Registration No. 333- _________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
__________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
New England Business Service, Inc.
(Exact name of registrant as specified in its charter)
Delaware 04-2942374
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No)
500 Main Street
Groton, Massachusetts 01471
(Address of principal executive offices)
401(k) Plan for Employees of New England Business Service, Inc.
(Full Title of the Plan)
John F. Fairbanks
Vice President, Chief Financial Officer
New England Business Service, Inc.
500 Main Street
Groton, Massachusetts 01471
(Name and Address of Agent for Service)
(508) 448-6111
(Telephone Number, Including Area Code, of Agent for Service)
Copies of all communications to:
Terrence W. Mahoney, Esq.
Hill & Barlow, a Professional Corporation
One International Place
Boston, Massachusetts 02110
(617) 428-3000
<PAGE>
CALCULATION OF REGISTRATION FEE
-------------------------------
Title of Amount to be Proposed Proposed Amount of
Securities to be Registered Maximum Maximum Registration
Registered Offering Price Aggregate Fee
Per Share* Offering Price*
- ---------------- ------------ -------------- --------------- ------------
Common Stock
($1.00 par
value) 450,000 $29.625 $13,331,250.00 $4,039.77
*Estimated solely for the purpose of computing the registration fee.
This amount was calculated pursuant to Rule 457 upon the basis of
the average of the high and low prices of the registrant's Common
Stock as reported in the consolidated reporting system of the New
York Stock Exchange on July 28, 1997.
If, as a result of stock splits, stock dividends or similar
transactions, the number of securities purported to be registered on
this registration statement changes, the provisions of Rule 416 shall
apply to this registration statement and this registration statement
shall be deemed to cover the additional securities resulting from the
split of, or the dividend on, the securities covered by this
registration statement.
In addition, pursuant to Rule 416(c), this registration statement
covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents have been filed by the Company with the
Commission (File No. 1-11427) and are incorporated herein by
reference: (i) the Company's Annual Report on Form 10-K for the
fiscal year ended June 29, 1996; (ii) the Annual Report on Form 11-K
of the 401(k) Plan for Employees of New England Business Service, Inc.
(the "Plan") for the fiscal year ended June 29, 1996, filed on June
12, 1997; (iii) the Company's Quarterly Reports on Form 10-Q for the
quarters ended September 28, 1996, December 28, 1996 and March 29,
1997; (iv) the Company's Current Reports on Form 8-K, filed or
amended on September 20, 1996, October 31, 1996, April 15, 1997 and
June 13, 1997; and (v) the description of the Company's capital stock
contained in the Company's Registration Statement under Section 12(b)
of the Exchange Act on Form 8-A, filed on October 31, 1977, including
any amendment or reports filed for the purpose of updating such
description. All reports and other documents filed by the Company
after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Securities Exchange Act of 1934, before the filing of a post-
effective amendment which indicates that all securities offered hereby
have been sold, or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such report or
document.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the General Corporation Law of the State of
Delaware provides for indemnification of officers and directors
subject to certain limitations. The general effect of such law is to
empower a corporation to indemnify any of its officers and directors
against certain expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the
person to be indemnified in connection with certain actions, suits or
<PAGE>
proceedings (threatened, pending or completed) if the person to be
indemnified acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the corporation
and, with respect to any criminal action or proceedings, if he had no
reasonable cause to believe his conduct was unlawful. The Company's
by-laws provide that it shall indemnify its officers and directors to
the extent permitted by law.
The Company maintains insurance under which the insurers will
reimburse the Company for amounts which it has paid to its directors,
officers and certain other employees by way of indemnification for
claims against such persons in their official capacities. The
insurance also covers such persons as to amounts paid by them as a
result of claims against them in their official capacities which are
not reimbursed by the Company. The insurance is subject to certain
limitations and exclusions.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
See Exhibit Index.
The registrant will submit or has submitted the Plan and any
amendment thereto to the Internal Revenue Service ("IRS") in a timely
manner and has made or will make all changes required by the IRS in
order to qualify the Plan.
Item 9. Undertakings.
------------
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or
<PAGE>
in the aggregate, represent a fundamental change in the information
set forth in the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934,
and each filing of the Plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934, that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
<PAGE>
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that
its meets all of the requirements for filing on Form S-8 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Groton,
Commonwealth of Massachusetts on July 28, 1997.
NEW ENGLAND BUSINESS SERVICE, INC.
By: /s/ John F. Fairbanks
---------------------------------
John F. Fairbanks, Vice President,
Chief Financial Officer
<PAGE>
POWER OF ATTORNEY
-----------------
Each person whose signature appears below constitutes and
appoints Robert J. Murray, John F. Fairbanks and Terrence W. Mahoney,
and each of them singly, as his lawful attorneys with full power to
them and each of them singly to sign for him in his name in the
capacity indicated below this registration statement on Form S-8 (and
any and all amendments thereto), hereby ratifying and confirming his
signature as it may be signed by his said attorneys to this
registration statement (and any and all amendments hereto).
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-8 has been signed below by the
following persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Robert J. Murray
- --------------------- Chairman, President
Robert J. Murray Chief Executive Officer
(principal executive officer),
Director July 28, 1997
/s/ John F. Fairbanks
- --------------------- Vice President, Chief
John F. Fairbanks Financial Officer (principal
accounting officer) July 28, 1997
/s/ Peter A. Brooke
- ---------------------- Director July 28, 1997
Peter A. Brooke
/s/ Robert L. Gable
- ---------------------- Director July 28, 1997
Robert L. Gable
/s/ Benjamin H. Lacy
- ---------------------- Director July 28, 1997
Benjamin H. Lacy
/s/ Herbert W. Moller
- ---------------------- Director July 28, 1997
Herbert W. Moller
/s/ Jay R. Rhoads, Jr.
- ---------------------- Director July 28, 1997
Jay R. Rhoads, Jr.
<PAGE>
/s/ Richard H. Rhoads
- ---------------------- Director July 28, 1997
Richard H. Rhoads
/s/ Brian E. Stern
- ---------------------- Director July 28, 1997
Brian E. Stern
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
401(k) Plan for Employees of New England Business Service, Inc. has
duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the Town of Groton,
Commonwealth of Massachusetts on July 28, 1997.
The 401(k) Plan for Employees of New England Business Service,
Inc. and each person whose signature appears below constitutes and
appoints Robert J. Murray, John F. Fairbanks and Terrence W. Mahoney,
and each of them singly, as its or his lawful attorneys with full
power to them and each of them singly to sign for it or him in its or
his name in the capacity indicated below this registration statement
on Form S-8 (and any and all amendments thereto), hereby ratifying and
confirming its or his signature as it may be signed by its or his said
attorneys to this registration statement (and any and all amendments
hereto).
401(k) PLAN FOR EMPLOYEES OF
NEW ENGLAND BUSINESS SERVICE, INC.
By: /s/ Robert J. Murray
------------------------------------
Robert J. Murray
Member of the Committee administering
the 401(k) Plan for Employees of
New England Business Service, Inc.
By: /s/ Robert H. Glaudel
------------------------------------
Robert H. Glaudel
Member of the Committee administering
the 401(k) Plan for Employees of
New England Business Service, Inc.
By: /s/ John F. Fairbanks
------------------------------------
John F. Fairbanks
Member of the Committee administering
the 401(k) Plan for Employees of
New England Business Service, Inc.
<PAGE>
EXHIBIT INDEX
-------------
Certain of the following exhibits (those marked with an asterisk)
are filed herewith. The remainder of the exhibits have heretofore
been filed with the Commission and are incorporated herein by
reference. Inapplicable items have been omitted.
Exhibit Title
- ------- -----
4.1 Certificate of Incorporation of the Company (incorporated by
reference to the Company's Current Report on Form 8-K dated
October 31, 1986).
4.2 Certificate of Merger of New England Business Service, Inc.
(a Massachusetts corporation) and the Company, dated
October 24, 1986, amending the Certificate of Incorporation
of the Company by adding Articles 14 and 15 thereto
(incorporated by reference to the Company's Current Report
on Form 8-K dated October 31, 1986).
4.3 Certificate of Designations, Preferences and Rights of
Series A Participating Preferred Stock of the Company, dated
October 27, 1989 (incorporated by reference to the Company's
Annual Report on Form 10-K for the fiscal year ended
June 30, 1995, filed September 15, 1995).
4.4 By-Laws of the Company, as amended (incorporated by
reference to the Company's Quarterly Report on Form 10-Q for
the quarterly period ended December 31, 1995, filed
February 8, 1996).
4.5 Specimen stock certificate for shares of Common Stock, par
value $1.00 per share, of the Company (incorporated by
reference to the Company's Annual Report on Form 10-K for
the fiscal year ended June 30, 1995, filed September 15,
1995).
4.6 Amended and Restated Rights Agreement, dated as of
October 27, 1989 as amended as of October 20, 1994, between
the Company and The First National Bank of Boston, National
Association, as rights agent, including as Exhibit B the
forms of Rights Certificate Election to Exercise
(incorporated by reference to Exhibit 4 of the Company's
Current Report on Form 8-K dated October 25, 1994).
5.1* Opinion of Hill & Barlow, a Professional Corporation.
<PAGE>
23.1* Consent of Hill & Barlow, a Professional Corporation
(included in Exhibit 5.1).
23.2* Consent of Deloitte & Touche LLP.
24.1* Power of Attorney (included above at page II-4).
99.1* 401(k) Plan for Employees of New England Business Service,
Inc., as amended by the board of directors on April 25,
1997.
