.
16.11 Distributions to Key Employees. Prior to January
1, 1985, any other provisions of this Plan to the
contrary notwithstanding, distribution time has been a
key employee shall commence no later than the end of the
taxable year of the Member in which the Member attains
age 70-l/2.
ARTICLE XVII
GENERAL PROVISIONS
17.1 Uniform Administration. Whenever in the
administration of the Plan any action by the Committee
is required, such action shall be uniform in nature as
applied to all persons similarly situated, and no such
action shall be taken which will discriminate in favor
of Members or inactive Members who are in the Highly
Compensated Group.
17.2 Source of Payment. A Member will in no event be
entitled to an amount in excess of his Member Account.
No persons shall have any rights under the Plan with
respect to the Trust Fund, or against the Trustee,
Committee or Employer, except as specifically provided
herein or by applicable law.
17.3 No Right to Employment. Nothing herein contained
shall be deemed to give any Employee the right to be
retained in the service of the Employer or an Affiliated
Employer or to interfere with the rights of the Employer
or an Affiliated Employer to discharge any Employee at
any time.
17.4 Inalienability of Benefits. No portion of any
Member Account may be assigned or hypothecated, and to
the extent permitted by law, no such payments shall be
subject to legal process or attachment for the payment
of any claims against any person entitled to receive the
same, except as may be required pursuant to a Qualified
Domestic Relations order, as defined in Section 414(p)
of the Code.
17.5 Payment Due to a Minor or Incompetent. If it shall
be found that any Member or beneficiary to whom a
benefit is due hereunder is unable to care for his
affairs because of physical or mental disability, or is
a minor, the Committee shall have the authority to cause
the benefit due to such person to be made to the spouse,
brother, sister, or other
person deemed by the Committee to have incurred expense
for such person otherwise entitled to payment (unless
prior claim shall have been made by a duly qualified
guardian or other legal representative). Payments made
pursuant to such power shall operate as a complete
discharge of any liability under the Plan.
17.6 Plan Assets, Merger or Transfer. There shall be no
merger or consolidation with, or transfer of assets or
liabilities of the Plan to, any other plan unless each
Member and inactive Member in the Plan would, if the
Plan terminated after such merger, consolidation, or
transfer of assets or liabilities, receive a benefit
immediately thereafter equal to or greater than the
benefit that he would have been entitled to receive
immediately before such merger, consolidation or
transfer if the Plan had then terminated.
17.7 Governing Law. The provisions of the Plan will be
construed in accordance with the laws of the State of
Vermont.
17.8 Use of Masculine and Feminine: Singular and Plural.
Wherever used in this Plan, the masculine shall include
the feminine and the singular shall include the plural,
unless the context indicates otherwise.
IN WITNESS WHEREOF, the Employer has caused this
instrument to be executed by its officer thereunto duly
authorized and its corporate seal to be herein affixed
as of this 16th day of January, 1990.
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
By: /s/ Thomas C. Webb
ATTEST:
By: /s/ Beverly H. Merritt
(CORPORATE SEAL)
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
EMPLOYEE SAVINGS AND INVESTMENT PLAN
AMENDMENT NUMBER ONE
1. Section 1.8, "Compensation" is amended by adding the
following to the end of the third paragraph thereof, as
follows:
"In determining the Compensation of an Employee, the rules
of Sections 414(q)(6) and 401(a)(17) of the Code shall
apply."
2. Section 1.12, "Eligible Employee" shall be amended in its
entirety and shall read as follows:
"'Eligible Employee' shall mean an Employee of the Employer
who is included in the eligible class described in section
2.1. Eligible Employees shall not include any person
employed by the Employer or an Affiliated Employer who is a
member of a collective bargaining unit unless such unit has
been included in the Plan as a result of the collective
bargaining process."
3. Section 1.13, "Employee" shall be amended by replacing
the first sentence thereof with the following:
"'Employee' shall mean any person who is employed by the
Employer or an Affiliated Employer, including any person who
becomes disabled in accordance with section 8.1."
4. Section 1.19, "Hours of Service" shall be amended by
adding the following to the end of paragraph (c) thereof:
"The number of hours of service to be credited under
paragraph (b) or (c) above on account of a period during
which an Employee performs no duties, and the Plan Year to
which hours of service will be credited under paragraph (a),
(b), or (c) above shall be determined by the committee in
accordance with sections 2530.200b-2(b) and (c) of the
regulations of the U.S. Department of Labor."
5. Section 2.1, "Eligible Class", shall be amended in its
entirety and shall read as follows:
"Each Eligible Employee shall be eligible to become a Member
on the first Entry Date coinciding with or otherwise next
following the date on which he completes one Year of
Service."
6. Section 3.7(c) shall be amended by adding the following
paragraph to the end thereof:
"The amount of any 'excess contributions' to be returned
pursuant to the provisions of this paragraph (c) shall be
reduced by any excess deferrals previously distributed to
the affected Employee for the Employee's taxable year ending
with or within the Plan Year in accordance with Section
402(g)(2) of the code. Such reduction shall be made pursuant
to the rules set forth in Treasury Regulation
1.401(k)-l(f)(5)."
7. A new section 3.8A shall be added and shall read as
follows:
"3.8A Aggregate Limit Test. (a) For any Plan Year commencing
on or after January 1, 1989, in which the 'average deferral
percentage' (as defined in section 3.7) and the 'average
contribution percentage' (as defined in section 3.8) of the
Highly Compensated Group can only satisfy the limitations
set forth in sections 3.7(a)(ii) and 3.8(a)(ii)
respectively, but neither can satisfy the limitations set
forth in sections 3.7(a)(I) and 3.8(a)(I), respectively, and
all corrective measures have been taken under Sections 3.7
and 3.8 to ensure compliance with the provisions of Sections
401(k) and 401(m) of the Code, the 'aggregate limit test'
prescribed under Treasury Regulation 1.401 (m)-2 shall be
applicable. The 'aggregate limit test' shall be deemed met
if (I) below is greater than or equal to (ii) below where:
(I) equals the sum of (A) and (3) below where:
(A) equals 1.25 multiplied by the greater of (1) and (2)
where:
(1) equals the 'average deferral percentage' of the
non-highly compensated group of Eligible Employees; and
(2) equals the 'average contribution percentage' of the
non-highly compensated group of Eligible Employees;
(B) equals the lesser of (1) and (2) above plus two per-
centage points. In no event, however, shall this amount
exceed 2.0 multiplied by the lesser of (1) and
(2) above.
(ii) equals the sum of (c) and (D) below where:
(C) equals the 'average deferral percentage' of the Highly
Compensated Group; and
(D) equals the 'average contribution percentage' of the
Highly Compensated Group.
(b) An 'alternative aggregate limit test' may be used in
place of the 'aggregate limit test' set forth in (a) above
for any Plan Years commencing on or after January 1, 1989,
as long as such test is permitted by the Internal Revenue
Service. This 'alternative aggregate limit test' shall be
deemed met if (I) below is greater than or equal to (ii)
below where:
(I) equals the sum of (A) and (B) below where:
(A) equals 1.25 multiplied by the lesser of (1) and (2)
where:
(1) equals the 'average deferral percentage' of the
non-highly compensated group of Eligible Employees; and
(2) equals the 'average contribution percentage' of the
non-highly compensated group of Eligible Employees;
(B) equals the greater of (1) and (2) above plus two
percentage points. In no event, however, shall this amount
exceed 2.0 multiplied by the greater of (1) and (2) above.
(ii) equals the sum of (c) and (D) below where:
(C) equals the 'average deferral percentage' of the Highly
Compensated Group; and
(D) equals the 'average contribution percentage' of the
Highly Compensated Group.
(c) The Committee shall determine each Plan Year the
appropriate
reductions, distributions, forfeitures, or such other
adjustments as are permitted under Treasury Regulations
pursuant to Code Sections 401(k) and 401(m) to be made in
order to satisfy the applicable limits set forth in this
Section 3.8A and in Sections 3.7 and 3.8. Any such
reductions, distributions or forfeitures shall be made in
accordance with the applicable provisions of Sections 3.7
and 3.8 and the nondiscrimination requirements of Section
401(a)(4) of the Code.
(d) In the event that the 'average deferral percentage', the
'average contribution percentage' and the 'aggregate limit'
of the Highly Compensated Group does not satisfy the
requirements set forth in Sections 3.7, 3.8, and this 3.8A,
respectively, the Employer may for any Plan Year commencing
prior to January 1, 1992, perform such testing by
restructuring the Plan into component plans as may be
permitted in regulations under Sections 401(a)(4) and 401(k)
of the Code, provided such component plans meet the coverage
requirements of Section 410(b) of the Code." 8. A new
Section 3.8B shall be added and shall read as follows:
"3.8B Plan Aggregation If the Employer sponsors two or more
plans which include a cash or deferred arrangement and/or to
which after-tax and/or Matching Employer Contributions are
made and are subject to Section 401(m) of the Code, but such
plans are considered one for purposes of Sections 401(a)(4)
or 410(b) of the Code, such plans shall be treated as one
plan for purposes of determining ,the 'average deferral
percentage' and the 'average contribution percentage',
respectively.
If any Eligible Employee who is a member of the Highly
Compensated Group is participating in two or more plans with
cash or deferred arrangements and/or which include after-tax
and/or Matching Employer contributions sponsored by the
Employer or an Affiliated Employer, all such cash or
deferred arrangements and/or all such after-tax and Matching
Employer contributions shall be aggregated for purposes of
determining the 'deferral percentage' and the 'contribution
percentage' for such Eligible Employee."
9. Section 3.9 shall be amended by adding the following to
the end thereof:
"In any event the annual additions made on behalf of a
Member hereunder shall be limited to the extent required by
Section 415 of the Code and rulings, notices, and
regulations issued thereunder."
10. Section 11.3, "Election Procedure for Married Members"
is amended by deleting the first sentence of the third
paragraph and replacing it with the following:
"An election under this section 11.3 not to receive the 50%
Contingent Annuitant Annuity with the spouse as contingent
annuitant is effective only if the Member's spouse consents
in writing to the election of the particular form of
payment, to the specific beneficiary designated, and such
consent acknowledges the effect of such election and is
witnessed by a notary public or a Plan representative."
11. Section 11.10 shall be amended by adding the following
to the end thereof:
"In any event, distributions hereunder shall be made in
accordance with Section 401(a)(9) of the Code, including the
incidental death benefit requirements of such Code Section,
and regulations thereunder, including Treasury Regulation
1.401(a)(9)-2. such regulations and applicable rulings or
announcements, including any grandfather provisions or
provisions delaying the effective date of section 401(a)(9)
are hereby incorporated by reference. The provisions of
Section 401(a)(9) of the code override any distribution
options under the Plan if inconsistent with such Code
Section."
IN WITNESS WHEREOF, the Employer has caused this amendment
to be executed by its officers thereunto duly authorized and
its corporate seal to be hereunto affixed as of the 7th day
of April, 1992.
CENTRAL VERMONT PUBLIC
SERVICE CORPORATION
By: /s/ Thomas C. Webb
ATTEST:
By: /s/ Beverly H. Merritt
(CORPORATE SEAL)
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
EMPLOYEE SAVINGS AND INVESTMENT PLAN
AMENDMENT NUMBER TWO
WHEREAS, Section 15.1 permits the Employer to amend the Plan
from time to time;
NOW, THEREFORE, the Plan is amended as follows:
1. Section 3.2, "Matching Employer Contribution",shall be
amended in its entirety effective July l, 1993, and shall
read as follows:
"The Employer shall contribute for each member 100% of the
first 4% of Compensation with respect to which the Member
authorizes a Pre-Tax Contribution."
2. Section 11.7, Date of Payment, shall be amended
effective January 1, 1989,
by deleting the last sentence of the first paragraph thereof
and replacing
it with the following:
"Subject to the provisions of Section 11.10, any Member who
terminates from this Plan, or his Beneficiary, if
applicable, who elects to defer payment of his benefit from
this Plan, may not be permitted to defer the payment of such
benefit beyond the April 1 following the calendar year in
which the Member attains (or would have attained) age
70-l/2."
3. Section 1.2, "Affiliated Employer", shall be amended in
its entirety effective January 1, 1993, and shall read as
follows:
"'Affiliated Employer' shall mean any company which is
included with the Employer in a controlled group of
corporations, as determined in accordance with Section 1563
(without regard to sections (a)(4) and (e)(3)(C) thereof) of
the Internal Revenue Code of 1986, as it may be amended from
time to time, except that for purposes of Section 1563 the
phrase "more than 50 percent" shall be substituted for the
phrase "at least 80 percent wherever it appears in said
Section. The Employer may from time to time also designate
other companies as Affiliated Employers under the Plan.
Solely for determining a Member's Years of service, the
following are Affiliated Employers as of the Effective Date:
Vermont Yankee Nuclear Power Corporation
Connecticut Valley Electric Company, Inc.
Vermont Electric Power Company, Inc.
Central Vermont Public Service Corporation - Bradford
Hydroelectric, Inc.
Central Vermont Public Service Corporation - East Barnet
Hydroelectric, Inc.
CV Realty, Inc.
CV Energy Resources, Inc.
CV Energy Services, Inc.
CV Rumford, Inc.
Catamount Energy Corporation
Equinox Vermont Corporation
Appomattox Vermont Corporation
Catamount Williams Lake, Ltd.
Smart Energy Services, Inc."
4. A new Section 11.12 shall be added effective January 1,
1993, and shall read as follows:
"11.2 Direct Rollovers.
(a) This Section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan
to the contrary that would otherwise limit a distributee's
election under this Section, a distributee may elect, at the
time and in the manner prescribed by the Committee, to have
any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the
distributee in a direct rollover.
(b) Definitions.
(i) 'Eligible rollover distribution': An eligible rollover
distribution is any distribution of all or any portion of
the balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made
for the life (or life expectancy) of the distributee or the
joint lives (or joint life expectancies) of the distributee
and the distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to
the extent such distribution is required under Section
401(a)(9) of the code; and the portion of any distribution
that is not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with
respect to employer securities).
(ii) 'Eligible retirement plan': An eligible retirement
plan is an individual retirement account described in
Section 408(a) of the code, an individual retirement annuity
described in section 408(b) of the Code of l986, an annuity
plan described in Section 403(a) of the Code, or a qualified
trust described in Section 401(a) of the Code, that accepts
the distributee's eligible rollover distribution. However,
in the case of an eligible rollover distribution to the
surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement
annuity.
