<PAGE>
As filed with the Securities and Exchange Commission on September 9, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------
BRC HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-1533071
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1111 WEST MOCKINGBIRD
SUITE 1500
DALLAS, TEXAS 75247
(Address of Principal Executive Offices) (Zip Code)
-------------------------
BRC HOLDINGS, INC.
401(K) RETIREMENT SAVINGS
PLAN AND TRUST
(Full title of the plan)
-------------------------
THOMAS E. KIRALY
CHIEF FINANCIAL OFFICER
BRC HOLDINGS, INC.
1111 WEST MOCKINGBIRD
SUITE 1500
DALLAS, TEXAS 75247
(214) 688-1800
(Name and address, including zip code, and
telephone number, including area code, of agent for service)
-------------------------
Copy to:
KENT JAMISON, ESQ.
LOCKE PURNELL RAIN HARRELL
(A PROFESSIONAL CORPORATION)
2200 ROSS AVENUE
SUITE 2200
DALLAS, TEXAS 75201
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE AMOUNT OF
REGISTERED REGISTERED* SHARE* OFFERING PRICE* REGISTRATION FEE*
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.10 350,000 shares $15.19 $5,316,500 $1,569.00
par value*
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
</TABLE>
* Estimated solely for the purpose of calculating the registration fee. This
fee was calculated pursuant to Rule 457(h) under the Securities Act of
1933, as amended, on the basis of the average of the high and low prices
for a share of the Common Stock on the Nasdaq Stock Market National Market
on September 3, 1998.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The information specified by Item 1 of Part I of Form S-8 is omitted from
this filing in accordance with the provisions of Rule 428 under the Securities
Act of 1933, as amended, and the introductory note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The information specified by Item 2 of Part I of Form S-8 is omitted from
this filing in accordance with the provisions of Rule 428 under the Securities
Act of 1933, as amended, and the introductory note to Part I of Form S-8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents set forth below are incorporated by reference in this
Registration Statement. All documents subsequently filed by BRC Holdings, Inc.
(the "Company") and by the BRC Holdings, Inc. 401(k) Retirement Savings Plan and
Trust (the "Plan") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the
filing of a post-effective amendment that indicates that all securities offered
have been sold or that deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents.
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, and the Plan's Annual Report on Form 11-K for the
fiscal year ended December 31, 1997.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual
Reports referred to in (1) above.
(3) The description of the Company's Common Stock, par value $.10 per
share, contained in the Company's Registration Statement on Form 8-A
filed with the Securities and Exchange Commission on February 16,
1988, including any amendments or reports filed for the purposes of
updating such description.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that the statement
contained herein or in any subsequently filed document that also is or is deemed
to be incorporated by reference herein, or in any document forming any part of
the Section 10(a) Prospectus to be delivered to participants in connection with,
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
-2-
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Ninth of the Company's Certificate of Incorporation as amended
contains provisions that eliminate the personal liability of the Company's
directors for monetary damages resulting from breaches of their fiduciary duty
to the fullest extent permitted by Delaware General Corporation Law (the
"DGCL"). Article VI of the Company's Bylaws contain provisions requiring the
indemnification of the Company's directors and officers upon and pursuant to the
terms specified therein and under the applicable provisions of the DGCL. The
Company believes that these provisions are necessary to attract and retain
qualified persons as directors and officers.
Section 145 of the DGCL provides broad authority for indemnification of
officers and directors. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
The foregoing summaries are necessarily subject to the complete text of the
applicable DGCL statutes, Certificate of Incorporation and Bylaws of the Company
referred to above and are qualified in their entirety by reference thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3(b) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1996
(the "1996 Form 10-K")).
4.2 Certificate of Amendment to the Restated Certificate of
Incorporation of Cronus Industries, Inc. (incorporated by
reference to Exhibit 3(c) to the Company's 1996 Form 10-K).
4.3 Certificate of Amendment of Certificate of Incorporation of
Cronus Industries, Inc. (incorporated by reference to
Exhibit 3(d) to the Company's 1996 Form 10-K).
4.4 Certificate of Amendment to the Restated Certificate of
Incorporation of Cronus Industries, Inc. (incorporated by
reference to Exhibit 3(e) to the Company's Annual Report on
Form 10-K for the year ended December 31, 1997 (the "1997
Form 10-K")).
-3-
<PAGE>
4.5 Certificate of Correction to the Certificate of Amendment to the
Restated Certificate of Incorporation of Cronus Industries, Inc.
(incorporated by reference to Exhibit 3(f) to the Company's 1997
Form 10-K).
4.6 Certificate of Designation of Series A Junior Participating
Preferred Stock of the Company (incorporated by reference to
Exhibit 3(g) to the Company's 1997 Form 10-K).
4.7 Certificate of Designation, Preferences, Rights and Limitations
of 7% Series B Cumulative Convertible Exchangeable Preferred
Stock of the Company (incorporated by reference to Exhibit 3(h)
to the Company's 1997 Form 10-K).
4.8 Certificate of Amendment to the Restated Certificate of
Incorporation of Cronus Industries, Inc. (incorporated by
reference to Exhibit 3(i) to the Company's 1996 Form 10-K).
4.9 Certificate of Amendment to the Restated Certificate of
Incorporation of Business Records Holding Company (incorporated
by reference to Exhibit 3(j) to the Company's 1996 Form 10-K).
4.10 Bylaws of the Company (incorporated by reference to Exhibit 3.2
to the Company's Registration Statement on Form S-2 (Registration
No. 2-94283)).
5.1* Opinion of Locke Purnell Rain Harrell (A Professional
Corporation).
23.1* Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2* Consent of Locke Purnell Rain Harrell (A Professional
Corporation) (included in opinion filed as Exhibit 5.1).
24* Power of Attorney (included on the signature page of this
Registration Statement).
99.1* BRC Holdings, Inc. 401(k) Retirement Savings Plan and Trust, as
amended.
</TABLE>
- --------------------------
* Filed herewith.
The Company hereby undertakes that it will submit or has submitted the plan
and any amendments thereto to the Internal Revenue Service (the "IRS") in a
timely manner and has made or will make all changes required by the IRS in order
to qualify the Plan under Section 401 of the Internal Revenue Code of 1986, as
amended.
-4-
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment hereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and each filing of the Plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in
this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
-5-
<PAGE>
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection
with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
-6-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints J. L. Morrison and Thomas E. Kiraly, each of
them or any one of them, as his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, to execute in the name
and on behalf of such person, in any and all capacities, any or all
amendments (including post-effective amendments) to this Registration
Statement now or hereafter filed by or on behalf of BRC Holdings, Inc. (the
"Company") covering securities issued or issuable under or in connection with
the Company's 401(k) Retirement Savings Plan and Trust (as now or hereafter
amended) and to file the same, with all exhibits, thereto and other documents
required in connection therewith, with the Securities and Exchange Commission
and any state or other securities authority, granting unto said
attorneys-in-fact and agents, and each of them or any of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, and each of them or
any one of them, or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Form S-8
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas, on the 31st
day of August, 1998.
BRC HOLDINGS, INC.
By: /s/ J.L. Morrison
-------------------------------------
President and Chief Operating Officer
-7-
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this Form
S-8 Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ J.L. Morrison President and Chief Operating Officer August 31, 1998
- -------------------------- (Principal Executive Officer)
J. L. Morrison
/s/ Thomas E. Kiraly Chief Financial Officer (Principal Accounting August 31, 1998
- -------------------------- and Principal Financial Officer)
Thomas E. Kiraly
/s/ L.D. Brinkman Director August 31, 1998
- --------------------------
L.D. Brinkman
/s/ Robert E. Masterson Director August 31, 1998
- --------------------------
Robert E. Masterson
/s/ David H. Monnich Director August 31, 1998
- --------------------------
David H. Monnich
/s/ Paul T. Stoffel Director August 31, 1998
- --------------------------
Paul T. Stoffel
</TABLE>
-8-
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the Trustee
(or other persons who administer the Plan) has duly caused this Form S-8
Registration Statement to be signed on behalf of the Plan by the undersigned,
thereunto duly authorized, in the City of Malvern, Commonwealth of
Pennsylvania, on the 4th day of September, 1998.
BRC HOLDINGS, INC. 401(K) RETIREMENT SAVINGS
PLAN AND TRUST
By: The Vanguard Group, Plan Trustee
By: /s/ R. Gregory Barton
----------------------------------
Printed Name: R. Gregory Barton
-------------------------
Title: Managing Director and General
-------------------------------
Counsel
-------------------------------
-9-
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------- -------
<S> <C>
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3(b) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1996
(the "1996 Form 10-K")).
4.2 Certificate of Amendment to the Restated Certificate of
Incorporation of Cronus Industries, Inc. (incorporated by
reference to Exhibit 3(c) to the Company's 1996 Form 10-K).
4.3 Certificate of Amendment of Certificate of Incorporation of
Cronus Industries, Inc. (incorporated by reference to
Exhibit 3(d) to the Company's 1996 Form 10-K).
4.4 Certificate of Amendment to the Restated Certificate of
Incorporation of Cronus Industries, Inc. (incorporated by
reference to Exhibit 3(e) to the Company's Annual Report on
Form 10-K for the year ended December 31, 1997 (the "1997
Form 10-K")).
4.5 Certificate of Correction to the certificate of Amendment to the
Restated Certificate of Incorporation of Cronus Industries, Inc.
(incorporated by reference to Exhibit 3(f) to the Company's 1997
Form 10-K).
4.6 Certificate of Designation of Series A Junior Participating
Preferred Stock of the Company (incorporated by reference to
Exhibit 3(g) to the Company's 1997 Form 10-K).
4.7 Certificate of Designation, Preferences, Rights and Limitations
of 7% Series B Cumulative Convertible Exchangeable Preferred
Stock of the Company (incorporated by reference to Exhibit 3(h)
to the Company's 1997 Form 10-K).
4.8 Certificate of Amendment to the Restated Certificate of
Incorporation of Cronus Industries, Inc. (incorporated by
reference to Exhibit 3(i) to the Company's 1996 Form 10-K).
4.9 Certificate of Amendment to the Restated Certificate of
Incorporation of Business Records Holding Company (incorporated
by reference to Exhibit 3(j) to the Company's 1996 Form 10-K).
4.10 Bylaws of the Company (incorporated by reference to Exhibit 3.2
to the Company's Registration Statement on Form S-2 (Registration
No. 2-94283)).
<PAGE>
5.1* Opinion of Locke Purnell Rain Harrell (A Professional
Corporation).
23.1* Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2* Consent of Locke Purnell Rain Harrell (A Professional
Corporation) (included in opinion filed as Exhibit 5.1).
24* Power of Attorney (included on the signature page of this
Registration Statement).
99.1* BRC Holdings, Inc. 401(k) Retirement Savings Plan and Trust, as
amended.
</TABLE>
- ---------------------------
* Filed herewith.
<PAGE>
EXHIBIT 5.1
<PAGE>
LOCKE PURNELL RAIN HARRELL
(A Professional Corporation)
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201-6776
(214) 740-8416
EMAIL: [email protected]
September 8, 1998
BRC Holdings, Inc.
1111 West Mockingbird
Suite 1500
Dallas, Texas 75247
Re: Registration of three hundred fifty thousand (350,000) shares of
Common Stock, par value $.10, pursuant to a Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to BRC Holdings Inc., a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act
of 1933, as amended (the "Securities Act"), pursuant to a Registration
Statement on Form S-8 (the "Registration Statement"), of three hundred fifty
thousand (350,000) shares of Common Stock, par value $.10 per share, of the
Company (the "Common Stock") to be offered to employees of the Company
pursuant to the BRC Holdings, Inc. 401(k) Retirement Savings Plan and Trust
(the "Plan").
You have requested the opinion of this firm with respect to certain
legal aspects of the Registration Statement. In connection therewith, we
have examined and relied upon the original, or copies identified to our
satisfaction, of (i) the Certificate of Incorporation and the Bylaws of the
Company, as both have been amended; (ii) minutes and records of the
corporate proceedings of the Company with respect to the Plan and related
matters; (iii) the Registration Statement and exhibits thereto, including
the Plan listed as an exhibit to the Registration Statement, and (iv) such
other documents and instruments as we have deemed necessary for the
expression of the opinions herein contained. In making the foregoing
examinations, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as certified or photostatic
copies. As to various questions of fact material to this opinion, and as to
the content and form of the Certificate of Incorporation, the Bylaws,
minutes, records, resolutions and other documents or writings of the Company,
we have relied, to the extent we deem reasonably appropriate, upon
representations or certificates of officers or directors of the Company and
upon documents, records and instruments furnished to us by the Company,
without independent check or verification of their accuracy.
<PAGE>
Based upon our examination and consideration of, and reliance on, such
documents and other matters described above and subject to the comments and
exceptions noted below, we are of the opinion that, with respect to shares of
Common Stock issued after the date hereof, (i) the receipt of proper
consideration for the issuance thereof in excess of the par value thereof,
(ii) the availability of a sufficient number of shares of Common Stock
authorized by the Company's Certificate of Incorporation then in effect,
(iii) compliance with the terms of any agreement entered into in connection
with any shares of Common Stock issued or allocated in connection with the
Plan, and (iv) no change occurs in the applicable law or the pertinent facts,
shares of Common Stock allocable to participants' accounts under the Plan
will be legally issued, fully paid and non-assessable shares of Common Stock.
This opinion is rendered as of the date hereof, and we undertake no, and
hereby disclaim any, obligation to advise you of any changes in or new
developments that might affect any matters or opinions set forth herein.
This opinion may not be relied upon by any person other than the addressee
identified above.
This opinion is limited in all respects to the General Corporation Law
of the State of Delaware as in effect on the date hereof. Please be advised
that, we are not members of the Bar of the State of Delaware and our
knowledge of its General Corporation Law is derived from a reading of the
most recent unofficial compilation of that statute available to us without
consideration of any judicial or administrative interpretations thereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a
part of the Registration Statement. In giving this consent, we do not admit
that we come within the category of person whose consent is required under
Section 7 of the Securities Act or the Rules and Regulations of the
Securities and Exchange Commission thereunder. This opinion may not be
relied upon by any person other than the addressee identified above.
Very truly yours,
LOCKE PURNELL RAIN HARRELL
(A Professional Corporation)
/s/ Kent Jamison
--------------------------------------
Kent Jamison
KRJ/rgr
<PAGE>
EXHIBIT 23.1
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 for the BRC Holdings, Inc. 401(k) Retirement Savings
Plan and Trust of our report dated March 16, 1998 appearing in BRC Holdings,
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Dallas, Texas
September 3, 1998
<PAGE>
EXHIBIT 99.1
<PAGE>
BRC HOLDINGS, INC.
401(k) RETIREMENT SAVINGS PLAN
PLAN NO. 001
RESTATED EFFECTIVE JULY 1, 1998
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1. ACCOUNT BALANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2. ACCOUNTING DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3. ADMINISTRATOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4. AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5. ALTERNATE PAYEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6. ANNIVERSARY DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7. ANNUAL COMPENSATION. . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8. BENEFICIARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.9. CASH VALUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.10. CODE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.11. COMMITTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.12. CONTRACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.13. DETERMINATION DATE . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.14. DISABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.15. EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.16. ELIGIBILITY COMPUTATION PERIOD . . . . . . . . . . . . . . . . . . . . 4
1.17. EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.18. EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.19. ENTRY DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.20. ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.21. FORFEITURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.22. FORMER EMPLOYEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.23. FORMER PARTICIPANT . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.24. HIGHLY COMPENSATED EMPLOYEE. . . . . . . . . . . . . . . . . . . . . . 5
1.25. HOUR OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.26. INDIVIDUAL ACCOUNTS. . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.27. INSURANCE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.28. LIMITATION YEAR. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.29. NAMED FIDUCIARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.30. NONFORFEITABLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.31. NON-HIGHLY COMPENSATED EMPLOYEE. . . . . . . . . . . . . . . . . . . . 8
1.32. NORMAL RETIREMENT AGE. . . . . . . . . . . . . . . . . . . . . . . . . 8
1.33. ONE YEAR BREAK IN SERVICE . . . . . . . . . . . . . . . . . . . . . . 8
1.34. OWNER-EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.35. PARTICIPANT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.36. PARTICIPATING EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . 9
1.37. PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.38. PLAN YEAR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.39. PREDECESSOR EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.40. RELATED EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.41. RESTRICTED ANNUITY . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.42. SELF-EMPLOYED INDIVIDUAL . . . . . . . . . . . . . . . . . . . . . . . 10
1.43. SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.44. SHAREHOLDER-EMPLOYEE . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.45. TOP-HEAVY PLAN STATUS/SUPER TOP-HEAVY PLAN STATUS. . . . . . . . . . . 11
1.46. TRUST FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.47. TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.48. YEAR OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
i
<PAGE>
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1. ELIGIBILITY CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2. PARTICIPATION ELECTION . . . . . . . . . . . . . . . . . . . . . . . . 18
2.3. PARTICIPANT RE-ENTRY . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE III
CONTRIBUTIONS AND WITHDRAWALS
3.1. EMPLOYER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . 19
3.2. DEADLINE FOR EMPLOYER CONTRIBUTIONS. . . . . . . . . . . . . . . . . . 21
3.3. DEPOSIT OF EMPLOYER CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . 21
3.4. CREDITING OF EMPLOYER CONTRIBUTIONS. . . . . . . . . . . . . . . . . . 21
3.5. WITHDRAWAL OF EMPLOYER CONTRIBUTIONS BEFORE SEPARATION FROM
SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.6. PARTICIPANT VOLUNTARY AFTER TAX CONTRIBUTIONS. . . . . . . . . . . . . 22
3.7. DEADLINE FOR PARTICIPANT VOLUNTARY AFTER TAX CONTRIBUTIONS . . . . . . 22
3.8. DEPOSIT OF PARTICIPANT VOLUNTARY AFTER TAX CONTRIBUTIONS . . . . . . . 22
3.9 CREDITING OF PARTICIPANT VOLUNTARY AFTER TAX CONTRIBUTIONS . . . . . . 22
3.10. WITHDRAWAL OF PARTICIPANT VOLUNTARY AFTER TAX CONTRIBUTIONS. . . . . . 22
3.11 WITHDRAWAL OF EMPLOYER ELECTIVE CONTRIBUTIONS (PARTICIPANT
ELECTIVE DEFERRALS), EMPLOYER QUALIFIED NON-ELECTIVE
CONTRIBUTIONS, AND EMPLOYER QUALIFIED MATCHING CONTRIBUTIONS . . . . . 23
3.12. LIMITATIONS ON EMPLOYER ELECTIVE CONTRIBUTIONS . . . . . . . . . . . . 24
3.13. LIMITATIONS ON EMPLOYEE CONTRIBUTIONS AND MATCHING EMPLOYER
CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE IV
ADJUSTMENT OF INDIVIDUAL ACCOUNTS
4.1. ADJUSTMENT RULES FOR INDIVIDUAL ACCOUNTS . . . . . . . . . . . . . . . 37
ARTICLE V
ALLOCATION OF EMPLOYER CONTRIBUTIONS TO INDIVIDUAL ACCOUNTS
5.1. ALLOCATION RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.2. ALLOCATION FORMULA . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.3. LIMITATIONS ON ALLOCATIONS . . . . . . . . . . . . . . . . . . . . . . 40
5.4. TOP-HEAVY MINIMUM ALLOCATION . . . . . . . . . . . . . . . . . . . . . 46
5.5. POST-ALLOCATION ADJUSTMENTS TO ACCOUNTS. . . . . . . . . . . . . . . . 47
5.6. EMPLOYER CONTRIBUTION ACCOUNTS DEFINED . . . . . . . . . . . . . . . . 47
ARTICLE VI
RETIREMENT
6.1. CREDITING, ADJUSTMENT OF ACCOUNTS UPON RETIREMENT. . . . . . . . . . . 49
6.2 EARLY RETIREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.3. PAYMENT OF RETIREMENT BENEFITS . . . . . . . . . . . . . . . . . . . . 49
6.4. MANDATORY DISTRIBUTION OF RETIREMENT BENEFITS. . . . . . . . . . . . . 49
6.5. JOINT AND SURVIVOR ANNUITY REQUIREMENTS. . . . . . . . . . . . . . . . 52
ARTICLE VII
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<PAGE>
DEATH
7.1. BENEFICIARY DESIGNATION. . . . . . . . . . . . . . . . . . . . . . . . 58
7.2. CREDITING, ADJUSTING OF ACCOUNTS UPON DEATH. . . . . . . . . . . . . . 59
7.3 PAYMENT OF DEATH BENEFITS. . . . . . . . . . . . . . . . . . . . . . . 59
7.4 MANDATORY DISTRIBUTION OF DEATH BENEFITS . . . . . . . . . . . . . . . 60
ARTICLE VIII
DISABILITY
8.1. CREDITING, ADJUSTING OF ACCOUNTS UPON DISABILITY . . . . . . . . . . . 63
8.2 PAYMENT OF DISABILITY BENEFITS . . . . . . . . . . . . . . . . . . . . 63
ARTICLE IX
TERMINATION OF EMPLOYMENT AND FORFEITURE
9.1. CREDITING AND ADJUSTING OF ACCOUNTS UPON TERMINATION . . . . . . . . . 64
9.2. VESTING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.3. PAYMENT OF TERMINATION BENEFITS. . . . . . . . . . . . . . . . . . . . 65
9.4. FORFEITURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
9.5. DETERMINATION OF AMOUNT OF VESTED UNDISTRIBUTED ACCOUNT,
FORFEITURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
9.6. AGGREGATION OF YEARS OF VESTING SERVICE. . . . . . . . . . . . . . . . 67
9.7. BUY-BACK OPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE X
OPTIONAL FORMS OF BENEFIT
10.1. OPTIONAL FORMS OF PAYMENT OF BENEFITS. . . . . . . . . . . . . . . . . 69
10.2. DIRECT ROLLOVER OPTIONAL FORM OF BENEFIT . . . . . . . . . . . . . . . 70
10.3. ELECTION TO DEFER RECEIPT OF BENEFITS. . . . . . . . . . . . . . . . . 70
10.4. ELECTION OF FORM OF PAYMENT OF BENEFITS. . . . . . . . . . . . . . . . 71
10.5. MINORITY OR DISABILITY . . . . . . . . . . . . . . . . . . . . . . . . 71
10.6. COMMENCEMENT OF PAYMENT OF BENEFITS. . . . . . . . . . . . . . . . . . 71
10.7. UNCLAIMED ACCOUNT PROCEDURE. . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE XI
THE EMPLOYER
11.1. EMPLOYER ACTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
11.2. PLAN AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
11.3. DISCONTINUANCE, TERMINATION OF PLAN. . . . . . . . . . . . . . . . . . 74
11.4. PROHIBITION AGAINST REVERSION TO EMPLOYER. . . . . . . . . . . . . . . 75
11.5. ADOPTION BY RELATED EMPLOYER . . . . . . . . . . . . . . . . . . . . . 75
11.6. REQUIREMENTS FOR ADOPTION BY RELATED EMPLOYER. . . . . . . . . . . . . 75
11.7. PLAN SPONSOR AS AGENT OF PARTICIPATING EMPLOYER. . . . . . . . . . . . 76
11.8. PARTICIPATING EMPLOYER CONTRIBUTIONS . . . . . . . . . . . . . . . . . 76
11.9. AMENDMENT BY PLAN SPONSOR, PARTICIPATING EMPLOYERS . . . . . . . . . . 76
11.10. REVOCATION OF PARTICIPATION BY PARTICIPATING EMPLOYER. . . . . . . . . 76
11.11. AUTHORITY OF ADMINISTRATOR OVER PARTICIPATING EMPLOYERS. . . . . . . . 77
11.12. DEFICIENCY OF EARNINGS OR PROFITS. . . . . . . . . . . . . . . . . . . 77
ARTICLE XII
iii
<PAGE>
THE COMMITTEE
12.1. COMMITTEE APPOINTMENT. . . . . . . . . . . . . . . . . . . . . . . . . 78
12.2. COMMITTEE ACTION AND PROCEDURE . . . . . . . . . . . . . . . . . . . . 78
12.3. COMMITTEE POWERS AND DUTIES. . . . . . . . . . . . . . . . . . . . . . 78
12.4. COMMITTEE RELIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . 79
12.5. COMMITTEE AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . 79
12.6. CONFLICTS IN INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . 79
12.7. APPOINTMENT OF AGENT AND LEGAL COUNSEL . . . . . . . . . . . . . . . . 80
12.8. APPOINTMENT OF INVESTMENT MANAGER. . . . . . . . . . . . . . . . . . . 80
12.9. ANNUAL ACCOUNTING. . . . . . . . . . . . . . . . . . . . . . . . . . . 80
12.10. FUNDING POLICY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE XIII
ADMINISTRATION
13.1. ADMINISTRATOR APPOINTMENT. . . . . . . . . . . . . . . . . . . . . . . 82
13.2. SUMMARY PLAN DESCRIPTION . . . . . . . . . . . . . . . . . . . . . . . 82
13.3. SUMMARY ANNUAL REPORT. . . . . . . . . . . . . . . . . . . . . . . . . 82
13.4. INDIVIDUAL BENEFIT STATEMENTS. . . . . . . . . . . . . . . . . . . . . 82
13.5. PAYMENT OF EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . 82
13.6. COPIES OF ADDITIONAL DOCUMENTS . . . . . . . . . . . . . . . . . . . . 83
13.7. DOCUMENTS AVAILABLE FOR EXAMINATION. . . . . . . . . . . . . . . . . . 83
13.8. NOTICE OF PARTICIPANT RIGHTS UNDER ERISA . . . . . . . . . . . . . . . 83
13.9. NOTICE TO PARTICIPANT ON PARTICIPANT TERMINATION . . . . . . . . . . . 83
13.10. NOTICE TO TRUSTEE ON PARTICIPANT TERMINATION . . . . . . . . . . . . . 83
13.11. CLAIM FOR BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . 84
13.12. APPEAL FOR DECISION OF COMMITTEE . . . . . . . . . . . . . . . . . . . 84
ARTICLE XIV
THE TRUSTEE
ARTICLE XV
INSURANCE CONTRACTS
ARTICLE XVI
PARTICIPANT LOANS
16.1. PARTICIPANT LOAN PROGRAM . . . . . . . . . . . . . . . . . . . . . . . 87
16.2. LOAN APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
16.3. LOAN APPROVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
16.4. LIMITATION ON TYPE OF LOAN . . . . . . . . . . . . . . . . . . . . . . 87
16.5. LIMITATION ON AMOUNT OF LOAN . . . . . . . . . . . . . . . . . . . . . 88
16.6. EVIDENCE OF LOAN . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
16.7. TERMS OF LOAN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
16.8. SECURITY FOR LOAN. . . . . . . . . . . . . . . . . . . . . . . . . . . 88
16.9. DEFAULT EVENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
16.10. PARTICIPANT DIRECTED INVESTMENT. . . . . . . . . . . . . . . . . . . . 89
16.11. PROCEDURE ON BENEFIT DISTRIBUTION. . . . . . . . . . . . . . . . . . . 89
16.12. ACCELERATION OF NOTE ON SEPARATION FROM SERVICE. . . . . . . . . . . . 89
iv
<PAGE>
ARTICLE XVII
ROLLOVERS, MERGERS, DIRECT TRANSFERS
17.1. PARTICIPANT ROLLOVER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . 90
17.2. MERGER AND DIRECT TRANSFER . . . . . . . . . . . . . . . . . . . . . . 91
17.3. CERTAIN ROLLOVERS, MERGERS AND DIRECT TRANSFERS PROHIBITED . . . . . . 91
ARTICLE XVIII
EXCLUSIVE BENEFIT
18.1. EXCLUSIVE BENEFIT. . . . . . . . . . . . . . . . . . . . . . . . . . . 93
18.2. DENIAL OF REQUEST FOR INITIAL APPROVAL . . . . . . . . . . . . . . . . 93
18.3. MISTAKE OF FACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
18.4. DISALLOWANCE OF DEDUCTION. . . . . . . . . . . . . . . . . . . . . . . 93
18.5. SPENDTHRIFT CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . 93
18.6 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
18.7. EMPLOYEES IN QUALIFIED MILITARY SERVICE. . . . . . . . . . . . . . . . 95
ARTICLE XIX
CONSTRUCTION
19.1. HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
19.2. CONTEXT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
19.3. EMPLOYMENT NOT GUARANTEED. . . . . . . . . . . . . . . . . . . . . . . 96
19.4. WAIVER OF NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
19.5. STATE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
19.6. PARTIES BOUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
v
<PAGE>
BRC HOLDINGS, INC.
401(k) RETIREMENT SAVINGS PLAN
BRC HOLDINGS, INC., a Texas Corporation, having its principal office
in Dallas, Texas (hereinafter referred to as "Employer") makes this Agreement.
R E C I T A L S:
A. The Employer has previously established a 401(k) Retirement
Savings Plan for the exclusive benefit of its eligible Employees, the
Employees of related Participating Employers and their respective
Beneficiaries, which is Plan Number 001;
B. The Employer recognizes the lasting contribution made by its
Employees to its successful operation and wants to reward their contribution by
continuing the 401(k) Retirement Savings Plan and Trust;
C. The Employer wishes to amend and restate its existing 401(k)
Retirement Savings Plan effective JULY 1, 1998 or as otherwise stated herein;
D. The Employer has authorized the execution of this Agreement
intended to continue the Profit Sharing Plan to qualify under Sections 401(a)
and 501(a) of the Internal Revenue Code of 1986 as amended and the
regulations promulgated thereunder;
E. The provisions of this Plan, as amended and restated, shall apply
solely to an Employee who terminates employment with the Employer or a
Participating Employer on or after the restated Effective Date of this Plan; and
F. If an Employee terminates employment with the Employer or
Participating Employer prior to the restated Effective Date, that Employee shall
be entitled to benefits under the Plan as the Plan existed on the Employee's
termination date.
NOW, THEREFORE, considering the premises, the Employer agrees as follows:
1
<PAGE>
ARTICLE I
DEFINITIONS
The following terms used in this Agreement shall have the meanings set forth in
this Article unless a different meaning is clearly indicated by the context:
1.1. ACCOUNT BALANCE
Account Balance means the amount standing in a Participant's Individual
Account(s) as of any date derived from both Employer Contributions and
Employee Contributions, if any.
1.2. ACCOUNTING DATE
Accounting Date means each day on which the New York Stock Exchange is
open for trading, on which the Plan Administrator applies the accounting
procedures specified in Article IV.
1.3. ADMINISTRATOR
Administrator means the Employer unless the Employer designates another
person to hold the position of Administrator by written Employer action.
The Employer has designated the 401(k) Administrative Committee as the
Administrator of the Plan.
1.4. AGREEMENT
Agreement means this Plan Agreement and all amendments or addendums to
this Agreement.
1.5. ALTERNATE PAYEE
Alternate Payee means any spouse, former spouse, child, or other
dependent of a Participant who is recognized by a domestic relations
order as having a right to receive all, or a portion of, the benefits
payable under the Plan with respect to such Participant.
1.6. ANNIVERSARY DATE
Anniversary Date means the last day of each Plan Year. The Anniversary
Date is the Allocation Date.
1.7. ANNUAL COMPENSATION
(a) Annual Compensation means the total amount of all salary and
wages, paid or otherwise includable in the gross income of a
Participant during the Calendar Year, excluding Compensation
earned prior to a Participant's Entry Date.
(b) In addition to other applicable limitations set forth in the Plan,
and notwithstanding any other provision of the Plan to the
contrary, the annual compensation of each employee taken into
account under the Plan shall not exceed $150,000, as adjusted
by the Commissioner for increases in the cost of living in
accordance with Section 401(a)(17)(B) of the Internal Revenue
Code (the "Annual Compensation Limit"). The cost-of-living
adjustment in effect for a calendar year applies to any period,
not exceeding 12 months, over which compensation is determined
(determination period) beginning in such calendar year. If a
determination period consists of fewer than 12 months, the
Annual Compensation Limit will be multiplied by a fraction, the
numerator of which is the number of months in the determination
period, and the denominator of which is 12.
If compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the
current plan year, the compensation for that prior determination
period is subject to the Annual Compensation Limit in effect for
that prior determination period. For this purpose, for
determination periods beginning before the first day of the first
plan year beginning on or after January 1, 1994, the Annual
Compensation Limit is $150,000.
(c) For purposes of determining whether the Plan discriminates in
favor of Highly Compensated Employees, Annual Compensation means
Annual Compensation defined in this Section 1.6, except any
exclusions from Annual
2
<PAGE>
Compensation other than the exclusions described in clauses
(a)(i), (ii), (iii), (iv), and (v) do not apply. The Employer
also may elect to use an alternate nondiscriminatory definition,
under Code Section 414(s) and the applicable Treasury
regulations. In determining Annual Compensation under this
paragraph, the Employer may elect to include all Elective
Contributions made by the Employer on behalf of the Employees.
The Employer's election to include Elective Contributions must
be consistent and uniform for Employees and all plans of the
Employer for any particular Plan Year. The Employer may make
this election to include Elective Contributions for
nondiscrimination testing purposes, whether or not this Section
includes Elective Contributions in the general Annual
Compensation definition of the Plan.