<PAGE>
Exhibit 5.1
HILL & BARLOW,
a Professional Corporation
One International Place
Boston, Massachusetts 02110
(617)428-3000
TERRENCE W. MAHONEY
Direct Line: 617-428-3306
[email protected]
July 28, 1997
New England Business Service, Inc.
500 Main Street
Groton, Massachusetts 01471
Ladies and Gentlemen:
We have acted as counsel for New England Business
Service, Inc., a Delaware corporation (the "Company"), with
respect to a proposed offering (the "Offering") of a maximum
of 450,000 shares (the "Shares") of the Company's common
stock, $1.00 par value per share ("Common Stock"), to
eligible employees of the Company pursuant to the 401(k)
Plan for Employees of New England Business Service, Inc., as
amended (the "Plan"), and we have assisted you in the
preparation of a Registration Statement on Form S-8
(the "Registration Statement") with respect to the Offering.
We have made such examination of law and have examined
originals or copies, certified or otherwise identified to
our satisfaction, of such corporate records and such other
documents, including the Plan and the related trust
agreement, as we have considered relevant and necessary for
the opinions hereinafter set forth. We have assumed that
you will take all steps necessary to comply with the
Securities Act of 1933, as amended, and applicable state
laws in connection with the offering and sale of the Shares.
We have further assumed that you will submit the Plan to the
Internal Revenue Service (the "Service") with a request that
the Service issue a favorable determination letter, and you
will make such amendments to the Plan as may be required by
the Service in connection therewith.
Based on the foregoing, we express the following
opinions:
1. The issuance of the Shares has been duly
authorized by all necessary corporate action of the Company.
2. The Plan has been duly adopted by the Company.
3. The Shares, upon issuance as provided in the
Plan, will be validly issued, fully paid and non-assessable
under the Delaware General Corporation Law as in effect on
this date.
4. The written documents constituting the Plan
comply in form with the qualification requirements of
Section 401(a) of the Internal Revenue Code of 1986, as
amended and as in effect on this date, applicable to the
Plan.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
HILL & BARLOW,
a Professional Corporation
/s/ Terrence W. Mahoney
--------------------------
Terrence W. Mahoney,
a Member of the Firm
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of New England Business Service, Inc. on Form S-8 of our
report dated July 26, 1996, appearing in the Annual Report on Form 10-K
of New England Business Service, Inc. for the year ended June 29, 1996
and our report dated March 21, 1997, appearing in the Annual Report on
Form 11-K of 401(k) Plan for Employees of New England Business Service,
Inc. for the year ended June 29, 1996.
/s/DELOITTE & TOUCHE LLP
- ------------------------
Boston, MA
August 1, 1997
401(k) PLAN
FOR EMPLOYEES OF NEW ENGLAND BUSINESS SERVICE, INC.
(Restated Effective July 1, 1989)
(Conformed February, 1996 to Include the First Amendment)
(Conformed July, 1997 to Include the Second Amendment)
WHEREAS New England Business Service, Inc., a corporation
organized and operating under the laws of Delaware (the
"Company"), established the 401(k) Plan for Employees of New
England Business Service, Inc., formerly known as the New England
Business Service, Inc. Deferred Profit Sharing and Employee Stock
Ownership Plan (the "Plan"), effective as of June 30, 1984 and
June 25, 1983;
WHEREAS, it is now the intention of the Company to amend and
restate the Plan for compliance with the Tax Reform Act of 1986
(TRA '86) and other applicable legislative and regulatory
changes:
NOW, THEREFORE:
(1) Generally effective as of July 1, 1989, the Company
hereby amends said Plan by deleting Articles I through XVI of the
Plan, being all the provisions of the Plan, and restates the Plan
as follows; provided, however, that (a) the restatement of the
Plan hereby shall not reduce the vested benefit of any
Participant in the Plan as of the day before the effective date
of this restatement and (b) except as required by law, nothing in
this restatement shall increase the benefits of or give any
additional or different rights under the Plan (or otherwise) to
any person who has not completed at least one Hour of Service on
or after the effective date of this restatement (or the
applicable effective date of a changed provision) compared to
such person's benefits and rights under the Plan as amended and
in effect from time to time prior to the execution of this
restated Plan document on the date stated below.
(2) The effective date of this restatement of the Plan
shall be modified as follows:
The provisions included to comply with the technical
corrections to the Deficit Reduction Act of 1984 (DEFRA) and the
Retirement Equity Act of 1984 (REA) contained in TRA '86 are
effective as if included in the respective laws to which the
corrections apply. The provisions included to comply with the
provisions of TRA '86 other than the technical corrections to
DEFRA and REA are effective as of the date specified in TRA '86.
The provisions included to comply with the provisions of the
Omnibus Budget Reconciliation Act of 1986 (OBRA '86) are
effective as of the date specified in OBRA '86. The provisions
included to comply with the provisions of the Omnibus Budget
Reconciliation Act of 1987 (OBRA '87) are effective as of the
date specified in OBRA '87. The provisions included to comply
with the final regulations on optional forms of benefits issued
July 11, 1988, are effective as of the effective date prescribed
by such regulations. The provisions included to comply with the
final REA regulations issued August 28, 1988, are effective as of
<PAGE>
the effective date prescribed by such regulations. The
provisions included to comply with the provisions of the
Technical and Miscellaneous Revenue Act of 1988 (TAMRA '88) are
effective as of the date specified in TAMRA '88. The Provisions
included to comply with the provisions of the Omnibus Budget
Reconciliation Act of 1993 (OBRA '93) are effective as of the
date specified in OBRA '93.
Except as otherwise expressly provided herein, the
provisions of the Plan in effect prior to the effective date of
this Restatement shall govern in all matters that are not
required by the Code or ERISA or other applicable law or
regulation to be subject to the provisions of the Plan as
amended, including, without limitation, all matters involving any
Employee who does not have at least one Hour of Service on or
after the effective date of this Restatement.
ARTICLE I
Name
The Plan and Trust created in accordance with the terms of
this instrument shall be named the "401(k) Plan For Employees of
New England Business Service, Inc."
ARTICLE II
Definitions
As used in the Plan, the following terms shall have the
meanings set forth below:
2.1 Accrued Benefit. The sum of a Participant's:
(a) Employer Contribution Account;
(b) Pre-tax Contribution Account;
(c) Rollover Contribution Account; and
(d) Basic Contribution Account
2.2 Actual 401(m) Contribution Percentage. The ratio
(expressed as a percentage) of (a) Matching Contributions made
under the Plan on behalf of the Participant for the Plan Year to
(b) the Participant's Compensation for the Plan Year. As used in
this Plan the term Actual 401(m) Contribution Percentage has the
same meaning as the term "contribution percentage" as defined in
Code Section 401(m)(3).
2.3 Actual Pre-tax Contribution Percentage. The ratio
(expressed as a percentage) of (a) Pre-tax Contributions made
under the Plan on behalf of the Participant for the Plan Year to
(b) the Participant's Compensation for the Plan Year. The Actual
Pre-tax Contribution Percentage of an Employee who is eligible
to, but does not elect to have Pre-tax Contribution made is zero.
As used in this Plan the term Actual Pre-tax Contribution
<PAGE>
Percentage has the same meaning as the term "actual deferral
percentage" as defined in Code Section 401(k)(3)(B).
2.4 Adjustment Factor. The cost of living factor
prescribed by Secretary of the Treasury under Code Section 415(d)
for Plan Years beginning after December 1, 1987, as applied to
such items and in such manner as the Secretary shall provide.
2.5 Affiliated Employer. (a) Any member of a controlled
group as defined in Code Section 414(b) which includes the
Company; and (b) any trade or business whether or not
incorporated which is under common control as defined in Code
Section 414(c) with the Company; and (c) any organization
whether or not incorporated which is a member of an affiliated
service group as defined in Code Section 414(m) which includes
the Company; and (d) any other entity required to be aggregated
with the Company pursuant to Regulations under Code Section
414(o).
2.6 Annual Addition. The sum for any Limitation Year of
(a) all forfeitures allocated to a Participant plus (b) all
contributions made to the Plan for or by the Participant, except
Rollover Contributions.
2.7 Average Actual 401(m) Contribution Percentage. The
average (expressed as a percentage) of the Actual 401(m)
Contribution Percentages of the Participants in a testing group,
consisting either of all Highly Compensated Employees or all Non-
highly Compensated Employees.
2.8 Average Actual Pre-tax Contribution Percentage. The
average (expressed as a percentage) of the Actual Pre-tax
Contribution Percentages of the Participants in a testing group,
consisting either of all Highly Compensated Employees or all Non-
highly Compensated Employees.
2.9 Basic Contribution Account. The separate account
maintained in the records of the Plan Administrator for each
Participant's share of Employer Basic Contributions, if any, plus
the Participant's cumulative share of any income and gains
allocable to each such separate account and minus the
Participant's cumulative share of any losses, distributions,
expenses and other charges applicable to each such separate
account and plus or minus any other applicable adjustments.
2.10 Beneficiary. Any person, estate, trust or
organization designated by a Participant to receive any Plan
benefit that is payable upon the death of such Participant. This
term shall include any person, estate, trust or organization
whose entitlement to benefits hereunder has been made dependent
by a Participant upon the survival of some person other than such
person or upon any other event uncertain to occur (hereinafter
referred to as a "Contingent Beneficiary").
<PAGE>
2.11 Benefit Commencement Date. The date as of which
benefits hereunder first become payable, in accordance with the
provisions of Article VIII, to or in respect of a Participant who
ceases or has ceased to be an Employee.
2.12 Board. The Board of Directors of the Company.
2.13 Code. The Internal Revenue Code of 1986, as amended
from time to time.