(iii) 'Distributee': A distributee includes an Employee or
former Employee. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or former
Employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined
in Section 414(p) of the Code, are distributees with regard
to the interest of the spouse or former spouse.
(iv) 'Director rollover': A direct rollover is a payment by
the Plan to the eligible retirement plan specified by the
distributee."
5. Section 13.3, Powers of Committee, shall be amended
effective January l, 1993, by inserting the following
paragraph (h) after paragraph (g) thereof and restating the
last paragraph thereof as follows:
"(h) to amend the Plan from time to time as may be required
to continue the qualified status of the Plan under Section
401(a) of the code or as may be desired to direct the
administration of the Plan, but only to the extent such
amendment does not impact Plan expenses. In any event, any
amendment hereunder shall be subject to the provisions of
Section 15.1 of the Plan.
Except as provided in (h) above, the committee shall not add
to, subtract from or modify the terms of the Plan or change
or add to any benefits provided by the Plan, or waive or
fail to apply requirements for eligibility for benefits
under the Plan.
IN WITNESS WHEREOF, the Employer has caused this amendment
to be executed by its officers thereunto duly authorized and
its corporate seal to be hereunto affixed as of the 8th day
of March, 1994.
CENTRAL VERMONT PUBLIC SERVICE
CORPORATION
By: /s/ Thomas C.
Webb
ATTEST:
/s/ Carole L. Root
Carole L. Root
Assistant Corporate Secretary
AMENDMENT NUMBER THREE
CENTRAL VERMONT PUBLIC SERVICE CORPORATION EMPLOYEE SAVINGS
AND INVESTMENT PLAN
(As Amended and Restated Effective January 1, 1989)
WHEREAS, Section 15.1 permits the Employer to amend the Plan
from time to time;
NOW, THEREFORE, the Plan is amended as follows:
1. Section 1.8, "Compensation" shall be amended as follows:
(a) The first sentence of the second paragraph shall be
deleted and replaced with the following:
"Effective January 1, 1989, in addition to other applicable
limitations which may be set forth in the Plan and
notwithstanding any other contrary provision of the Plan,
Compensation taken into account under the Plan shall not
exceed $200,000 ($150,000 for Plan Years beginning in 1994)
or such amount as indexed pursuant to Sections 401(a)(17)
and 415(d) of the Code and applicable regulations
thereunder."
(b) The last sentence of this Section shall be deleted and
replaced with the following paragraph:
"Effective January 1, 1989, in determining the Compensation
of a Member for purposes of the limitation of Section
401(a)(17) of the Code, the family aggregation rules of
Section 414(q)(6) of the Code shall apply; provided,
however, that in applying such rules, the term "family"
shall include only the spouse of the Member and any lineal
descendants of the Member who have not attained age 19
before the close of the Plan Year. If the Compensation of
the Member exceeds the limitation of Section 401(a)(17) of
the Code, then the limitation of Section 401(a)(17) of the
Code shall be prorated among the Compensation of the Member
and his family (as determined under this Section prior to
the application of the limitation of Section 401(a)(17)) in
proportion to each such individuals Compensation (as
determined under this Section prior to the application of
the limitation of Section 401(a)(17) of the Code).
2. Section 4.6 shall be amended by adding the following
paragraph to the end thereof;
"The Trustee shall exercise all rights to tender or exchange
shares of stock issued by the Employer or any subsidiary or
affiliate thereof only as directed by the Members in
accordance with the following:
The Committee shall utilize its best efforts to timely
distribute or cause to be distributed to each Member such
information as will be distributed to stockholders of the
Employer in connection with any tender or exchange offer
with respect to shares of stock issued by the Employer or
any subsidiary or affiliate thereof, together with a form
requesting confidential instructions as to whether or not
such shares allocated to the account of the Member are to be
tendered or exchanged. Each Member shall have the right from
time to time with respect to shares of stock attributable to
their Accounts to instruct the Trustee in writing as to the
manner in which to respond to any tender or exchange offer
which shall be pending or which may be made in the future
for all shares of stock or any portion thereof. A Member's
instructions shall remain in force until superseded in
writing by the Member. The Trustee shall tender or exchange
whole shares of stock only as and to the extent so
instructed and shall aggregate Members' responses with
respect to fractional shares and tender and exchange
fractional shares in a manner designed to comply with the
aggregate responses of all Members with respect to such
fractional shares of stock. If the Trustee shall not receive
timely direction from a Member as to the manner in which to
respond to such a tender or exchange offer with respect to
shares of stock allocated to his Accounts the Trustee shall
not tender or exchange any such shares, and the Trustee
shall have no discretion in such matter. If a tender or
exchange offer is made with respect to the shares of stock
allocated to the account of a deceased Member, such Member's
Benefit shall be entitled to direct the manner in which to
respond to such tender or exchange offer as if such
Beneficiary were the Member.
3. Addendum Number One shall be added to the Plan effective
July 1, 1995, and shall read as follows:
"ADDENDUM NUMBER ONE TO THE CENTRAL VERMONT PUBLIC SERVICE
CORPORATION
EMPLOYEE SAVINGS AND INVESTMENT PLAN
Introduction
Effective July 1, 1995, the Employee Stock Ownership Plan of
Central Vermont Public Service Corporation and its
Subsidiaries (the "ESOP") shall be merged into and
maintained as a part of this Plan. The purpose of this
Addendum is to provide for and document this merger and the
rules applicable to the ESOP portion of this Plan.
Plan Merger and Account Provisions
(a) On or about July 1, 1995, all of the Accounts held under
the ESOP shall be transferred to and maintained as part of
this Plan in accordance with the provisions of this Plan as
modified by the further provisions of this Addendum Number
One.
(b) In accordance with Section 401(a)(12) of the Code, each
Member of the ESOP shall (as if the ESOP then terminated)
receive a benefit immediately after the merger described
herein equal to the benefit he would have been entitled to
immediately before the merger (if the ESOP then terminated).
(c) A separate accounting of amounts transferred from the
ESOP Plan shall be maintained under the Member's Account
hereunder, with such amounts being known as the Member's
"ESOP Account". All benefits, rights, and features of such
amounts shall be maintained hereunder including forms of
benefit payment, availability of in-service hardship
withdrawals, and diversification of accounts (as described
in section (d) hereof).
(d) A Member who has attained age 55 and completed at least
10 year of participation (a "Qualified Participant", as
defined in the ESOP) in the ESOP portion of the Plan shall
be entitled to diversify the investment of up to 100% of the
ESOP portion of his Account in the same manner as described
in Article IV of the ESOP plan document. In no event shall a
Member who is not a "Qualified Participant" be permitted to
diversify the investment of his ESOP Account as described
hereunder.
Notwithstanding the foregoing and subject to the provisions
of the Plan, a Member shall be entitled to distribution of
his ESOP Account upon termination of employment, death, or
for an in-service withdrawal as described in paragraph (f)
below and the provisions of Article V.
(c) A Member shall not be permitted to borrow from that
portion of his Account attributable to the ESOP.
(f) A Member shall be entitled to make withdrawals from the
ESOP portion of his Account to the same extent as Pre-Tax
Contributions hereunder. Accordingly, to the extent provided
by the rules of Article V, withdrawals shall be made first
from the Member's ESOP Account, second from his Matching
Employer Contribution Account, third from his Rollover
Contribution Account, and fourth from his Pre-Tax
Contribution Account. To the extent that a Member's ESOP
Account includes after-tax Employee Contributions,
withdrawals shall be made first from such after-tax
contributions and/or earnings thereon in a manner which
corresponds with the tax treatment of such withdrawals under
the Code, and second from the remainder of his ESOP Account.
(g) Costs and expenses of the Plan with respect to the ESOP
Accounts shall be allocated among Members' ESOP Accounts, in
proportion to their respective account balances, and
deducted from the cash portion of such ESOP Accounts which
are held by the Trust Fund. To the extent that there is
insufficient cash in such Accounts to pay said expenses, the
deficiency shall be paid by the Employer.
(h) Notwithstanding the foregoing, the amounts transferred
from the ESOP to this Plan shall continue to satisfy the
applicable requirements of Section 409 of the Code and
regulations and rulings thereunder, on and after the date of
such transfer.
(i) The Committee and the Trustee are specifically directed
and authorized to take whatever action is necessary and
appropriate to effect the terms of this Addendum Number
One."
IN WITNESS WHEREOF, the Employer has caused this Amendment
to be executed by its officers thereunto duly authorized and
its corporate seal to be hereunto affixed as of the
__________________ day of ________________,1995.
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
By:
ATTEST:
ADMINISTRATIVE SERVICES AGREEMENT
FOR
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
EMPLOYEE SAVINGS AND INVESTMENT PLAN
COMPANY STOCK POOLED ACCOUNT
This Agreement made and entered into as of January 1, 1990
by and between IDS Trust, a division of IDS Bank & Trust,
acting by and through said company ("IDS Trust"), and
Central Vermont Public Service Corporation ("Central
Vermont") acting on behalf of said company's Employee
Savings and Investment Plan ("Plan").
In consideration of the mutual covenants contained herein,
the parties agree as follows:
1. PROVISION OF SERVICES. IDS Trust shall provide
administrative services as described herein for the Plan's
company stock pooled account ("Pooled Account") in
consideration of compensation it receives under IDS Trust's
January 1, 1990, Defined Contribution Administrative
Services Agreement with Central Vermont.
2. DEFINITIONS.
A. "Company Stock" means shares of common stock issued by
Central Vermont Public Service Corporation.
B. "Participant" means a participant in the Central Vermont
Public Service Corporation Employee Savings and Investment
Plan.
C. "Business Day" means any day the New York Stock Exchange
is open for business, except bank holidays.
3. ASSETS OF THE POOLED ACCOUNT. On and after the effective
date of this Agreement, all assets invested in or
transferred to the Pooled Account by the Plan's Participants
shall be invested partly in Company Stock and partly in IDS
Trusts' Collective Cash Fund. The assets of the Pooled
Account shall consist of shares of Company Stock and
dividends earned by such stock, plus units of IDS Trust's
Collective Cash Fund and earnings on any such units.
4 . PERCENTAGE OF CASH IN THE POOLED ACCOUNT. IDS Trust
shall maintain the percentage of the Pooled Account's assets
invested in units of the Collective Cash Fund (the "Cash
Position") between 5% and IDS. IDS Trust is authorized, in
its discretion, to very the Cash Position of the Pooled
Account, within the limits stated herein, in accordance with
its judgment as to the probable need of the Pooled Account
for liquidity. Whenever Company Stock needs to be purchased
or sold in order to maintain the Pooled Account's Cash
Position within the limits set forth herein, IDS Trust shall
undertake to buy or sell such stock. If the Pooled Account's
Cash Position is less than 5% or greater than 10% as of
12:30 p.m. Central Time on any Business Day, then prior to
the close of business on such day IDS Trust shall initiate
the sale or purchase, as appropriate, of Company Stock in
such amounts as would restore the Cash Position to the
limits set forth herein if the purchase or sale transactions
were settled on such date. If the Pooled Account's Cash
Position is less than 5% or greater than 10% after 12:30
p.m. Central Time on any Business Day, then IDS Trust shall
proceed as described in the preceding sentence the next
Business Day. If the Pooled Account's Cash Position is
restored to the limits set forth herein due to additional
investments, withdrawals, or for any other reason, prior to
IDS Trust's initiating a purchase or sale of Company Stock,
then IDS Trust may, in its discretion, decide not to
initiate such purchase or sale. Temporary deviations from
the Pooled Account's specified Cash Position shall not be
deemed a material violation of this Agreement. In the event
IDS Trust concludes from time to time that the maximum Cash
Position of the Pooled Account needs to be greater than 10%,
in order to avoid or reduce an excessive, in the judgment of
IDS Trust, number of sale transactions involving Company
Stock, which excessive transactions are generating brokerage
costs greater than those anticipated by the parties, it
shall so notify Central Vermont, and Central Vermont may, in
its discretion, advise IDS Trust as to the new maximum Cash
Position which may be maintained for the Pooled Account.
5. VALUATION. The Pooled Account shall be valued by IDS
Trust on each Business Day beginning with the first Business
Day after the effective date of this Agreement in which the
Pooled Account contains assets invested in, or transferred
to, it by the Plan's Participants. On such first Business
Day, IDS Trust shall establish a unit value for the Pooled
Account of $10 and divide that initial unit value into all
of the assets in the Pooled Account as of that date in order
to determine the total number of units in the Pooled Account
as of that date. Thereafter, the value of each unit shall
vary with changes in the value of the assets in the Pooled
Account. The number of units shall vary as assets are
invested in or transferred to the Pooled Account, or
withdrawn or transferred from the Pooled Account. Dividends
earned by Company Stock in the Pooled Account shall be
accounted for as an asset of the Pooled Account as of the
stock's exdividend date. Such dividends shall be reinvested
by IDS Trust in Company Stock. Earnings on the Cash Fund
portion of the Pooled Account shall be reinvested in the
Cash Fund. If IDS Trust initiates the purchase or sale of
Company Stock on a Business Day, the total purchase or sale
price of the shares bought or sold shall be used for
purposes of valuing the Pooled Account on and after such
date. IDS Trust shall determine the daily accrued fee to be
used when valuing the Pooled Account. For purposes of
determining unit values, the value of the Company Stock in
the Pooled Account shall be determined by reference to the
daily closing price provided by the pricing service used by
IDS Trust as of such date. IDS Trust shall from time to
time, upon Central Vermont's request, advise Central Vermont
of the pricing service it uses.
6. INVESTMENTS IN THE POOLED ACCOUNT. A. Investments in, or
transfers to, the Pooled Account by the Plan will be
credited to the Plan as of the Business Day following the
Business Day on which the Participant's request and funds
are received by IDS Trust (if such funds are not already
held by IDS Trust) if received before 12:30 p.m. Central
Time. The unit value the Participant shall receive shall be
determined as of the close of business on the Business Day
such request and funds were actually received by IDS Trust,
if received before 12:30 p.m. Central Time, and shall be
reflected on the Participant's account balance at the close
of that Business Day.