1.8. BENEFICIARY
Beneficiary means any person or fiduciary designated by a Participant or
Former Participant who is or may become entitled to receive benefits
under Article VII following the death of the Participant or Former
Participant. A Beneficiary who becomes entitled to a benefit under the
Plan shall remain a Beneficiary under the Plan until the Trustee has
fully distributed the benefits to the Beneficiary. A Beneficiary's
right to information or data concerning the Plan, and the respective
duties of the Administrator, the Committee and the Trustee to provide
to the Beneficiary information or data concerning the Plan, shall not
arise until the Beneficiary first becomes entitled to receive a
benefit under the Plan. For purposes of determining whether the Plan
is a Top-Heavy Plan, a Beneficiary of a deceased Participant shall be
considered a Key Employee or a Non-Key Employee in accordance with the
applicable Treasury Regulations.
1.9. CASH VALUE
Cash Value means the cash surrender value of any Contract acquired under
the Plan, including all dividends or other accumulations remaining with
the Insurance Company as part of such Contract, on the date cash value
is to be determined.
1.10. CODE
Code means the Internal Revenue Code of 1986, as amended from time to
time. A reference to a Code Section in this Agreement means the
provisions or successor provisions of the particular Code Section, as
amended or replaced from time to time.
1.11. COMMITTEE
Committee means the Plan Committee as from time to time constituted
pursuant to Article XII.
1.12. CONTRACT
Contract means any life insurance, annuity, or other contract which may
be issued by an Insurance Company.
1.13. DETERMINATION DATE
Determination Date means (a) the last day of the preceding Plan Year or
(b) in the case of the first Plan Year, the last day of the first Plan
Year.
1.14. DISABILITY
Disability means the inability to engage in any substantial, gainful
activity because of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than
twelve (12) months.
1.15. EFFECTIVE DATE
The original Effective Date of this Plan is April 1, 1977 and the
restated Effective Date of this Plan is July 1, 1998 or as otherwise
stated herein.
1.16. ELIGIBILITY COMPUTATION PERIOD
3
<PAGE>
Eligibility Computation Period means the twelve (12) consecutive month
period beginning with the day the Employee first is credited with an Hour
of Service, and each anniversary thereof. If an Employee's initial
period of Service is disregarded under Section 2.3, his subsequent
Eligibility Computation Periods will be the twelve (12) consecutive
month period beginning with the day the Employee is again credited
with an Hour of Service, and each anniversary thereof.
1.17. EMPLOYEE
(a) Employee means any individual currently employed by the Employer
maintaining the Plan or of any other Employer required to be
aggregated with the Employer under Code Sections 414(b), (c),
(m) or (o).
(b) The Plan treats any Leased Employee as an Employee of the Employer
unless excluded by an exclusion classification in Section 2.1. A
Leased Employee is an individual, who otherwise is not an Employee
of the Employer, who, pursuant to a leasing agreement between the
Employer and any other person, has performed services for the
Employer (or for the Employer and any persons related to the
Employer within the meaning of Code Section 144(a)(3)) on a
substantially full time basis for at least one (1) year and who is
under the primary direction and control of the Employer. If a
Leased Employee is treated as an Employee because of this Section
1.16, Annual Compensation includes compensation from the leasing
organization which is attributable to services performed for the
Employer.
(c) Notwithstanding the foregoing, the Plan does not treat any Leased
Employee as an Employee of the Employer if the leasing
organization covers the Employee in a safe harbor plan and,
prior to the application of this safe harbor plan exception,
twenty percent (20%) or less of the Employer's Employees (other
than Highly Compensated Employees) are Leased Employees. A
safe harbor plan is a money purchase pension plan providing
immediate participation, full and immediate vesting, and a
nonintegrated contribution formula equal to at least ten
percent (10%) of the employee's compensation without regard to
employment by the leasing organization on a specified date.
The safe harbor plan must determine the ten percent (10%)
contribution on the basis of compensation defined in Code
Section 415(c)(3) plus salary deferrals.
(d) The Committee must apply this Section 1.16 in a manner consistent
with Code Sections 414(n) and 414(o) and the applicable Treasury
regulations. The Committee will reduce a Leased Employee's
allocation of Employer Contributions under this Plan by the Leased
Employee's allocation under the leasing organization's plan, but
only to the extent that allocation is attributable to the Leased
Employee's service provided to the Employer. The leasing
organization's plan must be a money purchase pension plan which
would satisfy the definition under this Section 1.16 of a safe
harbor plan, irrespective of whether the Employer is able to apply
the safe harbor plan exception.
1.18. EMPLOYER
Employer means BRC Holdings, Inc., and any successor corporation or
business organization which may be substituted for the Employer under
this Agreement.
1.19. ENTRY DATE
Entry Date means:
(a) for Employees hired prior to January 1, 1998, the first day of
each calendar quarter coincident with or next following the date
the Employee completes the eligibility requirements described in
Section 2.1(a); and
(b) for Employees hired on or after January 1, 1998, the first day of
the month coincident with or next following the date the Employee
completes the eligibility requirements described in Section
2.1(b).
1.20. ERISA
ERISA means the Employee Retirement Income Security Act of 1974, as
amended.
1.21. FORFEITURE
4
<PAGE>
Forfeiture means the loss, by a Participant or Beneficiary, pursuant to
Section 9.4, of that part of the benefit which the Participant or
Beneficiary otherwise would have received under the Plan at any time
prior to the termination of the Plan or the complete discontinuance of
benefits under the Plan, arising from the Participant's severance of
employment.
1.22. FORMER EMPLOYEE
Former Employee means any individual who is no longer employed by the
Employer.
1.23. FORMER PARTICIPANT
Former Participant means any individual who has been a Participant in the
Plan, but who is either no longer employed by the Employer or is
otherwise no longer eligible to participate and has not yet received
the entire benefit to which the individual is entitled under the Plan.
1.24. HIGHLY COMPENSATED EMPLOYEE
The term Highly Compensated Employee includes highly compensated active
employees and highly compensated former employees. A highly compensated
active employee means any employee who - (A) was a 5-percent owner (as
defined in Code Section 416(i)(1)) of the Employer at any time during the
current or the preceding year, or (B) for the preceding year - (i) had
Compensation from the Employer in excess of $80,000 (as adjusted by the
Secretary pursuant to Code Section 415(d), and (ii) if the Employer
elects the application of this clause for such preceding year, was in
the top-paid group of employees for such preceding year.
For this purpose, an employee is in the top-paid group of employees for
any year if such employee is in the group consisting of the top 20
percent (20%) of the employees when ranked on the basis of Compensation
paid during such year.
A former employee shall be treated as a Highly Compensated Employee if:
(A) such employee was Highly Compensated Employee when such employee
separated from Service or (B) such employee was a Highly Compensated
Employee at any time after attaining age 55.
The determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of employees in the top-paid
group, will be made in accordance with Code Section 414(q) and the
regulations thereunder.
For purposes of this subsection, the term Compensation means compensation
within the meaning of Code Section 415(c)(3).
1.25. HOUR OF SERVICE
(a) Any Employee or Participant who is compensated on an hourly-rated
basis shall be credited with an Hour of Service for:
(i) each hour for which the Employee or Participant is either
directly or indirectly paid or entitled to payment by the
Employer for the performance of duties or for reasons other
than for the performance of duties due to vacation,
holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or leave of absence,
whether or not the employment relationship was terminated;
and
(ii) each hour for which back pay has been awarded to the
Employee or Participant or agreed to by the Employer,
irrespective of mitigation of damages.
(b) Any Employee or Participant who is compensated on a basis other
than an hourly-rated basis and who, if hourly-rated, would be
credited with one (1) Hour of Service pursuant to the preceding
sentence, shall be credited with the number of Hours of Service
as follows:
(i) ten (10) hours of service per day, if compensated on a
daily basis;
(ii) forty-five (45) hours of service per week, if compensated
on a weekly basis;
(iii) ninety (90) hours of service per bi-weekly period, if
compensated on a bi-weekly basis;
5
<PAGE>
(iv) ninety-five (95) hours of service per semi-monthly period,
if compensated on a semi-monthly basis; or
(v) one hundred ninety (190) hours of service per month, if
compensated on a monthly basis.
(c) The number of Hours of Service which shall be credited to an
Employee or Participant for being entitled to payment for reasons
other than for the performance of duties shall be determined under
Sections 2530.200b-2(b) and (c) of the Department of Labor
Regulations which are incorporated herein by this reference. The
method for crediting Hours of Service under Section 1.25(b) for
each Participant shall be the same method used for crediting
Hours of Service for which the Participant received
compensation. Notwithstanding the foregoing, not more than five
hundred one (501) Hours of Service shall be credited to any
Employee or Participant during any Computation Period for any
single, continuous period during which the Employee or
Participant performs no duties.
(d) An Hour of Service performed for any other entity that is a
Related Employer with respect to the Employer shall be considered
an Hour of Service performed for the Employer.
(e) Qualified Military Service. Hour of Service also includes any
Service the Plan must credit in order to satisfy the crediting of
Service requirements of Code Section 414(u).
1.26. INDIVIDUAL ACCOUNTS
Individual Accounts means accounts or records maintained by the Committee
or its agent indicating the monetary value of the total interest in the
Trust Fund of each Participant, each Former Participant, and each
Beneficiary. The types of Individual Accounts under this Plan are:
(a) EMPLOYER CONTRIBUTION ACCOUNTS holding Employer Contributions made
to the Plan under Section 3.1 and attributable earnings. The
types of Employer Contribution Accounts maintained under this
Plan are:
(i) EMPLOYER MATCHING CONTRIBUTION ACCOUNTS holding Employer
Contributions made to the Plan for the benefit of an
Employee because of an Elective Contribution made with
respect to the Employee or a contribution by the Employee.
(ii) EMPLOYER NON-ELECTIVE CONTRIBUTION ACCOUNTS holding
Employer Contributions made to the Plan for the benefit
of an Employee which the Employee could not have elected
to receive in the form of cash or other taxable benefit.
(b) PARTICIPANT CONTRIBUTION ACCOUNTS holding Participant
Contributions made to the Plan and attributable earnings. The
types of Participant Contribution Accounts maintained under this
Plan are:
(i) ROLLOVER ACCOUNTS holding the Participant's qualified
rollover to the Plan pursuant to Article XVII.
(ii) PARTICIPANT ELECTIVE DEFERRAL ACCOUNTS holding the amount
contributed by the Employer as the result of an election by
a Participant to have that amount contributed to the Plan
rather than paid as cash or other taxable benefit pursuant
to Section 3.1.
(iii) PARTICIPANT AFTER-TAX CONTRIBUTION ACCOUNTS holding the
Participant's After-Tax Contributions to the Plan made
prior to October 1, 1994. The Plan does not permit nor
accept any additional Participant After-Tax Contributions
for periods after October 1, 1994.
1.27. INSURANCE COMPANY
Insurance Company means any legal reserve life insurance company which
may issue a Contract under this Agreement.
1.28. LIMITATION YEAR
Limitation Year means the Plan Year.
1.29. NAMED FIDUCIARY
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Named Fiduciary means one or more fiduciaries named in this Agreement who
jointly and severally shall have authority to control or manage the
operation and administration of the Plan. The Committee shall be the
Named Fiduciary unless the Employer designates another person by written
Employer action.
1.30. NONFORFEITABLE
Nonforfeitable means a vested interest attained by a Participant or
Beneficiary in that part of the Participant's benefit under the Plan
arising from the Participant's Service, which claim is unconditional and
legally enforceable against the Plan.
1.31. NON-HIGHLY COMPENSATED EMPLOYEE
Non-Highly Compensated Employee means an Employee, Former Employee or
Beneficiary who is not a Highly Compensated Employee.
1.32. NORMAL RETIREMENT AGE
Normal Retirement Age means, for each Participant, the later of (i) the
date the Participant attains age 59 1/2 years or (ii) the 5th anniversary
of the Participant's Plan Entry Date in this Plan or any predecessor plan
of the Employer.
1.33. ONE YEAR BREAK IN SERVICE
(a) (i) A One Year Break in Service, for purposes of eligibility,
means a Period of Severance of at least twelve (12)
consecutive months. A Period of Severance means a
continuous period of time during which an Employee is not
employed by the Employer. Such period shall begin on the
date the Employee retires, quits, is discharged, or dies,
or, if earlier, the twelve (12) month anniversary of the
date on which the Employee was otherwise first absent from
work.
(ii) An Employee shall receive credit for purposes of
determining whether he has incurred a One Year Break in
Service under subsection (i) above for the aggregate of
all time period(s) commencing with the first day such
Employee completes an Hour of Service, the Employment
Commencement Date, (including such day following
reemployment) and ending on the date a Break in Service
begins. An Employee shall also receive credit for any
Period of Severance of less than twelve (12) consecutive
months. Fractional periods of a year shall be expressed
in terms of days.
(iii) In the case of an Employee who is absent from work for
"authorized reasons" or for "maternity or paternity
reasons," the twelve (12) consecutive month period
beginning on the first anniversary of the first day of
such absence shall not be a Break in Service.
(1) For purposes of this paragraph (iii), absence from
work for "authorized reasons" means an unpaid
temporary cessation from active employment with the
Employer pursuant to an established
nondiscriminatory policy, whether occasioned by
illness, military service or any other reason.
(2) For purposes of this paragraph (iii), absence from
work for "maternity or paternity reasons" means an
absence from work for any period because of the
pregnancy of the individual, the birth of a child of
the individual, the placement of a child with the
individual relating to the adoption of such child by
such individual, or for the purpose of caring for
such child for a period beginning immediately
following such birth or placement. In the case
of absence from work for "maternity or paternity
reasons," the period between the first and second
anniversaries of the first date of absence due to
said leave shall be treated as neither a Period
of Service nor a Period of Severance.
(b) (i) A One Year Break in Service, for purposes of vesting, means
a Computation Period described in Section 1.48(b) relating
to Year of Service, during which an Employee has not
completed more than five hundred (500) Hours of Service
with the Employer.
(ii) An Employee shall not incur a One Year Break in Service for
the Plan Year in which the Employee becomes a Participant,
dies, retires or suffers total and permanent disability.
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<PAGE>
(iii) Further, solely for the purpose of determining whether a
Participant has incurred a One Year Break in Service under
(a) or (b) above, Hours of Service shall be recognized for
"authorized leaves of absence" and "maternity and paternity
leaves of absence."
(1) An "authorized leave of absence" means an unpaid
temporary cessation from active employment with the
Employer pursuant to an established
nondiscriminatory policy, whether occasioned by
illness, military service or any other reason.
(2) A "maternity or paternity leave of absence" means an
absence from work for any period because of the
Employee's pregnancy, birth of the Employee's child,
placement of a child with the Employee relating to
the adoption of the child, or any absence for the
purpose of caring for the child for a period
immediately following the birth or placement.
For purposes of a maternity and paternity leave
of absence, Hours of Service shall be credited
for the Computation Period in which the absence
from work begins, only if the credit is necessary
to prevent the Employee from incurring a One Year
Break in Service, or, in any other case, in the
immediately following Computation Period. The
Hours of Service credited for a "maternity or
paternity leave of absence" shall be those which
would normally have been credited but for the
absence, or, in any case in which the
Administrator is unable to determine the hours
normally credited, eight (8) Hours of Service per
day. The total Hours of Service required to be
credited for a "maternity or paternity leave of
absence" shall not exceed five hundred one (501)
hours.
1.34. OWNER-EMPLOYEE
Owner-Employee means a sole proprietor or a partner who owns more than
ten percent (10%) of either the capital interest or profits interest in
an unincorporated Employer and who receives income from such
unincorporated Employer for personal services.
1.35. PARTICIPANT
Participant means an Employee of the Employer or a Participating Employer
who has met the eligibility requirements of this Plan and who has been
enrolled as a Participant in this Plan.
1.36. PARTICIPATING EMPLOYER
Participating Employer means any Related Employer that may elect to adopt
this Plan pursuant to Article XI.
1.37. PLAN
Plan means the 401(k) Retirement Savings Plan embodied in this Agreement,
as amended from time to time, designated as the BRC Holdings, Inc. 401(k)
Retirement Savings Plan and known as Plan Number 001.
1.38. PLAN YEAR
Plan Year means the twelve (12) consecutive month period from January 1
of each year to the next following December 31.
1.39. PREDECESSOR EMPLOYER
Predecessor Employer means those business organizations listed in Section
1.48(e) which were acquired by the Employer, whether by merger, stock
purchase or acquisition of the assets and business of the business
organization, and any other such acquired businesses designated by a
written addendum to the Plan executed by any Vice President of the
Employer.
1.40. RELATED EMPLOYER
A related group of employers is a controlled group of corporations
(defined in Code Section 414(b)), trades or businesses (whether or not
incorporated) which are under common control (defined in Code Section
414(c)) or an affiliated service group (defined in Code Section 414(m)
or in Code Section 414(o)). If the Employer is a member of a related
group, the term "Employer" includes the related group members for
purposes of crediting Hours of Service,
8
<PAGE>
determining Years of Service and Breaks in Service under Articles II and
IX, applying the participation test of Code Section 401(a)(26) and the
coverage test of Code Section 410(b), applying the limitations on
allocations in Article V, applying the top-heavy rules and the minimum
allocation requirements of Article V, the definitions of Employee,
Highly Compensated Employee, Compensation and Leased Employee, and for
any other purpose required by the applicable Code Section or by a Plan
provision. However, an Employer may contribute to the Plan only by
being a signatory to a Participation Agreement to the Plan. If one or
more of the Employer's related group members become Participating
Employers by executing a Participation Agreement to the Plan, the term
"Employer" includes the participating related group members for all
purposes of the Plan, and Administrator means the Employer that is the
signatory to the Plan. For Plan allocation purposes, Compensation
does not include Compensation received from a Related Employer that is
not participating in this Plan.
1.41. RESTRICTED ANNUITY
An annuity purchased from an insurance company which provides payments
for as long as the Participant, or if applicable, either the
Participant or the Participant's designated Beneficiary, is alive.
Such annuity must provide for nonincreasing payments and may provide
for an annuity certain feature. The annuity certain feature may be for
a period not exceeding either the life expectancy of the Participant,
or, if applicable, the joint life and last survivor expectancy of the
Participant and the Participant's designated Beneficiary. Any annuity
with nonincreasing payments payable over a shorter period than
previously described will also be a Restricted Annuity. A Qualified
Joint and Survivor Annuity or Qualified Preretirement Survivor Annuity
must also satisfy the requirements for a Restricted Annuity.
1.42. SELF-EMPLOYED INDIVIDUAL
Self-Employed Individual means an individual who has earned income for
the taxable year from the trade or business for which the Plan is
established or an individual who would have had earned income for the
fact that the trade or business had no net profits for the taxable
year.
1.43. SERVICE
(a) SERVICE means any period of time the Employee is in the employ of
the Employer. Service in all cases includes periods during which
the Employee is on an "authorized leave of absence" or a
"maternity or paternity leave of absence" defined in Section
1.34(d) relating to One Year Break in Service. Leaves of
absence also shall include periods of absence in connection
with military service during which the Employee's re-employment
rights are legally protected. Except for absence by reason of
military service, leaves of absence shall be for a maximum
period of two (2) years. Leaves of absence shall be granted on
a uniform and nondiscriminatory basis.
(b) If the Employer maintains the plan of a Predecessor Employer,
Service shall include service for the Predecessor Employer. To
the extent it may be required under applicable Treasury
regulations under Code Section 414, Service shall include all
service for any Predecessor Employer.
1.44. SHAREHOLDER-EMPLOYEE
Shareholder-Employee means a Participant who owns more than five percent
(5%) of the Employer's outstanding capital stock during any year in which
the Employer elected to be taxed as a Small Business Corporation under
Code Section 1362(a) and who receives income from the Employer for
personal services.
1.45. TOP-HEAVY PLAN STATUS/SUPER TOP-HEAVY PLAN STATUS
This Plan shall be a Top-Heavy Plan in any Plan Year in which, as of the
Determination Date, (a) the Present Value of Accrued Benefits of Key
Employees, or (b) the sum of the Aggregate Accounts of Key Employees of
any plan of an Aggregation Group, exceeds sixty percent (60%) of the
Present Value of Accrued Benefits or Aggregate Accounts of all
Participants under this Plan and any plan of an Aggregation Group.
If any Participant is a Non-Key Employee for any Plan Year, but the
Participant was a Key Employee for any prior Plan Year, the Participant's
Aggregate Account Balance shall not be taken into account in determining
whether this Plan is a Top-Heavy Plan (or whether any Aggregation Group
which includes this Plan is a Top-Heavy Group) as further defined in Code
Section 416(g) and the applicable Treasury regulations.
9
<PAGE>
This Plan shall be a Super Top-Heavy Plan for any Plan Year in which, as
of the Determination Date, (a) the Present Value of Accrued Benefits
of Key Employees, or (b) the sum of the Aggregate Accounts of Key
Employees of any plan of an Aggregation Group, exceeds ninety percent
(90%) of the Present Value of Accrued Benefits and the Aggregate
Accounts of all Participants under this Plan and any plan of an
Aggregation Group.
If any Participant is a Non-Key Employee for any Plan Year, but the
Participant was a Key Employee for any prior Plan Year, the Participant's
Aggregate Account Balance shall not be taken into account in determining
whether this Plan is a Super Top-Heavy Plan (or whether any Aggregation
Group which includes this Plan is a Top-Heavy Group) as further defined
in Code Section 416(g) and the applicable Treasury regulations.
For purposes of determining Top-Heavy and Super Top-Heavy status, the
following definitions shall apply:
(a) AGGREGATE ACCOUNT means, as of the Determination Date, the sum of:
(i) the Participant Contribution Account and Employer
Contribution Account Balances as of the most recent
Valuation Date occurring within a twelve (12) month period
ending on the Determination Date;
(ii) the contributions that would be allocated as of a date not
later than the Determination Date, even though those
amounts are not yet made or required to be made;
(iii) any plan distributions made during the Determination Period
(However, in the case of distributions made after the
Valuation Date and prior to the Determination Date, such
distributions are not included as distributions for
Top-Heavy purposes to the extent that the distributions
are already included in the Participant's Aggregate Account
Balance as of the Valuation Date.); and
(iv) any Employee contributions, whether voluntary or mandatory
(However, amounts attributable to Participant Deductible
Voluntary Contributions shall not be considered to be a
part of the Participant's Aggregate Account Balance.).
(v) Regarding unrelated rollovers and plan-to-plan transfers
(those which are (A) initiated by the Employee and (B) made
from a plan maintained by one employer to a plan maintained
by another employer), if this Plan provides for rollovers
or plan-to-plan transfers, an unrelated rollover or
plan-to-plan transfer shall be considered as a distribution
for purposes of this Section. If this Plan is the plan
accepting an unrelated rollover or plan-to-plan transfer,
an unrelated rollover or plan-to-plan transfer accepted
after December 31, 1983 shall not be considered as part of
the Participant's Aggregate Account Balance. However,
unrelated rollovers or plan-to-plan transfers accepted
prior to January 1, 1984 shall be considered as part of
the Participant's Aggregate Account Balance.
(vi) Regarding related rollovers and plan-to-plan transfers
(those either (A) not initiated by the Employee or (B)
made to a plan maintained by the same Employer), if this
Plan provides for rollovers or plan-to-plan transfers, a
related rollover or plan-to-plan transfer shall be
considered as a distribution for purposes of this
Section. If this Plan is the plan accepting a related
rollover or plan-to-plan transfer, a related rollover or
plan-to-plan transfer shall be considered as part of the
Participant's Aggregate Account Balance, irrespective of
the date on which the related rollover or plan-to-plan
transfer is accepted.
(b) AGGREGATION GROUP means either a Required Aggregation Group or a
Permissive Aggregation Group as hereinafter determined.
(i) REQUIRED AGGREGATION GROUP means the group of plans
composed of (A) each plan of the Employer in which a Key
Employee is a Participant or participated at any time
during the Determination Period, regardless of whether
the plan has terminated; and (B) each other plan of the
Employer which enables any plan in which a Key Employee
participates to meet the requirements of Code Sections
401(a)(4) or 410, which shall be aggregated.
In the case of a Required Aggregation Group, each plan
in the group will be considered a Top-Heavy Plan if the
Required Aggregation Group is a Top-Heavy Group. No
plan in the Required Aggregation Group will be
considered a Top-Heavy Plan if the Required Aggregation
Group is not a Top-Heavy Group.
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<PAGE>
(ii) PERMISSIVE AGGREGATION GROUP means the Required Aggregation
Group plus any other plan not required to be included in
the Required Aggregation Group, provided the resulting
group, taken as a whole, would continue to satisfy Code
Sections 401(a)(4) and 410.
In the case of a Permissive Aggregation Group, only a
plan that is part of the Required Aggregation Group will
be considered a Top-Heavy Plan if the Permissive
Aggregation Group is a Top-Heavy Group. No plan in the
Permissive Aggregation Group will be considered a
Top-Heavy Plan if the Permissive Aggregation Group is
not a Top-Heavy Group.
(iii) Only those plans of the Employer in which the Determination
Dates fall within the same calendar year shall be
aggregated to determine whether the plans are Top-Heavy
Plans.
(c) DETERMINATION DATE means for any Plan Year (i) the last day of the
preceding Plan Year, or (ii) in the case of the first Plan Year of
the Plan, the last day of the first Plan Year.
(d) DETERMINATION PERIOD means the five (5) year period ending on the
Determination Date.
(e) EMPLOYER means the Employer that adopts this Plan. Related
Employers shall be considered a single Employer for purposes of
applying the limitations of these top-heavy rules.
(f) EXCLUDED EMPLOYEES means any Employee who has not performed any
Service for the Employer during the five (5) year period ending on
the Determination Date. Excluded Employees shall be excluded for
purposes of a Top-Heavy determination.
(g) KEY EMPLOYEE means any Employee or Former Employee, or Beneficiary
of the Employee, who, for any Plan Year in the Determination
Period is:
(i) An officer of the Employer having Compensation from the
Employer and any Related Employer greater than fifty
percent (50%) of the amount in effect under Code Section
415(b)(1)(A);
(ii) One of the ten (10) Employees having Compensation from the
Employer and any Related Employer of more than the
limitation in effect under Code Section 415(c)(1)(A) and
owning (or considered as owning within the meaning of
Code Section 318) the largest interests in the Employer;
(iii) A Five Percent Owner of the Employer (Five Percent Owner
means any person owning, or considered as owning within the
meaning of Code Section 318, more than five percent (5%) of
the outstanding stock of the Employer or stock possessing
more than five percent (5%) of the total combined voting
power of all stock of the Employer; or in the case of an
unincorporated business, any person who owns more than five
percent (5%) of the capital or profits interest in the
Employer.); or
(iv) A One Percent Owner of the Employer having Compensation
from the Employer of more than $150,000 (One Percent
Owner means any person having Compensation from the
Employer and any Related Employer in excess of $150,000
and owning, or considered as owning within the meaning
of Code Section 318, more than one percent (1%) of the
outstanding stock of the Employer or stock possessing
more than one percent (1%) of the total combined voting
power of all stock of the Employer; or in the case of an
unincorporated business, any person who owns more than
one percent (1%) of the capital or profits interest in
the Employer.).
(v) Notwithstanding the foregoing, Key Employee shall have the
meaning set forth in Code Section 416(i), as amended.
(vi) For purposes of determining whether an Employee or Former
Employee is an officer under this subsection (g), an
officer of the Employer shall have the meaning set forth
in the regulations under Code Section 416(i).
(vii) For purposes of this Section, Compensation means
Compensation determined under Section 1.24 for the
definition of a Highly Compensated Employee.
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(viii) For purposes of determining ownership hereunder, employers
that would otherwise be aggregated as Related Employers
shall be treated as separate employers.
(h) NON-KEY EMPLOYEE means any Employee or Former Employee, or
Beneficiary of the Employee, who is not a Key Employee.
(i) PRESENT VALUE OF ACCRUED BENEFIT. 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 a Top-Heavy
Plan, the Accrued Benefit of a Non-Key Employee shall be
determined under (i) the method, if any, that uniformly applies
for accrual purposes under all plans maintained by the Related
Employers, or (ii) if there is no uniform method, in accordance
with the slowest accrual rate permitted under the fractional
accrual method described in Code Section 411(b)(1)(C). To
calculate the Present Value of Accrued Benefits from a defined
benefit plan, the Committee will use the actuarial assumptions
for interest and mortality only, prescribed by the defined
benefit plan(s) to value benefits for Top-Heavy purposes. If
an aggregated plan does not have a Valuation Date coinciding
with the Determination Date, the Committee must value the
Accrued Benefits in the aggregated plan as of the most recent
Valuation Date falling within the twelve (12) month period
ending on the Determination Date, except as Code Section 416
and applicable Treasury regulations require for the first and
second plan year of a defined benefit plan. The Committee will
determine whether a plan is Top-Heavy by referring to
Determination Dates that fall within the same calendar year.
(j) TOP-HEAVY GROUP means an Aggregation Group in which, as of the
Determination Date, the sum of:
(i) the Present Value of Accrued Benefits of Key Employees
under all defined benefit plans included in the group; and
(ii) the Aggregate Accounts of Key Employees under all defined
contribution plans included in the group
exceeds sixty percent (60%) of a similar sum determined for all
Participants.
(k) VALUATION DATE means the Determination Date defined above.
1.46. TRUST FUND
Trust Fund means all assets of any kind and nature from time to time held
by the Trustee or its agent under this Agreement without distinction
between income and principal. This Plan creates a single Trust for all
Employers participating under the BRC Holdings, Inc. 401(k) Retirement
Savings Plan and Trust. However, the Trustee will maintain separate
records of account to reflect properly each Participant's Accrued Benefit
derived from each Participating Employer.
1.47. TRUSTEE
Trustee means Vanguard Fiduciary Trust Co. and any successor Trustee.
1.48. YEAR OF SERVICE
(a) MONTH OF ELIGIBILITY SERVICE An Employee shall receive credit for
the aggregate of all time periods commencing with the first day
the Employee is entitled to credit for an Hour of Service,
including the Re-Employment Commencement Date, and ending on
the date a Break in Service begins. An Employee also shall
receive credit for any Period of Severance of less than twelve
(12) consecutive months. Fractional periods of a month shall be
expressed in terms of days, with credit for a month of service
being given for each thirty (30) days of Elapsed Time.
(b) YEAR OF VESTING SERVICE means any Plan Year during which the
Employee performs not less than one thousand (1,000) Hours of
Service for the Employer. In computing an Employee's Years of
Vesting Service, the following rules shall apply:
(i) Years of Service, for purposes of vesting, shall include
all Years of Service of the Employee with any Predecessor
Employer.
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(ii) Years of Service with the Employer before a Participant
enters the Plan shall be considered for purposes of
vesting.
(iii) Years of Service, for purposes of vesting, shall not
include years in which the Employer did not maintain this
Plan or any predecessor plan.
(c) If the Employer is a member of a group of Related Employers, then
Year of Service for purposes of eligibility and vesting shall
include Service with any Related Employer.
(d) For purposes of determining a Month of Eligibility Service, the
following definitions shall apply:
(i) EMPLOYMENT COMMENCEMENT DATE means the date on which an
Employee is first entitled to credit for an Hour of
Service.
(ii) PERIOD OF SEVERANCE means the period of time commencing on
the Severance from Service Date and ending on the date on
which the Employee again performs an Hour of Service for
the Employer.
(iii) RE-EMPLOYMENT COMMENCEMENT DATE means the first date,
following a Period of Severance which is not required to be
considered under the Service rules, on which the Employee
performs an Hour of Service for the Employer.
(iv) SEVERANCE FROM SERVICE DATE means the date on which occurs
the earlier of: (A) the date on which an Employee quits,
retires, is discharged or dies; or (B) the first
anniversary of the first date of a period in which an
Employee remains absent from Service, with or without pay,
with the Employer for any other reason, such as vacation,
holiday, sickness, disability, leave of absence or layoff.
(e) In computing an employee's period of employment for eligibility
purposes and 'Years of Service' for vesting purposes, an employee
of a Predecessor Employer named in Column 1 at the date shown
in Column 2 shall receive credit for all periods of employment
with such Predecessor Employer from the later of his date of
hire or the date shown in Column 3 (if applicable); provided,
however that in no event shall an employee whose date of hire
precedes the date in Column 3 receive credit for Years of
Service for vesting purposes in excess of the number shown in
Column 4 (if applicable):
<TABLE>
<CAPTION>
COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4
-------- -------- -------- --------
<S> <C> <C> <C>
Greet America, Inc. 09/25/92 09/25/89 3 years
Smith County, TX 07/01/93 07/01/90 3 years
CMSI, Inc. 09/30/94 09/30/94 All years
Clinical Resource System, Inc. 08/17/95 08/17/95 All years
The Pace Group, Inc. 12/31/96 12/31/96 All years
Code Rite, Inc. 01/01/97 07/01/97 All years
Management Consulting Solutions, Inc. 04/01/97 10/01/97 All years
</TABLE>
* * * * * * *
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<PAGE>
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1. ELIGIBILITY CONDITIONS
(a) Each eligible Employee hired before June 1, 1998, shall be
eligible to participate in this Plan on the Entry Date coincident
with or next following the completion of six (6) months of Service
with the Employer.