2.14 Committee. The Committee appointed by the Board
pursuant to Article XI as Plan Administrator for the Plan.
2.15 Company. The entity signatory to this agreement and
any successor organization which shall assume the Company's
obligations under the Plan. Such assumption shall be in writing,
signed by the organization assuming the obligations of the Plan
and accepted by the predecessor Company and the Trustee.
2.16 Compensation. The total salaries or wages paid by the
Employer to the Employee during any Plan Year or portion thereof,
(a) including (i) all overtime pay, (ii) commissions related to
individual sales performance; (iii) incentive or lump sum
payments delivered in lieu of an increase to base pay; and (iv)
compensation reduction contributions made pursuant to this Plan
or to any Code Section 125 "cafeteria" plan, but (b) excluding
(i) bonuses, incentive payments (except for those included at
clause (a)(iii) of this paragraph), disability insurance
payments, any supplemental wage and salary payments paid by the
Employer, and the payment for unused vacation time or unused paid
leave under any paid leave policy of the Employer, (ii) any
Employer contributions to this or any other employee benefit plan
(including the cash profit sharing program) not included above,
and (iii) all payments made under the provisions of the executive
bonus program. Notwithstanding the foregoing, (1) the amount
taken into account as Compensation for any Plan Year beginning
before December 1, 1989, in which this Plan is a "top heavy
plan," as defined in Section 10.2.2, shall be subject to the
limits of Section 10.3, and (2) the amount taken into account as
"Compensation" for any Plan Year beginning after December 31,
1988 and before January 1, 1994, shall be subject to the limit in
effect for the Plan Year ($200,000 initially) determined pursuant
to Code Section 401(a) (17) and regulations thereunder, including
applicable inflation adjustments, and (3) the amount taken into
account as Compensation for any Plan Year beginning after
December 31, 1993, shall be subject to the OBRA '93 annual
Compensation limit in effect for the Plan Year ($150,000
initially) and to the provisions set forth below in this Section,
including applicable inflation adjustments. The applicable limit
on Compensation imposed under the preceding sentence shall be
applied for purposes of Section 4.1 (relating to Matching
Contributions) and 4.2 (relating to Pre-tax Contributions)
<PAGE>
without pro-ration, so that Compensation will include all
remuneration that would otherwise be Compensation which is
received during a Plan Year by an Employee until the limit
imposed under the preceding sentence for the Plan Year is
reached.
The OBRA '93 annual Compensation limit referred to above and
incorporated by OBRA' 93 into Code Section 401(a)(17) for Plan
Years beginning on or after January 1, 1994, is $150,000 as
adjusted by the Commissioner for increases in the cost of living
in accordance with Code Section 401(a)(17)(B). The cost-of-
living adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which Compensation is
determined (determination period) beginning in such calendar
year. If a determination period consists of fewer than 12
months, the OBRA '93 annual Compensation limit shall 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 OBRA '93 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 OBRA '93 annual Compensation limit is $150,000.
The family aggregation rules of Code Section 414(q)(6)(C), as
modified by Code Section 401(a)(17), and regulations thereunder
shall apply to Compensation in the following manner. In the case
of an Employee who is either a 5% owner or is both a highly
compensated employee (within the meaning of Code Section
414(q)(6)) and one of the ten most highly compensated employees,
the Employee, the Employee's spouse, and any lineal descendants
of such Employee who have not attained age 19 before the close of
the Year shall be treated as a single Employee (a "family unit")
with one Compensation to which the annual Compensation limit
under the Plan applies. If Compensation for the family unit
exceeds the annual Compensation limit under Code Section
401(a)(17), then the Plan shall allocate the limit among the
members of the family unit pro rata to their Compensation.
However, if the Plan provides for permitted disparity under Code
Section 401(l), this proration shall not be applied for purposes
of determining the portion of each individual's Compensation
("Covered Compensation") that is below the integration level.
Notwithstanding the foregoing, the family aggregation rules of
Code Section 414(q)(6)(C) shall not apply to this Plan after
December 31, 1996.
2.17 Disability. A total and permanent disability, as
determined in the sole discretion of the Plan Administrator, such
that due to a physical or mental impairment the Participant is
unable to perform his regular job or any comparable job that he
is or could reasonably be trained to do.
<PAGE>
2.18 Early Retirement Date. The first day of the calendar
month after the Participant's 60th birthday.
2.19 Effective Date. As restated hereby, July 1, 1989.
(For the initial effective date of the Plan, see the Plan
Introduction above.)
2.20 Employee. Any individual who is regularly employed by
an Affiliated Employer; provided that (a) individuals who are
participating in a recognized program of cooperative education,
(b) "leased employees," as defined in Code Section 414(n), (c)
any person who is classified by the Employer as an independent
contractor, and (d) non-resident alien employees shall not be
considered to be Employees. The term Employee refers to both
Regular Employees and Non-Regular (limited-term or temporary)
Employees except when the context requires otherwise.
2.21 Employee Contribution Account or Rollover Contribution
Account. The separate account maintained in the records of the
Plan Administrator for each Participant's Rollover Contributions,
if any, plus the Participant's cumulative share of any income and
gains allocable to each such separate account and minus the
Participant's cumulative share of any losses, distributions,
expenses and other charges allocable to each such separate
account and plus or minus any other applicable adjustments.
2.22 Employer. The Company and any Affiliated Employer
which shall adopt the Plan with the approval of the Board.
2.23 Employer Basic Contributions. Contributions made by
the Company pursuant to Paragraph 3.3 of the Plan as it appeared
prior to this restatement.
2.24 Employer Contribution Account. The separate accounts
maintained in the records of the Plan Administrator for each
Participant's share of Profit Sharing Contributions and Matching
Contributions, if any, plus the Participant's cumulative share of
any income and gains allocable to each such separate account and
minus the Participant's cumulative share of any losses,
distributions, expenses or other charges allocable to each such
separate account and plus or minus any other applicable
adjustments.
2.25 Employment Commencement Date. The date on which an
Employee first performs an Hour of Service. Employment
Anniversary Year. The period consisting of twelve (12)
consecutive months beginning on an Employee's Employment
Commencement Date or Reemployment Commencement Date, as
applicable, and each period of twelve (12) consecutive months
beginning on the anniversary of such date.
<PAGE>
2.26 Entry Date. The date on which an Employee becomes
eligible to participate in the Plan by satisfaction of the
applicable participation standards of Article III. The term
Entry Date refers to both a Regular Employee Entry Date and a
Non-Regular Employee Entry Date except when the context otherwise
requires.
2.27 ERISA. Public Law No. 93-406, the Employee Retirement
Income Security Act of 1974, as amended from time to time.
2.28 Excess Aggregate 401(m) Contributions. The amount
described in Code Section 401(m)(6)(B) for a Plan Year if the
requirements of Article IV of the Plan with respect to the
Average Actual 401(m) Contribution Percentage for Highly
Compensated Employees are not met for the Plan Year. The term
Excess Aggregate 401(m) Contributions as used in the Plan has the
same meaning as the term "excess aggregate contributions" as
defined in Code Section 401(m)(6)(B).
2.29 Excess Aggregate Pre-tax Contributions. The aggregate
amount by which Pre-tax Contributions actually paid over to the
Trust on behalf of Highly Compensated Employees for a Plan Year
exceed the maximum amount of such Pre-tax Contributions permitted
by Article IV of the Plan and Code Section 401(k)(3)(A)(ii) for
the Plan Year. The term Excess Aggregate Pre-Tax Contributions
as used in the Plan has the same meaning as the term "excess
contributions" as defined in Code Section 401(k)(8)(B).
2.30 Excess Individual Pre-tax Contributions. The amount
of Pre-tax Contributions for a calendar year that the Participant
allocates to this Plan pursuant to the claim procedure set forth
in Article IV of the Plan. The term Excess Individual Pre-tax
Contributions as used in the Plan has the same meaning as the
term "excess deferrals" as defined in Code Section 402(g)(2)(A).
2.31 Family Member. An individual described in Code
Section 414(q)(6)(B).
2.32 Fund. The investment funds created pursuant to
Article XVI of the Plan and the Trust Agreement.
2.33 Highly Compensated Employee. Any person described as
such in Code Section 414(q).
2.34 Hours of Service. Each hour:
(a) for which an Employee directly or indirectly receives
compensation from an Affiliated Employer (such hours to be
credited as of the time when the duties are performed);
(b) for which an Employee directly or indirectly receives
compensation or is entitled to compensation by an Affiliated
Employer for reasons other than the performance of duties
including, but not limited to, vacation, holiday, illness,
disability, pregnancy, layoff, and jury duty;
<PAGE>
(c) during which an Employee is on an unpaid leave of absence
from an Affiliated Employer as determined by the Plan
Administrator under uniform rules prescribed by the Plan
Administrator;
(d) for which an Employee is entitled to receive credit under
the laws of the United States (including, but not limited to,
those pertaining to military service) in addition to each Hour of
Service credited under the preceding Clauses (a) through (c);
provided, however, that no more than five hundred and one (501)
Hours of Service shall be credited under the preceding paragraph
(c) or this paragraph (d) on account of any single continuous
period during which such Employee performs no duties, and
provided further, that no such Hours of Service shall be credited
on the basis of any payment, or entitlement thereto, which is
made or due under a plan maintained solely to comply with
applicable workers' compensation, unemployment compensation or
disability insurance laws or in accordance with a plan under
which such Employee receives reimbursement solely for medical or
medically related expenses incurred by him; and
(e) for which an Affiliated Employer has awarded or agreed to
pay back pay, irrespective of mitigation of damages, other than
an hour credited to an individual under the preceding paragraphs
(a) through (d) above. Such hours shall be credited as of the
time to which the award or agreement pertains.