B. Any invested or transferred amount received by IDS Trust
after 12:30 p.m. Central Time will be credited to the Plan
as of the second Business Day following the Business Day
such request and funds were actually received. The unit
value the Participant shall receive under such circumstances
shall be determined as of the close of business on the
Business Day following the Business Day such request and
funds were actually received by IDS Trust, and shall be
reflected on the Participant's account balance at the close
of such Business Day.
C. Once received hy IDS Trust, a Participant's request for
investment of funds in, or transfer of funds to, the Pooled
Account may not be cancelled.
D. All Participant transfers to the Pooled Account from
other investment options of the Plan must be initiated by
telephone using the telephone number provided by IDS Trust.
All other investments in the Pooled Account must be
initiated by written authorized request sent to IDS Trust.
7. WITHDRAWALS FROM THE POOLED ACCOUNT. A. Requests for
withdrawals, loans or transfers from the Pooled Account must
be received by IDS Trust between 8:00 a.m. and 12:30 p.m.,
Central Time, in order to be processed as of that Business
Day. If a request is received after 12:30 p.m., it will be
deemed to have been received as of the next Business Day.
Once received by IDS Trust, a Participant's request for a
withdrawal, transfer or loan may not be cancelled. If the
Pooled Account's Cash Position is sufficient to satisfy all
Participant requests as of the Business Day they are
received, funds will be transferred in accordance with the
Participants' requests the next Business Day. If the Cash
Position of the Pooled Account is insufficient to satisfy
the requests of all Participants who have made a request as
of a given Business Day, then such Participants will be
notified that the transactions they have requested will be
processed as of the seventh Business Day after the requests
were received by IDS Trust unless sufficient cash to satisfy
all such Participant requests is received by IDS Trust from
new contributions, transfers in or loan repayments prior to
such date. In such event, all such requests will be
processed as of such earlier date.
B. All Participant transfers from the Pooled Account to
other investment options of the Plan must be initiated by
telephone using the telephone number provided by IDS Trust.
All other withdrawals, and all requests for loans, must be
initiated by authorized written request sent to IDS Trust.
8. WITHDRAWALS OF COMPANY STOCK. A. Participants may
request withdrawals from the Pooled Account either in cash
or in Company Stock. If a withdrawal of Company Stock is
requested, a Participant will receive the amount requested
partly in cash and partly in Company Stock in such ratio as
the Cash Position of the Pooled Account bears to the total
amount of Company Stock in the Pooled Account as of the
Business Day the Participant's request is received by IDS
Trust (as determined in accordance with the rules set forth
in Section 7. herein). In determining the amount of Company
Stock to be distributed to a Participant, fractional share
shall be rounded down to the next whole share.
B. In the event a Participant's withdrawal of Company Stock
is subject to taxation, the amount to be withheld by IDS
Trust shall be based on the closing price of the shares on
such Business Day as the Participant's request is received
by IDS Trust (as determined in accordance with the rules set
forth in Section 7. herein).
9. TIMING OF TRANSACTIONS. The times for the initiation and
completion of all Participant transactions concerning the
Pooled Account, including but not necessarily limited to
transfers, investments, withdrawals and loans, shall be
governed by the provisions of IDS Trust's January 1, 1990,
Defined Contribution Administrative Services Agreement with
Central Vermont to the extent that such times are not
specified in this Agreement. In the event there is any
inconsistency between the terms of the two Agreements, the
terms of this Agreement shall take precedence.
10. PROXIES. All proxies for the Company Stock in the
Pooled Account shall be voted by IDS Trust in accordance
with the instructions it receives from the Central Vermont
Public Service Corporation Employee Savings and Investment
Plan Committee.
11. ASSIGNMENT OF AGREEMENT. No assignment of this Agreement
(as defined in the Investment Advisers Act of 1940) shall be
made by IDS Trust without the consent of Central Vermont,
provided, however, that IDS Trust may assign this Agreement
to another wholly-owned subsidiary of IDS Financial
Corporation which is chartered as a trust company if IDS
Trust first gives Central Vermont thirty days advance notice
and Central Vermont does not object to the assignment within
such period.
Central Vermont Public Service Corporation
on behalf of its Employee Savings and Investment Plan
By: /s/ Joseph M. Kraus
Its: Secretary 401(k) Committee
IDS Trust, A division of IDS Bank & Trust
By: /s/ Felicia A. Palmer
Its: Vice President
AMENDMENT NO. 1 TO THE
ADMINISTRATIVE SERVICES AGREEMENT
FOR
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
EMPLOYEE SAVINGS AND INVESTMENT PLAN
COMPANY POOLED STOCK ACCOUNT
Whereas, IDS Trust has, per the Administrative Services
Agreement, agreed to value a pooled account consisting of
shares of CVPSC common stock and short term investments on a
daily basis, using a methodology substantially similar to
the valuation methodology utilized by IDS Trust's Collective
Funds, and
Whereas, IDS Trust has recently amended its 1989 Amended
Declaration of Trust - Employee Benefit Trusts to allow the
Collective Funds governed by this document to utilize a
valuation methodology which takes account of the effects of
security purchases and sales no later than the valuation at
the end of the first working day following the trade date,
which allows IDS Trust to utilize an automated valuation
system to control and value the Collective Funds on a daily
basis, and
Whereas, IDS Trust wishes to provide the most effective
long-term daily valuation service under the Administrative
Services Agreement by utilizing the same valuation
methodology as is now utilized by IDS Trust's Collective
Funds,
Therefore, Section 5 of the Administrative Services
Agreement shall be amended by deleting the sixth sentence,
and replacing the sixth sentence as follows:
"If IDS Trust initiates the purchase or sale of Company
Stock on a Business Day, the total purchase or sale price of
the shares bought or sold shall be used for purposes of
valuing the Pooled Account no later than the first business
day following such purchase or sale."
Whereas, the Pooled Account has been operated under the
initial cash position guidelines of the Administrative
Services Agreement since January 1, 1990, and IDS Trust and
Central Vermont Public Service Corporation have mutually
found that the cash flows of the Plan are such that a
smaller average cash position is warranted,
Therefore, the first sentence of Section 4 of the
Administrative Services Agreement shall be amended to read:
"IDS Trust shall maintain the percentage of the Pooled
Account's assets invested in units of the Collective Cash
Fund (the "Cash Position") between 4% and 6%."
Amendment No. 1 to the Administrative Services Agreement is
hereby approved this 9th day of August, 1990.
Central Vermont Public Service Corporation
on behalf of its Employee Savings and Investment Plan
By: /s/ Jacquel-Anne Chouinard
Its: Chairperson
IDS Trust, a division of IDS Bank and Trust
By: /s/ Darryl G. Harsman
Its: Vice President
Amendment No. 2 to the
Administrative Services Agreement
for
Central Vermont Public Service Corporation
Employees Savings and Investment Plan
Company Stock Pooled Account
This Amendment No. 2 to the Administrative Services
Agreement ("Administrative Services Agreement") is made and
entered into this 30th day of June, 1995 by and between
American Express Trust Company, a Minnesota trust company,
("American Express Trust") and Central Vermont Public
Service Corporation (the "Employer").
WITNESS THAT:
WHEREAS, American Express Trust and the Employer are parties
to the Administrative Services Agreement made effective,
initially January 1, 1990 which was later amended August 9,
1990 with respect to the Company's Stock Pooled Account for
the Central Vermont Public Service Corporation Savings and
Investment Plan (the "Plan"); and;
WHEREAS, American Express Trust and the Employer wish to
amend the Administrative Services Agreement to provide for a
different cash position among certain other changes; and
NOW THEREFORE, in consideration of the mutual covenants set
forth in the Administrative Services Agreement, it is agreed
by the parties hereto that the Administrative Services
Agreement is hereby amended effective June 19, 1995 as
follows with all other provisions of the Administrative
Services Agreement which are not herein amended shall remain
in full force:
1. By revising Section 4 by changing the minimum cash
position to 2% and by changing the maximum cash position to
4%.
2. By adding to Section 9 as may be amended from time to
time after January 1, 1990.
3. By deleting Section 10 in its entirety.
IN WITNESS THEREOF, the parties have executed this Amendment
No. 2 to the Administrative Services Agreement as of the
date first written above.
Central Vermont Public Service Corporation
SIGNED: /s/ Jacquel-Anne Chouinard
TITLE: Vice President, Human Resources
American Express Trust Company
SIGNED: /s/ Mark Ellis
TITLE: Vice President
INVESTMENT GUIDELINES FOR IDS TRUST RESEARCH 150 COLLECTIVE
EQUITY FUND
I. AUTHORIZED INVESTMENTS
Investments will be limited to common stocks, short-term
money market instruments and stock index futures contracts
(including options on such contracts and options on stock
indexes). No other categories of investment are contemplated
for inclusion in the Fund's portfolio at this time. The
Amended Declaration of Trust - IDS Trust Collective
Investment Funds for Employee Benefit Trusts, as amended
from time to time, is hereby incorporated by reference and
made a part of these guidelines. The Fund will be managed in
compliance with the provisions of ERISA at all times.
II. PERFORMANCE GOAL
The Fund's performance goal is to provide a total return
exceeding the total return of the U.S. stock market. Total
return reflects net income and changes in value in the
Fund's investments. The Fund primarily compares its
performance to the S&P 500 Stock Index (the "Stock Index"),
which is a broad index of the U.S. stock market. From time
to time, the Fund may also compare its performance to other
publicly available stock indexes.
III. EQUITY COMMITMENT
It is anticipated that under normal market conditions the
Fund's investments in common stocks will generally equal or
exceed 90% of the market value of its portfolio.
IV. COMMON STOCKS
Ordinarily, the Fund will hold approximately l00 to 200 of
the common stocks that are included in the Stock Index.
Although the overall characteristics of the Fund's portfolio
are expected to be comparable to the universe of stocks
represented by the Stock Index, the composition of the
Fund's portfolio will be different from that of the Stock
Index. Common stocks the Fund purchases are rated on the
basis of relative attractiveness for investment.
Statistical techniques are used to create a portfolio of
investments that on the whole is comparable in its risk
characteristics to the Stock Index, but which emphasizes
those stocks given a higher rating by securities analysts.
Under normal circumstances, at least 65 percent of the
Fund's assets will be in blue chip stocks. Blue chip stocks
are stocks that are included in the Stock Index and are
issued by companies with a market capitalization of at least
$1 billion.
The Fund may invest up to 20 percent of its total assets at
the time of purchase in securities of foreign issuers. The
Fund may invest only in foreign securities that are included
in the Stock Index, or whose inclusion in the Stock Index in
the near future has been announced by S&P. Foreign
securities are currently included in the Stock Index only in
the form of American Depository Receipts (ADRs). ADRs are
receipts typically issued by an American bank or trust
company that evidence ownership of underlying securities
issued by a foreign corporation. Foreign investments may be
subject to risks, including changes in currency rates,
future political and economic developments and the
possibility of seizure or nationalization of companies,
imposition of withholding taxes on dividend income,
establishment of exchange controls or adoption of other
restrictions that might affect an investment adversely.
No common stock holding shall represent more than 10% of the
Fund's portfolio at the time of purchase, and no such
holding may exceed 5% of the outstanding voting shares of
the issuing corporation at the time of purchase.
The Fund may not deal in short sales or margin transactions
except in conjunction with the use of stock index futures
contracts, options on stock index futures contracts and
options on stock indexes.
There are no restrictions on portfolio turnover or on
realizing gains or losses.
All purchase and sale transactions shall be conducted with
the intention of obtaining the best net execution
considering all relevant factors.
V. CASH AND EQUIVALENTS
Some or all of the Fund's cash may be invested in the IDS
Trust Collective Cash Fund or in other pooled funds that
invest primarily in high-quality money market instruments or
other short-term instruments of comparable quality,
including money market mutual funds or other cash collective
investment funds. If cash is invested directly in money
market instruments, such investments will be limited to
commercial paper rated A-l or P-l, certificates of deposit
of the 50 largest U.S. banks, and securities issued or
guaranteed by the U.S. government or one of its agencies.
Vl. STOCK INDEX FUTURES CONTRACTS AND RELATED OPTIONS
Stock index futures contracts, options on such contracts and
options on stock indexes (hereinafter called "futures
contracts") may be used for hedging purposes only and not
for speculation. In buying and selling futures contracts,
the Fund will at all times abide by the regulations of the
Commodity Futures Trading Commission defining hedging.
The Fund may purchase futures contracts rather than common
stocks in order to gain rapid exposure to the market in
anticipation of buying common stocks. In such anticipatory
hedge circumstances, cash or cash equivalents in the amount
of the commodity value of the futures contracts is set aside
in anticipation of common stock purchases in the future.
Consideration will also be given to the value of futures
contracts relative to the alternative of buying common
stocks immediately. At no time, however, will futures
contracts be purchased to leverage the Fund's portfolio.
VII. INVESTMENT MANAGEMENT FEE
The Fund pays IDS Trust a fee for managing the Fund. The fee
is equal on an annualized basis to 0.50% of the Fund's daily
net assets, and is accrued daily as an expense of the Fund.
We have reviewed these Investment Guidelines and hereby
affirm that they are in accord with the investment policy of
the qualified retirement plan for which investment is
intended.