(b) Each eligible Employee hired on or after June 1, 1998, shall be
eligible to participate in this Plan on the Entry Date coincident
with or next following (i) the completion of three (3) months of
Service with the Employer for purposes of entitlement to Elective
Deferrals, or (ii) the completion of One Year of Service with the
Employer for purposes of entitlement to Employer Non-Elective
Contributions and Employer Matching Contributions.
(c) The following Employees are not eligible to participate in the
Plan:
- Collective Bargaining Employees. Each Employee who is a
member of a collective bargaining unit shall not be
eligible to participate in this Plan unless the collective
bargaining agreement provides otherwise. An Employee is a
member of a collective bargaining unit if the Employee is
included in a unit of Employees covered by an agreement
which the Secretary of Labor finds to be a collective
bargaining agreement between Employee representatives and
one or more employers if there is evidence that retirement
benefits were the subject of good faith bargaining between
the Employee representatives and the employer or employers.
The term "Employee representatives" does not include an
organization of which more than one-half (1/2) the members
are owners, officers, or executives of the Employer.
- Nonresident aliens who do not receive any earned income (as
defined in Code Section 911(d)(2)) from the Employer which
constitutes United States source income (as defined in Code
Section 861(a)(3)).
(d) All employees of CMSI, Inc. ("CMSI") employed as of September 30,
1994, including those employees who were Participants in the CMSI
401(k) Plan ("CMSI Plan") on that date, shall be eligible to
participate in the Plan on and after September 30, 1994;
(e) All employees hired by The Pace Group, Inc. ("Pace") on or prior
to December 31, 1996, unless excluded by reason of an exclusion
classification described in subparagraph (c) above, shall be
eligible to participate in the Plan on or after January 1, 1997.
(f) All Pace employees described in subparagraph (e) above shall
receive credit for their period of employment with Pace determined
as of December 31, 1996 for the purposes of determining their
eligibility to participate and vesting under the Plan.
(g) Any employee hired by Pace on or after January 1, 1997 shall be
eligible to participate in the Plan pursuant to the provisions of
the Plan governing eligibility to participate as then in effect on
his Employment Commencement Date.
(h) Effective October 1, 1995, employees of Clinical Resource Systems,
Inc. employed on and after that date became eligible to
participate in the Plan.
(i) All employees of Code Rite, Inc., who had completed six (6) months
of service as of January 1, 1997 were eligible to begin
participation in the Plan effective July 1, 1997.
(j) All employees of Management Consulting Solutions, Inc. who had
completed six (6) months of service as of April 1, 1997 were
eligible to participate in the Plan as of October 1, 1997.
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2.2. PARTICIPATION ELECTION
Whenever a new Employee is hired by the Employer, the Employer
immediately shall give notice to the Committee of the employment and
shall identify the new Employee. The Committee shall notify in writing
each new Employee of the pending eligibility as soon as practicable
prior to the date on which the Employee will become eligible and shall
furnish the Employee a copy of this Agreement or any other explanation of
the Plan that the Committee shall provide for that purpose. Each
Employee so notified automatically will become a Participant upon meeting
the requirements of Section 2.1.
2.3. PARTICIPANT RE-ENTRY
If the employment of a Participant is terminated and the Participant
subsequently is re-employed, the re-employed Employee shall become a
Participant on the date of re-employment. If an Employee terminates
employment prior to satisfying the eligibility requirements of Section
2.1 and subsequently is re-employed, the re-employed Employee shall
become a Participant after meeting the eligibility requirements of
Section 2.1, but shall be credited for Service retroactively to the date
of re-employment for purposes of eligibility and vesting. If an Employee
becomes eligible but terminates employment prior to the first Entry Date,
and the Employee is later re-employed, the Employee shall become a
Participant on the date of re-employment.
* * * * * * *
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ARTICLE III
CONTRIBUTIONS AND WITHDRAWALS
3.1. EMPLOYER CONTRIBUTIONS
(a) EMPLOYER ELECTIVE CONTRIBUTIONS AND PARTICIPANT ELECTIVE
DEFERRALS. For each Plan Year, the amount of the Employer
Elective Contribution to the Trust Fund will equal the amount
determined under this paragraph. Each Participant may elect to
defer up to fifteen percent (15%) of Annual Compensation, but
shall not elect to defer an amount to cause the Plan to violate
the limitations of this Section or Section 5.3, or to exceed the
maximum amount allowable as a deduction to the Employer under Code
Section 404. A Participant may elect to defer Annual Compensation
only in an amount which the Participant otherwise could elect to
receive in cash and which is currently available to the
Participant. Annual Compensation is not currently available to
the Participant if the Participant is not eligible to receive it
at the time of the deferral election. The amounts by which a
Participant elects to reduce Annual Compensation under this Plan
shall be that Participant's Elective Deferrals. The Employer
shall contribute to the Trust Fund the amount of each
Participant's Elective Deferrals which shall be treated as
Employer Elective Contributions and credited to that Participant's
Salary Deferral Account.
(i) The Employer and the Committee shall adopt a procedure
necessary to implement the deferral elections.
(ii) The Employer shall permit a Participant to amend or
terminate his deferral election, and such election shall
become effective on the first day of the month following
adequate notice to the Employer's payroll department.
(iii) ELECTIVE DEFERRALS, for purposes of the following clauses
(iv) through (viii), means for any taxable year the sum of:
(A) any Employer contribution under a qualified cash or
deferred arrangement defined in Code Section 401(k),
to the extent not includable in gross income for the
taxable year under Code Section 402(a)(8),
determined without regard to the dollar limitation
under Code Section 402(g);
(B) any Employer contribution under a simplified
employee pension as defined in Code Section
408(k)(6), pursuant to a salary reduction agreement;
and
(C) any Employer contribution toward the purchase of a
tax sheltered annuity contract as defined in Code
Section 403(b), pursuant to a salary reduction
agreement.
Elective Deferrals shall not include any deferrals properly
distributed as excess annual additions.
(iv) A Participant's Elective Deferrals shall not exceed the
statutory dollar limitation under Code Section 402(g) for
the taxable year of the Participant. The dollar limitation
under Code Section 402(g) is $10,000 indexed for
cost-of-living adjustments in effect on January 1 of each
calendar year, as adjusted annually by the Secretary of the
Treasury.
(v) EXCESS ELECTIVE DEFERRALS means those Elective Deferrals
that are includable in a Participant's gross income under
Code Section 402(g) to the extent the Participant's
Elective Deferrals for a taxable year exceed the dollar
limitation under Code Section 402(g). Excess Elective
Deferrals shall be treated as Annual Additions under the
Plan, unless such amounts are distributed no later than the
first April 15 following the close of the Participant's
taxable year.
(vi) If the statutory dollar limitation in clause (iv) is
exceeded, the Committee shall direct the Trustee to
distribute the Excess Elective Deferrals, and any income or
loss allocable to the Excess Elective Deferrals, to the
Participant not later than the first April 15 following the
close of the Participant's taxable year. If there is a
loss allocable to the Excess Elective Deferral, the
distribution shall in no event be less than the lesser of
the Participant's Salary Deferral Account or the
Participant's Elective Deferrals for the Plan Year. The
amount of Excess Elective Deferrals to be distributed to an
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Employee for a taxable year will be reduced by Excess
Contributions previously distributed or recharacterized for
the Plan Year beginning in the taxable year of the
Employee.
(vii) If a Participant is also a Participant in (A) another
qualified cash or deferred arrangement defined in Code
Section 401(k); (B) a simplified employee pension defined
in Code Section 408(k); or (C) a salary reduction
arrangement pursuant to which an employer purchases a tax
sheltered annuity contract defined in Code Section 403(b),
and the Elective Deferrals made under the other
arrangement(s) and this Plan cumulatively exceed $7,000
indexed for cost-of-living adjustments under Code Section
415(d) or the amount of the dollar limitation under Code
Section 402(g) in effect on January 1 of each calendar
year, as adjusted annually by the Secretary of the
Treasury, then the Participant may, not later than March 1
following the close of the Participant's taxable year,
notify the Administrator in writing of the excess and
request that the Participant's Elective Deferrals under
this Plan be reduced by an amount specified by the
Participant. The specified amount then shall be
distributed in the same manner as provided in clause (vi).
A Participant is deemed to notify the Administrator of any
Excess Elective Deferrals that arise by taking into account
only those Elective Deferrals made to this Plan and any
other plans of this Employer.
(viii) The Employer may reduce or eliminate a Participant's
Elective Deferrals made to this Plan if necessary to pass
either the Actual Deferral Percentage Test or the Average
Contribution Percentage Test.
(ix) If any of the foregoing provisions of this Section are not
in conformity with applicable Treasury regulations, the
nonconforming provisions may be amended retroactively to
assure conformity.
(b) EMPLOYER NON-ELECTIVE CONTRIBUTIONS. For each Plan Year, the
amount of the Employer Non-Elective Contribution to the Trust Fund
will equal the amount, if any, the Employer may from time to time
determine and authorize. Although the Employer may contribute to
this Plan whether or not it has net profits, the Employer intends
the Plan to be a profit sharing plan including a qualified cash or
deferred arrangement for all purposes of the Code. The Employer
shall not authorize contributions at such times or in such amounts
that the Plan in operation discriminates in favor of Highly
Compensated Employees. Notwithstanding the foregoing, the
Employer Non-Elective Contribution for any Plan Year shall not
exceed the maximum amount allowable as a deduction to the Employer
under Code Section 404. The Employer Non-Elective Contributions
shall be allocated to the Participant Employer Non-Elective
Contribution Accounts under the formula provided in Section 5.2.
(c) EMPLOYER MATCHING CONTRIBUTIONS. The amount of the Employer
Matching Contribution to the Trust Fund will equal fifty percent
(50%) of each Participant's Eligible Elective Deferrals. Eligible
Elective Deferrals for any payroll period shall be the amount of
Elective Deferrals not in excess of five percent (5%) of a
Participant's Annual Compensation received during the period.
Therefore, the Employer Matching Contribution for any payroll
period shall not exceed two and one-half percent (2 1/2 %) of a
Participant's Annual Compensation received during the period.
Notwithstanding the foregoing, the Employer Matching Contribution
for any Plan Year shall not exceed the maximum amount allowable as
a deduction to the Employer under Code Section 404. The Employer
Matching Contribution for any Plan Year on behalf of a Participant
shall not exceed the Participant's Annual Additions limitation
described in Section 5.3, even if the contribution formula
otherwise would require a larger contribution. The Employer
Matching Contribution on behalf of each Participant shall be
credited to each Participant's Employer Matching Contribution
Account.
(d) QUALIFIED NON-ELECTIVE CONTRIBUTIONS. For each Plan Year, the
amount of the Qualified Non-Elective Contribution to the Trust
Fund will equal the amount, if any, the Employer may from time to
time determine and authorize. The Employer shall not authorize
contributions at such times or in such amounts that the Plan in
operation discriminates in favor of Highly Compensated Employees.
Notwithstanding the foregoing, the Qualified Non-Elective
Contribution for any Plan Year shall not exceed the maximum amount
allowable as a deduction to the Employer under Code Section 404.
The Qualified Non-Elective Contributions shall be allocated to the
Participant Employer Non-Elective Contribution Accounts of
eligible Non-Highly Compensated Employees under the formula
provided in Section 5.2.
(e) QUALIFIED MATCHING CONTRIBUTIONS. For each Plan Year, the amount
of the Qualified Matching Contribution to the Trust Fund will
equal the amount, if any, the Employer may from time to time
determine and authorize. The Employer shall not authorize
contributions at such times or in such amounts that the Plan in
operation discriminates in favor of Highly Compensated Employees.
Notwithstanding the foregoing, the Qualified
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Matching Contribution for any Plan Year shall not exceed the
maximum amount allowable as a deduction to the Employer under
Code Section 404. The Qualified Matching Contributions shall be
allocated to the Participant Employer Matching Contribution
Accounts of eligible Non-Highly Compensated Employees under the
formula provided in Section 5.2.
3.2. DEADLINE FOR EMPLOYER CONTRIBUTIONS.
(a) The Employer shall pay to the Trustee the Employer Elective
Contribution for each Plan Year not later than within the time
prescribed by applicable Treasury and U.S. Department of Labor
regulations.
(b) The Employer shall pay to the Trustee the Employer Contributions
(other than Elective Contributions) at any time and from time to
time; except that the total Employer Contribution for any Plan
Year shall be paid in full not later than the time prescribed by
Code Section 404(a)(6) to enable the Employer to obtain a
deduction on its federal income tax return for the Employer's
taxable year. The total Employer Contribution for any Plan Year
shall be deemed made on the Anniversary Date of that Plan Year.
3.3. DEPOSIT OF EMPLOYER CONTRIBUTIONS
All Employer Contributions shall be added immediately to and become a
part of the Trust Fund.
3.4. CREDITING OF EMPLOYER CONTRIBUTIONS
All Employer Elective Contributions and Employer Matching Contributions
shall be credited to the Salary Deferral Account and Employer Matching
Account, respectively, of each Participant as of each Anniversary Date.
All Employer Non-Elective Contributions shall be credited as of each
Anniversary Date as provided in Article V.
3.5. WITHDRAWAL OF EMPLOYER CONTRIBUTIONS BEFORE SEPARATION FROM SERVICE.
If the Employer shall permit under a uniform and nondiscriminatory
written policy, a Participant shall have the right, subject to the
following limitations, to request withdrawal of all, any portion, or a
fixed percentage of the Participant's fully vested Employer Non-Elective
and Matching Contribution Accounts and Rollover Account. Withdrawal of
amounts from a Participant's Accounts shall be permitted if the
Participant (a) has attained Normal Retirement Age; or (b) has incurred a
hardship under the hardship distribution policy of the Plan. All
determinations of the amount credited to a Participant's Individual
Accounts shall be made as of the most recent Allocation Date. The
written policy of the Employer shall set forth the criteria for
eligibility for withdrawal. The Committee shall establish procedures to
verify that a Participant satisfies one or more of the eligibility
criteria. If the Committee determines that the Participant is eligible
to withdraw benefits from the Plan, then the Committee shall inform the
Trustee in writing and shall further instruct the Trustee on the amount
to distribute to the Participant. A Participant shall make an election
under this Section on a form prescribed by and delivered to the Committee
at any time during the Plan Year for which the election will be
effective. In the written election, the Participant shall specify the
desired percentage or dollar amount to be distributed by the Trustee to
the Participant. Furthermore, the Participant's election shall relate
solely to the percentage or dollar amount specified in the election form.
The Participant's right to elect to receive an amount, if any, for a
particular Plan Year greater than the dollar amount or percentage
specified in the election form shall terminate on the Accounting Date.
The Trustee shall distribute to a Participant as elected under this
Section within the ninety (90) day period, or as soon as administratively
feasible, after the Participant files the written election with the
Trustee. The Trustee shall distribute the balance of the Participant's
Individual Account not distributed pursuant to the election(s) according
to the option selected under Article X and subject to the survivor
annuity requirements of Article VI, if applicable, when the Participant
separates from Service. The amount of the distribution and the
administrative expenses directly related to the distribution shall be
debited from the Participant's Employer Contribution Account.
3.6. PARTICIPANT VOLUNTARY AFTER TAX CONTRIBUTIONS
This Plan does not permit nor accept Participant Voluntary After Tax
Contributions.
3.7. DEADLINE FOR PARTICIPANT VOLUNTARY AFTER TAX CONTRIBUTIONS
This Plan does not permit nor accept Participant Voluntary After Tax
Contributions.
3.8. DEPOSIT OF PARTICIPANT VOLUNTARY AFTER TAX CONTRIBUTIONS
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This Plan does not permit nor accept Participant Voluntary After Tax
Contributions.
3.9 CREDITING OF PARTICIPANT VOLUNTARY AFTER TAX CONTRIBUTIONS
This Plan does not permit nor accept Participant Voluntary After Tax
Contributions.
3.10. WITHDRAWAL OF PARTICIPANT VOLUNTARY AFTER TAX CONTRIBUTIONS
The Employer shall permit, under a uniform and nondiscriminatory written
policy, a Participant to withdraw at any time upon written notice to the
Committee all or any part of the Participant's Voluntary After Tax
Contributions held by the Trustee. Each withdrawal at the time it is
paid shall be charged to the Participant Voluntary After Tax Contribution
Account of the withdrawing Participant. Total withdrawals under this
Section may be limited to the lesser of the aggregate amount of Voluntary
After Tax Contributions made by the Participant or the market value of
the Participant Voluntary After Tax Contribution Account of the
Participant on the date of withdrawal, excluding therefrom the unpaid
principal balance of any outstanding loans to the Participant secured by
his Participant Voluntary After Tax Contribution Account. Any amounts in
a Participant Voluntary After Tax Contribution Account in excess of the
aggregate Voluntary After Tax Contributions made to the account shall
remain fully vested and Nonforfeitable and shall be distributed according
to the option selected under Article X when the Participant separates
from service. A distribution of Participant Contributions must comply
with the survivor annuity requirements described in Article VI, if
applicable.
3.11 WITHDRAWAL OF EMPLOYER ELECTIVE CONTRIBUTIONS (PARTICIPANT ELECTIVE
DEFERRALS), EMPLOYER QUALIFIED NON-ELECTIVE CONTRIBUTIONS, AND EMPLOYER
QUALIFIED MATCHING CONTRIBUTIONS
(a) RESTRICTIONS ON DISTRIBUTIONS. Amounts held in the Participant's
Salary Deferral Account, Employer Qualified Non-Elective
Contribution Account, and Employer Qualified Matching Contribution
Account may not be distributable prior to the earliest of:
(i) separation from Service, total and permanent disability or
death;
(ii) attainment of age fifty-nine and one-half (59 1/2) years;
(iii) Plan termination without establishment of another defined
contribution plan, other than an employee stock ownership
plan (as defined in Code Sections 4975(e) or 409) or a
simplified employee pension plan as defined in Code Section
408(k);
(iv) disposition by a corporation to an unrelated corporation of
substantially all of the assets (within the meaning of Code
Section 409(d)(2)) used in a trade or business of the
corporation, if the corporation continues to maintain this
Plan after the disposition, but only with respect to
Employees who continue employment with the corporation
acquiring the assets;
(v) disposition by a corporation to an unrelated entity of the
corporation's interest in a subsidiary (within the meaning
of Code Section 409(d)(3)) if the corporation continues to
maintain this Plan, but only with respect to Employees who
continue employment with the subsidiary; or
(vi) proven financial hardship, subject to the following
limitations.
All distributions that may be made pursuant to one or more of the
foregoing distributable events are subject to the spousal and
Participant consent requirements, if applicable, of Code Sections
401(a)(11) and 417. In addition, distributions after March 31,
1988, that are triggered by one of the preceding events enumerated
as (iii), (iv) or (v) must be made in a lump sum distribution.
(b) HARDSHIP DISTRIBUTIONS. Distribution of Elective Deferrals (and
any earnings credited to a Participant's Account as of the end of
the last Plan Year ending before July 1, 1989), Employer Qualified
Non-Elective Contributions, Employer Qualified Matching
Contributions made pursuant to a Participant's Elective Deferrals,
and any amounts held in a Participant's Rollover Contribution
Account, may be made to a Participant in the event of hardship.
For the purposes of this Section, a hardship distribution is
defined as a distribution necessary to satisfy an immediate and
heavy financial need of an Employee who lacks other available
resources. The minimum distribution amount you may take as a
hardship distribution is $500.00.
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(i) A distribution will be considered to satisfy an immediate
and heavy need of an Employee if the distribution is for:
(A) expenses incurred for or necessary to obtain medical
care, described in Code Section 213(d), of the
Employee, the Employee's spouse, children, or
dependents;
(B) costs directly related to the purchase, excluding
mortgage payments, of a principal residence for the
Employee;
(C) payment of tuition and related educational fees for
the next twelve (12) months of post-secondary
education for the Employee, the Employee's spouse,
children or dependents; or
(D) payment necessary to prevent the eviction of the
Employee from, or a foreclosure on the mortgage of,
the Employee's principal residence.
(ii) A distribution will be considered necessary to satisfy an
immediate and heavy financial need of an Employee who lacks
other available resources only if:
(A) the Employee has obtained all distributions, other
than hardship distributions, and all nontaxable
loans under all plans maintained by the Employer;
and
(B) the distribution is not in excess of the amount of
an immediate and heavy financial need, including
amounts necessary to pay any federal, state or local
income taxes or penalties reasonably anticipated to
result from the distribution.
(iii) In addition to the conditions above:
(A) each plan maintained by the Employer or a legally
enforceable arrangement provide that the Employee's
Deferrals and Employee Contributions will be
suspended for twelve (12) months after the receipt
of the hardship distribution; and
(B) each plan maintained by the Employer or a legally
enforceable arrangement prohibit the Employee from
making Elective Deferrals for the Employee's taxable
year immediately following the taxable year of the
hardship distribution in excess of the applicable
limit under Code Section 402(g) for such taxable
year less the amount of such Employee's Elective
Deferrals for the taxable year of the hardship
distribution.
(C) any hardship withdrawal to a Participant made
pursuant to this Section shall be increased by an
amount equal to the lesser of:
(1) all federal, state, and local income taxes
and associated penalties (including, if
applicable, the additional income tax
described in Section 72(t) of the Internal
Revenue Code) imposed with respect to such
hardship withdrawal; or
(2) the amount, if any, in such Participant's
Elective Deferrals Account in excess of such
hardship withdrawal.
3.12. LIMITATIONS ON EMPLOYER ELECTIVE CONTRIBUTIONS
(a) ACTUAL DEFERRAL PERCENTAGE TEST. The annual allocation derived
from Employer Elective Contributions to a Participant's Salary
Deferral Account shall satisfy one of the following tests:
(i) The Average Actual Deferral Percentage for Participants who
are Eligible Highly Compensated Employees shall not exceed
the Average Actual Deferral Percentage for Participants who
are Eligible Non-Highly Compensated Employees multiplied by
1.25; or
(ii) The Average Actual Deferral Percentage for Participants who
are Eligible Highly Compensated Employees shall not exceed
the Average Actual Deferral Percentage for Participants who
are Eligible Non-Highly Compensated Employees multiplied by
two (2); provided that the Average Actual Deferral
Percentage for Participants who are Eligible Highly
Compensated Employees does not
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<PAGE>
exceed the Average Actual Deferral Percentage for
Participants who are Eligible Non-Highly Compensated
Employees by more than two (2) percentage points or the
lesser percentage as may be prescribed in applicable
Treasury regulations to prevent the multiple use of this
alternative limitation for any Highly Compensated
Employee.
(iii) In determining whether the Plan's Code Section 401(k)
arrangement satisfies either Actual Deferral Percentage
Test, the Advisory Committee will use the Average Actual
Deferral Percentage of the Non-Highly Compensated Group for
the Plan Year preceding the Plan Year of the calculation,
unless the Employer elects to use the current Plan Year's
Average Actual Deferral Percentage of the Non-Highly
Compensated Group. An Employer may not change an election
to use current Average Actual Deferral Percentage except as
the Treasury otherwise may provide.
(iv) Transition Relief for Plan Using Current Year Actual
Deferral Percentage Data for the 1997 Plan Year
As provided by Notice 97-2: A plan that used current year
data in determining the Actual Deferral Percentage of
Non-Highly Compensated Employees for the 1997 Plan Year
will be permitted to use prior year data for the 1998 Plan
Year without receiving approval from the Internal Revenue
Service. For the 1997 Plan Year, no plan amendment or
formal election is required to be made in 1996 or 1997 in
order to continue to use current year data in determining
the Actual Deferral Percentage of Non-Highly Compensated
Employees.
(b) DEFINITIONS. For the purposes of this Section, the following
definitions shall apply:
(i) ACTUAL DEFERRAL PERCENTAGE means the ratio, expressed as a
percentage, of (A) the amount of Employer Elective
Contributions actually paid to the Trust Fund on behalf of
the Eligible Participant for the Plan Year to (B) the
Eligible Participant's Compensation for the Plan Year,
whether or not the Employee was a Participant for the
entire Plan Year. Employer Contributions on behalf of any
Participant shall include: (A) any Employer Elective
Contributions made pursuant to the Eligible Participant's
Elective Deferrals, (including Excess Elective Deferrals of
Highly Compensated Employees), but excluding (1) Excess
Elective Deferrals of Non-Highly Compensated Employees that
arise solely from Elective Deferrals made under the plan or
plans of this Employer, and (2) Employer Elective
Contributions that are taken into account in the
Contribution Percentage Test (provided the Actual Deferral
Percentage Test is satisfied both with and without
exclusion of these Employer Elective Contributions); and
(B) at the election of the Employer, Qualified Non-Elective
Contributions and Qualified Matching Contributions. An
Employer Elective Contribution will be taken into account
under the Actual Deferral Percentage Test for a Plan Year
only if it relates to compensation that either would have
been received by the Employee in the Plan Year, but for the
deferral election, or is attributable to services performed
by the Employee in the Plan Year and would have been
received by the Employee within two and one-half (2 1/2)
months after the close of the Plan Year, but for the
deferral election. To compute Actual Deferral Percentages,
an Employee who would be a Participant but for the failure
to make Elective Deferrals shall be treated as a
Participant on whose behalf no Employer Elective
Contributions are made.
(i) ACTUAL DEFERRAL PERCENTAGE means the ratio, expressed as a
percentage, of (A) the amount of Employer Elective
Contributions actually paid to the Trust Fund on behalf of
the Eligible Participant for the Plan Year to (B) the
Eligible Participant's Compensation received by the
Employee for the portion of the Plan Year during which the
Employee was eligible to participate in the cash or
deferred arrangement. Employer Contributions on behalf of
any Participant shall include: (A) any Employer Elective
Contributions made pursuant to the Eligible Participant's
Elective Deferrals, (including Excess Elective Deferrals of
Highly Compensated Employees), but excluding (1) Excess
Elective Deferrals of Non-Highly Compensated Employees that
arise solely from Elective Deferrals made under the plan or
plans of this Employer, and (2) Employer Elective
Contributions that are taken into account in the
Contribution Percentage Test (provided the Actual Deferral
Percentage Test is satisfied both with and without
exclusion of these Employer Elective Contributions); and
(B) at the election of the Employer, Qualified Non-Elective
Contributions and Qualified Matching Contributions. An
Employer Elective Contribution will be taken into account
under the Actual Deferral Percentage Test for a Plan Year
only if it relates to compensation that either would have
been received by the Employee in the Plan Year, but for the
deferral election, or is attributable to services performed
by the Employee in the Plan Year and would have been
received by the Employee within
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<PAGE>
two and one-half (2 1/2) months after the close of the Plan
Year, but for the deferral election. To compute Actual
Deferral Percentages, an Employee who would be a
Participant but for the failure to make Elective Deferrals
shall be treated as a Participant on whose behalf no
Employer Elective Contributions are made.
(ii) AVERAGE ACTUAL DEFERRAL PERCENTAGE means the average,
expressed as a percentage, of the Actual Deferral
Percentages of the Eligible Participants in a group.
(iii) ELIGIBLE PARTICIPANT means any Employee of the Employer who
is otherwise authorized under the Plan to have Employer
Elective Contributions (or Qualified Non-Elective
Contributions or Qualified Matching Contributions, or both,
if treated as Employer Elective Contributions for the
Actual Deferral Percentage Test) allocated to his or her
Salary Deferral Account for the Plan Year.
(iv) QUALIFIED NON-ELECTIVE CONTRIBUTIONS means Employer
Contributions, other than Employer Elective Contributions
and Matching Contributions, allocated to Participants'
accounts which are 100% Nonforfeitable at all times and
which are subject to the distribution restrictions
described in Section 3.11(a). Non-Elective Contributions
are not 100% Nonforfeitable at all times if the Employee
has a 100% Nonforfeitable interest because of Years of
Service taken into account under a vesting schedule. Any
Non-Elective Contributions allocated to a Participant's
Salary Deferral Account under the Plan automatically
satisfy the definition of Qualified Non-Elective
Contributions.
(v) QUALIFIED MATCHING CONTRIBUTIONS means Employer Matching
Contributions allocated to Participants' accounts which are
100% Nonforfeitable at all times and which are subject to
the distribution restrictions described in Section 3.11(a).
Matching Contributions are not 100% Nonforfeitable at all
times if the Employee has a 100% Nonforfeitable interest
because of Years of Service taken into account under a
vesting schedule. Any Matching Contributions allocated to
a Participant's Employer Salary Deferral Account under the
Plan automatically satisfy the definition of Qualified
Matching Contributions.
(c) SPECIAL RULES
(i) For purposes of this Section, the Actual Deferral
Percentage for any Participant who is a Highly Compensated
Employee for the Plan Year who is eligible to have Employer
Elective Contributions (or Qualified Non-Elective
Contributions or Qualified Matching Contributions, or both,
if treated as Employer Elective Contributions for the
Actual Deferral Percentage Test) allocated to his or her
account under two (2) or more plans or arrangements
described in Code Section 401(k) that are maintained by the
Employer or a Related Employer shall be determined as if
all Employer Elective Contributions (and, if applicable,
Qualified Non-Elective Contributions or Qualified Matching
Contribution, or both) were made under a single
arrangement. If a Highly Compensated Employee participates
in two (2) or more cash or deferred arrangements that have
different plan years, all cash or deferred arrangements
ending with or within the same calendar year shall be
treated as a single arrangement. Notwithstanding the
foregoing, certain plans shall be treated as separate if
mandatorily desegregated under applicable Treasury
regulations pursuant to Code Section 401(k).
(ii) If this Plan satisfies the requirements of Code Sections
401(k), 401(a)(4) or 410(b) only if aggregated with one or
more other plans, or if one or more other plans satisfy the
requirements of the Code Sections only if aggregated with
this Plan, then this Section shall be applied by
determining the Actual Deferral Percentage of Employees as
if all such plans were a single plan. For Plan Years
beginning after December 31, 1989, plans may be aggregated
to satisfy Code Section 401(k) only if they have the same
Plan Year.
(iii) To determine the Actual Deferral Percentage Test, Employer
Elective Contributions, Qualified Non-Elective
Contributions, and Qualified Matching Contributions must be
made before the last day of the twelve (12) month period
immediately following the Plan Year to which contributions
relate.
(iv) The Employer shall maintain records sufficient to
demonstrate satisfaction of the Actual Deferral Percentage
Test and the amount of Qualified Non-Elective Contributions
or Qualified Matching Contributions, or both, used in the
test. PROVIDED, HOWEVER, that if the Actual Deferral
Percentage Test utilizes prior year data for the Non-Highly
Compensated Employees, to the extent required by IRS Notice
98-1 or any subsequent IRS guidance, all Qualified
Non-Elective Contributions and
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<PAGE>
Qualified Matching Contributions must be allocated as of
a date within the prior Plan Year, and must be funded no
later than the end of the current Plan Year.
(v) The determination and treatment of the Actual Deferral
Percentage amounts of any Participant shall satisfy other
requirements prescribed by applicable Treasury regulations.
(d) FAIL-SAFE PROVISIONS
If the initial allocations of the Employer Elective Contributions
do not satisfy one of the tests set forth in paragraph (a) of this
Section, the Administrator shall adjust the accounts of the
Participants pursuant to one (1) or more of the following options:
(i) DISTRIBUTION OF EXCESS CONTRIBUTIONS. Any distribution of
the Excess Contributions for any Plan Year shall be made to
Highly Compensated Employees on the basis of the amount of
Contributions by, or on behalf of, each of such Employees.
Excess Contributions will be distributed according to the
following procedures:
(A) The dollar amount of Excess Contributions is
computed for each affected Highly Compensated
Employee (HCE) in accordance with the provisions
currently in effect.
(B) The Excess Contributions are distributed in the
following manner:
(I) Reduce the applicable contributions of the
HCEs beginning with the HCE with the highest
dollar amount, to equal the dollar amount of
the HCE with the next highest dollar amount
of contributions.
(II) This amount will be distributed to the HCE
with the highest dollar amount.
(C) The distribution procedure cited in paragraph (B)
above is repeated until total Excess Contributions
are distributed.
(I) If these distributions are made, the Actual
Deferral Percentage is treated as meeting the
nondiscrimination test of Code Section
401(k)(3) regardless of whether the Actual
Deferral Percentage, if recalculated after
distributions would satisfy Code Section
401(k)(3).
(II) The above procedure is used for the purposes
of recharacterizing excess contributions
under Code Section 401(k)(8)(A)(ii).
(III) For purposes of Code Section 401(m)(9), if a
corrective distribution of Excess
Contributions has been made, or a
recharacterization has occurred, the Actual
Deferral Percentage for Highly Compensated
Employees is deemed to be the largest amount
permitted under Code Section 401(k)(3).
(ii) RECHARACTERIZATION OF EXCESS CONTRIBUTIONS. If the Plan
permits Participant Voluntary After Tax Contributions in
Section 3.6, a Participant may treat his or her Excess
Contributions as an amount distributed to the Participant
and then contributed by the Participant to the Plan.