The Plan Administrator shall credit an Employee's Hours of
Service to the appropriate employment period or periods, as
determined in accordance with Department of Labor Regulation
2530.200b-2(c)(2), and shall compute the total Hours of Service
hereunder in accordance with Department of Labor Regulations
2530.200b-2(b) and 2530.200b-3.
Notwithstanding the foregoing, for purposes of determining a Year
of Vesting Service, Hours of Service shall be credited on the
basis of months of employment so that each Regular Employee and
Non-Regular Employee shall be credited with 190 Hours of Service
for each calendar month during which such person is employed by
an Affiliated Employer on any day of the month.
Hours of Service that would be credited to a person who is a
"leased employee" of an Affiliated Employer under Code Section
414(n) shall be deemed to be Hours of Service with an Affiliated
Employer for all purposes under the Plan; provided, however, that
except as otherwise expressly provided elsewhere in the Plan, no
person shall be treated as an Employee of an Affiliated Employer
solely on account of such deemed Hours of Service.
Solely for the purpose of determining whether a One-Year Break in
Service has occurred, the Plan Administrator shall account for
the following absences from employment as Hours of Service: (1)
pregnancy of an Employee; (2) birth of a child of an Employee;
(3) placement of a child with an Employee in connection with
adoption proceedings; (4) caring for a child described in the
preceding clauses (2) or (3) immediately after the birth or
placement of such child; or (5) leave granted under the Family
and Medical Leave Act of 1993; provided, however, that no more
than five hundred and one (501) Hours of Service shall be
<PAGE>
credited under this paragraph and such Hours of Service shall be
credited in the first Plan Year necessary to avoid a One-Year
Break in Service.
Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to
qualified military service shall be provided in accordance with
Code Section 414(u).
2.35 Matching Contributions. Contributions made by an
Employer pursuant to Section 4.1 of the Plan.
2.36 Matching Contributions Account. See definition of
Employer Contribution Account.
2.37 Non-highly Compensated Employee. Any Employee of an
Affiliated Employer who is neither a Highly Compensated Employee
nor a Family Member of a Highly Compensated Employee.
2.38 Non-Regular Employee. Any Employee who is classified
in the Employer's records as a limited-term or temporary
employee.
2.39 Non-Regular Employee Entry Date. The first day of
each month beginning on or next following the respective dates on
which a Non-Regular Employee satisfies the applicable
participation standards of Article III of the Plan.
2.40 Non-Regular Employee Participant. Any Participant who
is a Non-Regular Employee.
2.41 Normal Retirement Date. The first day of the calendar
month after the Participant's 65th birthday.
2.42 One-Year Break in Service. Any Employment Anniversary
Year during which the Employee is not credited with at least 501
Hours of Service.
2.43 Participant. Any Employee of an Employer who
satisfies the applicable requirements for eligibility in the Plan
as long as he continues to satisfy such requirements and (when
the context of the Plan requires) any former Employee who retains
an interest in the Plan. The term Participant refers to both
Non-Regular Employee Participants and Regular Employee
Participants except when the context otherwise requires.
2.44 Plan. The 401(k) Plan for Employees of New England
Business Service, Inc. This document and the Trust Agreement
shall be treated as an integrated whole and shall be hereinafter
referred to as the "Plan".
2.45 Plan Administrator. The Plan Administrator appointed
in accordance with Article XI of the Plan. The Plan
<PAGE>
Administrator shall be the "administrator" referred to in Section
3(16)(A)(i) of ERISA.
2.46 Plan Year. Each of the Company's fiscal years (the
twelve-consecutive-month periods that end on the last Saturday of
June in each year), commencing on or after the original Effective
Date of the Plan. The "Accrual Computation Period," and the
"Limitation Year" as defined in United States Treasury Department
Revenue Ruling 75-481, shall be a Plan Year. Except as may
otherwise be required by IRS regulations, the "Plan Year" for
purposes of calculating eligibility, vesting and benefits shall
be each year beginning on July 1 and ending on June 30. The Plan
Year quarters shall begin on July 1, October 1, January 1 and
April 1 of each Plan Year.
2.47 Postponed Retirement Date. The first day of the month
coinciding with or next following the date of retirement of a
Participant who continues in Service after his Normal Retirement
Date.
2.48 Pre-tax Contributions. Contributions made pursuant to
the provisions of Section 4.2 of the Plan by the Employer, at the
election of the Participant, in lieu of cash compensation,
including contributions that are made pursuant to a salary or
other compensation reduction agreement. Pre-tax Contributions
shall be non-forfeitable when made and shall be distributable
only in accordance with the provisions of Articles VII, VIII and
IX of the Plan governing Pre-tax Contribution Accounts.
2.49 Pre-tax Contribution Account. The separate account
maintained in the records of the Plan Administrator for each
Participant's Pre-tax Contributions, if any, plus the
Participant's cumulative share of any income and gains allocable
to such account and minus the Participant's cumulative share of
any losses, distributions, expenses and other charges allocable
to such account and plus or minus any other applicable
adjustments.
2.50 Profit Sharing Contributions. Contributions made by
the Employer pursuant to Section 4.1.1A of the Plan.
2.51 Profit Sharing Contribution Account. See definition
of Employer Contribution Account.
2.52 Reemployment Commencement Date. . The first day
following a termination of employment or an approved leave of
absence with an Employer on which the Employee is credited with
an Hour of Service.
2.53 Regular Employee. Any Employee who is classified as
other than a limited term or temporary employee in the Employer's
records.
<PAGE>
2.54 Regular Employee Entry Date. The first day of each
month beginning on or next following the respective dates on
which a Regular Employee satisfies the applicable participation
standards of Article III of the Plan.
2.55 Regular Employee Participant. Any Participant who is
a Regular Employee.
2.56 Rollover Contributions. A Participant's
contributions, if any, made pursuant to the provisions of
Section 4.3 of the Plan.
2.57 Rollover Contribution Account. See definition of
Employee Contribution Account.
2.58 Section 415 Compensation. The Participant's wages,
salaries, fees for professional service and other amounts for
personal services actually rendered in the course of Service with
an Affiliated Employer maintaining the Plan (including, but not
limited to, commissions paid salesmen, compensation for services
on the basis of a percentage of profits, commissions on insurance
premiums, tips and bonuses and in the case of a Participant who
is an Employee within the meaning of Code Section 401(c)(1) and
the regulations thereunder, the Participant's earned income (as
described in Code Section 401(c)(2) and the regulations
thereunder) paid during the Limitation Year. "Section 415
Compensation" shall exclude:
(a) Contributions made by an Affiliated Employer to a plan of
deferred compensation to the extent that, before the application
of the Code Section 415 limitations to the Plan, the
contributions are not includable in the gross income of the
Employee for the taxable year in which contributed;
(b) Affiliated Employer contributions made on behalf of an
Employee to a simplified employee pension plan described in Code
Section 408(k) to the extent such contributions are deductible by
the Employee under Code Section 219(a);
(c) Any distributions from a plan of deferred compensation
regardless of whether such amounts are includable in the gross
income of the Employee when distributed except that any amounts
received by an Employee pursuant to an unfunded non-qualified
plan to the extent such amounts are includable in the gross
income of the Employee;
(d) Amounts realized from the exercise of a non-qualified
stock option or when restricted stock (or property) held by an
Employee either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture;
(e) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option; and
(f) Other amounts which receive special tax benefits, such as
premiums for group term life insurance (but only to the extent
that the premiums are not includable in the gross income of the
Employee), or contributions made by an Affiliated Employer
(whether or not under a salary reduction agreement) towards the
<PAGE>
purchase of any annuity contract described in Code Section 403(b)
(whether or not the contributions are excludable from the gross
income of the Employee).
2.59 Service. A Participant's period of employment as an
Employee of an Affiliated Employer.
2.60 Spouse. The person to whom a Participant is legally
married at any relevant time, such as the time a consent is given
pursuant to Section 8.3 or at the time of the Participant's
death.
2.61 Stock. The Company's common stock.
2.62 Trust Agreement. The agreement between the Company
and the Trustee for the receiving, holding, investing and
distributing of all or a portion of the Trust Fund. There may be
more than one Trust Agreement under the Plan.
2.63 Trust Fund. The total of all the Funds held pursuant
to Article XVI of the Plan and the Trust Agreement.
2.64 Trustee. The Trustee or Trustees and any successor
Trustees appointed by the Board pursuant to Article XVI of the
Plan to administer the Trust Fund.
2.65 Valuation Date. The close of business on each day that
the New York Stock Exchange and the Trustee are open and
conducting business, or such other date or dates as may be
established by the Committee during the Plan Year.
2.66 Vested Benefit. The sum of a Participant's
(a) Vesting Percentage in his Employer Contribution Account;
(b) Pre-tax Contribution Account;
(c) Rollover Contribution Account (if any); and
(d) Basic Contribution Account (if any).
2.67 Vesting Percentage. The percentage determined in
accordance with Article VI.
2.68 Year of Eligibility Service. Each period of twelve
(12) consecutive months beginning on an Employee's Employment
Commencement Date (or Reemployment Commencement Date, as the case
may be) and thereafter coinciding with each Plan Year beginning
after such Employment (or Reemployment) Commencement Date during
which the Employee completes at least one thousand (1,000) Hours
of Service whether or not such Employee is employed by an
Affiliated Employer throughout such Year. In case of any change
in the computation period for a Year of Eligibility Service, an
Employee shall be credited with one such Year if the Employee
otherwise satisfies the requirements of this Section during the
final old computation period beginning prior to the change and a
second such Year if the employee otherwise satisfies the
<PAGE>
requirements of this Section during the first new computation
period beginning on the date of the change.