BY: /s/ Jacquel-Anne Chouinard
TITLE: Vice President - Human Resources
DATE: May 26, 1994
1989 AMENDED DECLARATION OF TRUST -
IDS TRUST COLLECTIVE INVESTMENT FUNDS
FOR EMPLOYEE BENEFIT TRUSTS
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS
Sec. 1.1 Trust
Sec. 1.2 Trustee
Sec. 1.3 Collective Funds
Sec. 1.4 Qualified Trust
Sec. 1.5 Grantor
Sec. 1.6 Participant
Sec. 1.7 Authorized Representative
Sec. 1.8 Valuation Date
Sec. 1.9 Liquidating Fund
ARTICLE II - TITLE OF TRUST, PURPOSE
Sec. 2.1 Title of Trust
Sec. 2.2 Purpose
ARTICLE III - SEPARATE FUNDS
Sec. 3.1 Separate Funds Created, Maintained and Confirmed
Sec. 3.2 Funds Available Only to Qualified Trusts
Sec. 3.3 Investment by Trustee of Its Own Funds Prohibited
Sec. 3.4 Subdivision of Collective Funds
ARTICLE IV - PARTICIPATION IN COLLECTIVE FUNDS
Sec. 4.1 Authorization of Qualified Trust
Sec. 4.2 Consent of Trustee Required to Become a Participant
Sec. 4.3 Assets of the Collective Funds to be Devoted to
Qualified Trusts and
Eligible Employees and Beneficiaries Thereunder
ARTICLE V - PROVISIONS WITH RESPECT TO COLLECTIVE FUNDS
Sec. 5.1 Separate Administration of Each Fund
Sec. 5.2 General Application of Certain Provisions of the
Trust to All Funds
Sec. 5.3 Deposits of Money in the Funds
Sec. 5.4 Investments of the Equity Funds
Sec. 5.5 Investments of the Fixed-Income Funds
Sec. 5.6 Investments of the Cash Funds
Sec. 5.7 Investments of the Balanced Funds
Sec. 5.8 Investments of the Special Funds
Sec. 5.9 Investments of the Index Funds
Sec. 5.10 Prudent Trustee Rule Applicable
Sec. 5.11 Prohibited Transactions
Sec. 5.12 Trustee's Decision to Control
Sec. 5.13 Right to Purchase Investments of a Qualified Trust
Sec. 5.14 Right to Retain Cash Uninvested
Sec. 5.15 Rights to Receive and Retain Investments Received
on Conversion or Exchange
Sec. 5.16 Income to be Accumulated
Sec. 5.17 General Statements of Investment Policies for
Collective Funds
Sec. 5.18 Transfer of Assets Between Collective Funds
ARTICLE VI - OTHER POWERS OF THE TRUSTEE WITH RESPECT TO THE
FUNDS
Sec. 6.1 Powers
ARTICLE VII - DIVISION OF FUNDS INTO UNITS
Sec. 7.1 Participation in Each Fund Determined by Units
Sec. 7.2 Participation in Income, Gains and Losses in
Accordance with Units
Sec. 7.3 Right to Divide Units into Larger Number
Sec. 7.4 Nonassignability, Right of Participation and
Relative Preference and Priority of Units, etc.
Sec. 7.5 Interest of a Participant not Subject to
Garnishment or Attachment
Sec. 7.6 Unit Value at Inception of Each Fund
Sec. 7.7 Subsequent Determinations of Unit Values
ARTICLE VIII - DEPOSITS IN THE FUNDS AND WITHDRAWAL
THEREFROM
Sec. 8.1 Notice, Time and Manner for Making Deposits in and
Redemptions From Funds
Sec. 8.2 Consent of Trustee Required, etc.
Sec. 8.3 Redemption of Units
Sec. 8.4 Time Allowed for Valuations and Payments
Sec. 8.5 Chargeback to Participants of Accrued Income
Included in a Redemption if Not Collected
Sec. 8.6 Automatic Redemption of Units Ceasing to be a
Qualified Trust
Sec. 8.7 Duty of Grantor and Authorized Representative of a
Participant, Ceasing to be a Qualified Trust, to Notify
Trustee
ARTICLE IX - LIQUIDATING FUNDS
Sec. 9.1 Establishment of Liquidating Funds
Sec. 9.2 Effect of Transfer to Liquidating Fund
Sec. 9.3 Assignability
Sec. 9.4 Powers of Trustee with Respect to Liquidating Funds
ARTICLE X - ACCOUNTS AND AUDITS
Sec. 10.1 Books of Account
Sec. 10.2 Basis of Accounting
Sec. 10.3 Annual Audit, Reports and Publicity
Sec. 10.4 Annual Account
Sec. 10.5 Objections to Accounts and Adjustment Thereof
Sec. 10.6 Settlement of Accounts
Sec. 10.7 Trustee's Right to Court Accounting
ARTICLE XI - MISCELLANEOUS PROVISIONS WITH RESPECT TO
TRUSTEE
Sec. 11.1 Fees of the Trustee
Sec. 11.2 Representation of Interested Parties
Sec. 11.3 Notices
Sec. 11.4 Merger, Consolidation or Reorganization of the
Trustee
Sec. 11.5 Trustee's Discretion and Exercise Thereof
ARTICLE XII - AMENDMENT AND TERMINATION
Sec. 12.1 Power of Amendment and Exercise Thereof
Sec. 12.2 Limitation on Power of Amendment
Sec. 12.3 Power to Terminate
ARTICLE XIII - MINNESOTA LAW TO GOVERN
ARTICLE XIV - DURATION OF TRUST
ARTICLE XV - TRUST TO BE A DOMESTIC TRUST OF THE U.S.
1989 AMENDED DECLARATION OF TRUST - IDS TRUST COLLECTIVE
INVESTMENT FUNDS
FOR EMPLOYEE BENEFIT TRUSTS
WHEREAS, IDS Bank & Trust, a state-chartered bank and trust
company with its principal place of business in Minneapolis,
Minnesota (hereinafter referred to as "Trustee") did
heretofore under date of December 14, 1979 execute a
Declaration of Trust establishing this Trust, which Trust
has been amended from time to time; and
WHEREAS, the Trustee wishes to amend said Declaration of
Trust to change certain provisions;
NOW THEREFORE, said Trustee does hereby amend the Declara-
tion of Trust as this single legal instrument which will
henceforth be known as the "1989 Amended Declaration of
Trust - IDS Trust Collective Investment Funds For Employee
Benefit Trusts" and will read as follows:
ARTICLE I.
DEFINITIONS
As used herein, unless the context otherwise requires or
unless otherwise herein expressly provided, the following
terms shall have the following meanings:
1.1 Trust, or Declaration of Trust, shall mean all of the
provisions of this instrument and of any and all other
instruments supplemental hereto or amendatory hereof.
1.2 Trustee shall mean IDS Bank & Trust when it is acting or
is to act as Trustee hereunder, or any successor bank or
trust company into which or with which it shall be merged or
consolidated or any corporation with trust powers resulting
from any merger, consolidation or reorganization to which
said Bank shall be a party, when acting as Trustee
hereunder.
1.3 Collective Funds shall mean any of the Funds provided
for under Section 3.1 hereof.
1.4 Qualified Trust shall mean only a pension trust,
profit-sharing trust, stock bonus trust or other employee
benefit trust or plan, private or governmental, (including
the plan which it embodies or of which it is a part) which
is qualified under the provisions of Section 401(a) and
exempt under Section 501(a) of the Internal Revenue Code of
1986 or any similar provisions hereinafter enacted, or which
is a governmental plan described in Section 3(a)(2)(C) of
the Securities Act of 1933, or any provision substantially
comparable to such Section hereinafter enacted, if the terms
of such trust or plan, including any statutes or rules
establishing or regulating a governmental plan, Specifically
authorize it to participate in the Collective Funds, or any
of them, or authorize it to participate in any common,
collective or commingled trust funds.
1.5 Grantor shall mean the person or persons, legal or
natural, who have created or adopted a Qualified Trust for
the benefit of his, its or their eligible employees.
1.6 Participant shall mean any Qualified Trust, the moneys
of which shall be invested through the medium of any or all
of the Collective Funds.
1.7 Authorized Representatives means the trustee or trustees
of each Participant, or a person or persons having fiduciary
responsibilities with respect to a governmental plan that
are substantially comparable to those of a trustee of a
Participant, and the persons, if any, natural or legal, who,
by the terms of a Qualified Trust which becomes a
Participant hereunder, are granted direct authority,
advisory power or control with respect to the investments
thereof.
1.8 Valuation Date shall mean the last business day of any
month as of which the value of the assets held in any Fund
or Sub-Fund hereunder shall be determined, and the Trustee
may change any such designation of a Valuation Date for any
Fund hereunder from time to time; provided, however, that
the Trustee shall be required to designate a Valuation Date
for each Fund or SubFund hereunder not less frequently than
once during each period of three (3) months; provided,
however, that in the case of the cash fund described in
Section 3.1 of Article III and Section 5.6 of Article V,
Valuation Date shall mean each business day or such other
date chosen by the Trustee from time to time in accordance
with this section.
1.9 Liquidating Fund shall mean a Fund established pursuant
to Article IX of this Trust.
ARTICLE II.
TITLE OF TRUST, PURPOSE
Sec. 2.1 Title of Trust.
The title of the Trust hereby established shall be: IDS
TRUST COLLECTIVE INVESTMENT FUNDS FOR EMPLOYEE BENEFIT
TRUSTS.
Sec. 2.2 Purpose
The purpose of the Trust is to establish and create separate
Collective Funds to be operated and maintained by the
Trustee exclusively for the collective investment and
reinvestment, without distinction between principal and
income, of moneys received and held by the Trustee hereunder
for Qualified Trusts.
ARTICLE III.
SEPARATE FUNDS
Sec. 3.1 Separate Funds Created, Maintained and Confirmed.
Thirteen separate Collective Funds are established
hereunder, designated respectively as the Collective Equity
Fund A, Equity Fund B, Bond Fund, Cash Fund, Balanced Fund
A, Balanced Fund B, Balanced Fund C, Income Fund, High Yield
Bond Fund, International Fund, Equity Index Fund, Bond Index
Fund and International Index Fund. The Trustee shall be
empowered, however, to establish other and additional
Collective Funds for such purposes as the Trustee may
consider necessary or desirable by amendment of the Trust.
In addition, without amendment of the Trust, the Trustee may
from time to time establish and designate by appropriate
names one or more additional funds to be operated in
accordance with and subject to provisions substantially
similar to those governing such previously operating funds
as well as all other relevant provisions of the Trust.
Sec. 3.2 Funds Available Only to Qualified Trusts.
Investment through the medium of the Collective Funds shall
be made only by Qualified Trusts which become Participants
hereunder.
Sec. 3.3 Investment by Trustee of Its Own Funds Prohibited.
The Trustee shall not invest any of its own funds (as
distinguished from funds held in a trust capacity for a
Qualified Trust) in the Collective Funds or any of them, and
shall have no beneficial interest (except as trustee,
co-trustee, or agent of a Qualified Trust) in the assets of
the Collective Funds.
Sec. 3.4 Subdivision of Collective Funds.
The Trustee shall be authorized to subdivide any Collective
Fund established hereunder into two or more funds at any
time and from time to time, for any purpose deemed appro-
priate by the Trustee.
ARTICLE IV.
PARTICIPATION IN COLLECTIVE FUNDS
Sec. 4.1 Authorization by Qualified Trust.
In order to become a Participant, each Qualified Trust at
the time it becomes a Participant hereunder shall contain a
provision substantially as follows:
"The 1989 Amended Declaration of Trust creating the IDS
Trust Collective Investment Funds for Employee Benefit
Trusts, is hereby made a part of this trust. Notwithstanding
any other provision of this trust, the trustee(s) may cause
any part or all of the moneys of this trust, without
limitation as to amount, to be commingled with the money of
trusts created by others, by causing such money to be
invested as a part of any one or more of the Collective
Funds created by said Declaration of Trust and moneys of
this trust so added to any of said Collective Funds at any
time shall be subject to all of the provisions of said
Declaration of Trust as it is amended from time to time."
Or shall generally authorize the investment of assets held
in such Qualified Trust in any common, commingled or
collective investment funds maintained by a bank.
Sec. 4.2 Consent of Trustee Required to Become a
Participant.
No Qualified Trust shall become a Participant hereunder
until the Trustee hereunder consents thereto. Such consent
shall be evidenced by accepting money deposited by a
Qualified Trust and awarding Units in a Collective Fund on
account thereof.
Sec. 4.3 Assets of the Collective Funds to be Devoted to
Qualified Trust and Eligible Employees and Beneficiaries
Thereunder.
By the adoption of this instrument of trust as part of the
instrument under which a Qualified Trust is administered, it
shall be understood and agreed that:
(a) except as otherwise provided in the instrument evidenc-
ing the Qualified Trust with respect to contributions made
pursuant to a mistake of fact or portions of contributions
which are not deductible under the Internal Revenue Code of
1986, it shall be impossible at any time prior to the
satisfaction of all liabilities with respect to the
employees and their beneficiaries entitled to benefits under
such Qualified Trusts for the trustee or trustees of such
Qualified Trust or the Trustee hereunder to use or divert
any part of the principal or income allocable hereunder to
such Qualified Trust to or for purposes other than for the
exclusive benefit of such employees or their beneficiaries;
provided, that redemption by the Trustee of Units standing
to the credit of a Participant in a Collective Fund by
payment of the redemption value thereof to the trustee of
such Participant shall be deemed to be for the exclusive
benefit of employees and their beneficiaries; and
(b) in the event of any merger or consolidation with, or
transfer of assets or liabilities to, any other pension
trust, profit-sharing trust, stock bonus trust or other
employee benefit trust, or plan of which such trust is a
part, each person participating in such plan or trust shall
be entitled to receive a benefit immediately after such
merger, consolidation or transfer (if such plan then
terminated) which is equal to or greater than the benefit he
would have been entitled to receive immediately before such
merger, consolidation or transfer, if the plan had then
terminated.
ARTICLE V.
PROVISIONS WITH RESPECT TO COLLECTIVE FUNDS
Sec. 5.1 Separate Administration of Each Fund.
The respective Collective Funds shall each be separately
held, managed, administered, valued, invested, reinvested,
distributed, accounted and otherwise dealt with by the
Trustee.
Sec. 5.2 General Application of Certain Provisions of the
Trust to All Funds.
With the exception of the types of investment which may be
purchased by the Trustee for each Fund and with the
exception of those powers hereinafter given to the Trustee,
which by their nature can relate only to the investments
held in one of the Funds, all of the provisions of this
Declaration of Trust shall be applicable to each Fund
separately. Thus, the unqualified term "Fund", as used in
each provision hereof, shall mean that one of the several
Funds provided for hereunder to which such provision is
being applied at the time.
Sec. 5.3 Deposit of Moneys in the Funds.
Moneys received from a Qualified Trust may be deposited in
one or more of the Funds in such proportions as shall be
directed by the Authorized Representative of such Qualified
Trust, and the Trustee may act and rely thereon and shall
not be charged with any notice to the contrary.
Sec. 5.4 Investments of the Equity Funds.