Recharacterized amounts will remain nonforfeitable and
subject to the same distribution requirements as Elective
Deferrals. Amounts may not be recharacterized by a Highly
Compensated Employee to the extent that such amount in
combination with other Employee Contributions made by that
Employee would exceed any stated limit under the Plan on
Employee Contributions. Recharacterization must occur no
later than two and one-half (2 1/2) months after the last
day of the Plan Year in which such Excess Contributions
arose, and is deemed to occur no earlier than the date the
last Highly Compensated Employee is informed in writing of
the amount recharacterized and the consequences thereof.
Recharacterized amounts will be taxable to the Participant
for the Participant's tax year in which the Participant
would have received them in cash. The amount of Excess
Contributions to be recharacterized with respect to an
Employee for a Plan Year shall be reduced by any Excess
Deferrals previously distributed to the Employee for the
Employee's taxable year ending with or within the Plan
Year.
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(iii) RECHARACTERIZATION OF MATCHING CONTRIBUTIONS. A portion of
the Employer's Matching Contribution shall be deemed an
Employer Elective Contribution for purposes of paragraph
(a) of this Section and for vesting and withdrawal
purposes. The portion shall be equal to an amount
necessary to satisfy one of the tests set forth in
paragraph (a) of this Section, taking into account the
Administrator's action under any option herein and shall be
reallocated to the Salary Deferral Account. Reallocation
of the Employer's Matching Contribution shall be made on
behalf of Participants who are Non-Highly Compensated
Employees.
(iv) QUALIFIED NON-ELECTIVE AND QUALIFIED MATCHING
CONTRIBUTIONS. The Employer shall make Qualified
Non-Elective Contributions or Qualified Matching
Contributions on behalf of Participants who are Non-Highly
Compensated Employees in an amount sufficient to satisfy
one of the tests set forth in paragraph (a) of this
Section, taking into account the Administrator's action
under any option herein. The contribution shall be treated
as an Employer Elective Contribution and shall be allocated
to the Salary Deferral Account of each Participant who is
a Non-Highly Compensated Employee in the same proportion
that each Non-Highly Compensated Employee's Elective
Deferrals for the year bears to the total Elective
Deferrals of all Participants who are Non-Highly
Compensated Employees. The Qualified Non-Elective and
Qualified Matching Contributions may be treated as Elective
Contributions provided that each of the following
requirements, to the extent applicable, is satisfied:
(A) The amount of Non-Elective Contributions, including
those Qualified Non-Elective Contributions treated
as Elective Contributions for purposes of the Actual
Deferral Percentage Test, satisfies the requirements
of Code Section 401(a)(4).
(B) The amount of Non-Elective Contributions, excluding
those Qualified Non-Elective Contributions treated
as Elective Contributions for purposes of the Actual
Deferral Percentage Test and those Qualified
Non-Elective Contributions treated as Matching
Contributions under Treasury Regulations Section
1.401(m)-1(b)(5) for purposes of the Average
Contribution Percentage Test, satisfies the
requirements of Code Section 401(a)(4).
(C) The Matching Contributions, including those
Qualified Matching Contributions treated as Elective
Contributions for purposes of the Actual Deferral
Percentage Test, satisfy the requirements of Code
Section 401(a)(4).
(D) The Matching Contributions, excluding those
Qualified Matching Contributions treated as Elective
Contributions for purposes of the Actual Deferral
Percentage Test, satisfy the requirements of Code
Section 401(a)(4).
(E) The Qualified Non-Elective Contributions and
Qualified Matching Contributions satisfy the
requirements of Treasury Regulations Section
1.401(k)-1(b)(4)(i) for the Plan Year as if the
contributions were Elective Contributions.
(F) The plan that includes the cash or deferred
arrangement and the plan or plans to which the
Qualified Non-Elective Contributions and Qualified
Matching Contributions are made could be aggregated
for purposes of Code Section 410(b).
3.13. LIMITATIONS ON EMPLOYEE CONTRIBUTIONS AND MATCHING EMPLOYER CONTRIBUTIONS
(a) AVERAGE CONTRIBUTION PERCENTAGE TEST. The annual allocation
derived from Employee Contributions, Matching Contributions, and
Qualified Matching Contributions to a Participant's Individual
Account shall satisfy one of the following tests:
(i) The Average Contribution Percentage for Participants who
are Eligible Highly Compensated Employees shall not exceed
the Average Contribution Percentage for Participants who
are Eligible Non-Highly Compensated Employees multiplied by
1.25; or
(ii) The Average Contribution Percentage for Participants who
are Eligible Highly Compensated Employees shall not exceed
the Average Contribution Percentage for Participants who
are Eligible Non-Highly Compensated Employees multiplied by
two (2); provided that the Average Contribution Percentage
for Participants who are Eligible Highly Compensated
Employees does not exceed the Average Contribution
Percentage for Participants who are Eligible Non-Highly
Compensated
24
<PAGE>
Employees by more than two (2) percentage points or the
lesser percentage prescribed in applicable Treasury
regulations to prevent the multiple use of this
alternative limitation for any Highly Compensated Employee.
(iii) In determining whether the Plan satisfies either Average
Contribution Percentage Test, the Advisory Committee will
use the Average Contribution Percentage of the Non-Highly
Compensated Group for the Plan Year preceding the Plan Year
of the calculation, unless the Employer elects to use the
current Plan Year's Average Contribution Percentage of the
Non-Highly Compensated Group. An Employer may not change
an election to use current Average Contribution Percentage
except as the Treasury otherwise may provide.
(iv) Transition Relief for Plan Using Current Year Average
Contribution Percentage Data for the 1997 Plan Year.
As provided by Notice 97-2: A plan that used current year
data in determining the Average Contribution Percentage of
Non-Highly Compensated Employees for the 1997 Plan Year
will be permitted to use prior year data for the 1998 Plan
Year without receiving approval from the Internal Revenue
Service. For the 1997 Plan Year, no plan amendment or
formal election is required to be made in 1996 or 1997 in
order to continue to use current year data in determining
the Average Contribution Percentage of Non-Highly
Compensated Employees.
(b) DEFINITIONS
(i) AGGREGATE LIMIT means the greater of (A) or (B), described
as follows:
(A) The sum of:
(I) 1.25 multiplied by the greater of the Actual
Deferral Percentage or the Average
Contribution Percentage for Participants who
are Eligible Non-Highly Compensated
Employees, and
(II) Two (2) percentage points plus the lesser of
Actual Deferral Percentage or the Average
Contribution Percentage of Participants who
are Eligible Non-Highly Compensated
Employees. (In no event shall this amount
exceed twice the lesser of the Actual
Deferral Percentage or Average Contribution
Percentage of Participants who are Eligible
Non-Highly Compensated Employees).
(B) The sum of:
(I) 1.25 multiplied by the lesser of the Actual
Deferral Percentage or the Average
Contribution Percentage of Participants who
are Eligible Non-Highly Compensated
Employees, and
(II) Two (2) percentage points plus the greater of
Actual Deferral Percentage or the Average
Contribution Percentage of Participants who
are Eligible Non-Highly Compensated
Employees. (In no event shall this amount
exceed twice the greater of the Actual
Deferral Percentage or Average Contribution
Percentage of Participants who are Eligible
Non-Highly Compensated Employees).
(ii) AVERAGE CONTRIBUTION PERCENTAGE means the average,
expressed as a percentage, of the Contribution Percentages
of the Eligible Participants in a group.
(iii) CONTRIBUTION PERCENTAGE means the ratio, expressed as a
percentage, of the sum of the Employee Contributions and
Matching Contributions under the Plan on behalf of the
Eligible Participant for the Plan Year to the Eligible
Participant's Compensation for the Plan Year.
(iii) CONTRIBUTION PERCENTAGE means the ratio, expressed as a
percentage, of the sum of the Employee Contributions and
Matching Contributions under the Plan on behalf of the
Eligible Participant for the Plan Year to the Eligible
Participant's Compensation received by the Employee for the
portion
25
<PAGE>
of the Plan Year during which the Employee was eligible
to make Employee Contributions or to have Matching
Contributions made on the Employee's behalf.
(iv) CONTRIBUTION PERCENTAGE AMOUNTS means the sum of the
Employee Contributions, Matching Contributions and
Qualified Matching Contributions, to the extent not taken
into account for purposes of the Actual Deferral
Percentage Test, made under the Plan on behalf of the
Participant for the Plan Year. Contribution Percentage
Amounts shall include Forfeitures of Excess Aggregate
Contributions or Matching Contributions allocated to the
Participant's Account which shall be taken into account in
the year in which the Forfeiture is allocated.
Notwithstanding the foregoing, Contribution Percentage
Amounts shall not include Matching Contributions that are
forfeited either to correct Excess Aggregate Contributions
or because the contributions to which they relate are
Excess Deferrals, Excess Contributions, or Excess Aggregate
Contributions. The Employer may include Qualified
Non-Elective Contributions in the Contribution Percentage
Amounts. The Employer also may elect to use Employer
Elective Contributions in the Contribution Percentage
Amount if the Actual Deferral Percentage Test is met before
the Employer Elective Contributions are used in the Average
Contribution Percentage Test and continues to be met
following the exclusion of those Employer Elective
Contributions that are used to meet the Average
Contribution Percentage Test.
(v) ELIGIBLE PARTICIPANT means any Employee who is eligible to
make an Employee Contribution, or an Elective Deferral, if
the Employer takes the contributions into account in
calculating the Contribution Percentage, or to receive a
Matching Contribution, including Forfeitures, or a
Qualified Matching Contribution. If an Employee
Contribution is required as a condition of participation in
the Plan, any Employee who would be a Participant in the
Plan if the Employee made a required contribution shall be
treated as an Eligible Participant on behalf of whom no
Employee Contributions are made.
(vi) EMPLOYEE CONTRIBUTION means any contribution made to the
Plan by or on behalf of a Participant that is included in
the Participant's gross income in the year in which made
and that is maintained under a separate account to which
earnings and losses are allocated. Employer Elective
Contributions are not Employee Contributions.
(vii) MATCHING CONTRIBUTION means an Employer Contribution made
to this or any other defined contribution plan on behalf of
a Participant on account of an Employee Contribution made
by the Participant, or on account of a Participant's
election to defer a portion of his or her Annual
Compensation under a plan maintained by the Employer.
(viii) QUALIFIED NON-ELECTIVE CONTRIBUTIONS means Employer
Contributions, other than Employer Elective Contributions
and Matching Contributions, allocated to Participants'
accounts which are 100% Nonforfeitable at all times and
which are subject to the distribution restrictions
described in Section 3.11(a). Non-Elective Contributions
are not 100% Nonforfeitable at all times if the Employee
has a 100% Nonforfeitable interest because of Years of
Service taken into account under a vesting schedule. Any
Non-Elective Contributions allocated to a Participant's
Salary Deferral Account under the Plan automatically
satisfy the definition of Qualified Non-Elective
Contributions.
(ix) QUALIFIED MATCHING CONTRIBUTIONS means Employer Matching
Contributions allocated to Participants' accounts which are
100% Nonforfeitable at all times and which are subject to
the distribution restrictions described in Section 3.11(a).
Matching Contributions are not 100% Nonforfeitable at all
times if the Employee has a 100% Nonforfeitable interest
because of Years of Service taken into account under a
vesting schedule. Any Matching Contributions allocated to
a Participant's Employer Salary Deferral Account under the
Plan automatically satisfy the definition of Qualified
Matching Contributions.
(c) SPECIAL RULES
(i) MULTIPLE USE. If one or more Highly Compensated Employees
participate in both a cash or deferred arrangement subject
to Code Section 401(k) and a plan maintained by the
Employer subject to Code Section 401(m) and the sum of the
Actual Deferral Percentage and Average Contribution
Percentage of those Highly Compensated Employees subject to
either or both tests exceeds the Aggregate Limit, then the
Average Contribution Percentage of those Highly Compensated
Employees who also participate in a cash or deferred
arrangement will be reduced, beginning with the Highly
Compensated Employee whose Average Contribution Percentage
is the highest, so that the limit is
26
<PAGE>
not exceeded. The amount by which each Highly Compensated
Employee's Contribution Percentage Amount is reduced shall
be treated as an Excess Aggregate Contribution. The
Actual Deferral Percentage and Average Contribution
Percentage of the Highly Compensated Employees are
determined after
(A) use of Qualified Non-Elective Contributions and
Qualified Matching Contributions to meet the Actual
Deferral Percentage Test;
(B) use of Qualified Non-Elective Contributions and
Elective Contributions to meet the Actual Deferral
Percentage Test;
(C) any corrective distribution or forfeiture of Excess
Deferrals, Excess Contributions or Excess Aggregate
Contributions; and
(D) after any recharacterization of Excess Contributions
required without regard to multiple use of the
alternative limitation.
Multiple use occurs if the Actual Deferral Percentage and
Average Contribution Percentage of the Highly Compensated
Employees exceeds 1.25 multiplied by the Actual Deferral
Percentage and Average Contribution Percentage of the
Non-Highly Compensated Employees.
(ii) For purposes of this Section, the Contribution Percentage
for any Participant who is an Eligible Highly Compensated
Employee for the Plan Year who is eligible to have
Contribution Percentage Amounts allocated under two (2) or
more plans described in Code Section 401(a) or arrangements
described in Code Section 401(k) that are maintained by the
Employer or a Related Employer shall be determined as if
the total of the Contribution Percentage Amounts were made
under each plan. If a Highly Compensated Employee
participates in two (2) or more cash or deferred
arrangements that have different plan years, all cash or
deferred arrangements ending with or within the same
calendar year shall be treated as a single arrangement.
Notwithstanding the foregoing, certain plans shall be
treated as separate if mandatorily desegregated under
regulations pursuant to Code Section 401(m).
(iii) If this Plan satisfies the requirements of Code Sections
401(m), 401(a)(4) or 410(b) only if aggregated with one (1)
or more other plans, or if one (1) or more other plans
satisfy the requirements of the Code Sections only if
aggregated with this Plan, then this Section shall be
applied by determining the Contribution Percentages of
Eligible Participants as if all such plans were a single
plan.
(iv) The Employer shall maintain records sufficient to
demonstrate satisfaction of the Average Contribution
Percentage Test.
(v) The determination and treatment of the Contribution
Percentage of any Participant shall satisfy other
requirements prescribed by applicable Treasury regulations.
(d) FAIL SAFE PROVISIONS. If the initial allocations of the Employer
Matching Contributions and Employee Contributions do not satisfy
one of the tests set forth in paragraph (a) of this Section, the
Administrator shall adjust the accounts of the Participants
pursuant to one (1) or more of the following options:
(i) DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS. Any
distribution of the Excess Aggregate Contributions for any
Plan Year shall be made to Highly Compensated Employees on
the basis of the amount of Contributions by, or on behalf
of, each of such Employee. Forfeitures of Excess Aggregate
Contributions may not be allocated to Participants whose
Contributions are reduced under this paragraph.
Excess Aggregate Contributions will be distributed
according to the following procedures:
(A) The dollar amount of Excess Aggregate Contributions
is computed for each affected Highly Compensated
Employee (HCE) in accordance with the provisions
currently in effect.
(B) The Excess Aggregate Contributions are distributed
in the following manner:
27
<PAGE>
(I) Reduce the applicable Contributions of the
HCEs beginning with the HCE with the highest
dollar amount, to equal the dollar amount of
the HCE with the next highest dollar amount
of Contributions.
(II) This amount will be distributed to the HCE
with the highest dollar amount.
(C) The distribution procedure cited in paragraph (B)
above is repeated until total Excess Aggregate
Contributions are distributed.
(I) If these distributions are made, the Average
Contribution Percentage is treated as meeting
the nondiscrimination test of Code Section
401(m)(2) regardless of whether the Average
Contribution Percentage, if recalculated
after distributions would satisfy Code
Section 401(m)(2).
(II) For purposes of Code Section 401(m)(9), if a
Corrective Distribution of Excess Aggregate
Contributions has been made, the Average
Contribution Percentage for Highly
Compensated Employees is deemed to be the
largest amount permitted under Code Section
401(m)(2).
ALLOCABLE INCOME. To determine the amount of the
corrective distribution required under this Section, the
Administrator must calculate the allocable income for the
Plan Year in which the Excess Aggregate Contributions
arose. The income allocable to Excess Aggregate
Contributions is equal to the sum of the allocable gain or
loss for the Plan Year.
(A) METHOD OF ALLOCATING INCOME. The Administrator may
use any reasonable method for computing the income
allocable to Excess Aggregate Contributions,
provided that the method does not violate Code
Section 401(a)(4), is used consistently for all
Participants and for all corrective distributions
under the Plan for the Plan Year, and is used by the
Plan for allocating income to Participants'
Accounts.
(B) ALTERNATIVE METHOD OF ALLOCATING INCOME. A Plan may
allocate income to Excess Aggregate Contributions by
multiplying the income for the Plan Year allocable
to Employee Contributions, Matching Contributions,
and amounts treated as Matching Contributions by a
fraction. The numerator of the fraction is the
Excess Aggregate Contributions for the Employee for
the Plan Year. The denominator of the fraction is
equal to the sum of:
(I) The total Account Balance of the Employee
attributable to Employee and Matching
Contributions, and amounts treated as
Matching Contributions as of the beginning of
the Plan Year; plus
(II) The Employee and Matching Contributions, and
amounts treated as Matching Contributions for
the Plan Year.
(ii) CHARACTERIZATION OF EXCESS AGGREGATE CONTRIBUTIONS. The
Administrator will treat a Highly Compensated Employee's
allocable share of Excess Aggregate Contributions in the
following priority: (A) first as attributable to his or
her Employee Contributions which are voluntary
contributions, if any; (B) then as Matching Contributions
allocable with respect to Excess Contributions determined
under the Actual Deferral Percentage Test described in
Section 3.12(a); (C) then on a pro rata basis to Matching
Contributions and to the Employer Elective Contributions
relating to those Matching Contributions which the
Administrator has included in the Average Contribution
Percentage Test; (D) then on a pro rata basis to Employee
Contributions which are mandatory contributions, if any,
and to the Matching Contributions allocated on the basis of
those mandatory contributions; and (E) last to Qualified
Non-Elective Contributions used in the Average Contribution
Percentage Test. To the extent the Highly Compensated
Employee's Excess Aggregate Contributions are attributable
to Matching Contributions, and he or she is not 100% vested
in the Account Balance attributable to Matching
Contributions, the Administrator will distribute only the
vested portion and forfeit the nonvested portion. The
vested portion of the Highly Compensated Employee's Excess
Aggregate Contributions attributable to Employer Matching
Contributions is the total amount of the Excess Aggregate
Contributions (as adjusted for allocable income) multiplied
by
28
<PAGE>
his or her vested percentage (determined as of the last
day of the Plan Year for which the Employer made the
Matching Contribution).
(iii) QUALIFIED NON-ELECTIVE AND ELECTIVE CONTRIBUTIONS. The
Employer shall make Qualified Non-Elective Contributions or
Elective Contributions that, in combination with Employee
and Matching Contributions, satisfy one of the tests set
forth in paragraph (a) of this Section, taking into account
the Administrator's action under any option herein. The
contribution shall be treated as an Employer Elective
Contribution and shall be allocated to the Salary Deferral
Account of each Participant who is a Non-Highly Compensated
Employee. The Qualified Non-Elective and Elective
Contributions may be treated as Matching Contributions
provided that each of the following requirements, to the
extent applicable, is satisfied:
(A) The amount of Non-Elective Contributions, including
those Qualified Non-Elective Contributions treated
as Matching Contributions for purposes of the
Average Contribution Percentage Test, satisfies the
requirements of Code Section 401(a)(4).
(B) The amount of Non-Elective Contributions, excluding
those Qualified Non-Elective Contributions treated
as Matching Contributions for purposes of the
Average Contribution Percentage Test and those
Qualified Non-Elective Contributions treated as
Elective Contributions under Treasury Regulations
Section 1.401(k)-1(b)(5) for purposes of the Actual
Deferral Percentage Test, satisfies the requirements
of Code Section 401(a)(4).
(C) The Elective Contributions, including those treated
as Qualified Matching Contributions for purposes of
the Average Contribution Percentage Test, satisfy
the requirements of Code Section 401(k)(3) for the
Plan Year.
(D) The Qualified Non-Elective Contributions are
allocated to the Employee under the Plan as of a
date within the Plan Year, and the Elective
Contributions satisfy the requirements of Treasury
Regulations Section 1.401(k)-1(b)(4)(i) for the Plan
Year.
(E) The plan that takes Qualified Non-Elective
Contributions and Elective Contributions into
account in determining whether Employee and Matching
Contributions satisfy the requirements of Code
Section 401(m)(2)(A), and the plans to which the
Qualified Non-Elective Contributions and Elective
Contributions are made, are or could be aggregated
for purposes of Code Section 410(b).
(iv) FORFEITURE OF NON-VESTED MATCHING CONTRIBUTIONS. Matching
Contributions that are not vested may be forfeited to
correct Excess Aggregate Contributions. Notwithstanding
the foregoing sentence, Excess Aggregate Contributions for
a Plan Year may not remain unallocated or be allocated to a
suspense account for allocation to one or more Employees in
any future year. Forfeitures of Matching Contributions to
correct Excess Aggregate Contributions shall be:
(A) Applied to reduce Employer Contributions for the
Plan Year in which the excess arose, but allocated
according to the following paragraph (B), to the
extent the excess exceeds Employer Contributions or
the Employer has already contributed for the Plan
Year.
(B) Allocated, after all other Forfeitures under the
Plan, to the Employer Matching Contribution Account
of each Non-Highly Compensated Participant who made
Elective Deferrals or Employee Contributions in the
ratio which each such Participant's Compensation for
the Plan Year bears to the total Compensation of all
such Participants for the Plan Year.
(v) FORFEITURE OF VESTED OR NON-VESTED MATCHING CONTRIBUTIONS
DUE TO DISTRIBUTION OF EXCESS CONTRIBUTIONS. If as a
result of a determination that the initial allocations of
Employer Elective Contributions do not satisfy one of the
Actual Deferral Percentage Tests set forth in Section
3.12(a) above, the Committee distributes Excess
Contributions in accordance with Section 3.12(d), then any
Matching Contribution attributable to such distributed
Excess Contribution shall be forfeited, whether or not
vested. Such forfeited Matching Contribution shall be
reallocated in the same manner as paragraph (iv) above.
For purposes of this paragraph, Excess Contributions shall
be deemed to be first from Employer Elective Contributions
which are not subject to a Matching Contribution.
29
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* * * * * * *
30
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ARTICLE IV
ADJUSTMENT OF INDIVIDUAL ACCOUNTS
4.1. ADJUSTMENT RULES FOR INDIVIDUAL ACCOUNTS
As of each Accounting Date, the Trustee will determine the fair market
value of each Investment Fund being administered by the Trustee. To
determine the gain or loss of the Individual Accounts in each Investment
Fund, the Trustee will first calculate the change in value of each
Investment Fund between the current Accounting Date and the last
preceding Accounting Date. The net gain or loss in each Investment Fund
will be allocated to the accounts of those Participants who are
participating in each Investment Fund on the Accounting Date. The
Trustee will then charge to the prior Account Balances all previously
uncharged payments or distributions made from Individual Accounts since
the last preceding Accounting Date. Finally, the Trustee will allocate
and credit Employer Contributions (as described in Section 3.1) that are
to be allocated and credited as of that date in accordance with Article
III.
* * * * * * *
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ARTICLE V
ALLOCATION OF EMPLOYER CONTRIBUTIONS TO INDIVIDUAL ACCOUNTS
5.1. ALLOCATION RULES
As of each Anniversary Date, but after the adjustment of Individual
Accounts as provided in Article IV, the Employer Non-Elective and
Matching Contributions, including any Forfeitures allocated as of the
Anniversary Date, for the Plan Year which ends on the Anniversary Date
shall be allocated and credited to the Employer Non-Elective and Matching
Contribution Accounts of each eligible Participant in the Plan on the
Anniversary Date. No Participant, other than one who died, became
disabled or retired during the Plan Year, shall be entitled to have any
Employer Non-Elective and Matching Contributions allocated to his or her
Individual Account, unless the Participant shall be employed by the
Employer on the Anniversary Date for the Plan Year.
The Committee will suspend the accrual requirements for Includable
Employees who are Participants, beginning first with the Includable
Employee(s) employed with the Employer on the last day of the Plan Year,
then the Includable Employee(s) who have the earliest Separation from
Service during the Plan Year, and continuing to suspend in descending
order the accrual requirements for each Includable Employee who incurred
the next earlier Separation from Service, from the earliest to the latest
Separation from Service date, until the Plan satisfies the Code Section
410(b) Coverage Test for the Plan Year. If two or more Includable
Employees have a Separation from Service on the same day, the Committee
will suspend the accrual requirements for all such Includable Employees,
irrespective of whether the Plan can satisfy the Code Section 410(b)
Coverage Test by accruing benefits for fewer than all such Includable
Employees. If the Plan suspends the accrual requirements for an
Includable Employee, that Employee will share in the allocation of
Employer contributions and Participant forfeitures, if any, without
regard to the number of Hours of Service he has earned for the Plan Year
and without regard to whether he is employed by the Employer on the last
day of the Plan Year. If the Employer's Plan includes Employer matching
contributions subject to Code Section 401(m), this suspension of accrual
requirements applies separately to the Code Section 401(m) portion of the
Plan, and the Committee will treat an Employee as benefiting under that
portion of the Plan if the Employee is an Eligible Employee for purposes
of the Code Section 401(m) nondiscrimination test. "Includable"
Employees are all Employees other than: (a) those Employees excluded
from participating in the Plan for the entire Plan Year by reason of the
collective bargaining unit exclusion or the nonresident alien exclusion
or by reason of the participation requirements of Section 2.1 and (b) any
Employee who incurs a Separation from Service during the Plan Year and
fails to complete at least 501 Hours of Service for the Plan Year.
For the Coverage Test, an Employee is benefiting under the Plan on a
particular date if he or she is entitled to an allocation for the Plan
Year under this Section or as otherwise provided under applicable
Treasury regulations.
If this Section applies for a Plan Year, the Committee will suspend the
allocation requirements for the Includable Employees who are
Participants, beginning first with the Includable Employee(s) employed by
the Employer on the last day of the Plan Year, then the Includable
Employee(s) who have the latest Separation from Service during the Plan
Year, and continuing to suspend in descending order the allocation
requirements for each Includable Employee who incurred an earlier
Separation from Service, from the latest to the earliest Separation from
Service date, until the Plan satisfies both the Participation Test and
the Coverage Test for the Plan Year. If two or more Includable Employees
have a Separation from Service on the same day, the Committee will
suspend the allocation requirements for all the Includable Employees,
whether or not the Plan can satisfy the Participation Test and the
Coverage Test by allocating contributions for fewer than all the
Includable Employees. If the Plan suspends the allocation requirements
for an Includable Employee, that Employee will share in the allocation of
Employer contributions and Participant forfeitures, if any, without
considering the number of Hours of Service he or she has earned for the
Plan Year and whether or not he or she is employed by the Employer on the
last day of the Plan Year. If the Employer's Plan includes Employer
Matching Contributions subject to Code Section 401(m), this suspension of
allocation requirements applies separately to the Code Section 401(m)
portion of the Plan, and the Committee will treat an Employee as
benefiting under that portion of the Plan if he or she is an eligible
Employee for purposes of the Code Section 401(m) nondiscrimination test.
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5.2. ALLOCATION FORMULA
(a) EMPLOYER NON-ELECTIVE CONTRIBUTIONS Subject to the minimum
allocation for Top-Heavy Plans under Section 5.4 and any
restoration allocation required under Section 9.7, the Committee
shall allocate the Employer Non-Elective Contributions and
Participant Forfeitures, if any, to each eligible Participant's
Employer Non-Elective Contribution Account in the same ratio that
each Participant's Annual Compensation for the Plan Year bears to
the total Annual Compensation of all Participants for such Plan
Year.
(b) EMPLOYER MATCHING CONTRIBUTIONS Subject to the minimum allocation
for Top-Heavy Plans under Section 5.4 and any restoration
allocation required under Section 9.7, the Committee shall
allocate every payroll period the:
(i) EMPLOYER MATCHING CONTRIBUTIONS to each eligible
Participant's Employer Matching Contribution Account in
accordance with Section 3.1(c) above.
(ii) EMPLOYER QUALIFIED MATCHING CONTRIBUTIONS AND EMPLOYER
QUALIFIED NON-ELECTIVE CONTRIBUTIONS, if any, to each
eligible Participant's Elective Deferral Account in
accordance with Section 3.1(e) above.
Subject to the minimum allocation for Top-Heavy Plans under Section 5.4
and any restoration allocation required under Section 9.7, the Committee
will allocate a Participant Forfeiture under the allocation formula in
this Section, to reduce the Employer Matching Contribution for the Plan
Year in which the Forfeiture occurs. The Committee will continue to hold
the undistributed, nonvested portion of a terminated Participant's
Account Balance in the Individual Account solely for the benefit of the
Participant until a Forfeiture occurs at the time specified in Section
9.4.
5.3. LIMITATIONS ON ALLOCATIONS
(a) DEFINED CONTRIBUTION PLAN LIMITS. The amount of Annual Additions
which the Committee may allocate under this Plan on a
Participant's behalf for a Limitation Year may not exceed the
Maximum Permissible Amount. If the amount the Employer otherwise
would contribute to the Participant's Account would cause the
Annual Additions for the Limitation Year to exceed the Maximum
Permissible Amount, the Employer will reduce the amount of its
contribution so the Annual Additions for the Limitation Year will
equal the Maximum Permissible Amount. If an allocation of
Employer Contributions pursuant to Section 5.2 would result in an
Excess Amount (other than an Excess Amount resulting from the
circumstances described in Section 5.3(c)) to the Participant's
Account, the Committee will reallocate the Excess Amount to the
remaining Participants who are eligible for an allocation of
Employer Contributions for the Plan Year in which the Limitation
Year ends. The Committee will make this reallocation on the basis
of the allocation method under the Plan as if the Participant
whose Individual Account otherwise would receive the Excess Amount
is not eligible for an allocation of Employer Contributions.
(b) ESTIMATION. Prior to the determination of the Participant's
actual Annual Compensation for a Limitation Year, the Committee
may determine the Maximum Permissible Amount on the basis of the
Participant's estimated Annual Compensation defined in Section
5.3(f) for the Limitation Year. The Committee must make this
determination on a reasonable and uniform basis for all
Participants similarly situated. The Committee must reduce any
Employer Contributions (including any allocation of Forfeitures)
based on estimated Annual Compensation by any Excess Amounts
carried over from prior years. As soon as administratively
feasible after the end of the Limitation Year, the Committee will
determine the Maximum Permissible Amount for the Limitation Year
based on the Participant's actual Annual Compensation for the
Limitation Year.
(c) DISPOSITION OF EXCESS AMOUNT. If, pursuant to Section 5.3(b) or
because of an allocation of Forfeitures, there is an Excess Amount
attributable to a Participant for a Limitation Year, then the
Committee will dispose of the Excess Amount as follows:
(i) The Committee shall return any nondeductible Participant
Voluntary After Tax Contributions to the Participant to the
extent that the return would reduce the Excess Amount.
(ii) If, after the application of clause (i) an Excess Amount
still exists, and the Plan covers the Participant at the
end of the Limitation Year, then the Committee will use the
Excess Amounts to reduce future Employer Contributions
(including any allocation of Forfeitures) under the Plan
for the next Limitation Year and for each succeeding
Limitation Year, as is necessary, for the Participant. The
Participant may elect to limit Compensation for allocation
purposes to the extent necessary to
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reduce the allocation for the Limitation Year to the
Maximum Permissible Amount and eliminate the Excess Amount.
(iii) If, after the application of clause (i) an Excess Amount
still exits and the Plan does not cover the Participant at
the end of the Limitation Year, then the Committee shall
hold the Excess Amount in a suspense account and use the
Excess Amount to reduce Employer Contributions on behalf of
remaining Participants and shall allocate and reallocate to
the Individual Accounts of remaining Participants in
succeeding Limitation Years to the extent permissible under
the foregoing limitations, prior to any further Annual
Additions to the Plan. If the Plan should be terminated or
contributions should be completely discontinued, the funds
in the suspense account will be allocated to the extent not
prohibited by Code Section 415. Any suspense account shall
not be adjusted for investment gains or losses of the Trust
Fund.
(iv) The Committee will not distribute any Excess Amount(s) to
Participants or to Former Participants.
(v) Notwithstanding the foregoing sentence and the foregoing
paragraphs (i), (ii), (iii), and (iv), the Committee may
distribute Elective Deferrals (within the meaning of Code
Section 402(g)(3)) or return voluntary or mandatory
Employee Contributions, to the extent the distribution or
return would reduce the excess amounts in the Participant's
account.
(d) MULTIPLE DEFINED CONTRIBUTION PLAN LIMITS. If the Employer
maintains any other qualified defined contribution plan, the
amount of the Annual Addition which may be allocated to a
Participant's Individual Account in this Plan shall not exceed the
Maximum Permissible Amount, reduced by the amount of Annual
Additions to such Participant's accounts for the same Limitation
Year in the other plan(s). The Excess Amount attributed to this
Plan equals the product of:
(i) the total Excess Amount allocated as of such date
(including any amount the Committee would have allocated
but for the limitations of Code Section 415), multiplied by
(ii) the ratio of
(A) the amount allocated to the Participant as of such
date under this Plan, divided by
(B) the total amount allocated as of such date under all
qualified defined contribution plans (determined
without regard to the limitations of Code Section
415).