Whenever used herein, a pronoun in the masculine gender shall
include the feminine gender unless the context clearly indicates
otherwise. The words "hereof", "herein", "hereunder" and other
similar compounds of the word "here" shall mean and refer to the
entire Plan and not to any particular provision, Section or
Article.
2.69 Year of Vesting Service. Each Employment Anniversary
Year during which an Employee completes at least one thousand
(1,000) Hours of Service, except as otherwise provided in Article
VI of the Plan, whether or not such Employee is employed by an
Employer throughout such Year. In case of any change in the
computation period for a Year of Vesting Service, an Employee
shall be credited with one such Year if the Employee otherwise
satisfies the requirements of this Section during the final old
computation period beginning prior to the change and a second
such Year if the Employee otherwise satisfies the requirements of
this Section during the first new computation period beginning on
the date of the change.
ARTICLE III
Participation Standards
3.1 Initial Participation. An Employee of an Employer
shall become a Participant for purposes of the types of
contributions permitted under this Plan on the next applicable
Entry Date coinciding with or following the date on which the
Employee satisfies the applicable age and Service requirements
(if any) defined in Section 3.2 of the Plan.
3.2 Age and Service Requirements. No minimum age
requirement applies under the Plan. The Service requirement
applicable to eligibility for each type of contribution permitted
under the Plan shall be as specified in the paragraphs below:
3.2.1 For Employer Contributions.
(a) Regular Employees. A Regular Employee meets the Plan's
Service requirement for (i) Matching Contributions under Section
4.1.1, and (ii) Profit Sharing Contributions under Section
4.1.1A, on the first day of the month coinciding with or next
following his Employment Commencement Date.
(b) Non-Regular Employees. A Non-Regular Employee meets
the Plan's Service requirement for (i) Matching Contributions
under Section 4.1.1 and (ii) Profit Sharing Contributions under
Section 4.1.1A on the first day of the month coinciding with or
next following his completion of one (1) Year of Eligibility
Service that may not be ignored for Plan eligibility purposes
pursuant to any other provisions of the Plan.
<PAGE>
3.2.2 For Pre-tax Contributions.
(a) Regular Employees. A Regular Employee meets the Plan's
Service requirement for Pre-tax Contributions on the first day of
the month coinciding with or next following his Employment
Commencement Date.
(b) Non-Regular Employees. A Non-Regular Employee meets
the Plan's Service requirement for Pre-tax Contributions on the
first day of the month coinciding with or next following his
completion of one (1) Year of Eligibility Service that may not be
ignored for Plan eligibility purposes pursuant to any other
provisions of the Plan.
3.2.3 For Rollover Contributions. An Employee meets the
Plan's Service requirement for Rollover Contributions on his
Employment Commencement Date; provided that he will be eligible
to participate in the Plan with respect to at least one other
type of contribution upon satisfying the applicable age and
Service requirements (if any) for such type of contribution.
3.3 Termination of Participation. Any Employee who becomes
a Participant in accordance with the provisions of Sections 3.1
and
3.2 shall cease to participate for purposes of eligibility for
additional contributions to the Plan upon the termination of his
Service for any reason.
3.4 Participation of Re-hired Former Participants. A
Participant who ceases to participate in contributions to the
Plan by reason of Section 3.3 shall again become a Participant as
of his Reemployment Commencement Date if he is reemployed
following the termination of his Service.
3.5 Years of Eligibility Service and Break-in-Service
Rules. All Years of Eligibility Service shall be taken into
account for purposes of this Article III except as follows:
3.5.1 One-Year Hold-Out Rule. Years of Eligibility Service
credited to an Employee before a One-Year Break in Service shall
be disregarded until and unless he has completed one Year of
Eligibility Service after the One-Year Break in Service, but
shall then be counted in full unless ignored pursuant to
Subsection 3.5.2 below.
3.5.2 Five-Year Break-in-Service Rule. If a Participant has
no Vested Benefit derived from Employer contributions, Years of
Eligibility Service before a period of consecutive One-Year
Breaks in Service shall be disregarded if the number of
consecutive One-Year Breaks in Service equals or exceeds the
greater of five (5) or the aggregate number of Years of
Eligibility Service not previously ignored.
ARTICLE IV
<PAGE>
Contributions to Trust
4.1 Employer Contributions. Not later than the time
prescribed by law (including extensions thereof) for filing its
federal income tax returns for the tax year ending with or within
a Plan Year, or such other time as may be provided in applicable
regulations under the Code, each Employer shall make
contributions to the Trust for the Plan Year in such amounts as
shall be determined pursuant to this Section 4.1
4.1.1 Matching Contributions.
(a) To All Participants. Except as limited in this Section
4.1.1, or in Section 4.4, each eligible Participant shall be
allocated a Matching Contribution from his Employer equal to
fifty percent (50%) of the aggregate amount of the Participant's
Pre-tax Contributions for the Plan Year; provided that such
Matching Contributions (i) shall not be made with respect to Pre-
tax Contributions in excess of six percent (6%) of a
Participant's Compensation for any Plan Year and (ii) shall be
made out of (and only to the extent of) the Employers' current or
accumulated aggregate net profits. For clarity, no Matching
Contribution made pursuant to this paragraph may exceed three
percent (3%) of a Participant's Compensation for the Plan Year.
(b) To Participants with Five (5) or More Years of Vesting
Service. Except as limited in this Section 4.1.1 or in Section
4.4, each Participant who has completed five (5) or more Years of
Vesting Service shall, beginning with the first paydate on or
after the fifth anniversary of his Employment Commencement Date,
be allocated an additional Matching Contribution from his
Employer equal to fifty percent (50%) of the aggregate amount of
such Participant's Pre-tax Contributions for the balance of the
Plan Year in which such fifth anniversary occurs and for each
subsequent Plan Year while the Participant remains eligible to
receive a Matching Contribution; provided that such additional
Matching Contributions (i) shall not be made with respect to Pre-
tax Contributions in excess of six percent (6%) of such
Participant's Compensation for the portion of any Plan Year
during which the Participant is eligible to receive the
additional Matching Contribution and (ii) shall be made out of
(and only to the extent of) the Employers' current or accumulated
aggregate net profits. For clarity, no additional Matching
Contribution made pursuant to this paragraph may exceed three
percent (3%) of such Participant's Compensation for the Plan Year
(or applicable portion thereof) and total Matching Contributions
on behalf of any such Participant shall not exceed six percent
(6%) of such Participant's Compensation for the Plan Year (or
applicable portion thereof).
(c) General Rules for Matching Contributions. A
Participant's account shall be credited as of the earlier of the
Valuation Date coinciding with or next following the date on
which a Matching Contribution was made on his behalf and the last
day of the Plan Year for which the allocation is made. All
<PAGE>
Matching Contributions shall be subject to the provisions of Code
Section 401(m) and of the balance of this Section 4.1.
4.1.2 Frequency. Matching Contributions shall be made on
behalf of each eligible Participant with respect to his Pre-tax
Contributions at the same frequency and time as such Pre-tax
Contributions are paid over to the Trustee; subject to any
maximum limit on Matching Contributions set forth in Subsection
4.1.1 and subject to all other limitations imposed pursuant to
the Code and this Plan.
4.1.3 Medium. Matching Contributions shall be made in cash
or shares of Stock, as the Board may from time to time determine.
Nevertheless, all Matching Contributions shall be invested in the
Company Stock Fund maintained pursuant to Article XVI.
4.1.4 Separate Accounts. A separate Matching Contribution
Account shall be maintained for that portion of each
Participant's Accrued Benefit that is attributable to Matching
Contributions. Each such separate account shall be credited as
of each Valuation Date with the Participant's share of any
applicable contributions, income, gains, losses, distributions,
expenses and other charges and any other adjustments.
4.1.5 Vesting. Matching Contributions shall be vested in
accordance with Article VI of the Plan.
4.1.6 Distribution. A Participant's Matching Contribution
Account shall be distributable only in accordance with the
provisions of Articles VIII and IX governing Employer
Contribution Accounts; provided that a Participant's Matching
Contribution Account shall be distributed as required pursuant to
Code Section 401(m), this Section 4.1 and Section 4.4 of the
Plan.
4.1.7 Status and Use of Contributions. All contributions
made by the Employers to the Trust Fund shall be irrevocable and
shall be used solely to pay benefits under the Plan or to defray
the expenses of administering the Plan, except as otherwise
provided in Section 18.4.
4.1.8 No Employee Contributions Required. Except to the
extent of electing Pre-tax Contributions pursuant to Section 4.2
as a condition of receiving Matching Contributions pursuant to
this Section 4.1, Participants shall not be required to make
contributions to the Trust.
4.1.9 Average Actual 401(m) Contribution Percentage Test.
(a) In General. The Average Actual 401(m) Contribution
Percentage for Highly Compensated Employees for each Plan Year
shall not exceed the greater of:
<PAGE>
(i) the Average Actual 401(m) Contribution Percentage for
Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by 1.25; or
(ii) the Average Actual 401(m) Contribution Percentage for
Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by 2.0; provided that the Average
Actual 401(m) Contribution Percentage for Participants who are
Highly Compensated Employees does not exceed the Average Actual
401(m) Contribution Percentage for Participants who are Non-
highly Compensated Employees by more than two (2) percentage
points or such lesser amount as the Secretary of the Treasury
shall prescribe to prevent the multiple use of this alternative
limitation with respect to any Highly Compensated Employee.