The Trustee shall invest and reinvest moneys of any of the
Equity Funds from time to time, without distinction as to
principal and income, in common or capital stocks, whether
or not income-producing; in other types and kinds of stocks
or securities which are convertible into common or capital
stocks; in put and covered call options (including both
purchases and sales of such options); in repurchase
agreements; in other tangible and intangible property or
interests in property, either real or personal, the income
return from which is not fixed or limited by the terms of
the contract, document or instrument created or evidencing
such property or interests in property, or, if fixed or
limited, are convertible into property or interests in
property, either real or personal, the income return from
which is not fixed or limited by the terms of the stock or
security or other contract or form of property into which
the same is convertible; and in stock index futures
contracts, options on stock index futures contracts, and
options on stock indexes and averages, to the extent
permitted by applicable law. The Trustee, in order to effect
purchases and sales of futures contracts, options on such
contracts, indexes and averages, and options on securities,
may establish one or more futures accounts and/or margin
accounts as appropriate or necessary, and may perform all
other acts necessary and lawful in order to effect purchases
and sales of such contracts and options. Despite the
foregoing provisions, the Trustee, pending more permanent
investment of moneys of any of the Equity Funds, may invest
them temporarily in short-term, interest-bearing
obligations.
The Trustee may commingle the funds of any of the Equity
Funds with the funds of any other trust of which the Trustee
is trustee; but in such event the records of the Trustee
shall at all times disclose, in a fair and equitable way
selected by the Trustee, the relative interests in the
commingled fund and in the income, profits and losses
thereof, applicable to each such trust.
Sec. 5.5 Investments of the Fixed-Income Funds.
The Trustee shall invest and reinvest moneys of any of the
Fixed-Income Funds from time to time, without distinction as
to principal and income, in bonds, notes, debentures,
mortgages and other interest-bearing securities, in
preferred stocks (including any such obligations, securities
or preferred stocks which are convertible into similar or
different kinds of obligations, securities or stocks, even
though the obligations, securities or stocks into which the
same are so convertible are not ones the income return from
which is fixed or limited); in put and covered call options
(including both purchases and sales of such options); in
lessors' interests in leases of either real or personal
property or both; in repurchase agreements; in contracts,
guaranteed investment contracts or other evidences of
indebtedness or other tangible or intangible property or
interests in property, either real or personal, the income
return from which is fixed or limited by the terms of the
contract, document or instrument creating or evidencing such
property or interests in property; and in interest rate
futures contracts, options on interest rate futures
contracts, and options on other indexes and averages, to the
extent permitted by applicable law. The Trustee, in order to
effect purchases and sales of futures contracts, options on
such contracts, indexes and averages, and options on
securities, may establish and open one or more futures
accounts and/or margin accounts as appropriate or necessary,
and may perform all other acts necessary and lawful in order
to effect purchases and sales of such contracts and options.
The Trustee may commingle the funds of the Fixed-Income Fund
with the funds of any other trust of which the Trustee is
trustee; but in such event the records of the Trustee shall
at all times disclose, in a fair and equitable way selected
by the Trustee, the relative interests in the commingled
fund and in the income, profits and losses thereof,
applicable to each such trust.
Sec. 5.6 Investments of the Cash Funds.
The Trustee shall invest and reinvest moneys of any of the
cash funds in marketable debt securities issued or
guaranteed as to principal and interest by the United States
Government or its agencies or instrumentalities, bank
certificates of deposit (including certificates of deposit
denominated in Eurodollars), bankers' acceptances, letters
of credit and high-grade commercial paper, variable demand
notes of prime credit, in repurchase agreements involving
U.S. Government Securities and in pooled funds that invest
primarily in high quality money market instruments or other
short-term instruments of comparable quality, including
money market mutual funds or other cash collective funds.
The Cash Fund investments will be limited as follows: (1)
The above investments must be payable on demand, or have a
maturity date not exceeding 91 days from the date purchased;
however, 20 percent of the value of the Fund may be invested
in longer term obligations, (2) investments will normally be
valued at amortized cost, (3) assets of the Fund will be
held to maturity under usual circumstances, and (4) at all
times no less than 20 percent of the Fund will be
represented by cash-demand obligations and assets that will
mature on the Fund's next business day.
Sec. 5.7 Investments of the Balanced Funds.
The Trustee shall invest moneys of any of the Balanced Funds
in accordance with the general guidelines relating to Equity
Funds and Fixed-Income Funds set forth in Sections 5.4 and
5.5.
Sec. 5.8 Investments of the Special Funds.
The Trustee shall invest moneys of any of the Special Funds
in accordance with the general guidelines set forth in
Sections 5.4 and 5.5 to the extent they are not inconsistent
with the purpose and investment policies of such fund and in
all other respects shall act in accordance with the
provisions of Section 5.10.
Sec. 5.9 Investments of the Index Funds.
The Trustee shall invest moneys of the Index Funds in some
or all of the securities, or other investments as appropri-
ate, upon which the index related to a Fund's investment
objective is based or in another common, collective or
commingled index fund, having the same objective as such
Fund, which is maintained by an affiliated or unaffiliated
bank or trust company, and which is part of a trust that is
a qualified trust under the appropriate provisions of the
Internal Revenue Code. To the extent that the assets of one
or more Collective Funds established by this Trust are
invested in one or more common, commingled or collective
funds established by another bank or trust company under a
trust instrument, the trust established thereby shall be
deemed a part of this Trust, and the Trustee is hereby
authorized to appoint the trustee of such other common,
commingled or collective funds as investment manager or
managing agent for all assets of this Trust which are
invested in such other funds. Investments may also be made
in stock index futures contracts or interest rate futures
contracts (including options on such contracts), as
appropriate, and in any of the money market instruments set
forth in the first paragraph of Sec. 5.6 of this Trust or in
the Collective Cash Fund described in Sec. 5.16(d) hereof.
In purchasing securities or other investments for an Index
Fund, the Trustee shall seek the lowest commission rate
consistent with the best net price to the Fund and shall not
use Fund brokerage commissions for investment research
purposes. Participants in a Fund may be charged the actual
brokerage expenses incurred by the Fund resulting from the
purchase or withdrawal of Units from the Fund by such
Participants. All Participants shall be uniformly charged
such brokerage expenses.
Sec. 5.10 Prudent Trustee Rule Applicable.
In the investment of each Fund, the Trustee shall select and
use those investments, authorized as aforesaid for the
particular Fund, which an ordinarily prudent person of
discretion and intelligence, who is a trustee of the
property of others, would acquire as such trustee.
Sec. 5.11 Prohibited Transactions.
In no circumstances shall the Trustee at any time knowingly
engage in any transaction, with respect to the trust or any
of the funds, which constitutes a "prohibited transaction"
within the meaning of Section 4975 of the Internal Revenue
Code of 1954 or Section 406 of the Employee Retirement
Income Security Act of 1974, except to the extent such
"prohibited transaction" is subject to an appropriate
statutory or administrative exemption.
Sec. 5.12 Trustee's Decision to Control.
The decision of the Trustee as to whether or not an
investment is of a type which may be purchased for any of
the Collective Funds shall be conclusive.
Sec. 5.13 Right to Purchase Investments of a Qualified
Trust.
The Trustee, at the time each Qualified Trust first deposits
money in a Fund, may purchase for such Fund any property of
such Qualified Trust which would then be appropriate for
purchase by the Fund. Each such purchase shall be made at
the then fair value of the property purchased and may be
consummated, without payment of money therefor, by crediting
to the account of the Participant the number of Units in the
Fund which at the then value thereof, determined as
hereinafter provided, equals the then fair value of the
property 80 purchased. Except as so provided, the Trustee
shall not purchase for a Fund any property owned by any
Qualified Trust.
Sec. 5.14 Right to Retain Cash Uninvested.
Pending the selection and purchase of suitable investments
or the payment of expenses or other anticipated distribu-
tions, the Trustee may retain in cash, without liability for
interest or other return thereon, such portion of any fund
as it shall deem reasonable under the circumstances.
Sec. 5.15 Rights to Receive and Retain Investments Received
on Conversion or Exchange.
Despite the limitations hereinbefore set forth with respect
to the kinds of property or investments in which the moneys
of any Fund may be invested, the Trustee may accept, receive
and hold until such time as, in its discretion, it deems it
advisable to sell or dispose of the same, any form of
investment received in exchange for or in payment or
liquidation of or by way of dividend distribution, or
otherwise, upon or as a result of any merger, consolidation
or reorganization of the issuer of any investment then held
in such Fund, or in exercise of any subscription right given
with respect to any investment, even though the investment
so received or acquired does not qualify for investment
purposes of such Fund as hereinbefore set forth.
Sec. 5.16 Income to be Accumulated.
All income of each Fund shall be added to the principal
thereof and invested and reinvested as a part thereof.
Sec. 5.17 General Statements of Investment Policies for
Collective Investment Funds.
The general investment objectives for the respective
Collective Funds, subject to the authority set forth in
Sections 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9 hereof are as
follows:
(a) Collective Equity Fund A - The primary objective is to
achieve long-term capital appreciation through investment in
common stocks, convertible securities, short-term money
market instruments and stock index futures contracts
(including options on such contracts and options on stock
indexes).
(b) Collective Equity Fund B - The primary objective is to
achieve above average long-term capital appreciation through
investment in the equity securities of companies determined
to have the potential for distinguished earnings growth,
convertible securities, short-term money market instruments
and stock index futures contracts (including options on such
contracts and options on stock indexes).
(c) Collective Fixed-Income Fund - The primary objective is
to maximize current income, consistent with the need for
liquidity and preservation of principal, through investment
in fixed-income securities (which may include securities
convertible into common stocks), securities representing
interests in pools of mortgage loans, financial futures
contracts (including options on such contracts).
(d) Collective Cash Fund - The primary objective of the Fund
is to provide maximum current income consistent with
liquidity and conservation of capital.
(e) Collective Balanced Fund A - The dual objectives of the
Fund are to obtain a moderate current yield which is
slightly higher than the Balanced Fund B yield while
achieving a long-term total return exceeding the current
rate of inflation through an approximately evenly balanced
portfolio of equity and fixed-income securities. Equity
securities may comprise from 35% to 65% of the Fund
portfolio, in the discretion of the Trustee.
(f) Collective Balanced Fund B - The dual objectives of this
Fund are to obtain a moderate current yield while achieving
a long-term total return significantly exceeding the current
rate of inflation through an equity-oriented balance between
equity and fixed-income securities. Equity securities may
comprise from 50% to 80% of the Fund portfolio in the
discretion of the Trustee.
(g) Collective Balanced Fund C - The dual objectives of this
Fund are to obtain a moderate current yield which is
slightly higher than the Balanced Fund A yield while
achieving a long-term total return slightly exceeding the
current rate of inflation through a fixed-income oriented
balanced portfolio of equity and fixed-income securities.
Equity securities may comprise from 20% to 50% of the Fund
portfolio, in the discretion of the Trustee.
(h) Collective Income Fund - The dual objectives of this
Fund are to maximize current yield while preserving
principal investment over the long-term through a portfolio
balanced between fixed-income securities, investment
contracts and money-market instruments. The portfolio may at
any time be comprised of any combination of fixed-income
securities, investment contracts and money-market
instruments as determined by the Trustee.
(i) Collective High-Yield Fixed-Income Fund - The primary
objective is to achieve a high level of yield through a
portfolio of fixed-income securities and debt-oriented
securities with equity features which provide opportunities
for above-average rates of income and, in some cases, the
prospect of capital gains upon maturity. Generally the Fund
will be invested in accordance with the provisions of
Section 5.5; however, the Trustee may invest in such other
securities as are deemed prudent when considered in light of
the objectives of the Fund.
(j) Collective International Fund - The primary objective is
to achieve long-term capital appreciation and current income
through a portfolio of non-U.S. securities. A secondary
objective is to provide additional diversification to client
portfolios.
(k) Collective Equity Index Fund - The objective is to
approximate as closely as possible the rate of return of a
published equity index of a securities market or a rate of
return of a specified segment of such market through
investment in some or all of the securities upon which such
index is based, and other investments as appropriate, or
through investment in another common, commingled or
collective fund which has the same investment objective as
this Fund.
(l) Collective Bond Index Fund - The objective is to
approximate as closely as possible the rate of return of a
published bond index of a securities market or a rate of
return of a specified segment of such market through
investment in some or all of the securities, and other
investments as appropriate, upon which such index is based
or through investment in another common, commingled or
collective fund which has the same investment objective as
this Fund.
(m) Collective International Index Fund - The objective is
to approximate as closely as possible the rate of return of
a published index of the international securities market or
a rate of return of a specified segment of such market
through investment in some or all of the securities, and
other investments as appropriate, upon which such index is
based or through investment in another common, commingled or
collective fund which has the same investment objective as
this Fund.
Sec. 5.18 Transfer of Assets Between Collective Funds.
The Trustee may at any time transfer assets from any of the
Collective Funds to any other Collective Fund on the basis
of the fair market value of the assets so transferred, in
the same manner as the sale or purchase of assets to or from
third parties.
ARTICLE VI.
OTHER POWERS OF THE TRUSTEE WITH RESPECT TO THE FUNDS
In the administration of each Fund and in exercising its
exclusive right to manage and control the same, the Trustee
shall have the following rights and powers exercisable by
it, in its discretion, without order or license of any
court:
(a) To hold, manage, improve, repair and control all
property, real or personal, at any time forming part of the
Fund;
(b) To sell, convey, transfer, exchange, partition, raze,
remove, lease for any term (even though such term extends
beyond the duration of the Fund or commences in the future),
mortgage, pledge, and otherwise dispose of said property
from time to time in such manner, for such consideration and
upon such terms and conditions as the Trustee, in its
discretion shall determine;
(c) To employ such agents and counsel as may be reasonably
necessary in managing and protecting the Fund and to pay
them reasonable compensation out of the Fund;
(d) To settle, compromise or abandon all claims and demands
in favor of or against the Fund;
(e) To borrow money, with or without security, for the Fund;
(f) To vote any corporate stock or other security having
voting power, either in person or by proxy, for any purpose;
to exercise any conversion privilege or subscription right
given to the Trustee as the owner of any security forming
part of the Fund, even though the form of investment
received on exercise of such conversion privilege or
subscription right shall not be of a kind and character
hereinbefore generally authorized for the investment of such
Fund; to consent to, take any action in connection with, and
receive and retain any securities resulting from any
reorganization, consolidation, merger, readjustment of the
financial structure, sales, lease or other disposition of
the assets of any corporation or other organization, the
stock or securities of which constitute a portion of the
Fund;
(g) To cause any securities or other property which may at
any time form part of the Fund, to be issued, held or
registered in the individual name of the Trustee or in the
name of its nominee or in such form that title will pass by
delivery; and
(h) To do all other acts in its judgment necessary or
desirable for the proper administration of the Fund,
although the power to do such acts is not specifically set
forth herein.