(e) OVERALL LIMITS. If the Employer maintains or establishes, or has
ever maintained or established, any defined benefit plan(s) in
addition to this Plan, then the sum of the Defined Benefit Plan
Fraction and the Defined Contribution Plan Fraction for the
Participant for that Limitation Year shall not exceed 1.0. In any
Limitation Year that the sum of the Fractions does exceed 1.0,
then the Employer shall reduce the amount of Annual Additions to
the Participant's Individual Account in the defined contribution
plan(s), to the extent necessary to prevent the sum of the
Fractions from exceeding 1.0.
(f) DEFINITIONS. For purposes of the limitations of Code Section 415
set forth in this Section, the following definitions shall apply:
(i) ANNUAL ADDITIONS means the sum of the following amounts
allocated on behalf of a Participant for a Limitation Year:
(A) all Employer Contributions;
(B) all Forfeitures;
(C) all Employee Contributions;
(D) excess contributions described in Code Section
401(k) and excess aggregate contributions described
in Code Section 401(m), irrespective of whether the
Plan distributes or forfeits such Excess Amounts,
and excess deferrals described in Code Section
402(g), unless the excess deferrals are distributed
no later than the first April 15 following the close
of the Participant's taxable year;
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(E) Excess Amounts reapplied to reduce Employer
Contributions under this Section 5.3;
(F) amounts allocated after March 31, 1984 to an
individual medical account, as defined in Code
Section 415(l)(2), included as part of a pension or
annuity plan maintained by the Employer;
(G) contributions paid or accrued after December 31,
1985, in taxable years ending after that date, which
are attributable to post-retirement medical benefits
allocated to the separate account of a Key Employee
as defined in Code Section 419A(d)(3), under a
welfare benefit fund, as described in Code Section
419(e), maintained by the Employer; and
(H) allocations under a simplified employee pension
plan.
(ii) ANNUAL COMPENSATION means the total amount of salary,
wages, commissions, bonuses and overtime, paid or otherwise
includable in the gross income of a Participant during the
Limitation Year, but excluding:
(A) Employer contributions to any deferred compensation
plan (to the extent the contributions are not
included in the Participant's gross income for the
taxable year in which contributed) or simplified
employee pension under Code Section 408(k) (to the
extent the contributions are excludable from the
Participant's gross income;
(B) distributions from any plan of deferred
compensation, whether or not such amounts are
includable in the gross income of the Employees when
distributed;
(C) amounts realized from the exercise of any
nonqualified stock option, or when restricted stock
becomes freely transferrable or is no longer subject
to a substantial risk of forfeiture;
(D) amounts realized from the sale, exchange, or other
disposition of stock acquired under a qualified
stock option described in Part II, Subchapter D,
Chapter 1 of the Code;
(E) premiums paid by the Employer for group term life
insurance (to the extent the premiums are not
includable in the Participant's gross income);
contributions by the Employer to an annuity under
Code Section 403(b) (to the extent not includable in
the Participant's gross income); and any other
amounts received under any Employer sponsored fringe
benefit plan (to the extent not includable in the
Participant's gross income);
(F) any contribution for medical benefits, within the
meaning of Code Section 419A(f)(2), after separation
from Service which is otherwise treated as an Annual
Addition;
(G) any amount otherwise treated as an Annual Addition
under Code Section 415(l)(1); and
(H) PROVIDED, HOWEVER, that amounts described in Code
Section 402(g) or deferred under a flexible benefit
plan described in Code Section 125 shall be included
in a Participant's Annual Compensation.
(iii) AVERAGE ANNUAL COMPENSATION means the average compensation
during a Participant's highest three (3) consecutive Years
of Service, which period is the three (3) consecutive
calendar years (or the actual number of consecutive years
of employment for those Employees who are employed for less
than three (3) consecutive years with the Employer) during
which the Participant had the greatest aggregate
compensation from the Employer.
(iv) DEFINED BENEFIT PLAN FRACTION means the fraction derived
from the numerator defined in the following paragraph (A)
and the denominator defined in the following paragraph (B).
(A) NUMERATOR. The numerator is the sum of the
Projected Annual Benefit provided for such
Participant under all defined benefit plan(s) the
Employer maintains or establishes, or has ever
maintained or established (whether or not
terminated).
(B) DENOMINATOR. The denominator is the lesser of (1)
1.25 times the Maximum Defined Benefit Dollar
Limitation under Code Section 415(b) and (d) for the
Limitation Year, or (2) 1.4
35
<PAGE>
times one hundred percent (100%) of the
Participant's Average Annual Compensation Limitation
for his highest three (3) consecutive years under
Code Section 415(b).
(C) Notwithstanding the foregoing, 1.0 shall be
substituted for 1.25 wherever it appears in Section
5.3(f)(iv)(B) in any Plan Year in which the Plan is
determined to be Top-Heavy, unless the minimum
allocation requirements of Section 5.4 are met. In
determining whether the requirements of Section 5.4
have been met, four percent (4%) shall be
substituted for three percent (3%). Notwithstanding
the foregoing, 1.0 shall be substituted for 1.25
wherever it appears in Section 5.3(f)(iv)(B) in any
Plan Year in which the Plan is determined to be
Super Top-Heavy, regardless of the minimum
allocation.
(v) DEFINED CONTRIBUTION PLAN FRACTION means the fraction
derived from the numerator defined in the following
paragraph (A) and the denominator defined in the following
paragraph (B).
(A) NUMERATOR. The numerator is the sum of the Annual
Additions to a Participant's Individual Account
under all the defined contribution plans (whether or
not terminated) maintained by the Employer for the
current and all prior Limitation Years (including
the annual additions attributable to the
Participant's nondeductible employee contributions
to all defined benefit plans, whether or not
terminated, maintained by the Employer, and the
annual additions attributable to all welfare benefit
funds, as defined in Code Section 419(e) and
individual medical accounts, as defined in Code
Section 415(l)(2), maintained by the Employer.
(B) DENOMINATOR. The denominator is the sum of the
lesser of the following amounts determined for such
Limitation Year and for each prior Year of Service
with the Employer:
(1) 1.25 times the Maximum Permissible Amount
determined under Code Sections 415(b) and (d)
in effect under Code Section 415(c)(1)(A) for
such Limitation Year (without regard to the
special Dollar Limitations for employee stock
ownership plans), or
(2) thirty-five percent (35%) of the
Participant's Annual Compensation for each
Limitation Year.
(C) Regarding any Limitation Year ending after December
31, 1982, the amount taken into account under
Section 5.3(f)(v)(B) with respect to each
Participant for all Limitation Years ending before
January 1, 1983, shall be at the election of the
Administrator, an amount equal to the product of the
amount determined under Section 5.3(f)(v)(B)
multiplied by a fraction, the numerator of which is
the lesser of (1) $51,875 ($41,500 for any year in
which the Plan is determined to be a Top-Heavy
Plan); or (2) 1.4 multiplied by twenty-five percent
(25%) of the Annual Compensation of the Participant
for the Limitation Year ending in 1981, and the
denominator of which is the lesser of (1) $41,500;
or (2) twenty-five percent (25%) of the Annual
Compensation of the Participant for the Limitation
Year ending in 1981. The Administrator may make
such election only if one or more of such plans were
in existence on or before July 1, 1982.
(D) If the Plan and all other plans maintained by the
Employer met the limitations under Code Section 415
for the last Limitation Year beginning before
January 1, 1983 the amount under Section 5.3(f)(v)
(A) shall be reduced by an amount required to
decrease the combined fractions to 1.0. The amount
subtracted shall be the product of (1) the excess of
the sum of the fractions over 1.0 and (2) the
denominator under Section 5.3(f)(v)(B) as computed
through the Limitation Year ending in 1982.
(E) Notwithstanding the foregoing, 1.0 shall be
substituted for 1.25 wherever it appears in Section
5.3(f)(v)(B) in any Plan Year in which the Plan is
determined to be Top-Heavy, unless the minimum
allocation requirements of Section 5.4 are met. In
determining whether the requirements of Section 5.4
have been met, four percent (4%) shall be
substituted for three percent (3%). Notwithstanding
the foregoing, 1.0 shall be substituted for 1.25
wherever it appears in Section 5.3(f)(v)(B) in any
year in which the Plan is determined to be Super
Top-Heavy, regardless of the minimum allocation.
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<PAGE>
(vi) EMPLOYER means the Employer that adopts this Plan. All
Related Employers shall be considered a single Employer for
purposes of applying the limitations of this Section.
(vii) EXCESS AMOUNT means the excess of the Participant's Annual
Additions for the Limitation Year over the Maximum
Permissible Amount, less administrative charges allocable
to such Excess Amount.
(viii) LIMITATION YEAR means the Limitation Year specified in the
Plan.
(ix) MAXIMUM PERMISSIBLE AMOUNT means the lesser of:
(A) the Defined Contribution Dollar Limitation, or
(B) twenty-five percent (25%) of the Participant's
Compensation, within the meaning of Code Section
415(c)(3)
for a Limitation Year with respect to any Participant.
Defined Contribution Dollar Limitation means $30,000 or, if
greater, twenty-five percent (25%) of the Defined Benefit
Dollar Limitation set forth in Code Section 415(b)(1)(A) as
in effect for the Limitation Year.
(x) PROJECTED ANNUAL BENEFIT means the benefit of the
Participant payable annually in the form of a straight life
annuity (with no ancillary benefits) under the terms of a
defined benefit plan to which employees do not contribute
and under which no rollover contributions are made,
assuming that the Participant continues employment until
Normal Retirement Age (or current age, if later),
compensation continues at the same rate as in effect in the
Limitation Year under consideration until the date of
Normal Retirement Age, and all other relevant factors used
to determine benefits under the defined benefit plan remain
constant as of the current Limitation Year for all future
Limitation Years.
(g) SPECIAL RULES FOR OVERALL LIMITS. If the Employer maintains or
establishes, or has ever maintained or established, any defined
benefit plan(s) in addition to this Plan, such Plans are subject
to the overall limitations under Code Section 415(e) and the
following special rules apply:
(i) RECOMPUTATION NOT REQUIRED. For purposes of determining
the Defined Contribution Plan Fraction, the Annual Addition
for any Limitation Year beginning before January 1, 1987
shall not be recomputed to treat all Employee Contributions
as Annual Additions.
(ii) ADJUSTMENT OF DEFINED CONTRIBUTION PLAN FRACTION. If the
Plan satisfied the applicable requirements of Code Section
415 as in effect for all Limitation Years beginning before
January 1, 1987, the Committee shall redetermine the
Defined Contribution Plan Fraction and the Defined Benefit
Plan Fraction as of the end of the 1986 Limitation Year.
If the sum of the redetermined Fractions exceeds 1.0, an
amount shall be subtracted from the numerator of the
Defined Contribution Plan Fraction (not exceeding the
numerator) equal to the product of (A) the excess of the
sum of the Fractions over 1.0 times (B) the denominator of
the Defined Contribution Plan Fraction, so that the sum of
the Defined Benefit Plan Fraction and Defined Contribution
Plan Fraction computed under Code Section 415(e)(1) does
not exceed 1.0 for the Limitation Year.
(iii) ADJUSTMENT OF DEFINED BENEFIT PLAN FRACTION.
Notwithstanding the foregoing, if the Participant was a
Participant as of the first day of the first Limitation
Year beginning after December 31, 1986, in one or more
defined benefit plans maintained by the Employer which were
in existence on May 6, 1986, the denominator of this
fraction will not be less than 1.25 times the sum of the
annual benefits under such plans which the Participant had
accrued as of the close of the last Limitation Year
beginning before January 1, 1987, disregarding any changes
in the terms and conditions of the plan after May 5, 1986.
The preceding sentence applies only if the defined benefit
plans individually and in the aggregate satisfied the
requirements of Code Section 415 for all Limitation Years
beginning before January 1, 1987.
(h) SEPARATE, COMBINED PLAN LIMITS. For purposes of the foregoing
limitations in this Section, any Employee Contributions to any
defined benefit plan shall be considered as a separate defined
contribution plan. Further,
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all defined contribution plans shall be considered as one defined
contribution plan and all defined benefit plans shall be
considered as one defined benefit plan, whether or not any of
such plans have been terminated.
5.4. TOP-HEAVY MINIMUM ALLOCATION
(a) MINIMUM ALLOCATION. Notwithstanding the foregoing, for any Plan
Year in which the Plan is determined to be Top-Heavy, the amount
of Employer Non-Elective Contributions and Forfeitures allocated
to the Individual Account of each Non-Key Employee shall be equal
to the lesser of three percent (3%) of each Non-Key Employee's
Compensation or the highest contribution rate for the Plan Year
made on behalf of any Key Employee. However, if a defined benefit
plan maintained by the Employer which benefits a Key Employee
depends on this Plan to satisfy the nondiscrimination rules of
Code Section 401(a)(4) or the coverage rules of Code Section 410
(or another plan benefitting the Key Employee so depends on the
defined benefit plan), the top heavy minimum allocation is three
percent (3%) of the Non-Key Employee's Compensation regardless of
the contribution rate for the Key Employee.
(b) COMPENSATION. For purposes of this Section, Compensation means
Annual Compensation defined in Section 1.6 except (i) Compensation
does not include Elective Contributions, and (ii) any exclusions
from Annual Compensation (other than the exclusion of Elective
Contributions and the exclusions described in clauses (i) through
(v) of Section 1.6) do not apply. Notwithstanding the definition
of Annual Compensation in Section 1.6, the period preceding a
Participant's Entry Date shall be included in determining the
minimum top-heavy allocation provided by this Section.
(c) CONTRIBUTION RATE. For purposes of this Section, a Participant's
contribution rate is the sum of Employer Contributions (not
including Employer Contributions to Social Security) and
Forfeitures allocated to the Participant's Account for the Plan
Year divided by his or her Compensation for the entire Plan Year.
To determine a Participant's contribution rate, the Committee must
treat all qualified top-heavy defined contribution plans
maintained by the Employer (or by any related Employers described
in Section 1.41) as a single plan. For purposes of this Section,
for Plan Years beginning after 1988, the following rules apply:
(i) Employer Elective Contributions on behalf of Key Employees
are taken into account in determining the minimum required
contribution under Code Section 416(c)(2). However,
Employer Elective Contributions on behalf of Employees
other than Key Employees may not be treated as Employer
Contributions for the minimum contribution or benefit
requirement of Code Section 416.
(ii) Employer Matching Contributions allocated to Key Employees
are treated as Employer Contributions for determining the
minimum contribution or benefit under Code Section 416.
However, if a plan utilizes Matching Contributions
allocated to Employees other than Key Employees as Employee
Contributions or Elective Contributions to satisfy the
minimum contribution requirement, the Matching
Contributions are not treated as Matching Contributions for
applying the requirements of Code Section 401(k) and
401(m).
(iii) Qualified Non-Elective Contributions described in Code
Section 401(m)(4)(C) may be treated as Employer
Contributions for the minimum contribution or benefit
requirement of Code Section 416.
(d) PARTICIPANT ENTITLED TO TOP-HEAVY MINIMUM ALLOCATION. The minimum
allocation under this Section shall be provided to each Non-Key
Employee who is a Participant and is employed by the Employer on
the last day of the Plan Year, whether or not the Participant has
been credited with one thousand (1,000) Hours of Service for the
Plan Year. The minimum allocation under this Section shall not be
provided to any Participant who was not employed by the Employer
on the last day of the Plan Year. The provisions of this Section
shall not apply to any Participant to the extent the Participant
is covered under any other plan or plans of the Employer under
which the minimum allocation or benefit requirements under Code
Section 416(c)(1) or (c)(2) are met for the Participant.
(e) COMPLIANCE. The Plan will satisfy the top-heavy minimum
allocation under this Section. The Committee first will allocate
the Employer Contributions (and Participant Forfeitures, if any)
for the Plan Year pursuant to the allocation formula under Section
5.2. The Employer then will contribute an additional amount for
the Individual Account of any Participant entitled under this
Section to a top-heavy minimum allocation and whose contribution
rate for the Plan Year, under this Plan and any other plan
aggregated under this Section, is less than the top-heavy minimum
allocation. The additional amount is the amount necessary to
increase the Participant's
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<PAGE>
contribution rate to the top-heavy minimum allocation. The
Committee will allocate the additional contribution to the Account
of the Participant on whose behalf the Employer makes the
contribution.
5.5. POST-ALLOCATION ADJUSTMENTS TO ACCOUNTS
After the amount or amounts have been allocated and credited to each
Participant's Employer Non-Elective and Matching Contribution Accounts,
as provided in this Article, the then value of each Employer Non-Elective
and Matching Contribution Account shall remain unchanged until the next
Anniversary Date. Notwithstanding the foregoing, the Participant's
Employer Contribution Accounts may be adjusted prior to the next
Anniversary Date under:
(a) other provisions in this Agreement authorizing the Committee to
reduce the Participant's Employer Contribution Accounts by
disbursements properly chargeable to them or increased by funds
received and credited to them; or
(b) a special valuation of the Participant's Employer Contribution
Account required under Articles VII, VIII, and IX.
5.6. EMPLOYER CONTRIBUTION ACCOUNTS DEFINED
For purposes of this Article, reference to the Employer Contribution
Accounts of Participants shall include the Employer Contribution Accounts
of those Participants who die, become disabled or retire during the Plan
Year considered.
* * * * * * *
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ARTICLE VI
RETIREMENT
6.1. CREDITING, ADJUSTMENT OF ACCOUNTS UPON RETIREMENT
At Normal Retirement Age, a Participant shall be fully vested in the
Participant's Individual Accounts and the Trustee shall hold the
Individual Accounts for the Participant's benefit. A Participant shall
be entitled to benefits under Section 6.3 upon his written election at
any time after attaining Normal Retirement Age whether or not the
Participant has separated from Service.
Normal Retirement Age means, for each Participant, the later of (i) the
date the Participant attains age 591/2 years or (ii) the 5th anniversary
of the Participant's Entry Date in this Plan or any predecessor plan of
the Employer.
6.2 EARLY RETIREMENT
This Plan does not provide for retirement by a Participant prior to the
Normal Retirement Date.
6.3. PAYMENT OF RETIREMENT BENEFITS
Subject to the mandatory distribution requirements of Section 6.4, the
survivor annuity requirements of Section 6.5, if applicable, and the
immediate cashout provisions of Sections 9.3(b) and 9.3(c), payments
shall begin as soon as administratively feasible after the Participant
elects a distribution after having attained Normal Retirement Age,
whether or not the Participant actually retires. The Committee shall
charge each payment to the Participant's Individual Account and payment
shall continue until death (when Article VII shall control the
disposition of the deceased Participant's Nonforfeitable Account Balance)
or until the Nonforfeitable Account Balance is paid to the Participant in
full, whichever event shall occur first. Unless a Participant elects
otherwise, payment of benefits shall commence not later than the sixtieth
(60th) day after the end of the Plan Year in which the latest of the
following events occurs: (a) the date on which the Participant attains
the earlier of age sixty-five (65) or Normal Retirement Age under the
Plan; (b) the tenth (10th) anniversary of the year in which the
Participant commenced participation in the Plan; or (c) the date on which
the Participant terminates service with the Employer.
6.4. MANDATORY DISTRIBUTION OF RETIREMENT BENEFITS
The Committee may not direct the Trustee to distribute the Participant's
Nonforfeitable Account Balance, nor may the Participant elect to make the
Trustee distribute the Nonforfeitable Account Balance under a method of
payment which, as of the Required Beginning Date, does not satisfy the
minimum distribution requirements under Code Section 401(a)(9) and the
applicable Treasury regulations.
(a) LIMITS ON DISTRIBUTION PERIODS. As of the first Distribution
Calendar Year, distributions, if not made in a lump sum, may only
be made over one of the following periods or a combination of such
periods:
(i) the life of the Participant;
(ii) the life of the Participant and a Designated Beneficiary,
subject to the requirements of Code Section 401(a)(9) and
the applicable Treasury regulations;
(iii) a period certain not extending beyond the life expectancy
of the Participant; or
(iv) a period certain not extending beyond the joint and last
survivor expectancy of the Participant and a Designated
Beneficiary.
All distributions required under this Article shall be determined
and made under Code Section 401(a)(9) and applicable Treasury
regulations, including the minimum distribution incidental benefit
requirements of Treasury Regulations Section 1.401(a)(9)-2. A
mandatory distribution at the Participant's Required Beginning
Date will be in lump sum (or, if applicable, the normal annuity
form of distribution required under Section 6.5) unless the
Participant, pursuant to the provisions of this Article, makes a
valid election to receive an alternative form of payment.
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(b) MINIMUM DISTRIBUTION AMOUNTS
(i) NON-LUMP SUM DISTRIBUTION. If the Participant's entire
interest will be distributed in other than a lump sum, then
the minimum distribution for a calendar year equals the
Participant's Nonforfeitable Account Balance as of the last
Accounting Date preceding the beginning of the calendar
year divided by the Participant's life expectancy or, if
applicable, the joint and last survivor expectancy of the
Participant and his or her Designated Beneficiary, subject
to the requirements of Code Section 401(a)(9) and the
applicable Treasury regulations. The Committee will
increase the Participant's Nonforfeitable Account Balance,
as determined on the relevant Accounting Date, for
Contributions or Forfeitures allocated after the Accounting
Date and by December 31 of the Valuation Calendar Year, and
will decrease the valuation by distributions made after the
Accounting Date and by December 31 of the Valuation
Calendar Year. For purposes of this valuation, the
Committee will treat any portion of the minimum
distribution for the first Distribution Calendar Year made
after the close of that year as a distribution occurring in
the first Distribution Calendar Year. Life expectancy and
joint and last survivor expectancy must be computed by the
use of the expected return multiples contained in Section
1.72-9 of the Income Tax Regulations. Unless otherwise
elected by the Participant, or Spouse in the case of
distributions described in this Section 6.4(b), by the time
distributions are required to begin, life expectancies
shall be recalculated annually. The election shall be
irrevocable for the Participant, or spouse, and shall apply
to all subsequent years. The life expectancy of a
non-spouse Beneficiary may not be recalculated.
(ii) NON-SPOUSE BENEFICIARY. If the Participant's spouse is not
the Designated Beneficiary, a method of payment to the
Participant may not provide more than incidental benefits
to the Beneficiary. The Plan must satisfy the minimum
distribution incidental benefit ("MDIB") requirements in
the applicable Treasury regulations under Code Section
401(a)(9) for distributions made on or after the
Participant's Required Beginning Date and before the
Participant's death. To satisfy the MDIB requirement, the
Committee will compute the minimum distribution required by
this Section 6.4(b) by substituting the applicable MDIB
divisor for the applicable life expectancy factor, if the
MDIB divisor is a lesser number. Following the
Participant's death, the Committee will compute the minimum
distribution required by this Section 6.4(b) solely on the
basis of the applicable life expectancy factor and will
disregard the MDIB factor. For Plan Years beginning prior
to January 1, 1989, the Plan satisfies the incidental
benefits requirement if the distributions to the
Participant satisfied the MDIB requirement or if the
present value of the retirement benefits payable solely to
the Participant is greater than fifty percent (50%) of the
present value of the total benefits payable to the
Participant and Beneficiaries. The Committee must
determine whether benefits to the Beneficiary are
incidental on the date the Trustee is to commence payment
of the retirement benefits to the Participant, or on the
date the Trustee redetermines the payment period to the
Participant.
(c) COMMENCEMENT OF BENEFITS
(i) GENERAL RULE. The Trustee must distribute or begin to
distribute the entire interest of a Participant no later
than the Participant's Required Beginning Date. The
minimum distribution for the first Distribution Calendar
Year is due by the Participant's Required Beginning Date.
The minimum distribution for each subsequent Distribution
Calendar Year, including the calendar year of the
Participant's Required Beginning Date, is due by December
31 of that year. Except as provided in clause (ii), a
Participant's Required Beginning Date is the later of (1)
the April 1 following the close of the calendar year in
which the Participant attains age seventy and one-half
(70 1/2) years or (2) the last day of the calendar year in
which the Participant separates from service.
(ii) FIVE PERCENT OWNERS. The Required Beginning Date of a
Participant who is a Five Percent Owner is the first day of
April following the calendar year in which the Participant
attains age seventy and one-half (70 1/2) years.
(iii) FIVE PERCENT OWNER. A Participant is treated as a Five
Percent Owner for purposes of this Section if the
Participant is a Five Percent Owner as defined in Section
1.45(g)(iii) and Code Section 416(i) (determined under Code
Section 416 but without regard to whether the Plan is
Top-Heavy) at any time during the Plan Year ending with or
within the calendar year in which the owner attains age
sixty-six and one-half (66 1/2) years or any subsequent
Plan Year. Once distributions have begun to
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a Five Percent Owner under this Section, they must continue
to be distributed, even if the Participant ceases to be a
Five Percent Owner in a subsequent year.
(iv) A Participant who (i) attains age 70 1/2 prior to
January 1, 1999, and (ii) has not separated from service,
shall receive (or continue to receive) minimum required
distributions as though he were a Five Percent Owner, as
required by Treasury Regulations Section 1.411(d)-4.
Alternatively, such a Participant may elect to cease
receiving (or not to commence) minimum required
distributions (subject to the spousal consent requirements
of Code Sections 401(a)(11) and 417, if the distributions
have previously commenced in the form of a qualified joint
and survivor annuity). Upon such Participant's separation
from service, required minimum distributions shall then
commence with a new annuity starting date.
(d) DEFINITIONS
(i) APPLICABLE LIFE EXPECTANCY means the life expectancy (or
joint and last survivor expectancy) calculated using the
attained age of the Participant (or Designated Beneficiary)
as of the Participant's (or Designated Beneficiary's)
birthday in the applicable calendar year reduced by one for
each calendar year which has elapsed since the date life
expectancy was calculated first. If life expectancy is
being recalculated, the applicable life expectancy shall be
the life expectancy as so recalculated. The applicable
calendar year shall be the first Distribution Calendar Year
and, if life expectancy is being recalculated, the
succeeding calendar year.
(ii) DESIGNATED BENEFICIARY means the individual who is
designated as the Beneficiary under the Plan in accordance
with Code Section 401(a)(9) and the applicable Treasury
regulations.
(iii) DISTRIBUTION CALENDAR YEAR means a calendar year for which
a minimum distribution is required. For distributions
beginning before the Participant's death, the first
Distribution Calendar Year is the calendar year immediately
preceding the calendar year which contains the
Participant's Required Beginning Date.
(iv) PARTICIPANT'S NONFORFEITABLE ACCOUNT BALANCE means the
Account Balance as of the last Accounting Date in the
calendar year immediately preceding the Distribution
Calendar Year (Valuation Calendar Year), increased by the
amount of any Contributions or Forfeitures allocated to the
Account Balance as of the dates in the Valuation Calendar
Year after the Accounting Date and decreased by
distributions made in the Valuation Calendar Year after the
Accounting Date. If any portion of the minimum
distribution for the first Distribution Calendar Year is
made in the second Distribution Calendar Year on or before
the Required Beginning Date, the amount of the minimum
distribution made in the second Distribution Calendar Year
shall be treated as if it had been made in the immediately
preceding Distribution Calendar Year.
6.5. JOINT AND SURVIVOR ANNUITY REQUIREMENTS
Subject to Section 6.6, the provisions of this Section shall apply to any
Participant who is credited with at least one (1) Hour of Service with
the Employer on or after August 23, 1984 and whose vested benefit in the
plan is greater than $5,000. The provisions of this Section shall apply
to all vested benefits of the Participant, whether the Participant became
vested in the benefit before or after death, which are payable under the
Plan, including any proceeds from Contracts owned by the Plan.
(a) QUALIFIED JOINT AND SURVIVOR ANNUITY. Unless an optional form of
benefit is selected pursuant to a Qualified Election within the
ninety (90) day period ending on the Annuity Starting Date, a
married Participant's Nonforfeitable Account Balance will be paid
in the normal form of a Qualified Joint and Survivor Annuity,
defined in Section 6.5(c)(vi), and an unmarried Participant's
Nonforfeitable Account Balance will be paid in the normal form of
an immediate life annuity. The Participant may elect to have the
annuity distributed upon attainment of the Earliest Retirement Age
under the Plan. A Participant shall be considered vested even if
the Participant is only vested in Employee Contributions. For
purposes of satisfying the Qualified Joint and Survivor Annuity
requirements, Account Balances shall mean benefits derived from
both Employee and Employer Contributions.
(b) QUALIFIED PRERETIREMENT SURVIVOR ANNUITY. Unless an optional form
of benefit has been selected within the Election Period pursuant
to a Qualified Election, if a Participant dies before the Annuity
Starting Date, then the
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Participant's Nonforfeitable Account Balance shall be applied
toward the purchase of a Qualified Preretirement Survivor Annuity,
defined in Section 6.5(c)(vii). The Surviving Spouse may elect to
commence payment of the Qualified Preretirement Survivor Annuity
within a reasonable period after the Participant's death. For
purposes of this Section 6.5(b), the amount of the Qualified
Preretirement Survivor Annuity attributable to Employee
Contributions shall not be an amount in excess of the ratio of
Employee and Employer Contributions. In determining the value of
the Qualified Preretirement Survivor Annuity, any portion of a
Participant's Individual Account which is pledged as collateral
to secure payment of a Plan Participant loan shall be included in
the Nonforfeitable Account Balance.
(c) DEFINITIONS
(i) ANNUITY STARTING DATE means the first day of the first
period for which an amount is paid as an annuity or any
other form.
(ii) ELECTION PERIOD means the period which begins on the first
day of the Plan Year in which the Participant attains age
thirty-five (35) years and ends on the date of the
Participant's death. If a Participant separates from
Service prior to the first day of the Plan Year in which
the Participant attains age thirty-five (35) years, for the
Account Balance as of the date of separation, the Election
Period shall begin on the date of separation. A
Participant who will not yet attain age thirty-five (35)
years as of the end of any current Plan Year may make a
Special Qualified Election to waive the Qualified
Preretirement Survivor Annuity for the period beginning on
the date of the election and ending on the first day of the
Plan Year in which the Participant will attain age
thirty-five (35) years. The election shall not be valid
unless the Participant receives a written explanation of
the Qualified Preretirement Survivor Annuity in such terms
as are comparable to the explanation required under Section
6.5(d). Qualified Preretirement Survivor Annuity coverage
will be automatically reinstated as of the first day of the
Plan Year in which the Participant attains age thirty-five
(35) years. Any new waiver on or after the date shall be
subject to the full requirements of this Article.
(iii) EARLIEST RETIREMENT AGE means the earliest date on which,
under the Plan, the Participant could elect to receive
retirement benefits.
(iv) NONFORFEITABLE ACCOUNT BALANCE means the aggregate value of
the Participant's Nonforfeitable Account Balance derived
from Employer and Employee Contributions, including
rollovers, whether vested before or upon death, including
the proceeds of Contracts, if any, on the Participant's
life. The provisions of this Article shall apply to a
Participant who is vested in amounts attributable to
Employer Contributions, Employee Contributions, or both, at
the time of death or distribution.
(v) QUALIFIED ELECTION means a waiver of a Qualified Joint and
Survivor Annuity or a Qualified Preretirement Survivor
Annuity. Any waiver of a Qualified Joint and Survivor
Annuity or a Qualified Preretirement Survivor Annuity shall
not be effective unless:
(A) the Participant's Spouse to whom the Survivor
Annuity or Preretirement Survivor Annuity is payable
consents in writing to the waiver election;
(B) the election designates a specific Beneficiary,
including any class of Beneficiaries or any
contingent Beneficiaries;
(C) the Spouse is the Participant's sole primary
Beneficiary, the Spouse consents to the
Participant's Beneficiary designation or consents to
any change in the Participant's Beneficiary
designation without any further spousal consent;
(D) the Spouse's consent acknowledges the effect of the
election; and
(E) the Spouse's consent is witnessed by a Plan
representative or notary public.
(F) Additionally, a Participant's waiver of the
Qualified Joint and Survivor Annuity shall not be
effective unless the election designates a form of
benefit payment and the Spouse consents to the form
of payment designated by the Participant or consents
to any change in that designated form of payment
without any further spousal consent.
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Notwithstanding this consent requirement, if the
Participant establishes to the satisfaction of a Plan
representative that written consent may not be obtained
because there is no Spouse, or the Spouse cannot be
located, a waiver will be deemed a Qualified Election. If
the Spouse is legally incompetent to give consent, the
Spouse's legal guardian, even if the guardian is the
Participant, may give consent. Also, if the Participant is
legally separated or the Participant has been abandoned
(within the meaning of local law) and the Participant has a
court order to such effect, spousal consent is not required
unless a Qualified Domestic Relations Order described in
Code Section 414(p) provides otherwise. Any consent
obtained under this provision, or establishment that the
consent of a Spouse may not be obtained, shall be effective
only with respect to the Spouse who signs the consent, or
in the event of a deemed Qualified Election, the designated
spouse. A consent that permits designations by the
Participant without any requirement of further consent by
the Spouse must acknowledge that the Spouse has the right
to limit consent to a specific Beneficiary, and a specific
form of benefit where applicable, and that the Spouse
voluntarily elects to relinquish either or both of the
rights. A revocation of a prior waiver may be made by a
Participant without the consent of the Spouse at any time
before the commencement of benefits. The number of
revocations shall not be limited. No consent obtained
under this provision shall be valid unless the Participant
has received notice as provided in Section 6.5(d). After
the Participant's death, a Beneficiary may change the
optional form of survivor benefit as permitted by the Plan.