(b) Special Rules.
(i) For purposes of the Average Actual 401(m)
Contribution Percentage test and the provisions of Subsection
4.1.10, the Actual 401(m) Contribution Percentage for any
Participant who is a Highly Compensated Employee and who is
eligible to make after-tax contributions or to have matching
contributions allocated to his account under two or more plans
described in Code Section 401(a) or arrangements described in
Code Section 401(k), that are maintained by one or more of the
Affiliated Employers, shall be determined as if the total of such
after-tax contributions and matching contributions was made under
each such plan.
(ii) If this Plan satisfies the requirements of Code
Section 410(b) only if aggregated with one or more other plans,
or if one or more other plans satisfy the requirements of Code
Section 410(b) only if aggregated with this Plan, then Subsection
4.1.9 shall be applied by determining the Actual 401(m)
Contribution Percentages of Participants as if all such plans
were a single plan.
(iii) For purposes of determining the Actual 401(m)
Contribution Percentage of a Participant who is a Highly
Compensated Employee, the Actual 401(m) Contribution Percentages,
any Matching Contributions, and the Compensation of such
Participant shall include the Actual 401(m) Contribution
Percentages, any Matching Contributions, and the Compensation of
Family Members. Family Members, with respect to Highly
Compensated Employees, shall be disregarded as separate employees
in determining the Actual 401(m) Contribution Percentage both for
Participants who are Non-highly Compensated Employees and for
Participants who are Highly Compensated Employees.
(iv) The determination and treatment of the Actual 401(m)
Contribution Percentage of any Participant shall satisfy such
other requirements as may be prescribed by the Secretary of the
Treasury. To the extent permitted by Treasury Regulations
(including Regulations Section 1.401(m)-1(b)(5)), "qualified
nonelective contributions" and "elective contributions" (if any)
within the meaning of Regulations Section 1.401(m)-1(f)(15) and
(3) shall be taken into account as necessary to satisfy the
Average Actual 401(m) Contribution Percentage Test.
<PAGE>
(c) Coordination with Combined Section 401(k)/401(m) Limit.
Notwithstanding the general rule in paragraph (a) of this
Subsection 4.1.9 above, the Average Actual 401(m) Contribution
Percentage for Highly Compensated Employees for each Plan Year
shall not exceed the combined Code Section 401(k)/(401(m) limit
as set forth in this paragraph (c). If the limit would be
exceeded for a Plan Year, the excess amount shall be deemed to be
Excess Aggregate 401(m) Contributions and shall be corrected as
provided in Subsection 4.1.10 below. For purposes of this
Section 4.1, the combined Code Section 401(k)/401(m) limit for
any Plan Year is the greater of:
(i) The sum of:
(A) 125 percent of the greater of (1) of the Actual Pre-
tax Contribution Percentage of the group of Non-highly
Compensated Employees eligible under the Plan for the Plan Year,
or (2) the Actual 401(m) Contribution Percentage of the group of
Non-highly Compensated Employees eligible under the Plan for the
Plan Year, plus
(B) Two percentage points plus the lesser of (i)(A)(1) or
(i)(A)(2) above. In no event, however, shall this amount in (B)
exceed 200 percent of the lesser of (i)(A)(1) or (i)(A)(2)
above; or
(ii) The sum of:
(A) 125 percent of the lesser of (1) the Actual Pre-Tax
Contribution Percentage of the group of Non-highly Compensated
Employees eligible under the Plan for the Plan Year, or (2) the
Actual 401(m) Contribution Percentage of the group of Non-highly
Compensated Employees eligible under the Plan for the Plan Year,
plus
(B) Two percentage points plus the greater of (ii)(A)(1)
or (ii)(A)(2) above. In no event, however, shall this amount in
(B) exceed 200 percent of the greater of (ii)(A)(1) or (ii)(A)(2)
above.
(d) Coordination with Top-Heavy Plan Contribution
Requirement. Matching Contributions allocated to the accounts of
Participants who are Highly Compensated Employees shall be
treated as Employer contributions for purposes of determining the
minimum contribution or benefit, if any, required under Code
Section 416. However, if the Plan utilizes contributions
allocated to Matching Contribution Accounts of Participants who
are Non-highly Compensated Employees in order to satisfy the
minimum contribution requirement of Code Section 416, if any,
such contributions shall not be treated as Matching Contributions
for purposes of satisfying the requirements of Code Section
401(m). All such Matching Contributions shall be limited by the
nondiscrimination requirements of Code Section 401(a)(4) without
regard to Code Section 401(m).
4.1.10 Forfeiture or Distribution of Excess Aggregate 401(m)
Contributions.
(a) In General. Notwithstanding any other provisions of
this Plan, Excess Aggregate 401(m) Contributions, plus any income
and minus any loss allocable thereto, (i) shall be forfeited by,
<PAGE>
if forfeitable, or (ii) if not forfeitable shall be distributed
to Participants who are Highly Compensated Employees and to whose
accounts after-tax contributions (to any plan permitting such
contributions which must be aggregated with this Plan for
purposes of Subsection 4.1.9 above) or Matching Contributions
were allocated for a Plan Year, and all of the required amounts
shall be forfeited or distributed by the last day of the next
Plan Year. Excess Aggregate 401(m) Contributions shall be
treated as Annual Additions under the Plan.
(b) Determination of Required Forfeitures or Distributions.
Any forfeiture or distribution of Excess Aggregate 401(m)
Contributions for a Plan Year shall be made by or to Participants
who are Highly Compensated Employees on the basis of the
respective portions of the Excess Aggregate 401(m) Contributions
attributable to each of such Participants as determined by
reducing, first, the after-tax contributions (to any plan
permitting such contributions which must be aggregated with this
Plan for purposes of Subsection 4.1.9 above) permitted from such
Participants and, second, the Matching Contributions permitted on
behalf of such Participants in order of the Actual 401(m)
Contribution Percentages beginning with the highest of such
percentages.
(c) Determination of Income or Loss. All Excess Aggregate
401(m) Contributions shall be adjusted for income or loss. The
income or loss allocable to Excess Aggregate 401(m) Contributions
shall be determined by multiplying the income or loss allocable
to the Participant's after-tax contribution account (in any plan
which must be aggregated with this Plan for purposes of
Subsection 4.1.9 above) and to his Matching Contribution Account
for the Plan Year by a fraction:
(i) the numerator of which is the Excess Aggregate 401(m)
Contributions on behalf of the Participant for the preceding Plan
Year, and
(ii) the denominator of which is the sum of the
Participant's account balances in his after-tax contribution
account, if any, and in his Matching Contribution Account on the
last day of the preceding Plan Year.
(d) Forfeitures. Any forfeitures of Excess Aggregate
401(m) Contributions shall be applied to reduce future Employer
contributions by the Affiliated Employer which originally made
the contributions that gave rise to the forfeiture. If more than
one Affiliated Employer made such contributions, then the
forfeitures shall be used to reduce future Employer contributions
of each such Affiliated Employer in proportion to the
contributions made by that Affiliated Employer that gave rise to
the forfeiture compared to the contributions made by all
Affiliated Employers that gave rise to the forfeiture.
(e) Sources for Distribution of Excess Aggregate 401(m)
Contributions. Excess Aggregate 401(m) Contributions shall be
distributed or forfeited as follows: first, they shall be
distributed from the Participant's after-tax contribution account
(in any plan which must be aggregated with this Plan for purposes
of Subsection 4.1.9 above) to the extent of the balance in such
<PAGE>
account and, second as necessary, they shall be forfeited if
otherwise forfeitable under the terms of the Plan (or, if not
forfeitable, distributed) from the Participant's Matching
Contribution Account.
(f) Ordering of Pre-tax Contribution and 401(m)
Contribution Determinations. The determination of Excess
Aggregate 401(m) Contributions shall be made after first
determining the Excess Individual Pre-tax Contributions and then
determining the Excess Aggregate Pre-tax Contributions.
4.1.1A. Profit Sharing Contributions.
(a) Amount. The Employer shall contribute out of its
current or accumulated net profits three percent (3%) of the
Compensation of the Participants who are eligible pursuant to
Section 4.1.1B to receive an allocation of Profit Sharing
Contributions.
(b) Allocation and Accounting. Any Profit Sharing
Contributions made by the Employer shall be allocated to the
accounts of all Participants who are eligible pursuant to Section
4.1.1B to receive an allocation of Profit Sharing Contributions
for the period of time covered by the contribution. All such
allocations shall be made in proportion to each eligible
Participant's Compensation for such period of time.
Subject to the limitations of Section 4.4, if a Participant is
employed by more than one Employer that makes a Profit-Sharing
Contribution at a particular time, the Participant shall receive
an aggregate allocation under this Section 4.1.1A equal to the
sum of the separate allocations determined for such Participant
pursuant to the preceding paragraphs.
A Participant's account shall be credited with the amount
determined in accordance with this Section 4.1.1A as of the date
for which the allocation was made.
4.1.1B General Provisions Applicable to Employer
Contributions.
(a) Eligibility for Employer Contributions. In order to
receive allocations of any Employer Contributions made pursuant
to Sections 4.1.1A and 4.l.1B for a Plan Year, a Participant must
meet the following requirements as applicable:
(i) Matching Contributions. A Participant must be
eligible for Employer contributions pursuant to the applicable
provisions of Section 3.2 and make Pre-tax Contributions during
the portion of a Plan Year for which a Matching Contribution is
made by his Employer.
(ii) Profit Sharing Contributions. A Participant must
be eligible for Employer Contributions pursuant to the applicable
provisions of Section 3.2.