ARTICLE VII.
DIVISION OF FUNDS INTO UNITS
Sec. 7.1 Participation in Each Fund Determined by Units.
The Trustee shall credit to the account of each Qualified
Trust which becomes a Participant in a Fund, that number of
"Units" (including, in the discretion of the Trustee, a
fraction of a Unit) which its deposit in such Fund will
purchase at the then fair value of each Unit of such Fund.
The records of the Trustee and the records of the
Participant shall at all times reflect the number of Units
standing to the credit of each Participant and the Trustee
shall not issue certificates in representation thereof. Each
Qualified Trust which at the time has Units standing to its
credit shall be a Participant.
Sec. 7.2 Participation in Income, Gains and Losses in
Accordance with Units.
The interests of the several Participants in a Fund and in
the net earnings, profits and loses thereof shall be propor-
tionate to the number of Units then standing to their
respective clients.
Sec. 7.3 Right to Divide Units into Larger Number.
The Trustee may from time to time divide the Units of the
Fund into a greater number of Units of lesser value,
provided that the proportionate interest of each Participant
in the Fund shall not thereby be changed.
Sec. 7.4 Nonassignability, Right of Participation, and
Relative Preference and Priority of Units, etc.
Each Unit shall be nonassignable and shall represent an
equal right to share in the Fund and in its net earnings,
profits and losses, and no Unit shall have priority or
preference over any other Unit of the Fund. However, all
assets of the Fund shall be owned exclusively by the Trustee
and no Participant shall have any individual ownership
thereof.
Sec. 7.5 Interest of a Participant not Subject to
Garnishment or Attachment.
The interest of a Participant in a Fund and in the net
earnings, profits and losses thereof, shall not be subject
to garnishment, attachment, levy, or execution of any kind
for the debts or defaults of the trustees of the Participant
or of any person, natural or legal, having any interest in
any Qualified Trust.
Sec. 7.6 Unit Value at Inception of Each Fund.
At the inception of a money market Collective Fund, such as
the Cash Fund, the fair value of each Unit shall be deemed
to be $1.00. At the inception of all other funds, the fair
value shall be deemed to be $10.00 unless the Trustee shall
have specified some other value.
Sec. 7.7 Subsequent Determination of Unit Values.
7.7.1. The Trustee shall compute the fair value of each Fund
as of each Valuation Date as follows:
(1) When the Valuation Date falls on a non-business day, the
value of securities and other assets (except cash) shall be
computed as of the preceding business date.
(2) Securities listed on national securities exchanges are
valued on the basis of the last-quoted sales price on the
principal exchange on which traded or on the basis of a
commercial pricing system chosen by the trustee, provided
such system is generally accepted in the trust and
securities industries as an accurate and consistent method
of valuation. Equity securities traded in the
over-the-counter market and listed securities for which no
sale was made are valued at the mean of the bid and asked
price of such securities. Securities for which market
quotations are not readily available are valued at fair
value as determined in good faith by the Trustee. Such fair
values are determined by established procedures involving,
among other things, market indices, matrices, yield curves,
market data from independent brokers and financial files.
Short-term investments are valued at amortized cost, which
approximates market value.
Security transactions are accounted for on the date the
securities are purchased or sold. Dividend income is
recorded on the ex-dividend date.
(3) Loans secured by mortgages or deeds of trust shall be
valued at the face value or principal amount thereof, unless
the Trustee shall determine other values as a result of an
appraisal of the security of any such obligations (such
appraisal having been made either by the Trustee itself or
by some person, firm or corporation employed by the Trustee
to make such appraisal at the expense of the Fund), or
changing interest rates and conditions, in which case they
shall be valued at the value so determined.
ARTICLE VIII.
DEPOSITS IN THE FUNDS AND WITHDRAWALS THEREFROM
Sec. 8.1 Notice, Time and Manner for Making Deposits in and
Redemption from Funds.
Moneys of Qualified Trusts may be deposited in a Fund, and
Units owned by a Participant may be redeemed, only as of a
Valuation Date, only if a written request or notice of
intention of taking such action shall have been entered on
or before such Valuation Date in the fiduciary records of
the Trustee and approved by the Trustee, and only with
authorization of the Authorized Representative of the
Participant. An authorization to deposit money in the Fund
may not be countermanded or canceled subsequent to the
Valuation Date as of which such money is deposited in the
Fund.
Sec. 8.2 Consent of Trustee Required.
Deposits of moneys in a Fund may be made only with the
consent of the Trustee given as specified in Section 4.2.
Sec. 8.3 Redemption of Units.
Whole and (in the discretion of the Trustee) fractional
Units may be redeemed. The amount of money to be paid upon
the redemption of Units from the Fund shall be based upon
the Unit Value on the Valuation Date as of which such
redemption is made, provided, however, that, where permitted
by law, the Trustee may withhold and retain in the Fund from
the amount otherwise payable hereunder to a Participant for
a Unit or Units redeemed, the actual brokerage expenses
generated by such redemption or an amount which the Trustee
shall determine from time to time to be the appropriate
average cost to the Fund of selling property to procure the
money to pay said amount. The amount thus to be withheld
shall be treated as an asset of the Fund in determining the
value of the Fund as of the Valuation Date on which such
Unit or Units are redeemed. The provisions of this paragraph
shall be uniformly applied as to all Participants.
Sec. 8.4 Time Allowed for Valuations and Payments.
The Trustee shall have a reasonable period not exceeding ten
(10) days following each Valuation Date to make the
computations necessary to value the Units and to make
payment for Units redeemed.
Sec. 8.5 Chargeback to Participants of Accrued Income
Included in a Redemption if Not Collected.
The Trustee shall have the right to charge back to, and
collect from, each Participant that part of the amount paid
the Participant upon a redemption of Units which represented
a payment of accrued income that is not subsequently
collected by the Trustee at the time fixed for its payments.
Sec. 8.6 Automatic Redemption of Units on Ceasing to be a
Qualified Trust.
In the event a Participant ceases to be a Qualified Trust
and upon notice of that fact given to the Trustee, Units
allocated to such Participant shall automatically redeemed
upon the next Valuation Date subsequent to the date the
Trustee receives such notice.
Sec. 8.7 Duty of Grantor and Authorized Representative of a
Participant, Ceasing to be A Qualified Trust, to Notify
Trustee.
It shall be the duty of the Grantor and the Authorized
Representative of each Participant to give the Trustee
written notice of the occurrence of any event, the effect of
which results in such Participant ceasing to be a Qualified
Trust. Until actual receipt of such notice, the Trustee
shall not be charged with notice thereof.
ARTICLE IX.
LIQUIDATING FUNDS
Sec. 9.1 Establishment of Liquidating Funds.
The Trustee shall promptly segregate and place in a
Liquidating Fund, to be held and liquidated for the benefit
of the then Participants, any property of the Fund which the
Trustee deems advisable to distribute in kind or to
liquidate in order to prevent any Participant from suffering
loss or prejudice by reason of subsequent deposits in or
withdrawals from the Fund.
Sec. 9.2 Effect of Transfer to Liquidating Fund.
Property held in a Liquidating Fund shall not be considered
to be an asset of the Fund from which the same was
transferred.
Sec. 9.3 Assignability.
Interest in Liquidating Funds may not be assigned.
Sec. 9.4 Powers of Trustee with Respect to Liquidating
Funds.
The Trustee shall have, with respect to each Liquidating
Fund, all the rights, powers and duties which it has with
respect to the Funds, except that the Trustee shall not
reinvest the cash thereof, but instead shall distribute that
part of such cash which is not needed to pay expenses to
those Participants who, at the time such distribution is
made, have an interest in such Liquidating Fund, in the
proportions which are ratable to their respective interest
therein.
ARTICLE X.
ACCOUNTS AND AUDITS
Sec. 10.1 Books of Account.
The Trustee shall keep full records and books of account.
Sec. 10.2 Basis of Accounting.
The Trustee's accounts shall be kept on an accrual basis,
except that accounts of Liquidating Funds, if any, shall be
kept on a cash basis.
Sec. 10.3 Annual Audit, Reports and Publicity.
(a) The Trustee shall, at least once each year, cause audits
to be made of the Fund and of each Liquidating Fund by
auditors responsible only to the Board of Directors of the
Trustee in accordance with the procedures required by the
rules and regulations from time to time established by the
Comptroller of the Currency as provided by MSA Sections
48.84 and 48.841. In the event such audits are performed by
independent public accountants, the reasonable expenses of
such audits may be charged to the Fund and the Liquidating
Funds so audited.
(b) The Trustee shall prepare and publish such financial
reports of the Fund and of each Liquidating Fund, file them,
furnish them, and give notice that such reports are
available, and the Trustee shall make such charge or them,
if any, all as shall be required or permitted by the rules
and regulations from time to time established by the
Comptroller of the Currency as provided by MSA Sections
48.84 and 48.841.
(c) The Trustee may advertise or publicize the Fund in such
manner as may be authorized by rules and regulations from
time to time established by the Comptroller of the Currency
as provided by MSA Sections 48.84 and 48.841.
Sec. 10.4 Annual Account.
Annually, within one hundred twenty (120) days after the
close of the Fund's fiscal year, the Trustee shall furnish
to the Grantor and Authorized Representatives of each
participant which has an interest therein, a notice that a
written account (which may be the report of audit for such
fiscal year) of the operation of the Fund and of each
Liquidating Fund, if any, for the preceding fiscal year, is
available and will be furnished without charge upon request.
Sec. 10.5 Objections to Accounts and Adjustment Thereof.
If objections to specific items in such account are filed
with the Trustee by any such person to whom an account is
rendered, and the Trustee believes such objections to be
valid, the Trustee may adjust the account in such manner as
it deems equitable under the circumstances. Each person who
was so entitled to receive a copy of the account shall be
notified by the Trustee of any adjustment so made.
Sec. 10.6 Settlement of Accounts.
(1) If no objections to specific items in such account are
filed with the Trustee within six (6) months after the
account has been furnished, or
(2) If the Trustee shall give notice of an adjustment of the
account and no objections thereto are filed by any person to
whom such notice wad given within six (6) months after
notice of such adjustment has been furnished, or
(3) If objections to specified items in such account are
filed with the Trustee within six (6) months after the
account has been furnished, and the Trustee gives no notice
of any adjustment of the account within nine (9) months
after such account has been furnished, and legal proceedings
are not commenced against the Trustee within twelve (12)
months after such account has been furnished, then, in any
said events, the account of the Trustee with respect to all
matters contained therein (as originally furnished if no
adjustment was made, or, if adjustment was made, as
adjusted) shall be deemed to have been approved with the
same effect as though judicially approved by a court of
competent jurisdiction in a proceeding in which all persons
interested were made parties and were properly represented
before such court.
Sec. 10.7 Trustee's Right to Court Accounting.
The Trustee hereunder, nevertheless, shall have the right to
have its accounts settled by judicial proceedings in
accordance with Chapter 259 of the Minnesota Session Laws of
1933 and act amendatory thereof (Sec. 501.32 to 501.37, both
inclusive, Minnesota Statutes 1953), if it so elects, in
which case the only necessary parties shall be the Trustee
hereunder and the Grantor and Authorized Representative of
the Qualified Trusts who are then Participants hereunder.
ARTICLE XI.
MISCELLANEOUS PROVISIONS WITH RESPECT TO TRUSTEE
Sec. 11.1 Fees of the Trustee.
The Trustee may charge a fee for the management of a Fund or
of any Liquidating Fund, and shall be entitled to reimburse
itself from any Fund or Liquidating Fund for all reasonable
expenses incurred by it in the administration and management
thereof. The Trustee shall also be entitled to charge to and
receive from, or with respect to, each Participant, such
reasonable fees as it is otherwise entitled to receive with
respect to such Participant (including actual brokerage
expenses generated by purchasing or redeeming units of any
Index Fund).
Sec. 11.2 Representation of Interested Parties.
The Trustee shall be deemed to represent all persons,
natural or legal, having an interest in a Fund, for the
purpose of judicial proceedings affecting a Fund or any
assets thereof, and only the Trustee need be made a party to
any such action.
Sec. 11.3 Notices.
Notices and reports required to be given or furnished by the
Trustee may be given by actual delivery or by mailing by
first-class mail, postage pre-paid, to the most recent
address known to the Trustee; such mailing, as the case may
be, for all purposes hereunder shall be deemed to be the
date as of which such notice, accounting or report was given
or furnished.
Sec. 11.4 Merger, Consolidation or Reorganization of the
Trustee.
In the event that the Trustee shall at any time merge or
consolidate with or shall sell or transfer substantially all
of its assets to another corporation, state or federal,
having trust powers, the corporation resulting from such
merger or consolidation or the corporation into which the
Trustee is so converted or to which such sale or transfer
shall be made shall thereupon become and be submitted
hereunder in the place of the Trustee hereunder, with the
same effect as though originally so named.
Sec. 11.5 Trustee's Discretion and Exercise Thereof.
Whenever in this Trust it is provided that any power may be
exercised by the Trustee or any act or thing done by the
Trustee involving the exercise of discretion, the discretion
of the Trustee, when exercised in good faith and with
reasonable care shall be absolute and uncontrolled; and its
determination, when so made, to act or refrain from acting
or to exercise such power or refrain from so doing, and as
to the time or times and the manner in which action is to be
taken or such power exercised shall be binding upon each
Qualified Trust, the trustee or Trustees thereof and each
person having or claiming any interest therein.
ARTICLE XII.
AMENDMENT AND TERMINATION
Sec. 12.1 Power of Amendment and Exercise Thereof.
The Trust may be amended from time to time by a resolution
of the Board of Directors of the Trustee. A copy of such
amendment shall be provided to the Authorized Representative
of each Participant within 60 days of its adoption by the
Board of Directors.
Sec. 12.2 Limitation on Power of Amendment.
No amendment may, either directly or indirectly, operate to
deprive any Participant of its beneficial interest in a Fund
as it is constituted on the effective date of the amendment.
Sec. 12.3 Power to Terminate.
The Trustee may at any time, without advance notice to any
person, natural or legal, terminate any Fund, and thereupon
all assets of the Fund may be transferred to a Liquidating
Fund and held and distributed as provided in Article IX
hereof.
ARTICLE XIII.