(vi) QUALIFIED JOINT AND SURVIVOR ANNUITY means, in the case of
a married Participant who does not die before the Annuity
Starting Date, an immediate annuity for the life of the
Participant with a Survivor Annuity for the life of the
Spouse which is equal to fifty percent (50%) of the amount
of the annuity which is payable during the joint lives of
the Participant and the Spouse and which is the amount of
benefit which can be purchased with the Participant's
Nonforfeitable Account Balance. In the case of an
unmarried Participant who does not die before the Annuity
Starting Date, the Qualified Joint and Survivor Annuity
requirement means an annuity for the life of the
Participant which is the amount of benefit which can be
purchased with the Participant's Nonforfeitable Account
Balance.
(vii) QUALIFIED PRERETIREMENT SURVIVOR ANNUITY means an annuity
for the life of the Participant's Spouse, the payments
under which shall be equal to the amount of benefit which
can be purchased with the Nonforfeitable Account Balance of
the Participant. The Participant's Surviving Spouse will
receive the same benefit that would be payable if the
Participant had retired with an immediate Qualified Joint
and Survivor Annuity on the day before the Participant's
date of death.
(vii) QUALIFIED PRERETIREMENT SURVIVOR ANNUITY means an annuity
for the life of the Participant's Spouse, the payments
under which shall be equal to the amount of benefit which
can be purchased with the Nonforfeitable Account Balance of
the Participant. The Participant's Surviving Spouse will
receive the same benefit that would be payable if the
Participant had retired with an immediate Qualified Joint
and Survivor Annuity on the day before the Participant's
date of death. Unless an optional form of benefit is
selected within the Election Period pursuant to a Qualified
Election, if a Participant dies on or before the Earliest
Retirement Age, the Participant's Surviving Spouse, if any,
will receive the same benefit that would be payable if the
Participant had:
(A) separated from service on the date of death, or date
of separation from service, if earlier;
(B) survived to the Earliest Retirement Age;
(C) retired with an immediate Qualified Joint and
Survivor Annuity at the Earliest Retirement Age; and
(D) died on the day after the Earliest Retirement Age.
(viii) SPOUSE, SURVIVING SPOUSE means the Spouse or Surviving
Spouse of the Participant, provided that a former spouse
will be treated as the Spouse or Surviving Spouse and a
current spouse will not be treated as the Spouse or
Surviving Spouse to the extent provided under a Qualified
Domestic Relations Order described in Code Section 414(p).
(d) NOTICE REQUIREMENTS
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(i) For a Qualified Joint and Survivor Annuity described in
Section 6.5(c)(vi), a written explanation, described below,
may be provided after the Annuity Staring Date. The ninety
(90) day applicable election period to waive the Qualified
Joint and Survivor Annuity described in Code Section
417(a)(7)(A), shall not end before thirty (30) days after
the date on which such explanation is provided. Each
Participant shall be provided a written explanation of:
(A) the terms and conditions of a Qualified Joint and
Survivor Annuity;
(B) the Participant's right to make and the effect of an
election to waive the Qualified Joint and Survivor
Annuity form of benefit;
(C) the rights of a Participant's Spouse; and
(D) the right to make, and the effect of, a revocation
of a previous election to waive the Qualified Joint
and Survivor Annuity.
The Secretary may by regulations limit the period of time
by which the Annuity Starting Date precedes the provision
of the written explanation other than by providing that the
Annuity Staring Date may not be earlier than separation
from Service.
A Participant may elect, (with the applicable spousal
consent), to waive any requirement that the written
explanation be provided at least thirty (30) days before
the Annuity Starting Date, or to waive the thirty (30) day
requirement under the above paragraph, if the distribution
commences more than seven (7) days after such explanation
is provided.
(ii) For a Qualified Preretirement Survivor Annuity described in
Section 6.5(c)(vii), the Administrator shall provide,
within the applicable notice period for the Participant, to
each Participant a written explanation of the Qualified
Preretirement Survivor Annuity in such terms and in such
manner comparable to the explanation provided for meeting
the requirements of Section 6.5(d)(i) applicable to a
Qualified Joint and Survivor Annuity.
The applicable notice period for the waiver of the
Qualified Preretirement Survivor Annuity is whichever of
the following periods ends last:
(A) the period beginning with the first day of the Plan
Year in which the Participant attains age thirty-two
(32) years and ending with the close of the Plan
Year preceding the Plan Year in which the
Participant attains age thirty-five (35) years;
(B) a reasonable period ending after the individual
becomes a Participant;
(C) a reasonable period ending after Section 6.5(d)(iii)
ceases to apply to the Participant; or
(D) a reasonable period ending after this Article first
applies to the Participant.
Notwithstanding the foregoing, notice must be provided
within a reasonable period ending after separation from
Service in the case of a Participant who separates from
Service before attaining age thirty-five (35) years.
For purposes of applying the preceding paragraph, a
reasonable period ending after the events described in (B),
(C) and (D) is the end of the two (2) year period beginning
one (1) year prior to the date the applicable event occurs
and ending one (1) year after that date. In the case of a
Participant who separates from Service before the Plan Year
in which the Participant attains age thirty-five (35)
years, notice shall be provided within the two (2) year
period beginning one (1) year prior to separation and
ending one (1) year after separation. If the Participant
thereafter returns to employment with the Employer, the
applicable period for the Participant shall be
redetermined.
If a Participant enters the Plan after the first day of the
Plan Year in which the Participant attained age thirty-two
(32) years, the Administrator shall provide notice no later
than the close of the second Plan Year succeeding the entry
of the Participant in the Plan.
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(iii) In the case of a Qualified Preretirement Survivor Annuity
described in Section 6.5(c)(vii), the Administrator shall
provide, within the applicable notice period for such
Participant, to each Participant a written explanation of
the Qualified Preretirement Survivor Annuity in such terms
and in such manner comparable to the explanation provided
for meeting the requirements of Section 6.5(d)(i)
applicable to a Qualified Joint and Survivor Annuity. The
applicable notice period for the waiver of the Qualified
Preretirement Survivor Annuity is whichever of the
following periods ends last:
(A) the period beginning with the first day of the Plan
Year in which the Participant attains age thirty-two
(32) years and ending with the close of the Plan
Year preceding the Plan Year in which the
Participant attains age thirty-five (35) years;
(B) the period ending ninety (90) days after the
individual becomes a Participant;
(C) the period ending ninety (90) days after the
Qualified Preretirement Survivor Annuity ceases to
be a fully subsidized benefit;
(D) the period ending ninety (90) days after this
Article first applies to the Participant; or
(E) the period ending ninety (90) days after the
Participant separates from Service before attaining
age thirty-five (35) years.
If a Participant enters the Plan after the first day of the
Plan Year in which the Participant attained age thirty-two
(32) years, the Administrator shall provide notice no later
than the close of the second Plan Year succeeding the entry
of the Participant in the Plan.
(iv) Notwithstanding the other requirements of this Section
6.5(d), the respective notices prescribed by this Section
shall be given to a Participant even if the Plan fully
subsidizes the costs of a Qualified Joint and Survivor
Annuity or Qualified Preretirement Survivor Annuity. For
purposes of this Section 6.5(d), a plan fully subsidizes
the costs of a benefit if under the plan the failure to
waive the benefit by a Participant would not result in a
decrease in any plan benefit with respect to the
Participant and would not result in increased contributions
from the Participant.
* * * * * * *
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ARTICLE VII
DEATH
7.1. BENEFICIARY DESIGNATION
(a) Each Participant and Former Participant may from time to time
select one or more Beneficiaries to receive benefits under this
Article upon the death of the Participant or Former Participant.
The selection shall be made in writing on a form provided by the
Committee and shall be filed with the Committee. Subject to
Section 7.1(b), the last selection filed with the Committee shall
control. If a married Participant or a married Former Participant
selects a Beneficiary other than the spouse, Section 7.1(b) shall
control.
(i) COORDINATION WITH SURVIVOR REQUIREMENTS. If the joint and
survivor requirements of Article VI apply to the
Participant, this Section does not impose any special
spousal consent requirements on the Participant's
Beneficiary designation. However, without spousal consent
(as required by Article VI) to the Participant's
Beneficiary designation:
(A) any waiver of the joint and survivor annuity or of
the pre-retirement survivor annuity is not valid;
and
(B) if the Participant dies prior to the annuity
starting date, the Participant's Beneficiary
designation will apply only to the portion of the
death benefit which is not payable as a
pre-retirement survivor annuity. If the
Participant's surviving spouse is a primary
beneficiary under the Participant's Beneficiary
designation, the Trustee will satisfy the
spouse's interest in the Participant's death
benefit first from the portion which is payable
as a pre-retirement survivor annuity.
(ii) RULE FOR EXEMPT PARTICIPANTS. The Beneficiary designation
of a married Exempt Participant is not valid unless the
Participant's spouse consents, in the manner described in
Section 6.5, to the Beneficiary designation. An Exempt
Participant is a Participant who is not subject to the
joint and survivor consent requirements of Article VI. The
spousal consent requirement in this paragraph does not
apply if the Participant and his or her spouse are not
married throughout the one (1) year period ending on the
date of the Participant's death, or if the Participant's
spouse is the Participant's sole primary Beneficiary.
If a Participant fails to name a Beneficiary under this Section,
Section 7.1(b) shall control.
(b) Unless elected in accordance with Section 7.1(c), the Beneficiary
of the death benefit shall be the Participant's spouse, who shall
receive the benefit in the manner prescribed in this Article.
Notwithstanding the foregoing sentence, the Participant may
designate a Beneficiary other than the spouse if:
(i) the Participant has no spouse;
(ii) the spouse cannot be located; or
(iii) the Participant and the Participant's spouse have validly
waived the preretirement survivor annuity in the manner
prescribed in Section 7.1(c) and the spouse has waived the
right to be the Participant's Beneficiary.
(c) In the case of a married Participant or Former Participant, the
designation of a non-spouse as Beneficiary shall be valid only if:
(i) the spouse consents in writing to the designation;
(ii) the designation specifies the beneficiary and the method of
payment of benefits and may not be changed without spousal
consent (or the spouse's consent expressly permits
designations by the Participant without any requirement of
further spousal consent); and
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(iii) the spouse's consent acknowledges the effect of the
election and the written consent is witnessed by a Plan
representative or by a Notary Public.
(d) If a Participant dies without a spouse or alternative Beneficiary
surviving; if the alternative Beneficiary (other than the spouse)
does not survive until final distribution of the Participant's
balance; if a Participant who is not married dies without having
designated a Beneficiary and/or alternative Beneficiary; or if a
Participant who is not married dies after having made and revoked
a designation but prior to having made a subsequent designation,
then the amount remaining in the deceased Participant's Individual
Account shall be payable in the following descending order to:
(i) the Participant's surviving descendants, including adopted
persons;
(ii) the Participant's other living heirs-at-law determined
under the Texas laws concerning intestate succession;
(iii) the Participant's estate, personal representatives, heirs
or devisees; and
(iv) the estate, personal representatives, heirs or devisees of
the deceased Participant's prior Beneficiary.
The Committee shall determine the applicable person, class of
persons, or legal entity to whom the benefit shall be paid
beginning with (i), in the descending order of (i) to (iv). Each
class shall be determined to be not in existence and, therefore,
inapplicable by the Committee before proceeding to the next class.
In determining if a classification is inapplicable, the Committee
shall be required only to make reasonable inquiry into the
existence of the person or persons.
Remaining death benefits shall be payable under Section 7.4
regarding mandatory distributions. Payment made pursuant to the
power conferred on the Committee in this Section shall operate as
a complete discharge of all obligations under the Plan concerning
the share of a deceased Participant and shall not be subject to
review by anyone but shall be final, binding and conclusive on all
persons for all purposes.
7.2. CREDITING, ADJUSTING OF ACCOUNTS UPON DEATH
Upon death, a Participant or Former Participant shall be fully vested in
his or her Individual Accounts and the Trustee shall hold the Individual
Accounts for the benefit of the Designated Beneficiary or Beneficiaries.
The Committee shall credit and adjust the Individual Accounts of a
deceased Participant or Former Participant, as provided in Articles IV
and V. The Designated Beneficiary or Beneficiaries shall be entitled to
benefits under Section 7.3 after the death of the Participant or Former
Participant.
7.3 PAYMENT OF DEATH BENEFITS
As soon as administratively feasible after the Committee has credited and
adjusted the Individual Accounts of the deceased Participant or Former
Participant as provided in Section 7.2, the Trustee shall make payments
to the Designated Beneficiary or Beneficiaries pursuant to Article X.
Subject to the survivor annuity requirements of Section 6.5, if
applicable, the mandatory distribution requirements of Section 7.4, and
the immediate cashout provisions of Sections 9.3(b) and 9.3(c), the
payments shall begin as soon as administratively feasible after the death
of the Participant. The Committee shall charge each payment to the
Participant's or Former Participant's Individual Account. Payments shall
continue until the death of the last survivor of the Beneficiaries or
until the Individual Account is paid in full, whichever event shall occur
first.
7.4 MANDATORY DISTRIBUTION OF DEATH BENEFITS
The Committee may not direct the Trustee to distribute the Participant's
Nonforfeitable Account Balance, to the Beneficiary or Designated
Beneficiary, under a method of payment which, as of the Required
Beginning Date, does not satisfy the minimum distribution requirements
under Code Section 401(a)(9) and the applicable Treasury regulations.
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<PAGE>
(a) LIMITS ON DISTRIBUTION PERIODS
(i) If the Participant or Former Participant dies after
distribution has commenced, the Trustee shall continue to
distribute the remaining portion of the Participant's or
Former Participant's Nonforfeitable Account Balance at
least as rapidly as under the method of distribution used
prior to the Participant's death.
(ii) If the Participant or Former Participant dies before
distribution commences, the Trustee shall complete
distribution of the Participant's or Former Participant's
Nonforfeitable Account Balance by December 31 of the
calendar year containing the fifth (5th) anniversary of the
Participant's or Former Participant's death, except to the
extent that the Designated Beneficiary elects to receive
distributions under paragraphs (A) or (B) below:
(A) If any portion of the Participant's or Former
Participant's Nonforfeitable Account Balance is
payable to a Designated Beneficiary, the Designated
Beneficiary may elect distributions over the life or
over a period certain not greater than the life
expectancy of the Designated Beneficiary commencing
on or before December 31 of the calendar year
immediately following the calendar year in which the
Participant or Former Participant died;
(B) If the Designated Beneficiary is the Participant's
Surviving Spouse, the date distributions must begin
under paragraph (A) above shall not be earlier than
the later of: (1) December 31 of the calendar year
immediately following the calendar year in which the
Participant or Former Participant died; and (2)
December 31 of the calendar year in which the
Participant or Former Participant would have
attained age seventy and one-half (70 1/2) years. If
the Participant has not made an election pursuant to
this Section by the time of death, the Designated
Beneficiary must elect the method of distribution no
later than the earlier of: (1) December 31 of the
calendar year in which distributions must begin
under this Section; or (2) December 31 of the
calendar year which contains the fifth (5th)
anniversary of the date of death of the Participant
or Former Participant. If the Participant has no
Designated Beneficiary, or if the Designated
Beneficiary does not elect a method of distribution,
distribution of the Nonforfeitable Account Balance
of the Participant or Former Participant must be
completed by December 31 of the calendar year
containing the fifth (5th) anniversary of death.
(C) If the Surviving Spouse is the Beneficiary of any
portion of a deceased Participant's or Former
Participant's benefits under the Plan, the Surviving
Spouse shall be permitted to direct that this
distribution of benefits commence at a reasonable
time following the death of the Participant or
Former Participant under applicable Treasury
regulations.
(D) If the Surviving Spouse dies after the Participant
or Former Participant, but before payments to the
Spouse begin, the preceding provisions of this
Section, with the exception of paragraph (B), shall
be applied as if the Surviving Spouse had been the
Participant.
(b) MINIMUM DISTRIBUTION AMOUNTS. If the Trustee will distribute a
Participant's or Former Participant's Nonforfeitable Account
Balance in accordance with the Designated Beneficiary's life
expectancy, the minimum distribution for a calendar year equals
the Participant's Nonforfeitable Account Balance as of the latest
Accounting Date preceding the beginning of the calendar year
divided by the Designated Beneficiary's life expectancy.
For purposes of this Section, payments will be calculated by using
the expected return multiples specified in Tables V and VI of
Treasury Regulations Section 1.72-9. Life expectancy of a
Surviving Spouse shall be recalculated annually; however, in the
case of any other Designated Beneficiary, life expectancy will be
calculated when the first payment commences without further
recalculation. For purposes of this Section, any amount paid to a
child of the Participant or Former Participant will be treated as
if it had been paid to the Surviving Spouse, if the amount becomes
payable to the Surviving Spouse when the child reaches the age of
majority.
(c) COMMENCEMENT OF BENEFITS. For the purposes of this Section,
distribution of a Participant's or Former Participant's
Nonforfeitable Account Balance is considered to begin on the
Participant's or Former Participant's Required Beginning Date or,
if Section 7.4(a)(ii)(D) applies, the date distribution is
required to begin to the
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<PAGE>
Surviving Spouse pursuant to Section 7.4(a)(ii)(A). If
distribution in the form of an annuity irrevocably commences
before the Required Beginning Date, the date distribution is
considered to begin is the date distribution actually
commences. Except as otherwise provided, the Required
Beginning Date of a Participant or Former Participant is the
first day of April of the calendar year following the calendar
year in which the Participant attains age seventy and one-half
(70 1/2) years.
(d) DEFINITIONS
(i) APPLICABLE LIFE EXPECTANCY means the life expectancy
calculated using the attained age of the Designated
Beneficiary as of the Designated Beneficiary's birthday in
the applicable calendar year reduced by one for each
calendar year which has elapsed since the date life
expectancy was calculated first. If life expectancy is
being recalculated, the Applicable Life Expectancy shall be
the life expectancy as recalculated. The applicable
calendar year shall be the first Distribution Calendar Year
and, if life expectancy is being recalculated, the
succeeding calendar year.
(ii) DESIGNATED BENEFICIARY means the individual who is
designated as the Beneficiary under the Plan under Code
Section 401(a)(9) and the applicable Treasury regulations.
(iii) DISTRIBUTION CALENDAR YEAR means a calendar year for which
a minimum distribution is required. For distributions
beginning after the Participant's death, the first
Distribution Calendar Year is the calendar year in which
distributions are required to begin pursuant to this
Section.
(iv) PARTICIPANT'S NONFORFEITABLE ACCOUNT BALANCE means the
Account Balance as of the last Accounting Date in the
calendar year immediately preceding the Distribution
Calendar Year (Valuation Calendar Year), increased by the
amount of any Contributions or Forfeitures allocated to the
Account Balance as of the dates in the Valuation Calendar
Year after the Accounting Date and decreased by
distributions made in the Valuation Calendar Year after the
Accounting Date. If any portion of the minimum
distribution for the first Distribution Calendar Year is
made in the second Distribution Calendar Year on or before
the Required Beginning Date, the amount of the minimum
distribution made in the second Distribution Calendar Year
shall be treated as if it had been made in the immediately
preceding Distribution Calendar Year.
(e) TRANSITIONAL RULE
Notwithstanding the other requirements of this Article, and
subject to the joint and survivor annuity requirements of Section
6.5, if applicable, distribution on behalf of any Participant,
including a Five Percent Owner defined in Section 1.45(g)(iii),
may be made pursuant to the requirements of the transitional rule
set forth in Section 6.4(e), regardless of when the distribution
commences.
* * * * * * *
50
<PAGE>
ARTICLE VIII
DISABILITY
8.1. CREDITING, ADJUSTING OF ACCOUNTS UPON DISABILITY
Upon termination of employment due to disability, a Participant shall be
fully vested in his or her Individual Accounts and the Trustee shall hold
the Individual Accounts for the Participant's benefit. The Committee
shall credit and adjust the Individual Accounts of a disabled
Participant, as provided in Articles IV and V. The disabled Participant
shall be entitled to benefits under Section 8.2 after the date of
disability.
If the Plan provides for the continuation of Contributions for a fixed or
determinable period on behalf of all Participants who are permanently and
totally disabled (as defined in Code Section 22(a)(3)), the Employer may
make Contributions on behalf of such Employees including Highly
Compensated Employees (as defined in Code Section 414(q)), without first
making the election required by Code Section 415(c)(3)(C)(iii).
8.2 PAYMENT OF DISABILITY BENEFITS
As soon as administratively feasible after the Committee has credited and
adjusted the Individual Accounts of the disabled Participant as provided
in Section 8.1, the Trustee shall make payments to the disabled
Participant pursuant to Article X. Subject to the mandatory distribution
requirements of Section 6.4, the survivor annuity requirements of Section
6.5, if applicable, and the immediate cashout provisions of Sections
9.3(b) and 9.3(c), payments shall begin as soon as administratively
feasible after the Participant terminates Service with the Employer. The
Committee shall charge each payment to the disabled Participant's
Individual Account, and payments shall continue until death (when Article
VII shall control the disposition of the deceased Participant's
Nonforfeitable Account Balance) or until the Participant's Nonforfeitable
Account Balance is paid to the disabled Participant in full, whichever
event shall occur first.
* * * * * * *
51
<PAGE>
ARTICLE IX
TERMINATION OF EMPLOYMENT AND FORFEITURE
9.1. CREDITING AND ADJUSTING OF ACCOUNTS UPON TERMINATION
If a Participant's employment by the Employer shall terminate for any
reason other than retirement, death or disability, the Participant shall
become vested in his or her Individual Accounts as provided in Section
9.2 and the Trustee shall hold the Participant's Nonforfeitable Account
Balance in the Individual Accounts for the Participant's benefit. The
Committee shall credit and adjust the Individual Accounts of the
terminated Participant, as provided in Articles IV and V. The terminated
Participant shall be entitled to benefits under Sections 9.2 and 9.3
after the date of termination.
9.2. VESTING
(a) A Participant to whom Section 9.1 applies shall be fully vested at
all times in amounts credited to the Elective Deferral Account,
Qualified Non-Elective Contribution Account, Qualified Matching
Contribution Account, Participant After Tax Contribution Account
and Rollover Account. In addition, the Participant also shall be
entitled to receive a Nonforfeitable percentage of the balance
credited to the Employer Non-Elective and Matching Contribution
Accounts, determined under the following vesting schedule:
<TABLE>
<CAPTION>
NONFORFEITABLE
YEARS OF SERVICE PERCENTAGE
---------------- --------------
<S> <C>
Less than 2 years 0%
At least 2 but less than 3 years 20%
At least 3 but less than 4 years 50%
At least 4 but less than 5 years 75%
At least 5 years 100%
</TABLE>
(b) Pursuant to the merger of the CMSI, Inc. 401(k) Plan ("CMSI Plan")
into the Plan effective September 30, 1994, certain rights and
features of the CMSI Plan shall remain in effect and shall be
incorporated into the Plan as protected benefits for each CMSI
Plan Participant with respect to their Account Balance determined
as of September 30, 1994. Those rights and features are as
follows:
(i) A Participant shall have the right to elect to receive a
distribution of his vested Account Balances determined as
of September 30, 1994, upon the occurrence of a sale by
CMSI, Inc. to an entity that is not an affiliated employer
of (i) substantially all of its assets used in a trade or
business in which the Participant is employed or (ii)
CMSI's interest in a subsidiary which employs the
Participant.
(ii) A Participant shall have the right to elect to receive his
vested Account Balances determined as of September 30,
1994, in a lump sum, whether due to the occurrence of the
events in (b) (i) above, or due to any other event
described in the Plan requiring distribution of his
account, e.g. termination of employment.
(iii) A Participant shall be vested in his Account Balance
determined as of September 30, 1994 resulting from Employer
Matching or Discretionary Contributions in accordance with
the following vesting schedule:
<TABLE>
<CAPTION>
NONFORFEITABLE
YEARS OF SERVICE PERCENTAGE
---------------- --------------
<S> <C>
Less than 3 years 0%
At least 3 but less than 4 years 50%
At least 4 but less than 5 years 75%
At least 5 years 100%
</TABLE>
A Participant with at least three (3) years of service on
September 30, 1994 may elect to continue to have his vested
percentage in the accounts referenced above computed under
the vesting schedule set forth above.
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<PAGE>
(iv) A Participant shall be eligible to retire upon attaining
his early retirement date of age fifty five (55) prior to
or after September 30, 1994 and to receive a distribution
of his vested Account Balances determined as of September
30, 1994.
(c) Pursuant to the merger of the Clinical Resource Systems, Inc.
401(k) Plan (the"CRS Plan") into the Plan effective December 31,
1996 (the "date of merger"), certain rights and features of the
CRS Plan shall continue in effect and shall be incorporated into
the Plan as protected benefits for each CRS Plan Participant with
respect to their Account Balances determined as of the date of
merger. The protected benefits, rights and features are as
follows:
(i) A Participant shall have the right to elect to receive his
vested Account Balances determined as of December 31, 1996,
in a lump sum, installments, or in any form other than one
based upon life contingencies, as a result of any event
described in the Plan permitting distribution of his
Account.
(ii) A Participant shall be vested in his Account Balance
determined as of December 31, 1996 resulting from Employer
Matching Non-Elective Contributions or Employer
Discretionary Non-Elective Contributions in accordance with
the following vesting schedule (as previously set forth in
Section 7.04(a) of the Adoption Agreement for the CRS
Plan).
<TABLE>
<CAPTION>
YEARS OF SERVICE PERCENTAGE OF VESTING
---------------- ---------------------
<S> <C>
1 20%
2 40%
3 60%
4 80%
5 100%
</TABLE>
A Participant with at least three (3) years of service on December
31, 1996 may elect to continue to have his vested percentage in
the accounts referenced above computed under the vesting schedule
set forth above.
(iii) A Participant shall be eligible to retire upon attaining
his Early Retirement Date of the later of age 59 or his
10th Anniversary of commencement of service with Clinical
Resource Systems, Inc. prior to or after December 31, 1996
and to receive a distribution of his vested Account
Balances determined as of December 31, 1996.
(d) Effective November 20, 1997, any Participant who terminates
employment as a result of the sale of the election systems and
services division to American Information Solutions, Inc. ("AIS")
shall become 100% vested in his Employer Non-Elective and Matching
Contribution Accounts.
9.3. PAYMENT OF TERMINATION BENEFITS
(a) The Committee shall combine the Nonforfeitable percentage of the
Individual Accounts of a Participant determined under Section 9.2
with the Participant Contribution Account into one Individual
Account, and the Trustee shall make payments to the Participant
pursuant to Article X. Subject to the third and fourth sentences
of Section 6.3, the mandatory distribution requirements of Section
6.4 and the survivor annuity requirements of Section 6.5, if
applicable, payments shall begin as soon as administratively
feasible after the Participant terminates. The Committee shall
charge each payment to the Participant's Individual Account and
payment shall continue until death (when Article VII shall control
the disposition of the deceased Participant's Nonforfeitable
Account Balance) or until the Participant's Nonforfeitable Account
Balance is paid to the Participant in full, whichever event shall
occur first.
(b) Notwithstanding the foregoing paragraph, if a Participant
separates from Service with the Employer and the Participant's
Nonforfeitable Account Balance determined under Section 9.2 is
$5,000 or less, the Committee may direct the Trustee to make
immediate distribution to the Participant in the form of a lump
sum distribution; provided, however, the Trustee shall not make a
lump sum distribution after benefit distributions have commenced,
without the written consent of the Participant and spouse. For
purposes of this paragraph, if the value of an Employee's vested
Account Balance is zero (0), the Employee shall be deemed to have
received a distribution of his or her vested Account Balance.
Notwithstanding any contrary provision, if the Nonforfeitable
Account Balance of a Participant exceeds $5,000, then the Trustee
shall make no distribution without the Participant's and the
spouse's consent pursuant to Article X until the later of
attainment of age sixty-
53
<PAGE>
two (62) years or attainment of Normal Retirement Age. The
foregoing sentence shall not apply after the death of the
Participant.
(c) If requested by a Participant and approved by the spouse in
writing after the Participant has separated from Service with the
Employer, the Committee shall direct the Trustee to distribute the
Participant's Nonforfeitable Account Balance determined under
Section 9.2 in the form of a lump sum distribution.
9.4. FORFEITURES
A Participant to whom this Article applies shall forfeit that portion of
the amount of the Individual Account to which the Participant is not
entitled under Section 9.2 on the earlier of the date on which the
Participant incurs five (5) consecutive One Year Breaks in Service or the
date on which the Participant receives a Cashout Distribution (the
Forfeiture Event). A Cashout Distribution means a lump sum distribution
pursuant to Sections 9.3(b) and 9.3(c). For purposes of this Section, a
Participant who separates from Service without a Nonforfeitable
percentage in the Participant's Employer Contribution Account shall be
deemed to have received a distribution of the Nonforfeitable Account
Balance on the date of separation from Service. The amount forfeited
under this Section shall remain in the Trust Fund and shall be applied to
reduce the Employer Non-Elective Contribution for the Plan Year during
which the Forfeiture Event occurred.
9.5. DETERMINATION OF AMOUNT OF VESTED UNDISTRIBUTED ACCOUNT, FORFEITURE
If the Trustee pays any amount outstanding to the credit of a Participant
in the Participant's Individual Account while the Participant is not
fully vested in the Individual Account, other than a Cashout Distribution
defined in Section 9.4, and prior to the Anniversary Date on which the
Participant shall incur five (5) consecutive One Year Breaks in Service,
the value of his or her vested and undistributed Account shall be held in
a separate account and shall be determined at any time prior to and
including the Anniversary Date on which the Participant shall incur five
(5) consecutive One Year Breaks in Service under the following formula:
X = P(AB + (RxD)) - (RxD).
For this formula, the variables represent the following factors:
X is the value of the vested portion of the Participant's Account;
P is the Participant's Nonforfeitable percentage at the relevant
time;
AB is the Account Balance at the relevant time;
D is the amount of the distribution; and
R is the ratio of the Account Balance at the relevant time to the
Account Balance after the distribution.
The nonvested portion of the Participant's Individual Account shall be
forfeited on the Anniversary Date on which the Participant incurs five
(5) consecutive One Year Breaks in Service.
9.6. AGGREGATION OF YEARS OF VESTING SERVICE
(a) VESTED PARTICIPANTS
If a Participant who has a nonforfeitable right to all or a
portion of his Employer Contribution Account terminates employment
and again becomes an Employee, the Participant's Years of Service
prior to his termination shall be included in determining his
vested interest in his Employer Contribution Account after he
again becomes an Employee.
(b) NONVESTED EMPLOYEES AND PARTICIPANTS
(1) If a Participant who does not have any nonforfeitable right
to his Employer Contribution Account balance terminates
employment and again becomes an Employee before incurring
the number of consecutive One Year Breaks in Service
specified in paragraph (2), his Years of Service prior to
his
54
<PAGE>
termination shall be included in determining his vested
interest after he again becomes an Employee.
(2) If a Participant who does not have any nonforfeitable right
to his Employer Contribution Account balance terminates
employment and again becomes an Employee after incurring a
number of consecutive One Year Breaks in Service equal to
the greater of five or the number of his Years of Service
at his termination, his Years of Service completed prior to
his One Year Breaks in Service shall be disregarded for
purposes of determining his vested interest in his Employer
Contribution Account. The aggregate number of Years of
Service before such One Year Breaks in Service shall not
include any Years of Service disregarded under this Section
by reason of a prior period of One Year Breaks in Service.
(c) SPECIAL RULE
If a Participant who does not have any vested and nonforfeitable
interest in his Employer Contribution Account upon his termination
of employment incurs a number of consecutive One Year Breaks in
Service prior to the Plan Year beginning in 1985 equal to the
aggregate number of his Years of Service before such One Year
Breaks in Service, his Years of Service completed prior to such
One Year Breaks in Service shall be disregarded for purposes of
determining his vested interest in amounts allocated to his
Employer Contribution Account if he should again become an
Employee. The aggregate number of Years of Service before such
One Year Breaks in Service shall not include any Years of Service
disregarded under this Section by reason of a prior period of One
Year Breaks in Service.
9.7. BUY-BACK OPTION
The following rules apply with respect to a Participant who receives a
distribution on account of termination of employment:
(a) If the Participant receives or is deemed to receive a distribution
and resumes participation under Section 2.3, his Employer
Contribution Account will be restored to the balance on the date
of the distribution if he repays to the Plan the full amount of
the distribution from such Account within five years of his
reemployment and before he incurs after such distribution five (5)
consecutive One Year Breaks in Service.