(b) Frequency. Matching Contributions shall be made on
behalf of each eligible Participant with respect to his Pre-tax
Contributions subject to the provisions of Section 4.1.2. Profit
Sharing Contributions shall be made at the same frequency and
times as Matching Contributions are made (or would be made if a
Participant were making Pre-tax Contributions) and shall apply to
the portion of each eligible Participant's Compensation paid
<PAGE>
during the interval following the previous Profit Sharing
Contribution.
(c) Medium. Employer Contributions of all types shall be
made in cash or Shares of Stock, as the Company may from time to
time determine, and shall be initially invested in the Company
Stock Fund maintained pursuant to Article XVI.
(d) Separate Accounts. Separate accounts within the
Employer Contribution Account shall be maintained for those
portions of each Participant's Accrued Benefit that are
attributable to (i) Matching Contributions and (ii) Profit
Sharing Contributions. Each such separate account shall be
credited as of each Valuation Date with the Participant's share
of any applicable contributions, income, gains, losses,
distributions, expenses and other charges and any other
adjustments.
(e) Vesting. All Employer Contributions (other than
Qualified Non-Elective Contributions, which are immediately
vested in full) shall be vested in accordance with Article VI of
the Plan.
(f) Forfeitures. Any forfeitures of Matching
Contributions or Profit Sharing Contributions shall be applied as
Matching Contributions by the Employer which originally made the
contributions that gave rise to the forfeiture. Forfeitures
shall be applied for the Plan Year in which the forfeiture occurs
pursuant to Section 6.2. If more than one Employer made such
contributions, then the forfeitures shall be applied by each such
Employer in proportion to the contributions made by that Employer
that gave rise to the forfeiture compared to the contributions
made by all Employers that gave rise to the forfeiture.
(g) Distribution. A Participant's Employer Contribution
Accounts shall be distributable only in accordance with the
provisions of Articles VIII and IX governing Employer
Contribution Accounts; provided that a Participant's Matching
Contribution Account shall be distributed as required pursuant to
Section 4.1.10 or 4.2.11 as the case may be.
(h) Status and Use of Contributions. Except as provided
in Section 18.4, all contributions made by the Employer to the
Trust shall be irrevocable and shall be used solely to pay
benefits under the Plan or to defray the expenses of
administering the Plan.
(i) No Employee Contributions Required. Except to the
extent of electing Pre-tax Contributions pursuant to Section 4.2
as a condition of receiving Matching Contributions pursuant to
Section 4.1.1, Participants shall not be required to make
contributions to the Trust.
4.2 Pre-tax Contributions.
4.2.1 Compensation Reduction Elections. Any Participant
desiring to authorize Pre-tax Contributions to be made to the
Trust Fund by his Employer must do so by electing to reduce his
Compensation in the manner directed by the Plan Administrator
from time to time. Any Pre-tax Contributions authorized by a
<PAGE>
Participant (a) must be in increments of one percent (1%) of
Compensation up to a maximum of fifteen percent (15%) of
Compensation, (b) will apply to a Participant's entire
Compensation (except as limited by Code Section 401(k), this
Section 4.2 and Section 4.4 of the Plan), and (c) shall be funded
by payroll deductions against the Participant's Compensation.
4.2.2 Maximum Amount of Pre-tax Contributions. The maximum
amount of Pre-tax Contributions made on behalf of any Participant
shall be subject to all of the following limitations:
(a) no Pre-tax Contributions shall be made on account of a
Plan Year in amounts which the Plan Administrator determines will
cause the Plan to fail the Average Actual Pre-tax Contribution
Percentage test of this Section 4.2;
(b) no Pre-tax Contributions shall be made for any
Participant during any calendar year in excess of $7,000
multiplied by the Adjustment Factor;
(c) no Pre-tax Contribution shall be made on account of any
Plan Year which would cause the Participant's Annual Addition to
exceed the maximum Annual Addition permitted for such Plan Year
pursuant to the provisions of Section 4.4 after taking into
account all Pre-tax and Matching Contributions previously made or
committed to be made on behalf of the Participant for such Plan
Year but prior to taking into account any other voluntary
contributions to a plan which must be aggregated with the Plan
for purposes of Section 4.4 made on behalf of or by the
Participant for such Plan Year;
(d) No Pre-tax Contribution shall be made on account of any
Plan Year that exceeds the limit set forth in Subsection 4.2.1.
4.2.3 Commencement of Pre-tax Contributions . Each
Participant shall be eligible to elect a level of Pre-tax
Contributions effective as of his or her Entry Date, or as of any
subsequent paydate applicable to the Participant, provided that
the election is made in the manner then required by the Plan
Administrator no later than the deadlines to be set by the Plan
Administrator from time to time.
4.2.4 Modification and Termination of Pre-tax
Contributions. A Participant's election to commence Pre-tax
Contributions shall remain in effect until modified or
terminated. A Participant may modify his Compensation reduction
election to increase or decrease the rate of Pre-tax
Contributions made on his behalf or terminate such contributions,
effective on any paydate applicable to the Participant, provided
that the new election is made in the manner then required by the
Plan Administrator no later than the deadlines to be set by the
Plan Administrator from time to time.
4.2.5 Separate Accounts. A separate Pre-tax Contribution
Account shall be maintained for that portion of each
Participant's Accrued Benefit that is attributable to Pre-tax
Contributions. Each such separate account shall be credited as
<PAGE>
of each Valuation Date with the Participant's share of any
applicable contributions, income, gains, losses, distributions,
expenses and other charges and any other adjustments.
4.2.6 Vesting. Pre-tax Contributions shall be fully vested
and non-forfeitable at all times.
4.2.7 Distribution. A Participant's Pre-tax Contribution
Account shall be distributable only in accordance with the
provisions of Articles VIII and IX governing Pre-tax Contribution
Accounts; provided that a Participant's Pre-tax Contribution
Account shall be distributed as required pursuant to Code Section
401(k), this Section 4.2 and Section 4.4 of the Plan.
4.2.8 Deadline for Pre-tax Contributions. Pre-tax
Contributions shall be contributed and allocated to the Trust
Fund as of the earliest date on which such contributions can
reasonably be segregated from the Employer's general assets, but
no later than the fifteenth (15th) business day of the month
following the month in which such amounts have been received by
the Employer or would otherwise have been payable to the
Participant in cash, or by such other times as may be provided in
applicable regulations under the Code or ERISA.
4.2.9 Distribution of Excess Individual Pre-tax
Contributions.
(a) In General. Notwithstanding any other provision of the
Plan, Excess Individual Pre-tax Contributions, plus any income
and minus any losses allocable thereto, shall be distributed no
later than the first April 15 following the Effective Date, and
each April 15 thereafter, to Participants to whose accounts
Excess Individual Pre-tax Contributions were allocated for the
preceding calendar year and who claim Excess Individual Pre-tax
Contributions for such calendar year. Excess Individual Pre-tax
Contributions shall be treated as Annual Additions under the
Plan.
(b) Requirements for Making a Claim. A Participant's claim for
distribution of Excess Individual Pre-tax Contributions:
(i) shall be in writing;
(ii) shall be submitted to the Plan Administrator not later than
the March 1 following the calendar year for which Excess
Individual Pre-tax Contributions have been made;
(iii) shall specify the amount of the Participant's Excess
Individual Pre-tax Contributions for the calendar year; and
(iv) shall be accompanied by the Participant's written statement
that if such amounts are not distributed, then the Participant's
Excess Individual Pre-tax Contributions, when added to amounts
deferred under other plans or arrangements described in Code
Sections 401(k), 408(k), or 403(b), will exceed the limit imposed
on the Participant by Code Section 402(g) for the year in which
the Excess Individual Pre-tax Contributions occurred.
(c) Determinations of Income or Loss. Any Excess Individual
Pre-tax Contribution shall be adjusted for income or loss before
<PAGE>
being distributed to the Participant. The income or loss
applicable to Excess Individual Pre-tax Contributions shall be
determined by multiplying the income or loss allocable to the
Participant's Pre-tax Contribution Account for the Plan Year by a
fraction:
(i) the numerator of which is the Excess Individual Pre-tax
Contributions made on behalf of the Participant for the preceding
Plan Year and
(ii) the denominator of which is the account balance in the
Participant's Pre-tax Contribution Account on the last day of the
preceding Plan Year.
4.2.10 Average Actual Pre-tax Contribution Percentage Test.
(a) In General. The Average Actual Pre-tax Contribution
Percentage for Highly Compensated Employees for each Plan Year
shall not exceed the greater of:
(i) the Average Actual Pre-tax Contribution Percentage for
Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by 1.25; or
(ii) the Average Actual Pre-tax Contribution Percentage for
Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by 2.0; provided that the Average
Actual Pre-tax Contribution Percentage for Participants who are
Highly Compensated Employees does not exceed the Average Actual
Pre-tax Contribution Percentage for Participants who are Non-
highly Compensated Employees by more than two (2) percentage
points or such lesser amount as the Secretary of the Treasury
shall prescribe to prevent the multiple use of the alternative
limitation with respect to any Highly Compensated Employee.
(b) Special Rules.
(i) The Actual Pre-tax Contribution Percentage for any
Participant who is a Highly Compensated Employee for the Plan
Year and who is eligible to have Pre-tax Contributions allocated
to his account under two or more arrangements described in Code
Section 401(k) that are maintained by one or more of the
Affiliated Employers shall be determined as if such Pre-tax
Contributions were made under a single arrangement.