MINNESOTA LAW TO GOVERN
The powers and duties of the Trustee and all questions of
interpretation of this Declaration of Trust shall be
governed by the laws of the State of Minnesota and of the
United States.
ARTICLE XIV.
DURATION OF TRUST
This Trust shall continue for the maximum period of duration
permitted by the laws of the State of Minnesota and, in
particular, until the benefits intended to be created and
developed hereunder shall have been redeemed, paid and
distributed to the Participants entitled thereto in
accordance with the provisions of this Trust.
ARTICLE XV.
TRUST TO BE A DOMESTIC TRUST OF THE UNITED STATES
The Trust provided for herein shall be created and organized
in the United States and shall at all times be maintained as
a domestic trust in the United States of America.
IN WITNESS WHEREOF, IDS Bank & Trust has caused this 1989
Amended Declaration of Trust to be executed as of the 25th
day of April , 1989.
IDS BANK & TRUST
By: /s/ Peter A. Lefferts
Peter A. Lefferts
President
ATTEST:
By: /s/ Curtis B. Ellis
Curtis B. Ellis
Secretary
(CORPORATE SEAL)
AMENDMENTS TO THE 1989 AMENDED DECLARATION OF TRUST
IDS TRUST COLLECTIVE INVESTMENT FUNDS
FOR EMPLOYEE BENEFIT TRUSTS
The Board of Directors of IDS Bank & Trust amended the 1989
Amended Declaration of Trust - IDS Trust Collective
Investment Funds for Employee Benefit Trusts (Trust) on
November 27, 1989, July 1,1991 and October 28, 1991. The
following are the amendments to the Trust.
Section 3.1 is amended to read as follows:
Fifteen separate Collective Funds are established hereunder,
designated respectively as the Collective Equity Fund A,
Equity Fund B, Fixed-Income Fund, Cash Fund, Balanced Fund
A, Balanced Fund B, Balanced Fund C, Income Fund, High
Yield-Income Fund, International Fund, Equity Index Fund,
Bond Index Fund, International Index Fund, Global Country
Tilt Fund and Federal Income Fund. The Trustee shall be
empowered, however, to establish other and additional
Collective Funds for such purposes as the Trustee may
consider necessary or desirable by amendment of the Trust.
In addition, without amendment of the Trust, the Trustee may
from time to time establish and designate by appropriate
names one or more additional funds to be operated in
accordance with and subject to provisions substantially
similar to those governing such previously operating funds
as well as all other relevant provisions of the Trust.
The following has been added as paragraph 2 to Section 5.5:
The Trust may also invest and reinvest the moneys of the
Fixed-Income Funds in the Collective Federal Income Fund.
The following has been added as Section 5.5(a):
Section 5.5(a) Investments of the Federal Income Funds.
The Trustee shall invest and reinvest moneys of any of the
Federal Income Funds from time to time r in securities
issued or guaranteed as to principal and interest by the
U.S. Government or its agencies or its instrumentalities
("U.S. Government Securities") (including U.S. treasury
bonds, notes and bills, GNMA securities, securities issued
or guaranteed by federal agencies or government-sponsored
enterprises that are not direct obligations of the U.S.
government such as FHLB and FNMA securities and U.S.
Government Securities representing part ownership of pools
of mortgage loans); financial futures contracts, options on
financial futures contracts and options on securities, to
the extent permitted by applicable law. The Trustee, in
order to effect purchases and sales of futures contracts,
options on such contracts and options on securities may
establish and open one or more futures accounts and/or
margin accounts as appropriate or necessary and may perform
all other acts necessary and lawful in order to effect
purchases and sales of such contracts and options.
A portion of the Fund's assets may be maintained in cash and
cash equivalents. The cash equivalents that the Fund may use
include short-term U.S. Government Securities and repurchase
agreements collateralized by U.S. Government Securities.
Some or all of the cash may be invested in the IDS Trust
Collective Short-Term U.S. Government securities Fund or
other short-term investment funds, provided the funds invest
primarily in the kinds of investments permitted by these
guidelines.
Sentence 3 of Section 5.9 is amended to read as follows:
Investments may also be made in stock index futures
contracts or interest rate futures contracts (including
options on such contracts and options on stock indexes), as
appropriate, and in any of the money market instruments set
forth in the first paragraph of Sec. 5.6 of this Trust or in
the Collective Cash Fund described in Sec. S.16(d) hereof.
The following has been added to Section 5.17:
(n) Collective Equity Tilted Index Fund - The objective is
to achieve a total return rate exceeding the total return
rate of the U.S. stock market, as measured by reference to a
published Equity index that is generally representative of
the performance of the U.S. stock market, through investment
in common stocks, short-term money market instruments and
stock index futures contracts (including options on such
contracts and options on stock indexes).
(n) Collective Global Country Tilt Fund - The investment
objective is to achieve long-term capital appreciation and
current income by investing principally in a diversified
portfolio of U.S. and non-U.S. securities.
(o) Collective Federal Income Fund - The objective is to
provide a high level of current income and safety of
principal consistent with investment in U.S. government and
government agency securities.
Section 7.7.1(1) has been amended to read as follows:
(1) Changes in holdings of portfolio securities and other
assets shall be reflected no later than in the first
calculation on the first business day following the trade
date. Dividend income shall be recorded on the ex-dividend
date.
The second paragraph of Section 7.1.1(2) has been deleted in
its entirety.
AMENDMENT TO THE 1989 DECLARATION OF TRUST -
IDS TRUST COLLECTIVE INVESTMENT FUNDS FOR EMPLOYEE BENEFIT
TRUSTS
The 1989 Amended Declaration of Trust - IDS Trust Collective
Investment Funds for Employee Benefit Trusts has been
amended as follows:
Section 5.13 shall be revised to read as follows:
The Trustee may purchase for a Fund any property of a
Qualified Trust which would then be appropriate for purchase
by the Fund. Each such purchase shall be made at the then
fair value of the property purchased and may be consummated,
without payment of money therefore by crediting to the
account of the Participant the number of Units in the Fund
which at the then value thereof, determined as hereinafter
provided, equals the then fair value of the property so
purchased. Except as so provided, the Trustee shall not
purchase for a Fund any property owned by any Qualified
Trust.
EFFECTIVE DATE: January 23, 1992
IDS Trust Collective Cash Fund
Summary of Investment Guidelines Revision
Effective July 1, 1991
The basic concept and strategy of the Cash Fund has not
changed, including the following key points:
*The investment objective is to provide maximum current
income consistent with liquidity and conservation of
capital.
*At least 20% of the Fund will be liquid on the Fund's next
business day.
*Up to 20% of the Fund may have maturities exceeding 91
days.
*No investment will have a maturity exceeding one year.
The following items have been amended or clarified:
*Banks authorized for short-term deposits have been defined
as those U S. Banks and U S. subsidiaries or branches of
foreign banks with capital, surplus and undivided profits of
at least $100 million (as of the date of the most recently
published annual financial statements).
*The wording has been clarified to allow investments in
short-term pooled funds which invest primarily in the kinds
of investment permitted by the guidelines.
*The wording has been clarified to state that 80% of the
investments must be payable on demand, or have a maturity of
less than 91 days.
*The wording has been clarified to state that the Fund will
strive to maintain a constant net asset value of $1.
*The wording has been clarified to state that there are no
limits on the amount of U.S. Government securities that may
be purchased.
*The wording has been clarified to state that no more than
10% of the portfolio may be invested in any one short-term
investment fund at the time of purchase.
NOTE: THIS FUND IS USED BY IDS FOR TEMPORARY INVESTMENT
PURPOSES IN CONNECTION WITH THE INVESTMENT CHOICES AVAILABLE
TO CV PARTICIPANTS. IT IS NOT A NEW INVESTMENT CHOICE FOR
DIRECT INVESTMENT BY THE PARTICIPANTS.
<PAGE>
INVESTMENT GUIDELINES FOR IDS TRUST (a division of IDS Bank
& Trust) COLLECTIVE CASH FUND
I. INVESTMENT OBJECTIVE
The objective of this Fund is to provide maximum current
income consistent with liquidity and conservation of
capital.
The 1989 Amended Declaration of Trust - IDS Trust Collective
Investment Funds for Employee Benefit Trusts, as amended
from time to time, is hereby made a part of these guidelines
by reference. The Fund will be managed in compliance with
the provisions of ERISA at all times.
II. INVESTMENTS
The Fund may invest in short-term debt securities issued or
guaranteed as to principal and interest by the government of
the United States or by instrumentalities or agencies
thereof ("U.S. Government Securities") and repurchase
agreements collateralized by U.S. Government Securities.
In addition, the Fund may invest in bank certificates of
deposit, time deposits (including certificates of deposit
and time deposits denominated in Eurodollars), banker's
acceptances and letters of credit issued by U S. banks and
U.S. subsidiaries or branches of foreign banks with capital,
surplus and undivided profits (as of the date of the most
recently published annual financial statements) in excess of
$100 million.
The Fund may also invest in commercial paper rated (on the
date of investment) A-1 or P-1 by Standard & Poor's
Corporation or by Moody's Investors Service Inc,
respectively.
Investments may also be made in short-term investment funds,
provided the funds invest primarily in the kinds of
investments permitted, by this section of the
Guidelines.
No other categories of investment are contemplated for
inclusion in the Fund's portfolio at this time.
III. MATURITY AND LIQUIDITY
The Fund's investments will be limited as follows:
1. At least 80% of the investments must be payable on
demand, or have a maturity date of less than 91 days.
2. Up to 20% of the value of the Fund may be invested in
obligations with maturities exceeding 91 days.
3. At least 20% of the Fund will be represented by cash,
demand obligations and assets that will mature on the Fund's
next business day.
4. No investment will have a maturity in excess of one year.
5. Assets of the Fund will be held to maturity under usual
circumstances, but may be sold prior to maturity should
circumstances warrant.
IV. VALUATION
Investments will be valued at amortized cost while the Fund
strives to maintain a constant net asset value of $1.
V. SHORT-TERM SECURITIES
At the time of purchase, with the exception of U S.
Government Securities:
1. No issue, other than short-term investment funds, will
represent more than 5% of the total portfolio.
2. No more than 10% of the total portfolio may be invested
in the short-term securities of any one company.
3. No more than 10% of the portfolio may be invested in any
one short-term investment fund.
4. All investments will be limited to listed issuers
approved by IDS Trust.
BY: /s/ Jacquel-Anne Chouinard
ITS: Vice President - Human Resources
DATE: 5/1/91
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
EMPLOYEE SAVINGS AND INVESTMENT PLAN
IDS TRUST QUALIFIED PLAN SERVICES ADMINISTRATIVE SERVICES
AGREEMENT
EFFECTIVE JANUARY 1, 1992
This Agreement is between IDS Trust, a Division of IDS Bank
& Trust Company, acting by and through said Company
(hereinafter referred to as "IDS Trust"), the undersigned
employer ("Employer") who maintains the Central Vermont
Public Service Corporation Employee Savings and Investment
Plan ("Plan") and the undersigned plan administrator ("Plan
Administrator") for such Plan.
Fees for the Administrative Services described in this
Agreement are shown in Exhibit A attached to this
Administrative Services Agreement and hereby made a part of
the Agreement.
Authorization of specific investments elected under the Plan
is shown in Exhibit B, attached to this Administrative
Services Agreement, and hereby made a part of the Agreement.
The Administrative Services Fees in Exhibit A are contingent
on both parties fulfilling their respective responsibilities
as follows:
On-going Services
1. Weekly, Central Vermont Public Service Corporation
payroll services will provide to IDS Trust, by means of
magnetic tape, diskette or mainframe to mainframe
transmission, accurate employee deferral and employer match
contribution data in the required format for each
participant. This information will be accompanied by control
totals that identify the total number of transactions and
the total dollar amount of these transactions. Upon
completion of balancing verification, IDS Trust will request
a wire for the amount of aggregate contributions from
Central Vermont Public Service Corporation. This request
will be to one department and the wire will come from one
source.
2. Weekly, IDS Trust will allocate contribution amounts
across participant fund elections located on the IDS Trust
recordkeeping system and invest monies accordingly in the
investment funds. Investment will occur as soon as possible
but will not be later than five (5) business days following
receipt of complete and balanced data.
3. Monthly, Central Vermont Public Service Corporation will
send to IDS Trust a complete package of all request forms
completed by the participants. These forms could include
change of name/address, change of 401(k) deferral rate,
total distributions, hardship withdrawals, and federal
income tax withholding elections and, if required by state
law, state income tax withholding elections. The forms will
have been reviewed for accuracy by Central Vermont Public
Service Corporation. Like forms will be batched together and
control counts provided to IDS Trust to ensure that all
requests have been entered in the system. **
** CORRECTION:
A. Changes in 401(k) deferral rate are done quarterly. B.
Loan requests are also processed monthly.
4. IDS Trust will satisfy the requests in item #3 above
within the agreed upon performance guarantee of receipt of
complete and accurate requests. Checks for withdrawals and
distributions will be mailed directly to the latest
participant address on the IDS Trust recordkeeping system.
The withdrawal and distribution checks a participant
receives will include statements reflecting fund and source
payout activity and will state the taxability of dollars
distributed. A tax informational letter will be enclosed and
the required tax forms will be sent as noted in item #5.
IDS Trust will prepare and mail the federal and, if required
by state, state income tax form 1099R to all participants
who have taken a withdrawal or received a distribution from
the Plan. The forms will be mailed by the end of January
immediately following the calendar year during which payout
was made. Additionally, IDS Trust will send the
corresponding information by electronic tape to the Internal
Revenue Service and in hardcopy format to the appropriate
state authorities by the end of February immediately
following the calendar year during which payout was made.
IDS Trust will transfer assets among investment funds based
on direction provided by participants using IDS Trust's
telephone transfer service. The telephone transfer service
is available from 8:00 a.m. to 6:00 p.m. Central Standard
time every business day. Requests made by 12:30 p.m. will be
effective the same day, if later, requests will be effective
the next business day. A confirmation of the transaction
will be mailed directly to the participant at the latest
participant address.
7. The daily and month end value of the Central Vermont
Public Service Corporation Company Stock Pooled Account, the
IDS Trust Collective Income Fund II the IDS Trust Research
150 Collective Equity Fund, the IDS Mutual Fund, Inc., and
the IDS New Dimensions Fund, Inc. will be determined by the
values of those investments as available to the Trustee. The
daily and month-end value of the Central Vermont Public
Service Corporation Company Stock Pooled Account will be
determined as described in the separate agreement between
IDS Trust and Central Vermont Public Service Corporation.