(b) Restoration of the Employer Contribution Account balance under
paragraph (a) shall be made first out of forfeitures otherwise
available for allocation and then Employer contributions. Assets
representing the restoration must be provided to the Plan by the
end of the Plan Year following the Plan Year in which repayment
occurs.
(c) The repayment by the Participant and restoration of his Employer
Contribution Account balance shall not be treated as part of the
Annual Addition under Section 5.3.
(d) If a Participant is deemed to receive a distribution pursuant to
Section 9.4, and the Participant resumes employment covered under
this Plan before the date the Participant incurs five (5)
consecutive One Year Breaks in Service, upon the reemployment of
such Participant, the employer-derived Account balance of the
Participant will be restored to the amount on the date of such
deemed distribution.
* * * * * * *
55
<PAGE>
ARTICLE X
OPTIONAL FORMS OF BENEFIT
10.1. OPTIONAL FORMS OF PAYMENT OF BENEFITS
(a) Subject to the survivor annuity requirements of Section 6.5,
whenever a Participant, Former Participant or Beneficiary is
entitled to receive a distribution of benefits, he or she may
elect that benefits be paid in any one (1) or more of the
following forms:
(i) A lump sum, payable in cash, in kind or partly in cash and
partly in kind, at the fair market value when distributed:
(ii) A transfer or rollover to:
(A) another plan qualified under Code Section 401(a);
(B) an individual retirement account defined in Code
Section 408(a); or
(C) an individual retirement annuity defined in Code
Section 408(b).
(iii) If the Participant's vested benefit exceeds $5,000,
periodic installments over the periods of time and in the
amounts the Committee shall determine, provided the initial
Account Balance exceeds $5,000. The total payments for
each year shall not be less than an amount sufficient to
cause the Participant's Employer Contribution Account to be
paid in full not later than the earlier of: (A) the end of
a period measured by the joint life expectancy of the
Participant and Spouse; or (B) the expiration of twenty
(20) years after the Participant, Former Participant or
Beneficiary shall have become entitled to receive the
benefits. Notwithstanding the foregoing, the annual amount
payable under this paragraph shall be at least as large as
would be provided under a life annuity with a period
certain extending to age eighty-five (85) years. If the
Trustee pays the Individual Account of a Participant,
Former Participant or Beneficiary under an installment
method prescribed in this paragraph, the Trustee shall
invest and reinvest the entire unpaid balance remaining in
the Individual Account from time to time and shall credit
and charge the Individual Account its proportionate share
of gains and losses of the Trust Fund pursuant to Article V
until the entire Individual Account is paid under this
Article.
(iv) If the Participant's benefit exceeds $5,000, restricted
Annuities;
(v) If the Participant's benefit exceeds $5,000, combination of
lump sum and installment payments;
(vi) Qualifying Employer Securities as defined in the Trust, or
cash, or a combination of two (2).
(b) The Participant shall be limited in the optional forms of payment
of benefits to those which will result in the payment of greater
than fifty percent (50%) of the anticipated benefits over the
Participant's life expectancy. The purpose of this limitation is
to ensure that death benefits will be incidental to retirement
benefits under Revenue Ruling 72-241.
(c) If the Participant so requests, the Committee may direct the
Trustee to distribute any Contract, other than an annuity contract
held for the Participant, to that Participant, provided that under
no circumstances may the Trustee continue to pay premiums on the
Contracts after the actual separation from Service of a
Participant.
(d) Notwithstanding the foregoing, a distribution made pursuant to
this Section shall be subject to the immediate cashout provisions
of Sections 9.3(b) and 9.3(c).
(d) Notwithstanding the foregoing, a distribution made pursuant to
this Section shall be subject to the survivor annuity requirements
of Section 6.5 and the immediate cashout provisions of Sections
9.3(b) and 9.3(c).
10.2. DIRECT ROLLOVER OPTIONAL FORM OF BENEFIT
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<PAGE>
(a) DIRECT ROLLOVER. 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 Plan Administrator, to have
any portion of an eligible rollover distribution paid directly to
an eligible retirement plan specified by the distributee in a
direct rollover.
(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 includable 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, 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) DIRECT ROLLOVER. A direct rollover is a payment by the
plan to the eligible retirement plan specified by the
distributee.
10.3. ELECTION TO DEFER RECEIPT OF BENEFITS
Notwithstanding the foregoing, a Participant who leaves the employment of
the Employer before his or her Normal Retirement Date or Early Retirement
Date may elect to leave his or her Nonforfeitable Account Balance under
the management of the Trustee until Normal Retirement Date or Early
Retirement Date. The Trustee shall invest and reinvest and shall credit
and charge the Individual Account with its proportionate share of gains
and losses of the Trust Fund pursuant to Article V until the
Nonforfeitable Account Balance is paid out to the Former Participant
under this Article. Any election made under this Section shall be
irrevocable and shall be made no later than fourteen (14) days before the
electing Participant becomes entitled to receive his or her
Nonforfeitable Account Balance in the Plan. Notwithstanding the
foregoing, a Participant who has elected to leave his or her
Nonforfeitable Account Balance under the management of the Trustee may
later elect to have the Account Balance transferred to any pension or
profit sharing plan maintained by another Employer in which the
Participant has, at the time of the later election, become a Participant
under the transferee plan.
10.4. ELECTION OF FORM OF PAYMENT OF BENEFITS
(a) The Participant, Former Participant, or Beneficiary shall elect
the form or forms of payment of benefits permitted in Section 10.1
which the Committee and Trustee shall implement. Not earlier than
ninety (90) days, but not later than thirty (30) days, before the
Participant's Annuity Starting Date, the Committee must provide a
benefit notice to a Participant who is eligible to make an
election under this Section. The Participant's Annuity Starting
Date means the first day of the first period for which an amount
is paid as an annuity or any other form. The benefit notice must
explain the optional forms of benefit in the Plan, including the
material features and relative values of those options, and the
Participant's right to defer distribution until he or she attains
the later of Normal Retirement Age or age 62.
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(b) If a distribution is one to which Code Sections 401(a)(11) and 417
do not apply, such distribution may commence less than thirty (30)
days after the notice required under Section 1.411(a)-11(c) of the
Income Tax Regulations is given, provided that:
(i) the Plan Administrator clearly informs the Participant that
he or she has a right to a period of at least thirty (30)
days after receiving the notice to consider the decision of
whether or not to elect a distribution (and, if applicable,
a particular distribution option), and
(ii) the Participant, after receiving the notice, affirmatively
elects a distribution.
(c) If a Participant, Former Participant, or Beneficiary makes an
election prescribed by this Section, the Committee will direct the
Trustee to distribute the Participant's Nonforfeitable Account
Balance pursuant to that election. Any election under this
Section is subject to the mandatory distribution requirements of
Sections 6.4 and 7.4 and the survivor annuity requirements of
Section 6.5, if applicable. The Participant, Former Participant
or Beneficiary must make an election under this Section by filing
an election form with the Committee at any time before the Trustee
otherwise would commence to pay a Participant's Account Balance
under the applicable requirements of Articles VI, VII, VIII, IX,
and X.
10.5. MINORITY OR DISABILITY
During the minority or disability of an individual entitled to receive
benefits under this Plan, the Participant may elect to have the Committee
instruct the Trustee to make payments due the individual directly to the
individual or to the spouse or a relative or to any individual or
institution having custody of the individual. Neither the Committee nor
the Trustee shall be required to cause or to verify the application of
any payments so made, and the receipt of the payee, including the
endorsement of a check or checks, shall be conclusive to all interested
parties.
10.6. COMMENCEMENT OF PAYMENT OF BENEFITS
Unless a Participant elects otherwise, payment of benefits shall commence
not later than sixty (60) days after the end of the Plan Year in which
the latest of the following events occur:
(a) the day the Participant attains the earlier of age sixty-five (65)
years or Normal Retirement Age;
(b) the tenth (10th) anniversary of the year in which the Participant
commenced participation in the Plan; or
(c) the day the Participant terminates employment with the Employer.
10.7. UNCLAIMED ACCOUNT PROCEDURE
The Plan does not require either the Trustee or the Committee to search
for, or to ascertain the whereabouts of, any Participant or Beneficiary.
At the time the Participant's or Beneficiary's benefit becomes
distributable under Articles VI, VII, VIII or IX, the Committee, by
certified or registered mail addressed to his or her last known address
of record with the Committee or the Employer, must notify any
Participant, or Beneficiary, that he or she is entitled to a distribution
under this Plan. The notice must quote the provisions of this Section
and otherwise must comply with the applicable notice requirements of
Article VI. If the Participant, or Beneficiary, fails to claim his or
her distributive share or make his or her whereabouts known in writing to
the Committee within (6) months from the date of mailing of the notice,
the Committee will treat the Participant's or Beneficiary's unclaimed
payable Accrued Benefit as forfeited and will reallocate the unclaimed
payable Accrued Benefit to reduce the Employer's contribution for the
Plan Year in which the forfeiture occurs. A forfeiture under this
paragraph will occur at the end of the notice period or, if later, the
earliest date applicable Treasury Regulations would permit the
forfeiture. Pending forfeiture, the Committee, following the expiration
of the notice period, may direct the Trustee to segregate the
Nonforfeitable Accrued Benefit in a segregated Account and to invest that
segregated Account in Federally insured interest bearing savings accounts
or time deposits (or in combination or both), or in other fixed income
investments.
If a Participant or Beneficiary who has incurred a forfeiture of his or
her Accrued Benefit under the provisions of the first paragraph of this
Section makes a claim, at any time, for the forfeited Accrued Benefit,
the Committee must restore the Participant's or Beneficiary's forfeited
Accrued Benefit to the same dollar amount as the dollar amount of the
Accrued Benefit forfeited, unadjusted for any gains or losses occurring
subsequent to the date of the forfeiture. The Committee will make the
restoration during the Plan Year in which the Participant or Beneficiary
makes the claim, first from the amount, if any, of Participant
forfeitures the Committee otherwise would allocate for the Plan Year,
then
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from the amount, if any, of the Trust Fund net income or gain for the
Plan Year, then from the amount, or additional amount, the Employer
contributes to enable the Committee to make the required restoration.
The Committee must direct the Trustee to distribute the Participant's or
Beneficiary's restored Accrued Benefit not later than 60 days after the
close of the Plan Year in which the Committee restores the forfeited
Accrued Benefit. The forfeiture provisions of this Section apply solely
to the Participant's or the Beneficiary's Accrued Benefit derived from
Employer Contributions.
Upon termination of the Plan, in lieu of the unclaimed account procedure
set forth in this Section, Section 18.6 shall apply.
* * * * * * *
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ARTICLE XI
THE EMPLOYER
11.1. EMPLOYER ACTION
Whenever the Employer is permitted or required to do or perform any act
under this Agreement, it shall be done and performed by the Plan
Committee or by a person duly authorized to do or perform the act by the
Plan Committee.
11.2. PLAN AMENDMENT
(a) At any time the Employer, by formal written action, may amend or
modify this Agreement in any manner it deems necessary or
desirable, retroactively or prospectively, subject to the
following provisions of this Article. For purposes of Employer
amendments, the volume submitter shall be recognized as the agent
of the Employer. If the Employer does not adopt the amendments
made by the volume submitter, the Plan will no longer be identical
to or a minor modifier of the volume submitter plan.
(b) The Employer must make all amendments in writing, signed by duly
authorized persons with the legally constituted authority of the
Employer and with the consent or approval, if any, as provided in
this Section. An amendment shall become effective upon its
delivery to the Trustee. Each amendment must state the date on
which it is either retroactively or prospectively effective.
(c) Unless it is made to secure the approval of the Commissioner of
the Internal Revenue Service or other governmental bureau or
agency, no amendment or modification of this Agreement by the
Employer shall:
(i) operate retroactively to reduce or divest the then vested
interest in any Individual Account or to reduce or divest
any benefit then payable hereunder unless all Participants,
Former Participants and Beneficiaries then having
Individual Accounts or benefit payments affected thereby
shall consent to the amendments or modifications;
(ii) directly or indirectly affect any Participant's
Nonforfeitable percentage outside the protection of
Treasury Regulations Section 1.411(a)(8);
(iii) decrease a Participant's accrued benefit, except to the
extent permitted under Code Section 412(c)(8), and reduce
or eliminate Code Section 411(d)(6) protected benefits
determined immediately prior to the adoption date (or, if
later, the effective date) of the amendment, except as
permitted by applicable Treasury regulations (An amendment
reduces or eliminates Code Section 411(d)(6) protected
benefits if the amendment has the effect of either: (A)
eliminating or reducing an early retirement benefit or a
retirement-type subsidy (as defined in applicable Treasury
regulations); or (B) except as provided by applicable
Treasury regulations, eliminating an optional form of
benefit. The Committee must disregard an amendment to the
extent application of the amendment would fail to satisfy
this paragraph. If the Committee must disregard an
amendment because the amendment would violate clause (A) or
clause (B), the Committee must maintain a schedule of the
early retirement option or other optional forms of benefit
the Plan must continue for the affected Participant.); or
(iv) affect the rights, duties or responsibilities of the
Trustees, the Plan Administrator or the Committee without
the written consent or approval of the Trustee,
Administrator, or affected Committee member.
(d) If the vesting schedule described in Section 9.2 is amended, a
Participant's vested interest in any contribution to which the
vesting schedule in Section 9.2 applied, shall not be less than
the Nonforfeitable percentage determined as of the later of the
effective date of the amendment or the date of its adoption. A
Participant with at least three (3) Years of Service on the last
day of the election period described in this paragraph, may elect
to have the Nonforfeitable percentage of the Employer Contribution
Accounts determined without regard to the amendment. For
Participants who do not have at least one (1) Hour of Service in
any Plan Year beginning after December 31, 1988, the preceding
sentence shall be applied by substituting "five (5) Years of
Service" for "three (3) Years of Service" where the language
appears. If a Participant fails to make an election, then the
Participant shall be subject to the new vesting schedule. The
election period shall commence on the date the amendment is
adopted or deemed to be made and shall end sixty (60) days after
the latest of:
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(i) the date of the adoption of the amendment;
(ii) the effective date of the amendment; or
(iii) the date the Participant receives written notice of the
amendment from the Employer or Administrator.
11.3. DISCONTINUANCE, TERMINATION OF PLAN
(a) The Employer has the right, at any time, to suspend or discontinue
its contributions under the Plan to the Trust Fund, and to
terminate, at any time, the Plan and the Trust created under this
Agreement. The Plan will terminate on the first to occur of the
following events:
(i) the date the Plan is terminated by action of the Employer;
(ii) the date the Employer is judicially declared bankrupt or
insolvent, unless the proceeding authorized continued
maintenance of the Plan; or
(iii) the dissolution, merger, consolidation or reorganization of
the Employer or the sale by the Employer of all or
substantially all of its assets, unless the successor or
purchaser elects and makes provision to continue the Plan,
in which event the successor or purchaser will substitute
itself as the Employer under this Plan.
(b) Upon either full or partial termination of the Plan, or, if
applicable, upon complete discontinuance of contributions to the
Plan, the Individual Accounts of all Participants, Former
Participants and Beneficiaries shall be and become fully vested
and Nonforfeitable, notwithstanding the Nonforfeitable percentage
which otherwise would apply under Article IX. The Trustee, in its
discretion, may convert some or all of the Trust Fund to cash and
shall deduct therefrom all unpaid charges and expenses, except as
the same may be paid by the Employer. The Committee then shall
adjust the balance of all Individual Accounts on the basis of the
net cash balance and fair market value of all property in the
Trust Fund. Thereafter, the Trustee shall distribute the amount
to the credit of each Participant, Former Participant and
Beneficiary in cash, in kind, or partly in cash and partly in
kind, as the Committee shall direct. Notwithstanding the
foregoing, a distribution made because of a termination of the
Plan shall be subject to the mandatory distribution requirements
of Sections 6.4 and 7.4, the survivor annuity requirements of
Section 6.5, if applicable, and the immediate cashout distribution
provisions of Sections 9.3(b) and 9.3(c).
11.4. PROHIBITION AGAINST REVERSION TO EMPLOYER
Under no circumstances or conditions, other than those specifically
provided herein, shall the Trust Fund or any portion thereof revert to
the Employer or be used for or diverted to purposes other than the
exclusive benefit of the Participants, Former Participants and
Beneficiaries. No amendment or revocation by the Employer of this
Section may cause or permit any portion of the Trust Fund to revert to or
become a property of the Employer.
11.5. ADOPTION BY RELATED EMPLOYER
With the written consent of the Plan Sponsor, any other association,
corporation, or other business organization, which is a Related Employer
may adopt this Plan and Trust in its entirety, participate herein and be
known as a Participating Employer, by executing a properly authorized
document evidencing the intent and will of the Participating Employer.
Unless the context of this Agreement clearly indicates the contrary, the
term "Employer" shall be deemed to include each Participating Employer
relating to its adoption of the Plan.
11.6. REQUIREMENTS FOR ADOPTION BY RELATED EMPLOYER
The following requirements shall apply to any Participating Employer who
elects to adopt this Plan pursuant to this Article:
(a) Each Participating Employer shall be required to use the same
Trustee as provided in this Agreement.
(b) The Trustee may, but shall not be required to, commingle, hold and
invest as one (1) Trust Fund all contributions made by
Participating Employers and all increments thereof.
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(c) The transfer of any Participant from or to any corporation
participating in this Plan, whether the Participant is an Employee
of the Plan Sponsor or a Participating Employer, shall not affect
the Participant's rights under the Plan; all amounts credited to
the Participant's Individual Account, all accumulated service with
the transferor or Predecessor Employer, and the length of
participation in the Plan shall continue to the Participant's
credit.
(d) All rights and values forfeited by termination of employment shall
inure only to the benefit of the Employees and Participants of the
Participating Employer which employed the forfeiting Participant,
except, if the Forfeiture is for an Employee whose Employer is a
Related Employer, then the Forfeiture shall be allocated based on
Annual Compensation to all Individual Accounts of Participating
Employers who are Related Employers. Should an Employee of one
("First") Employer be transferred to a Related ("Second") Employer
the transfer shall not cause the Employee's Account Balance,
generated while an Employee of the First Employer, in any manner
or by any amount, to be forfeited. The Employee's Account Balance
for all purposes of the Plan, including length of service, shall
be considered as though the Employee had always been employed by
the Second Employer and as such had received contributions,
forfeitures, earnings or losses, and appreciation or depreciation
in value of assets totaling the amount so transferred.
(e) Upon an Employee's transfer between Participating Employers, the
Employee involved shall carry accumulated Years of Service for
eligibility and vesting. No transfer shall effect a termination
of employment under this Agreement and the Participating Employer
to which the Employee transfers shall thereupon become obligated
under this Agreement to the Employee in the same manner as the
Participating Employer from whom the Employee transfers.
(f) Any expenses of the Plan and Trust which are to be paid by the
Employer or borne by the Trust Fund shall be paid by each
Participating Employer in the same proportion that the total
amount standing to the credit of all Participants employed by the
Participating Employer bears to the total amount standing to the
credit of all Participants.
(g) Any contributions made by a Participating Employer under this
Plan, shall be paid to and held by the Trustee for the exclusive
benefit of the Employees of the Participating Employer and the
Beneficiaries of the Employees, subject to all the terms and
conditions of this Agreement.
(h) Based on information furnished by the Administrator, the Committee
and the Trustee shall keep separate books and records concerning
the affairs of each Participating Employer and of the Account
Balances of the Participants of each Participating Employer. The
Trustee may, but need not, register Contracts to evidence that a
particular Participating Employer is the interested Employer under
this Agreement, but upon an Employee's transfer from one
Participating Employer to another, the employing Employer shall
immediately notify the Trustee of the transfer.
11.7. PLAN SPONSOR AS AGENT OF PARTICIPATING EMPLOYER
Each Participating Employer shall be deemed to be a part of this Plan;
however, each Participating Employer shall be deemed to have designated
irrevocably the Plan Sponsor as its agent in all of its relations with
the Trustee, the Committee and the Administrator under this Agreement.
11.8. PARTICIPATING EMPLOYER CONTRIBUTIONS
(a) All contributions provided for in this Plan made by each
Participating Employer who is a member of the same controlled
group and/or affiliated service group shall be combined and
allocated among the eligible Participants as if made by a single
employer. The Participating Employers shall pay the contributions
to the Trustee who shall hold the contribution for the exclusive
benefit of the Employees (and their Beneficiaries) of the
Participating Employers who are members of the same controlled
group and/or affiliated service group, subject to all of the terms
and conditions of this Plan.
(b) All contributions made by a Participating Employer who is not a
member of a controlled group and/or affiliated service group
provided for in this Plan shall be determined separately on the
basis of its net profit and total Annual Compensation paid. The
Participating Employer shall pay the contributions to the Trustee
who shall hold the contribution for the exclusive benefit of the
Employees of the Participating Employer and the Beneficiaries of
the Employees, subject to all of the terms and conditions of this
Plan.
11.9. AMENDMENT BY PLAN SPONSOR, PARTICIPATING EMPLOYERS
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Amendment of this Plan by the Plan Sponsor at any time when there shall
be a Participating Employer under this Agreement shall be effective
without the written action of each and every Participating Employer.
Each Participating Employer by adopting this Plan appoints the Plan
Sponsor as its agent for the amendment of the Plan.
11.10. REVOCATION OF PARTICIPATION BY PARTICIPATING EMPLOYER
Any Participating Employer shall be permitted to discontinue or revoke
its participation in this Plan. Upon any discontinuance or revocation,
satisfactory evidence thereof and of any applicable conditions imposed
shall be delivered to the Trustee. The Trustee shall thereafter
transfer, deliver and assign Contracts and other Trust Fund assets
allocable to the Participants of the Participating Employer to the new
plan as shall have been designated by the Participating Employer, if it
has established a separate employee benefit pension plan for its
employees. If no successor plan is designated, the Trustee shall retain
the assets for the Employees of the Participating Employer under Article
X. No part of the corpus or income of the Trust Fund relating to the
Participating Employer shall be used for or diverted to purposes other
than the exclusive benefit of the Employees of the Participating Employer
and the Beneficiaries of the Employees.
11.11. AUTHORITY OF ADMINISTRATOR OVER PARTICIPATING EMPLOYERS
The Administrator shall have the authority to make any and all necessary
rules or regulations binding on all Participating Employers and all
Participants and Beneficiaries to effectuate the purposes of this
Article.
11.12. DEFICIENCY OF EARNINGS OR PROFITS
If any Participating Employer is prevented in whole or in part from
making a contribution to the Trust Fund which it otherwise would have
made under the Plan because of having no current or accumulated earnings
or profits, or because the earnings or profits are less than the
contribution which it otherwise would have made, then so much of the
contribution which the Participating Employer was prevented from making
may be made for the benefit of the participating Employees of the
Participating Employer by the other Participating Employers who are
Related Employers. The contribution by each other Participating Employer
shall be limited to the proportion of its total current and accumulated
earnings or profits remaining after adjustment for its contribution to
the Plan made without regard to this Section, which the total prevented
contribution bears to the total current and accumulated earnings or
profits of all the Participating Employers remaining after adjustment for
all contributions made to the Plan without regard to this Section. A
Participating Employer on behalf of whose Employees a contribution is
made under this Section shall not reimburse the contributing
Participating Employer unless it has otherwise agreed to do so in
writing.
* * * * * * *
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ARTICLE XII
THE COMMITTEE
12.1. COMMITTEE APPOINTMENT
The Employer shall appoint the 401(k) Administrative Committee consisting
of one (1) or more members. The Employer may remove any member of the
Committee at any time and a member may resign by written notice to the
Employer. Any vacancy in the membership of the Committee shall be filled
by appointment made by the Employer, but pending the filling of any
vacancy, the then members of the Committee may act under this Agreement
as though they alone constitute the full Committee. The Employer shall
notify the Trustee promptly of the appointment of the original Committee
and of any change in the membership of the Committee.
12.2. COMMITTEE ACTION AND PROCEDURE
(a) Any and all acts and decisions of the Committee shall be by at
least a majority of the then members. The Committee may delegate
to any one or more of its members the authority to sign notices or
other documents on its behalf or to perform ministerial acts for
it, in which event the Trustee and any other person may accept the
notice, document or act without question as having been authorized
by the Committee.
(b) The Committee may, but need not, call or hold formal meetings, and
any decisions made or actions taken pursuant to written approval
of a majority of the then members shall be sufficient.
(c) The Committee shall maintain adequate records of its decisions,
which records shall be subject to inspection by the Employer and
by any Participant, Former Participant, or Beneficiary, but only
to the extent that they apply to the individuals.
(d) The Committee may designate one (1) of its members as Chairman and
one (1) of its members as Secretary and may establish policies and
procedures governing it if they are consistent with this
Agreement.
12.3. COMMITTEE POWERS AND DUTIES
The Committee shall perform the duties and may exercise the powers and
discretion given to it in this Agreement, and its decisions and actions
shall be final and conclusive regarding all persons affected thereby.
The Committee shall exercise its discretion at all times in a
nondiscriminatory manner. Subject to any limitations stated in this
Agreement, the Committee is authorized and empowered with the following
powers, rights, and duties:
(a) To select a Secretary, who need not be a member of the Committee;
(b) To determine the rights of eligibility of an Employee to
participate in the Plan, the value of a Participant's Account
Balance and the Nonforfeitable percentage of each Participant's
Accrued Benefit;
(c) To adopt rules of procedure and regulations necessary for the
proper and efficient administration of the Plan provided the rules
are consistent with the terms of this Agreement;
(d) To construe and enforce the terms of the Plan and the rules and
regulations it adopts, including interpretation of the Plan
documents and documents related to the Plan's operation;
(e) To direct the Trustee concerning the crediting and distribution of
the Trust;
(f) To review and render decisions respecting a claim for, or denial
of a claim for, a benefit under the Plan;
(g) To furnish the Employer with information which the Employer may
require for tax or other purposes;
(h) To engage the service of agents whom it may deem advisable to
assist it with the performance of its duties;
(i) To engage the services of an Investment Manager or Managers (as
defined in ERISA Section 3(38)), each of whom will have full power
and authority to manage, acquire or dispose, or direct the Trustee
with respect to acquisition or disposition, of any Plan asset
under its control;
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(j) To establish, in its sole discretion, a nondiscriminatory policy,
pursuant to this Section, which the Trustee must observe in making
loans, if any, to Participants and Beneficiaries; and
(k) To establish and maintain a funding standard account and to make
credits and charges to the account to the extent required by and
in accordance with applicable Code provisions.
The Committee must exercise all of its powers, duties, and discretion
under the Plan in a uniform and nondiscriminatory manner.
LOAN POLICY. If the Committee adopts a loan policy, pursuant to
paragraph (j), the loan policy must be a written document and must
include (A) the identity of the person or positions authorized to
administer the Participant loan program; (B) a procedure for applying for
the loan; (C) the criteria for approving or denying a loan; (D) the
limitations, if any, on the types and amounts of loans available; (E) the
procedure for determining a reasonable rate of interest; (F) the types of
collateral which may secure the loan; and (G) the events constituting
default and the steps the Plan will take to preserve plan assets in the
event of default. This Section specifically incorporates any written
loan policy adopted by the Committee as part of the Employer's Plan.
12.4. COMMITTEE RELIANCE
The Trustee may rely without question on any notices or other documents
received from the Committee. The Employer shall furnish the Committee
with all data and information available to the Employer, which the
Committee may reasonably require to perform its functions under this
Agreement. The Committee may rely without question on any data or
information furnished by the Employer.
12.5. COMMITTEE AUTHORITY
Any and all disputes which may arise involving Participants, Former
Participants, Beneficiaries and/or the Trustee shall be referred to the
Committee, and its decisions shall be final and conclusive regarding all
affected persons. Furthermore, if any issue arises concerning the
meaning, interpretation or application of any provisions of this
Agreement, the decision of the Committee on any issue shall be final.
12.6. CONFLICTS IN INTEREST
Notwithstanding any other provisions of this Agreement, no member of the
Committee shall vote or act on any matter involving the Committee
member's rights, benefits or other participation under this Agreement.
12.7. APPOINTMENT OF AGENT AND LEGAL COUNSEL
The Committee may engage agents to assist it and may engage legal counsel
who may be counsel for the Employer. The Committee shall not be
responsible for any action taken or omitted to be taken on the advice of
counsel. All reasonable expenses incurred by the Committee shall be paid
by the Employer.
12.8. APPOINTMENT OF INVESTMENT MANAGER
The Committee may delegate investment management authority pertaining to
all or a portion of the Plan assets by appointing an Investment
Manager(s) and may authorize payment of the fees and expenses of the
Investment Manager(s) from the Plan assets. For purposes of this
Agreement, any Investment Manager so appointed shall, during the period
of appointment, possess fully and absolutely those powers, rights and
duties of the Trustee (to the extent delegated by the Committee)
regarding the investment or reinvestment of that portion of the Plan
assets over which the Investment Manager has investment management
authority. An Investment Manager must be one (1) of the following:
(a) an Investment Advisor registered under the Investment Advisors Act
of 1949;
(b) a bank, as defined in the Investment Advisors Act of 1940; or
(c) an insurance company qualified to manage, acquire, or dispose of
Plan assets under the laws of more than one (1) state.
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Any Investment Manager shall acknowledge in writing to the party making
the appointment and to the Trustee that it is a fiduciary respecting the
Plan. During any period when the Investment Manager is appointed and
serving, and regarding those assets in the Plan over which the Investment
Manager exercises investment management authority, the Trustee's
responsibility shall be limited to holding assets as a custodian,
providing accounting services, disbursing benefits as authorized, and
executing investment instructions only as directed by the Investment
Manager. Any certificates or other instrument duly signed by the
Investment Manager (or the authorized representative of the Investment
Manager), purporting to evidence any instruction, direction or order of
the Investment Manager regarding the investment of those assets of the
Plan over which the Investment Manager has investment management
authority, shall be accepted by the Trustee as conclusive proof thereof.
The Trustee also shall be fully protected in acting in good faith on any
notice, instruction, direction, order, certificate, opinion, letter,
telegram or other document believed by the Trustee to be genuine and to
be from the Investment Manager (or the authorized representative of the
Investment Manager). The Trustee shall not be liable for any action
taken or omitted by the Investment Manager or for any mistakes of
judgment or other action made, taken or omitted by the Trustee in good
faith on direction of the Investment Manager.
12.9. ANNUAL ACCOUNTING
As soon as administratively feasible after the Accounting Date of each
Plan Year, but within the time prescribed by ERISA and the applicable
Labor regulations and at least annually, the Committee shall advise each
Participant, Former Participant and Beneficiary for whom Individual
Accounts are held under this Plan of the then balance in the
Participant's Individual Accounts and the other information ERISA
requires to be furnished. No Participant except a member of the
Committee shall have the right to inspect the records reflecting the
Individual Accounts of any other Participant.
12.10. FUNDING POLICY
The Committee will review, not less often than annually, all pertinent
Employee information and Plan data to establish the funding policy of the
Plan and to determine the appropriate methods of carrying out the Plan's
objectives. The Committee must communicate periodically, as it deems
appropriate, to the Trustee and to any Plan Investment Manager the Plan's
short-term and long-term financial needs so investment policy can be
coordinated with Plan financial requirements.
* * * * * *
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ARTICLE XIII
ADMINISTRATION
13.1. ADMINISTRATOR APPOINTMENT
The 401(k) Administrative Committee shall be the Administrator of this
Plan and shall be responsible for filing all reporting and disclosure
documents required by the Department of Labor and the Internal Revenue
Service in accordance with ERISA, the Code and the respective
regulations. The Employer may delegate any of its duties and
responsibilities as Administrator to the Committee. Service of process
on the Plan or Trust may be obtained by personal service on the Employer
or any Committee member.
13.2. SUMMARY PLAN DESCRIPTION
The Administrator shall furnish a summary plan description to each
Participant within ninety (90) days after becoming a Participant and to
each Beneficiary receiving benefits under the Plan within ninety (90)
days after beginning to receive benefits. Every fifth (5th) year after
the Effective Date of the Plan, the Administrator shall furnish an
updated summary plan description, which integrates all amendments made
within the five (5) year period, to each Participant and Beneficiary
receiving benefits. If no amendments have been made within the five (5)
year period, the Administrator shall furnish the updated summary plan
description only every tenth (10th) year. If there is a modification or
change in the Plan, the Administrator shall furnish to each Participant
and each Beneficiary who is receiving benefits, a summary description of
the change or modification not later than two hundred ten (210) days
after the end of the Plan Year in which the change is adopted.
13.3. SUMMARY ANNUAL REPORT
The Administrator shall furnish to each Participant and each Beneficiary
receiving benefits a summary of the Annual Return/Report of the Plan
containing a statement of the Plan assets and liabilities, receipts and
disbursements and other information fairly summarizing the Plan's
financial statement within two hundred ten (210) days after the close of
each Plan Year, or an extended period as may be permitted by the
Secretary of Labor.
13.4. INDIVIDUAL BENEFIT STATEMENTS
The Administrator shall furnish to any Participant or Beneficiary
receiving benefits, who requests in writing, a statement reporting the
total benefits accrued and the Nonforfeitable benefits, if any, which
have accrued or the earliest date on which benefits will become
Nonforfeitable. In no event shall a Participant or Beneficiary be
entitled to receive the report described in this Section more than once
in every twelve (12) month period.