Above and beyond that agreement, Central Vermont Public
Service Corporation additionally understands and agrees that
if the volume of activity increases over time and
demonstrates the need to adjust the pooled account cash
position, and Central Vermont Public Service Corporation
does not authorize IDS Trust to increase the pooled account
cash position, the fees paid by Central Vermont Public
Service Corporation applicable to the pooled account may
need to be increased in order to compensate IDS Trust for
excessive brokerage and administrative expenses incurred in
the administration of the pooled account.
8. At the end of each month, IDS Trust will create a report
package to mail to the Employer. Such package will be mailed
within the agreed upon performance guarantee. This package
will provide information about each participant's balance in
the plan and applicable activity since the last reporting
date, i.e. any contributions deposited, gains or losses,
withdrawals, and transfers. In addition, a trustee statement
of asset activity and market value as of the immediately
preceding month will be provided.
9. Each calendar quarter, IDS Trust will create standard
statements for every participant in the plan. These
statements will reflect account values as of the quarter
end, and will be mailed directly to participant homes at the
latest address available on the IDS Trust participant
recordkeeping system within the agreed upon performance
guarantee.
10. If it is necessary for IDS Trust to repeat any portion
of its service due to incorrect information provided by
Central Vermont Public Service Corporation, an additional
fee will be charged.
11. Charges for services not specifically outlined will be
determined by IDS Trust and communicated to Central Vermont
Public Service Corporation upon request for such service.
Examples of additional services include consulting, custom
programming, creating mailing lists, generating magnetic
tapes, calculating employee excess contributions, producing
special reports, or processing manual entries.
12. Fees are stated at an annual rate based on the number
of participant accounts maintained during the year, but are
calculated and payable quarterly. A late payment fee of 1%
per month for payments not received within 30 (thirty) days
of the billing date will be assessed. **
** Since most fees are now deducted from Trust assets,
Central Vermont Public Service Corporation will not be held
accountable for the timing of such deduction.
13. Once annually or as often as Central Vermont Public
Service Corporation deems necessary the non-discriminatory
testing will be performed by IDS Trust based on data
supplied by Central Vermont Public Service Corporation. All
test results will be communicated to Central Vermont Public
Service Corporation including a hardcopy report of all test
results.
Terms of Agreement
This Agreement will continue in effect unless terminated by
IDS Trust or Central Vermont Public Service Corporation by
written notice at least thirty (30) days prior to the
termination date, unless stated otherwise in the Trust
Agreement. Fees covered by this Agreement and consistent
with the above assumptions are guaranteed for one year from
the effective date unless Central Vermont Public Service
Corporation plan provisions are changed prior to this date.
IDS Trust requires sixty (60) days notice of plan changes.
Central Vermont Public Service Corporation will be notified
of impending fee increases sixty (60) days in advance of the
effective date.
Assignment
No assignment (as defined in the Investment Advisers Act of
1940) of this Agreement shall be made by IDS Trust without
the written consent of Central Vermont Public Service
Corporation; provided, however, that IDS Trust may assign
this Agreement to another wholly-owned subsidiary of IDS
Financial Corporation which is organized and chartered as a
trust company if IDS Trust first gives forty-five days
advance notice and Central Vermont Public Service
Corporation does not object within such forty-five day
period.
Central Vermont Public Service Corporation
BY: /s/ Jacquel-Anne Chouinard
ITS: ESIP Committee Chairperson
DATE: 8/8/91
IDS Trust, A Division of IDS Bank & Trust,
Acting By and Through Said Company
BY: /s/ Lisa L. Grubel
ITS: Vice President -
Qualified Plan Services
DATE: 8/8/91
<PAGE>
Exhibit B
CENTRAL VERMONT PUBLIC SERVICE CORPORATION INVESTMENT
AUTHORIZATION
EFFECTIVE JANUARY 1, 1992
A. Participant Investment Options
Central Vermont Public Service Corporation authorizes the
following investment fund vehicles* under the Central
Vermont Public Service Corporation Employee Savings and
Investment Plan.
1. Central Vermont Public Service Corporation Company Stock
Pooled Account
2. IDS Trust Collective Income Fund II
3. IDS Trust Research 150 Collective Equity Fund
4. IDS Mutual Fund, Inc.
5. IDS New Dimensions Fund, Inc.
B. Default Investments
Central Vermont Public Service Corporation authorizes IDS
Trust Collective Income Fund II as the default investment in
those instances where a participant fails to make a proper
investment election.
C. IDS Trust Collective Cash Fund (STIF)
Central Vermont Public Service Corporation authorizes IDS
Trust Collective Cash Fund (STIF) as the Short Term
Investment Fund for the holding of assets pending the
purchase or sale of Central Vermont Public Service
Corporation Company stock.
* Central Vermont Public Service Corporation acknowledges
receipt of the current prospectus of the investment
companies designated for investments under the Plan and
represents that it has delivered a copy thereof to each
Participant in the Plan, and that it will deliver to each
Participant making contributions and each new Participant, a
copy of the then current prospectus of such investment
companies.
AMENDMENT to the IDS Trust Qualified Plan Services
Administrative Services Agreement Effective January 1, 1992
for Central Vermont Public Service Corporation Savings and
Investment Plan
This Amendment to the IDS Trust Qualified Plan Services
Administrative Services Agreement for the Central Vermont
Public Service Corporation Employee Savings and Investment
Plan ("Administrative Services Agreement") is made and
entered into this l9th day of October, 1994 by and between
IDS Trust Company, a Minnesota trust company, ("IDS Trust)
and Central Vermont Public Service Corporation (the
"Company").
WITNESSETH THAT:
WHEREAS, IDS Trust and the Company are parties to the
Administrative Services Agreement made effective as of
January l, 1992 with respect to the Central Vermont Public
Service Corporation Savings and Investment Plan (the
"Plan"); and
WHEREAS, the Company wishes to amend Exhibit B of the
Administrative Services Agreement to direct IDS Trust as to
the establishment of certain investment funds under the
Plan;
NOW THEREFORE, in consideration of the mutual covenants set
forth in the Administrative Services Agreement, it is agreed
by the parties hereto that the Administrative Services
Agreement is hereby amended effective as of the first date
on which assets of the Plan were invested in the IDS Federal
Income Fund as follows with all other provisions of the
Administrative Services Agreement which are not herein
amended remaining in full force and effect:
1. Section A. of Exhibit B is restated in entirety as
follows:
I. Investment Funds
The Plan Administrator of the Central Vermont Public Service
Corporation Savings and Investment Plan (the "Plan") hereby
directs IDS Trust Company as trustee of the qualified trust
established for the Plan to establish the following
investment funds under the Plan:
1. Central Vermont Public Service Corporation Company Stock
Pooled Account
2. IDS Trust Collective Income Fund II
3. IDS Trust Research 150 Collective Equity Fund
4. IDS Mutual Fund, Inc.
5. IDS New Dimensions Fund Inc.
6. IDS Federal Income Fund
IN WITNESS THEREOF, the parties have executed this Amendment
to the IDS Trust Qualified Plan Services Administrative
Services Agreement for the Central Vermont Public Service
Corporation Savings and investment Plan as of the date first
written above.
Central Vermont Public Service Corporation IDS Trust
Company
SIGNED: /s/ Jacquel-Anne Chouinard SIGNED:
TITLE: Vice President - Human Resources TITLE:
Amendment No. 2
to the
Central Vermont Public Service
Corporation Savings and Investment Plan
IDS Trust Qualified Plan Services
Administrative Services Agreement
This Amendment No. 2 to the Central Vermont Public Service
Corporation Savings and Investment Plan - IDS Trust
Qualified Plan Services' Administrative Services Agreement
("Administrative Services Agreement") is made and entered
into this 30th day of June, 1995 by and between
American Express Trust Company, a Minnesota trust company,
("American Express Trust") and Central Vermont Public
Service Corporation (the "Employer").
WITNESS THAT:
WHEREAS, American Express Trust and the Employer are parties
to the Administrative Services Agreement made effective,
initially January 1, 1992 with respect to the Central
Vermont Public Service Corporation Savings and Investment
Plan (the "Plan"); and;
WHEREAS, American Express Trust and the Employer wish to
amend the Administrative Services Agreement to provide for
additional services under the Plan; and
NOW THEREFORE, in consideration of the mutual covenants set
forth in the Administrative Services Agreement, it is agreed
by the parties hereto that the Administrative Services
Agreement is hereby amended effective June 28, 1995, unless
otherwise stated, with all other provisions of the
Administrative Services Agreement which are not herein
amended remaining in full force:
1. By revising Section 6 under On-going Services as
follows:
6. American Express will transfer assets among investment
funds based on direction provided by participants using
American Express Trust's telephone transfer service. The
telephone transfer service is available from 6:00 a.m. to
9:00 p.m. Central Standard time any day that the New York
Stock Exchange is open for business. Requests made by 3:00
p.m. Central Standard time will be effective the same day;
if later, requests will be effective the next day that the
New York Stock Exchange is open for business. A
confirmation of the transaction will be mailed directly to
the participant at the latest participant address.
2. By revising an earlier correction to B that will now
read as follows:
B. Loan requests will be processed as they are received.
3. By adding item 14 as follows:
14. American Express Trust will coincident with each
December's reporting cycle, provide to the Employer, a
report that will identify each participant who is eligible
to diversify their ESOP account.
4. Effective November 1, 1995 the following service will be
added:
TRANSACTION AVAILABLE ON THE AMERICAN EXPRESS TRUST
INTERACTIVE VOICE RESPONSE SYSTEM
A. At any time during any day of the year (except during
periods of system maintenance and information updates), a
Participant may request and execute Transactions to transfer
existing balances between Investment Funds and/or change
Investment Fund allocations for future Plan contributions by
accessing the American Express Trust Transactional
Interactive Voice Response System (TIVR).
B. Investment Fund transfers placed by Participants via
TIVR will be restricted to percentage transfer requests
executed in whole percentages. Participants may request up
to one transfer out of each Investment Fund per any day that
the New York Stock Exchange is open for business through any
combination of TIVR and/or a Telephone Line Service
Representative. Investment allocation changes for future
contributions are also limited to one per any day that the
New York Stock Exchange is open for business.
C. Investment Fund transfer and future contribution
allocation requests executed by Participants are
irrevocable.
D. A Participant may select a new PIN through TIVR. A
hardcopy confirmation of the new PIN will be mailed to the
Participant at the home address maintained on the American
Express Trust recordkeeping system within three days in
which the New York Stock Exchange is open for business after
the request is executed on TIVR.
5. Exhibit A shall be revised by adding a Conversion Fee of
$5,000.
IN WITNESS THEREOF, the parties have executed this Amendment
No. 2 to the Central Vermont Public Service Corporation
Savings and Investment Plan - IDS Trust Qualified Plan
Services Administrative Services Agreement as of the date
first written above.
Central Vermont Public Service Corporation
SIGNED: /s/ Jacquel-Anne Chouinard
TITLE: Vice President, Human Resources
American Express Trust Company
SIGNED: /s/ Mark Ellis
TITLE: Vice President
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of
our reports dated February 6, 1995 included in Central
Vermont Public Service Corporation's Form 10-K for the year
ended December 31, 1994 and dated April 28, 1995 included in
Central Vermont Public Service Corporation's Form 11-K, as
supplemented and amended on Form 11-KA, dated June 26, 1995,
for the year ended December 31, 1994 and to all references
to our firm included in this registration statement.
/s/ Arthur Andersen LLF
Boston, Massachusetts
June 28, 1995
CENTRAL VERMONT PUBLIC SERVICE CORPORATION
401(k) ENROLLMENT/CHANGE FORM
Eligibility and participation in the Central Vermont Public
Service Corporation 401(k) Plan are governed by Plan Document
provisions.
__ New Enrollment __ Change of Name
__ Re-enrollment __ Change of Address
__ Change of Salary Deferral __ Change of Beneficiary
Percentage Rate
__ Rollover __ I DO NOT WISH TO PARTICIPATE
IN THE PLAN. I understand
__ Stop Salary Deferral that I may elect to join and
Contribution contribute at a later date.
BASIC EMPLOYEE INFORMATION
Social Security Number Employment Date
Employee No.
/ /
First Name M.I. Last Name
Birth Date
/ /
Mailing Address City State
Zip Code
SAVINGS DEFERRAL RATE
Deduct the following percentage of my salary each pay period
(not to exceed maximum annual IRS dollar limits)
__1% __2% __3% __4% __5% __6% __7% __8% __9% __10% __11% __12%
__13% __14% __15%
CVPS will match your contribution 100% up to the first 4% you
defer.
INVESTMENT CHOICE - NEW ENROLLEES ONLY
New enrollees may choose to contribute to one, several or all
of the funds listed.
(Investment contribution must be increments of whole
percentages 10%, 50%, etc., and the total must equal 100%)
ONCE ENROLLED, YOU CAN ONLY MAKE INVESTMENT CHANGES BY CALLING
1-800-437-SAVE, MONDAY - FRIDAY, 9 AM - 7 PM E.S.T.
Company Stock New Dimensions Research Mutual
Pooled Account Fund 150 Fund
_____% _____% _____% _____%
Income Federal Income
Fund II Fund
_____% _____%
BENEFICIARY
Please designate the beneficiary who will receive your account
balance if you die. If you are not married, but marry while
participating in the Plan, your spouse automatically becomes
your beneficiary. If you are married and want to name someone
other than your spouse as beneficiary, your spouse must
approve this designation by signing below. Spouse signature
needs to be notarized.
BENEFICIARY______________________________________________
First Name M.I. Last Name
BENEFICIARY'S SOCIAL
SECURITY NUMBER_____________________________
I understand the beneficiary named above will receive any
death benefits payable from the Plan and I waive my right to
these benefits upon the death of my spouse.
SPOUSE'S
SIGNATURE______________________________DATE____________
NOTARY SIGNATURE
AND SEAL_______________________ DATE___________
AUTHORIZATION
I hereby authorize my employer to take the actions indicated
above with regard to the Plan.
EMPLOYEE'S
SIGNATURE_____________________________DATE___________
FOR ADMINISTRATIVE USE ONLY
Date Eligible__________ Date of Participation__________
Administrator Signature/Date____________________