13.5. PAYMENT OF EXPENSES
(a) All Plan expenses, including without limitation, expenses and fees
(including fees to the Trustee) of the Administrator, Sponsor,
Investment Manager, Trustee and any Insurance Company, shall be
charged against and withdrawn from the Trust Fund; provided,
however, the Employer may pay any of such expenses or reimburse
the Trust Fund for any payment.
(b) All transactional costs or charges imposed or incurred (if any)
for Participant-directed assets shall be charged to the account of
the directing Participant or Beneficiary. Transactional costs and
charges shall include, but shall not be limited to, charges for
the acquisition or sale or exchange of Participant-directed
assets, brokerage commissions and service charges.
(c) Any taxes which may be imposed upon the Trust Fund or the income
therefrom shall be deducted from and charged against the Trust
Fund.
13.6. COPIES OF ADDITIONAL DOCUMENTS
Upon written request from a Participant or Beneficiary receiving
benefits, the Administrator shall furnish a copy of any one (1) or all of
the following documents: the latest updated summary plan description,
the latest annual report, any terminal report, Trust agreement, contract
or other instruments under which the Plan was established or is operated.
The Administrator may make a reasonable charge to cover the cost of
furnishing complete copies.
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13.7. DOCUMENTS AVAILABLE FOR EXAMINATION
Copies of the Plan description and the latest annual report, Trust
agreement, contract or other instruments under which the Plan was
established or is operated shall be available for examination at the
principal office of the Employer by any Participant or Beneficiary
receiving benefits. Examination may be made during reasonable hours in
person or by agent, accountant or attorney.
13.8. NOTICE OF PARTICIPANT RIGHTS UNDER ERISA
The Committee shall furnish to each Participant and to each Beneficiary
receiving benefits information on their rights under the Plan and how the
rights may be protected by law.
13.9. NOTICE TO PARTICIPANT ON PARTICIPANT TERMINATION
The Administrator shall furnish a statement to a Participant who
terminated Service with the Employer for any of the reasons set forth in
Articles VI through IX, describing the nature, amount and form of the
Nonforfeitable Account Balance, if any, to which the Participant is
entitled as soon as administratively feasible after the close of the Plan
Year in which the Participant terminated Service.
13.10. NOTICE TO TRUSTEE ON PARTICIPANT TERMINATION
(a) As soon as practicable after a Participant terminates Service with
the Employer for any of the reasons set forth in Articles VI
through IX, the Committee shall give written notice to the
Trustee, including the following information and directions which
may be necessary or advisable under the circumstances:
(i) name and address of the Participant;
(ii) reason the Participant terminated Service with the
Employer;
(iii) name and address of the Beneficiary or Beneficiaries of a
deceased Participant;
(iv) Nonforfeitable percentage or amount to which the
Participant is entitled on termination of employment
pursuant to Article IX; and
(v) time, manner and amount of payment to be made pursuant to
the Participant's election under Article X.
If a Former Participant or Beneficiary dies, the Committee shall
give like notice to the Trustee, but only if the Committee learns
of the death.
(b) At any time and from time to time after giving the notice provided
under this Section, the Committee may modify the original notice
or any subsequent notice by a further written notice or notices to
the Trustee, but any action taken or payments made by the Trustee
pursuant to a prior notice shall not be affected by a subsequent
notice.
(c) A copy of each notice provided under this Section shall be mailed
by the Committee to the Participant, Former Participant or
Beneficiary involved, but the failure to send or receive the copy
shall not affect the validity of any action taken or payment made
pursuant thereto.
(d) Upon receipt of any notice provided under this Section, the
Trustee shall promptly take any action and make any payments
directed in the notice. The Trustee may rely on the information
and directions in the notice absolutely and without question.
However, the Trustee may inform the Committee of any error or
oversight which the Trustee believes to exist in any notice.
13.11. CLAIM FOR BENEFITS
Normally, whenever a Participant or Beneficiary becomes entitled to
benefits under this Agreement, the Committee and the Trustee will
automatically initiate procedures to provide for the payment of the
benefits. If a Participant or Beneficiary believes that he or she is
entitled to the payment of benefits under this Agreement and no action is
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forthcoming from the Committee or the Trustee, then the Participant or
Beneficiary may file a written claim for benefits with the Committee or
the Trustee.
13.12. APPEAL FOR DECISION OF COMMITTEE
(a) If any Participant or Beneficiary files a claim for benefits under
this Plan ("Claimant") and the claim is denied in whole or in
part, the Administrator shall give notice of the decision to the
Claimant in writing setting forth:
(i) the specific reasons for the denial;
(ii) a specific reference to pertinent provisions of the Plan,
if any, upon which the denial is based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect the claim with an
explanation of the necessity therefor; and
(iv) that any appeal the Claimant wishes to make of the adverse
determination must be in writing to the Committee within
seventy-five (75) days after receipt of the Administrator's
notice of denial of benefits. The Administrator's notice
must further advise the Claimant that failure to appeal the
action to the Committee in writing within the seventy-five
(75) day period will render the Committee's determination
final, binding and conclusive.
(b) The written notice shall be given to the Claimant as soon as
administratively feasible after the decision is made, but not
later than sixty (60) days after the claim is filed. The Claimant
shall have the right to be represented, to review pertinent
documents and to present written and oral evidence.
(c) If the Claimant should appeal to the Committee, the Claimant or
the duly authorized representative, may submit, in writing, issues
and comments the Claimant or the duly authorized representative
considers pertinent. The Committee shall render the decision on
the review and shall set forth the specific reasons for the
decision with specific references to pertinent provisions. The
Committee shall render the decision in writing within sixty (60)
days after receipt of the request for review unless special
circumstances, such as the need for a hearing, require an
extension which shall not exceed an additional sixty (60) days.
* * * * * * *
ARTICLE XIV
THE TRUSTEE
The powers and duties of the Trustee shall be determined under the terms of the
BRC Holdings, Inc. 401(k) Retirement Savings Plan Trust Agreement executed by
the Employer and the Trustee.
* * * * * * *
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ARTICLE XV
INSURANCE CONTRACTS
Deleted
* * * * * * *
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ARTICLE XVI
PARTICIPANT LOANS
16.1. PARTICIPANT LOAN PROGRAM
This Plan authorizes the Trustee to make loans on a nondiscriminatory
basis to a Participant or Beneficiary in accordance with the loan policy
established by the Committee, provided (a) the loan policy satisfies the
requirements of Section 12.3; (b) loans are available to all Participants
and Beneficiaries on a reasonably equivalent basis and are not available
in a greater amount for Highly Compensated Employees than for other
Employees; (c) any loan is adequately secured and bears a reasonable
rate of interest; (d) the loan provides for repayment within a specified
time; (e) the default provisions of the note prohibit offset of the
Participant's Nonforfeitable Accrued Benefit prior to the time the
Trustee otherwise would distribute the Participant's Nonforfeitable
Accrued Benefit; (f) the amount of the loan does not exceed (at the time
the Plan extends the loan) the present value of the Participant's
Nonforfeitable Accrued Benefit; and (g) the loan otherwise conforms to
the exemption provided by Code Section 4975(d)(1). If the joint and
survivor requirements of Article VI apply to the Participant, the
Participant may not pledge any portion of his or her Accrued Benefit as
security for a loan made after August 18, 1985, unless, within the 90-day
period ending on the date the pledge becomes effective, the Participant's
spouse, if any, consents (in a manner described in Section 6.5 other than
the requirement relating to the consent of a subsequent spouse) to the
security or, by separate consent, to an increase in the amount of
security. If the Employer is an unincorporated trade or business, a
Participant who is an Owner-Employee may not receive a loan from the
Plan, unless he or she has obtained a prohibited transaction exemption
from the Department of Labor. If the Employer is an "S Corporation," a
Participant who is a shareholder-employee (an employee or an officer)
who, at any time during the Employer's taxable year, owns more than 5%,
either directly or by attribution under Code Section 318(a)(1), of the
Employer's outstanding stock may not receive a loan from the Plan, unless
he has obtained a prohibited transaction exemption from the Department of
Labor. If the Employer is not an unincorporated trade or business nor an
"S Corporation," this Section does not impose any restrictions on the
class of Participants eligible for a loan from the Plan.
16.2. LOAN APPLICATION
(a) APPLICANTS. Any Plan Participant may apply for a loan from the
Plan. For purposes of this Section, "Participant" means any
Participant, and any Former Participant or Beneficiary who is a
party in interest, determined under ERISA Section 3(14) with
respect to the Plan.
(b) APPLICATION FORM. All Participants shall have equal rights to
obtain a Participant loan, and the Committee shall not favor
Participants who are officers, shareholders or Highly Compensated
Employees. A Participant must apply for each loan in writing on
an application form provided by the Committee which specifies the
desired amount and requested duration (subject to the maximum
repayment periods specified herein).
16.3. LOAN APPROVAL
The Committee shall review each loan application and, if the Participant
satisfies all conditions established by this Article, the Committee shall
approve the loan. A Participant may have only one (1) outstanding
Participant loan at any given time.
16.4. LIMITATION ON TYPE OF LOAN
A Participant loan may be approved for any purpose.
16.5. LIMITATION ON AMOUNT OF LOAN
The Committee will approve a Participant loan only if the loan, plus the
current outstanding balance of all other outstanding loans to the
Participant, does not exceed fifty percent (50%) of the Participant's
vested Account Balance on the date of the loan. The maximum aggregate
dollar amount of loans outstanding to any Participant may not exceed
$50,000, considering all Participant loans from other employer qualified
plans, reduced by the excess of the Participant's highest outstanding
Participant loan balance during the twelve (12) month period ending on
the date of the loan over the Participant's current outstanding
Participant loan balance on the date of the loan. The minimum loan
amount that the Committee may approve is $1,000.00.
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16.6. EVIDENCE OF LOAN
The Committee shall document every loan in the form of a promissory note
signed by the Participant for the face amount of the loan bearing a
commercially reasonable rate of interest.
16.7. TERMS OF LOAN
(a) INTEREST RATE. The loan shall bear a fixed rate of interest at
the prime rate charged by NationsBank, N.A. plus one percent (1%).
"Prime interest rate" shall mean the lowest interest rate charged
to large business borrowers having the highest credit rating on
unsecured loans of ninety (90) day maturity.
(b) PAYMENT. The loan must provide for at least quarterly payments
made under a level amortization schedule. A Participant will be
required to authorize the Employer to make payroll withholding
deductions so long as there is an outstanding balance on the loan.
(c) TERM. The term for repayment of the loan will be fixed by the
Committee. The term shall not be greater than five (5) years
unless the loan is a home loan. A home loan may be repaid over a
term not exceeding fifteen years (15). A home loan is a
Participant loan used to acquire a dwelling which, within a
reasonable time, the Participant will use as a principal
residence.
(d) LOAN RENEWAL. The Trustee may renew any loan against a vested
Account Balance except that for purposes of the limitations
contained in Section 16.5, the outstanding balance of any loan
which is renegotiated, extended, renewed, or revised shall be
treated as an amount received as a loan on the date of the
renegotiation, extension, renewal, or revision. If loan payments
are suspended during a Participant's period of military service,
loan repayment will be suspended under this Plan as permitted
under Code Section 414(u)(4).
16.8. SECURITY FOR LOAN
A Participant must secure each loan with an irrevocable pledge and
assignment of fifty percent (50%) of the Participant's Account Balance in
the form provided by the Committee.
16.9. DEFAULT EVENTS
The Committee shall treat a Participant loan in default:
(a) if any scheduled payment remains unpaid at the expiration of the
grace period established by the Committee, which shall not extend
beyond the last day of the calendar quarter following the calendar
quarter in which the payment was due;
(b) upon the making or furnishing of any representation or statement
to the Plan by or on behalf of the Participant which proves to
have been false in any material respect when made or furnished;
(c) upon the loss, theft, damage, destruction, sale or encumbrance to
or of any of the collateral, or the making of any levy seizure or
attachment thereof or thereon; or
(d) upon the insolvency, business failure, appointment of receiver of
any part of the property of, assignment for the benefit of
creditors by, or the commencement of any proceeding under any
bankruptcy or insolvency laws of, by or against the Participant,
unless the Participant provides reasonable assurance to the Plan
Committee that the ability of the Participant to repay the loan
has not been substantially impaired and the obligation of the
Participant to repay the loan will not be affected by any
proceeding under applicable bankruptcy law.
The Participant will make the opportunity to repay the loan, restore the
loan to current status by paying any delinquent payments plus interest
or, request distribution of the note, if and when the Participant is
entitled to a Plan distribution. If the loan remains in default, the
Committee may foreclose on other security or offset the Participant's
vested Account Balance by the outstanding balance of the loan, if and
when the Participant is entitled to a Plan distribution. If the amount
of any payment or distribution is inadequate to repay the remaining
balance of the note, the Participant shall be liable for any unpaid
principal and accrued interest payment on the balance due.
Notwithstanding the provisions of Articles VI through IX, if a
Participant shall be in default under the terms of any Participant loans
held by the Plan, then, for purposes of the Trustee's ability to
foreclose, the Participant's Account,
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to the extent of such default, shall be considered immediately
distributable at any time after the Participant's separation from
Service with the Employer.
If a Participant or Beneficiary defaults on a loan made pursuant to this
Article, the Plan treats the default as a distributable event only if the
Participant has incurred a Separation from Service or has attained Normal
Retirement Age. If either condition applies, the Trustee, at the time of
the default, or, if later, at the time either condition first occurs,
will reduce the Participant's Nonforfeitable Account Balance by the
lesser of the amount in default (plus accrued interest) or the Plan's
security interest in that Nonforfeitable Account Balance.
16.10. PARTICIPANT DIRECTED INVESTMENT
The Committee shall administer any Participant loan as a Participant
directed investment of that portion of the Participant's vested Account
Balance equal to the outstanding principal balance of the loan. The Plan
will credit that portion of the Participant's interest with the interest
earned on the note and with principal payments received. The Plan will
charge that portion of the Participant's Account Balance with expenses
directly related to the loan application, investigation of the
Participant's credit, maintenance and collection of the note.
16.11. PROCEDURE ON BENEFIT DISTRIBUTION
When a Participant's vested benefits are distributable, the Trustee first
shall offset any amount to which a Participant or Beneficiary otherwise
shall be entitled by the outstanding balance of any loan made by the
Participant.
16.12. ACCELERATION OF NOTE ON SEPARATION FROM SERVICE A Participant loan shall
mature and all unpaid principal, plus accrued interest, shall be due and
payable at the time the Participant's employment with the Employer
terminates, whether due to death, disability, retirement, or other
termination of employment.
* * * * * * *
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ARTICLE XVII
ROLLOVERS, MERGERS, DIRECT TRANSFERS
17.1. PARTICIPANT ROLLOVER CONTRIBUTIONS
Any Participant who has the Employer's written consent and who has filed
with the Trustee the form prescribed by the Committee may contribute cash
or other property to the Trust other than as a voluntary contribution if
the contribution is a Rollover Contribution which the Code permits an
Employee to transfer either directly or indirectly from one qualified
plan to another qualified plan. Before accepting a Rollover
Contribution, the Trustee may require an Employee to furnish satisfactory
evidence that the proposed transfer is in fact a Rollover Contribution
which the Code permits an Employee to make to a qualified plan. A
Rollover Contribution is not an Annual Addition.
An eligible Employee, prior to satisfying the Plan's conditions, may make
a Rollover Contribution to the Trust to the same extent and in the same
manner as a Participant. If an Employee makes a Rollover Contribution to
the Trust prior to satisfying the Plan's eligibility conditions, the
Committee and Trustee must treat the Employee as a Participant for all
purposes of the Plan except the Employee is not a Participant for
purposes of sharing in Employer Contributions or Participant Forfeitures
under the Plan until the Employee actually becomes a Participant in the
Plan. If the Employee has a separation from Service prior to becoming a
Participant, the Trustee will distribute the Rollover Account to the
Participant as if it were an Employer Contribution Account.
For any Rollover Contribution, the following requirements shall be met:
(a) The Committee shall maintain a Participant's Rollover
Contributions in a separate Rollover Account;
(b) Except with respect to a Plan asset under the control or direction
of a properly appointed Investment Manager or with respect to a
Plan asset properly subject to Employer, Participant or Committee
direction of investment, the Trustee will invest the Rollover
Contribution in a segregated investment Rollover Account for the
Participant's sole benefit unless the Trustee, in its sole
discretion, agrees to invest the Rollover Contribution as part of
the Trust Fund. The Trustee will not have any investment
responsibility for a Participant's segregated Rollover Account.
The Participant, however, from time to time, may direct the
Trustee in writing on the investment of the segregated Rollover
Account in property, or property interests, of any kind, real,
personal or mixed; however, the Participant may not direct the
Trustee to make loans to the Employer. A Participant's segregated
Rollover Account alone will bear any extraordinary expenses
resulting from investments made at the direction of the
Participant. As of the Accounting Date, or other Valuation Date,
for each Plan Year, the Committee will allocate and credit the net
income or charge the net loss from a Participant's segregated
Rollover Account and credit or charge respectively the increase or
decrease in the fair market value of the assets of a segregated
Rollover Account solely to that Rollover Account. The Trustee is
not liable nor responsible for any loss resulting to any
Beneficiary, nor to any Participant, because of any sale or
investment made or other action taken pursuant to and in
accordance with the direction of the Participant. In all other
respects, the Trustee will hold, administer and distribute a
Rollover Contribution in the same manner as any Employer
Contribution made to the Trust Fund.
(c) A Participant's Rollover Contributions shall not be forfeitable
nor reduce in any way the obligations of the Employer under this
Agreement.
17.2. MERGER AND DIRECT TRANSFER
The Trustee possesses the specific authority to enter into merger
agreements or direct transfer of assets agreements with the trustees of
other retirement plans described in Code Section 401(a), including an
Elective Transfer defined in Section 17.3, and to accept the direct
transfer of plan assets or to transfer plan assets, as a party to any
agreement. Further, the Trustee may permit the transfer of plan assets
to an individual retirement account or an individual retirement annuity.
However, the Trustee, before any merger or direct transfer is
consummated, shall be satisfied that the holding of any transferred
assets is permitted by the transferee trusts. When the Trustee is so
satisfied, the Trustee shall accept the direct transfer of plan assets or
shall cause to be transferred the assets directed to be transferred and
as appropriate shall direct the insurance company to transfer any
Contracts held by it to the new Trustee. The Trustee may accept a direct
transfer of plan assets on behalf of an Employee prior to the date the
Employee satisfies the Plan's eligibility conditions. If the Trustee
accepts a direct transfer of plan assets, the Committee and Trustee must
treat the Employee as a Participant for all purposes of the Plan except
that the Employee is not a Participant for purposes of
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sharing in Employer Contributions or Participant Forfeitures under the
Plan until the Employee actually becomes a Participant in the Plan.
The Trustee may not consent to, or be a party to, any merger or
consolidation with another plan or to a transfer of assets and
liabilities to another plan, unless, immediately after the merger,
consolidation or transfer the surviving plan provides each Participant a
benefit equal to or greater than the benefit each Participant would have
received had the plan terminated immediately before the merger,
consolidation or transfer.
17.3. CERTAIN ROLLOVERS, MERGERS AND DIRECT TRANSFERS PROHIBITED
Notwithstanding any contrary provision in this Agreement, the Trustee,
after August 9, 1988, may not consent to or be a party to a rollover,
merger, consolidation or transfer of assets from a qualified plan which
is required to provide benefits in the form of a joint and survivor
annuity under Code Section 417, except with respect to an Elective
Transfer, or unless the transferred benefits are in the form of paid-up
individual annuity contracts guaranteeing the payment of the transferred
benefits under the transferor plan and in a manner consistent with the
Code and ERISA. The Trustee will hold, administer and distribute the
transferred assets as a part of the Trust Fund and the Trustee must
maintain a separate Employer Contribution Account for the benefit of the
Employee on whose behalf the Trustee accepted the transfer to reflect the
value of the transferred assets.
Unless a transfer of assets to this Plan is an Elective Transfer, the
Plan will preserve all Code Section 411(d)(6) protected benefits with
respect to those transferred assets, in the manner described in Section
11.2(c)(iii). A transfer is an Elective Transfer if: (a) the transfer
satisfies Section 17.2; (b) the transfer is voluntary, under a fully
informed election by the Participant; (c) the Participant has an
alternative that retains his or her Code Section 411(d)(6) protected
benefits, including an option to leave the benefit in the transferor
plan, if that plan is not terminating; (d) the transfer satisfies the
applicable spousal consent requirements of the Code; (e) the transferor
plan satisfies the joint and survivor notice requirements of the Code, if
the Participant's transferred benefit is subject to those requirements;
(f) the Participant has a right to immediate distribution from the
transferor plan, in lieu of the Elective Transfer; (g) the transferred
benefit is at least the greater of the single sum distribution provided
by the transferor plan for which the Participant is eligible or the
present value of the Participant's Accrued Benefit under the transferor
plan payable at that plan's normal retirement age; (h) the Participant
has a one hundred percent (100%) Nonforfeitable interest in the
transferred benefit; and (i) the transfer otherwise satisfies applicable
Treasury regulations. An Elective Transfer may occur between qualified
plans of any type.
If the Plan receives a direct transfer, by merger or otherwise, of
Elective Contributions, or amounts treated as Elective Contributions,
under a Plan with a Code Section 401(k) arrangement, the distribution
restrictions of Code Sections 401(k)(2) and 401(k)(10) continue to apply
to those transferred Elective Contributions.
* * * * * * *
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ARTICLE XVIII
EXCLUSIVE BENEFIT
18.1. EXCLUSIVE BENEFIT
Except as provided under this Article and Article III, the Employer has
no beneficial interest in any asset of the Trust and no part of any asset
in the Trust may ever revert to or be repaid to an Employer, either
directly or indirectly. Further, prior to the satisfaction of all
liabilities with respect to the Participants and their Beneficiaries
under the Plan, no part of the corpus or income of the Trust Fund, or any
asset of the Trust, may be used for, or diverted to, purposes other than
the exclusive benefit of the Participants or their Beneficiaries. No
amendment or revocation by the Employer of this Section may cause or
permit any portion of the Trust Fund to revert to or become a property of
the Employer.
18.2. DENIAL OF REQUEST FOR INITIAL APPROVAL
Any contribution to the Trust Fund associated with this Plan is
conditioned on initial qualification of the Plan under applicable Code
Sections 401(a), 403(a) or 405(a) and of the exemption of the Trust
created under the Plan under Code Section 501(a). If the Commissioner of
the Internal Revenue Service, upon the Employer's request for initial
approval of this Plan and Trust, determines that the Plan is not
qualified or the Trust is not exempt, then the Trustee may return to the
Employer, within one (1) year after the date of final disposition of the
Employer's request for initial approval, any contribution made by the
Employer, and any increment attributable to the contribution.
18.3. MISTAKE OF FACT
Notwithstanding any contrary provision in this Agreement, if a
contribution is made by an Employer by a mistake of fact, the
contribution may be returned to the Employer within one (1) year after
the payment of the contribution. The amount of the mistaken contribution
is equal to the excess of (a) the amount contributed over (b) the amount
that would have been contributed had there not occurred a mistake of
fact. Earnings attributable to mistaken contributions may not be
returned to the Employer, but losses attributable thereto shall reduce
the amount to be returned.
18.4. DISALLOWANCE OF DEDUCTION
Notwithstanding any contrary provision in this Agreement, any
contributions by the Employer to the Plan and Trust are conditioned on
the deductibility of the contribution by the Employer under the Code. To
the extent any deduction is disallowed, the Employer, within one (1) year
following a final determination of the disallowance, whether by agreement
with the Internal Revenue Service or by final decision in a court of
competent jurisdiction, may demand repayment of the disallowed
contribution, and the Trustee shall return the contribution within one
(1) year following the disallowance. Earnings attributable to excess
contributions may not be returned to the Employer, but losses
attributable thereto shall reduce the amount to be returned.
18.5. SPENDTHRIFT CLAUSE
Except as provided below, no Participant, Former Participant or
Beneficiary shall have the right to anticipate, assign or alienate any
benefit provided under the Plan and the Trustee will not recognize any
anticipation, assignment or alienation. Furthermore, a benefit under the
Plan is not subject to attachment, garnishment, levy, execution or other
legal or equitable process. All provisions of this Agreement shall be
for the exclusive benefit of those designated herein. These restrictions
shall not apply in the following case(s):
- PARTICIPANT LOANS. If a Participant, Former Participant or
Beneficiary who has become entitled to receive payment of benefits
under this Agreement is indebted to the Trustee, by virtue of a
Participant Loan, the Committee may direct the Trustee to pay the
indebtedness and charge it against the Individual Account of the
Participant, Former Participant or Beneficiary; provided that in
the case of a married Participant, the Participant's spouse must
consent in writing to the application of the Participant's
benefits toward the repayment and discharge of the Participant
Loan.
- DISTRIBUTIONS PURSUANT TO QUALIFIED DOMESTIC RELATIONS ORDERS.
The Committee may direct the Trustee under the nondiscriminatory
policy adopted by the Committee to pay an Alternate Payee
designated under a Qualified Domestic Relations Order as defined
in Code Section 414(p) or any domestic relations order entered
before
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January 1, 1985 if payment of benefits pursuant to the order has
commenced as of that date. To the extent provided under a
Qualified Domestic Relations Order, a former spouse of a
Participant shall be treated as the spouse or surviving spouse for
all purposes of the Plan.
- DISTRIBUTIONS UNDER DOMESTIC RELATIONS ORDERS. Nothing contained
in this Plan prevents the Trustee, under the direction of the
Committee, from complying with the provisions of a qualified
domestic relations order, as defined in Code Section 414(p)
("QDRO"). This Plan specifically permits distribution to an
Alternate Payee under a QDRO at any time, whether or not the
Participant has attained the earliest retirement age (as defined
under Code Section 414(p)) under the Plan. A distribution to an
Alternate Payee prior to the Participant's attainment of earliest
retirement age is available only if: (1) the order specifies
distribution at that time or permits an agreement between the Plan
and the Alternate Payee to authorize an earlier distribution; and
(2) if the present value of the Alternate Payee's benefits under
the Plan exceeds $5,000, and the order requires, the Alternate
Payee's consent to any distribution occurring prior to the
Participant's attainment of earliest retirement age. Nothing in
this Section gives a Participant a right to receive distribution
at a time otherwise not permitted under the Plan nor does it
permit the Alternate Payee to receive a form of payment not
otherwise permitted under the Plan.
The Committee must establish reasonable procedures to determine
the qualified status of a domestic relations order. Upon receiving
a domestic relations order, the Committee promptly will notify the
Participant and any Alternate Payee named in the order, in
writing, of the receipt of the order and the Plan's procedures for
determining the qualified status of the order. Within a reasonable
period of time after receiving the domestic relations order, the
Committee must determine the qualified status of the order and
must notify the Participant and each Alternate Payee, in writing,
of its determination. The Committee must provide notice under this
paragraph by mailing to the individual's address specified in the
domestic relations order, or in a manner consistent with
Department of Labor regulations.
If any portion of the Participant's Nonforfeitable Accrued Benefit
is payable during the period the Committee is making its
determination of the qualified status of the domestic relations
order, the Committee must make a separate accounting of the
amounts payable. If the Committee determines the order is a QDRO
within eighteen (18) months of the date amounts first are payable
following receipt of the order, the Committee will direct the
Trustee to distribute the payable amounts pursuant to the order.
If the Committee does not make its determination of the qualified
status of the order within the eighteen (18) month determination
period, the Committee will direct the Trustee to distribute the
payable amounts in the manner the Plan would distribute if the
order did not exist and will apply the order prospectively if the
Committee later determines the order is a QDRO.
To the extent it is consistent with the provisions of the QDRO,
the Committee may direct the Trustee to invest any partitioned
amount in a segregated subaccount or separate account and to
invest the account in Federally insured, interest-bearing savings
account(s) or time deposit(s) (or a combination of both), or in
other fixed income investments. A segregated subaccount remains a
part of the Trust, but it alone shares in any income it earns, and
it alone bears any expense or loss it incurs. The Trustee will
make any payments or distributions required under this Section by
separate benefit checks or other separate distribution to the
Alternate Payee(s).
18.6 TERMINATION
Upon termination of the Plan, in lieu of the distribution provisions of
Article X, the Committee will direct the Trustee to distribute each
Participant's Nonforfeitable Account Balance, in a single sum, as soon as
administratively feasible after the later of the termination of the Plan
or the receipt of a favorable determination letter from the Office of the
Key District Director, if an application is filed, irrespective of the
present value of the Participant's Nonforfeitable Account Balance and
whether the Participant consents to that distribution. This paragraph
applies only if:
(a) the Plan does not provide an annuity option;
(b) the Plan is a profit sharing plan on its termination date; and
(c) as of the period between the Plan termination date and the final
distribution of assets, the Employer does not maintain any other
defined contribution plan (other than an employee stock ownership
plan).
For Participants or Beneficiaries who cannot be located upon Plan
termination, and whose Nonforfeitable Account Balance exceeds $5,000, to
liquidate the Trust, the Committee will purchase a deferred annuity
contract, distribute the
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benefits to an individual retirement account, or transfer the account
to an ongoing qualified plan of a Related Employer. If the Committee
distributes the lost Participant's or Beneficiary's benefits to an
individual retirement account or purchases an annuity, and the
Participant's or Beneficiary's whereabouts remain unknown for the
duration of the escheat period, the benefits will ultimately escheat
to the state under applicable state law.
18.7. EMPLOYEES IN QUALIFIED MILITARY SERVICE
Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to qualified
military service will be provided in accordance with Code Section 414(u).
* * * * * * *
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ARTICLE XIX
CONSTRUCTION
19.1. HEADINGS
The headings in this Agreement are for convenience only and shall not be
considered in construing this Agreement.
19.2. CONTEXT
In this Agreement, wherever the context of the Plan dictates, words used
in the masculine may be construed in the feminine, the plural includes
the singular and the singular includes the plural.
19.3. EMPLOYMENT NOT GUARANTEED
Nothing contained in this Agreement, or regarding the establishment of
the Plan or Trust, or any modification or amendment to the Agreement,
Plan or Trust, or in the creation of any Individual Account, or the
payment of any benefit, shall be construed as giving any Employee,
Participant or Beneficiary whomsoever any right to continue in the
Service of the Employer, any legal or equitable right against the
Committee, against the Employer, its stockholders, officers or directors
or against the Trustee, except as expressly provided by the Agreement,
the Plan, the Trust, ERISA or by separate agreement. Employment of all
persons by the Employer shall remain subject to termination by the
Employer to the same extent as if this Agreement had never been executed.
19.4. WAIVER OF NOTICE
Any person entitled to notice under the Plan may waive the notice unless
the Code or Treasury regulations prescribe the notice or ERISA
specifically or impliedly prohibits a waiver.
19.5. STATE LAW
This Agreement and each of its provisions shall be construed and their
validity determined by the laws of the State of Texas and applicable
Federal law to the extent Federal statute supersedes Texas law.
19.6. PARTIES BOUND
This Agreement shall be binding on all persons entitled to benefits under
the Plan, their respective heirs and legal representatives, on the
Employer, its successors and assigns, and on the Trustee, the Committee
and their successors.
* * * * * * *
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IN WITNESS WHEREOF, the Employer, BRC HOLDINGS, INC. has caused this
instrument to be executed on this 4th day of September, 1998.
BRC HOLDINGS, INC.
By: Administrative Committee of the BRC Holdings,
Inc. 401(k) Retirement Savings Plan
By: /s/ THOMAS E. KIRALY
---------------------------------------------
Thomas E. Kiraly, Member
By: /s/ MICHAEL D. COLLINS
---------------------------------------------
Michael D. Collins, Member
By: /s/ NANCY J. SCHUERR
---------------------------------------------
Nancy J. Schuerr, Member
By: /s/ LISA WIGGER
---------------------------------------------
Lisa Wigger, Member
PARTICIPATING EMPLOYERS
BUSINESS RECORDS CORPORATION, INC.
By: /s/ THOMAS E. KIRALY,
---------------------------------------------
EXECUTIVE VICE PRESIDENT
BRC HEALTHCARE, INC.
By: /s/ THOMAS E. KIRALY,
---------------------------------------------
CHIEF FINANCIAL OFFICER
CLINICAL RESOURCE SYSTEMS, INC.
By: /s/ THOMAS E. KIRALY,
---------------------------------------------
VICE PRESIDENT
THE PACE GROUP, INC.
By: /s/ THOMAS E. KIRALY,
---------------------------------------------
VICE PRESIDENT
CODING SYSTEMS, INC.
By: /s/ THOMAS E. KIRALY,
---------------------------------------------
SECRETARY
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BRC TECHNOLOGY SERVICES, INC.
By: /s/ THOMAS E. KIRALY,
---------------------------------------------
CHIEF FINANCIAL OFFICER
PACE ACQUISITION II, INC.
By: /s/ THOMAS E. KIRALY,
---------------------------------------------
PRESIDENT
THE TENACITY MANUFACTURING COMPANY
By: /s/ THOMAS E. KIRALY,
---------------------------------------------
PRESIDENT
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