(ii) If any non-elective contributions made by any Affiliated
Employers to any one or more Section 401(k) arrangements referred
to in paragraph (b)(i) above of this Subsection 4.2.10 qualify
for, and are actually taken into account for purposes of,
determining a Participant's Actual Pre-tax Contribution
Percentage under such arrangements, then such qualified non-
elective Affiliated Employer contributions shall be taken into
account in applying the Average Actual Pre-tax Contribution
Percentage test and all other rules of this Subsection 4.2.10.
(iii) For purposes of determining the Actual Pre-tax
Contribution Percentage of a Participant who is a Highly
Compensated Employee, the Pre-tax Contributions, any qualified
non-elective Affiliated Employer contributions referred to in
paragraph (b)(ii) above of this Subsection 4.2.10, and the
Compensation of such Participant shall include the Pre-tax
Contributions, any qualifying non-elective Affiliated Employer
<PAGE>
contributions and the Compensation of Family Members. Family
Members, with respect to Highly Compensated Employees, shall be
disregarded as separate employees in determining the Actual Pre-
tax Contribution Percentage both for Participants who are Non-
highly Compensated Employees and for Participants who are Highly
Compensated Employees.
(iv) The determination and treatment of Pre-tax Contributions,
any qualified non-elective Affiliated Employer contributions
referred to in paragraph (b)(ii) above of this Subsection 4.2.10,
and the Actual Pre-tax Contribution Percentage of any Participant
shall satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
4.2.11 Distribution of Excess Aggregate Pre-tax
Contributions.
(a) In General. Notwithstanding any other provisions of the
Plan, Excess Aggregate Pre-tax Contributions, plus any income and
minus any loss allocable thereto, shall be distributed to
Participants who are Highly Compensated Employees and to whose
accounts Pre-tax Contributions (and, if applicable, qualified
non-elective Affiliated Employer contributions referred to in
paragraph (b)(ii) of Subsection 4.2.10 above) were allocated for
a Plan Year, and all of the required amounts shall be distributed
within two and one half (2-1/2) months after the end of such Plan
Year; provided, however, that if the Plan Administrator is unable
to determine and distribute all of the required amounts within
such two-and-one-half-month period, then all of the required
amounts shall nevertheless be distributed by the last day of the
Plan Year which includes such two-and-one-half-month period.
Excess Aggregate Pre-tax Contributions shall be treated as Annual
Additions under the Plan.
(b) Determination of Required Distributions. Any distribution
of Excess Aggregate Pre-tax Contributions for a Plan Year shall
be made to Participants who are Highly Compensated Employees on
the basis of the respective portions of the Excess Aggregate Pre-
tax Contributions attributable to each of such Participants as
determined by reducing the Pre-tax Contributions permitted on
behalf of such Participants in order of the Actual Pre-tax
Contribution Percentages beginning with the highest of such
percentages.
(c) Determination of Income or Loss. All Excess Aggregate Pre-
tax Contributions shall be adjusted for income or loss. The
income or loss allocable to Excess Aggregate Pre-tax
Contributions shall be determined by multiplying the income or
loss applicable to the Participant's Pre-tax Contribution Account
for the Plan Year by a fraction:
(i) the numerator of which is the Excess Aggregate Pre-tax
Contributions on behalf of the Participant for the preceding Plan
Year and
(ii) the denominator of which is the account balance in the
Participant's Pre-tax Contribution Account (plus, if applicable,
the account balance in any qualified non-elective Affiliated
<PAGE>
Employer contribution account) on the last day of the preceding
Plan Year.
(d) Sources for Distribution of Excess Aggregate Pre-tax
Contributions. Excess Aggregate Pre-tax Contributions shall be
distributed as follows: first, they shall be distributed from the
Participant's Pre-tax Contribution Account to the extent of the
balance in such account and from other such accounts of the
Participant in any other arrangements described in Code Section
401(k) maintained by an Affiliated Employer to the extent of such
balances and, second as necessary, they shall be distributed from
any qualified non-elective Affiliated Employer contribution
account (referred to in paragraph (b)(ii) of Subsection 4.2.10
above) in such other 401(k) arrangements.
4.3 Rollover Contributions and Direct Transfers into Plan.
4.3.1 Authorization. Subject to the Provisions of
Subsection 8.3.3, with the approval of the Plan Administrator to
be exercised in a non-discriminatory manner and without regard to
any limitation on contributions contained in the Plan, (a) the
Trust Fund may receive as a Rollover Contribution any amounts
received by a Participant from another qualified retirement plan,
either directly or through the medium of an Individual Retirement
Account eligible to hold such distribution, and (b) the Trust
Fund may receive as a Rollover Contribution any amounts held for
the benefit of a Participant by the trustee of another qualified
retirement plan, provided that such transfer is made directly
from the trustee of such other plan to the Trustee and that such
other plan permits such a direct transfer; and (c) provided that
each Rollover Contribution of either type shall be subject to the
additional requirements set forth in this Section 4.3.
4.3.2 Protection of the Plan. No Rollover Contribution may
be received if the Plan Administrator determines that it may
adversely affect the qualified tax status of the Plan or of the
Trust Fund.
4.3.3 Eligibility for Rollover Treatment. No Rollover
Contribution may be received unless the transfer to the Trust
Fund is either made within sixty (60) days of the Participant's
receipt of the rollover distribution or is made by a direct
trustee-to-trustee transfer and, in either case, the Plan
Administrator has first determined that the Participant is
allowed under the Code to make a Rollover Contribution to the
Trust Fund.
4.3.4 Service Requirement. For purposes of this Section
4.3, an Employee shall be treated as a Participant immediately
upon becoming an Employee.
4.3.5 Separate Accounts. A separate Rollover Contribution
Account shall be maintained for that portion of the Participant's
Accrued Benefit that is attributable to Rollover Contributions.
<PAGE>
Each such separate account shall be credited as of each Valuation
Date with the Participant's share of any applicable
contributions, income, gains, losses, distributions, expenses and
other charges and any other adjustments.
4.3.6 Vesting. All Rollover Contribution Accounts shall be
fully vested and non-forfeitable at all times.
4.3.7 Distribution. A Participant's Rollover Contribution
Account shall be distributable only in accordance with the
provisions of Articles VIII and IX governing Employee
Contribution Accounts.
4.4 Limitations on Annual Additions.
4.4.1 In General. In no event shall the Annual Addition to
all of a Participant's accounts for any Limitation Year exceed
the lesser of $30,000 (multiplied by any Adjustment Factor in
effect for the Limitation Year) or 25% of such Participant's
total Section 415 Compensation.
If a short Limitation Year is created because of an amendment
changing the Limitation Year to a different twelve-consecutive-
month period, the maximum permissible amount will not exceed the
amount determined in the paragraph above multiplied by the
following fraction:
Number of months in the short Limitation Year
12
4.4.2 Multiple Defined Contribution Plans. If a
Participant is also a participant in one or more additional
qualified defined contribution plans or welfare benefit funds (as
defined in Code Section 419(e)) maintained by any Affiliated
Employer (or its affiliates within the meaning of Code Sections
415(h) or 414(m)), the Annual Addition made to the Participant's
account under this Plan shall be limited so that the sum of the
Annual Additions made to the Participant's accounts under all
such plans shall not exceed the limitation set forth in Section
4.4.1. Amounts allocated after March 31, 1984, to an individual
medical account as defined in Code Section 415(l)(1), which is
part of a defined benefit plan maintained by an Affiliated
Employer, are treated as Annual Additions to a defined
contribution plan. Also, amounts derived from contributions paid
or accrued after December 31, 1985, in taxable years ending after
such date, which are attributable to post-retirement medical
benefits allocated to the separate account of a key employee as
defined in Code Section 419(d)(3), under a welfare benefit fund
as defined in Code Section 419(e), which is maintained by an
Affiliated Employer, are treated as Annual Additions to a defined
contribution plan.
4.4.3 Combination of Defined Contribution and Defined
Benefit Plans. If a Participant in this Plan is also a
participant in a defined benefit plan or plans maintained by any
<PAGE>
Affiliated Employer (or its affiliates within the meaning of Code
Sections 415(h) or 414(m)), the Annual Additions made to the
Participant's account under this Plan shall be limited so that
the sum of the following fractions may not exceed 1.0 for any
Limitation Year:
(a) Defined Benefit Plan Fraction. A fraction:
(i) the numerator of which is the projected annual benefit of
the Participant under the defined benefit plan or plans and
(ii) the denominator of which is the lesser of (I) the product
of 1.25 (1.00 if any such plan is either a "top heavy plan" for
which no modification in accrued benefits has been made pursuant
to Code Section 416(h)(2) or a "super top heavy plan" (each as
defined in Code Sections 416(g) and 416(h) respectively))
multiplied by the projected annual benefit of the Participant
under such plan or plans if the same provided the maximum dollar
benefit allowable or (II) the product of 1.40 multiplied by the
projected annual benefit of the Participant under such plan or
plans if the same provided the maximum percentage benefit
allowable, calculated in each case as if the Affiliated Employer
had no defined contribution plan and as of the close of the
Limitation Year;
(b) Defined Contribution Plan Fraction. A fraction:
(i) the numerator of which is the sum of the Annual Additions to
the Participant's account in the defined contribution plan or
plans and the Annual Additions attributable to all welfare
benefit funds (as defined in Code Section 419(e)) maintained by
the Affiliated Employer (or its affiliates within the meaning of
Code Sections 415(h) or 414(m)) as of the close of the Limitation
Year and
(ii) the denominator of which is the sum of the lesser of (I)
the product of 1.25 (1.00 if any such plan is either a "top heavy
plan" for which no modification in contributions has been made
pursuant to Code Section 416(h)(2) and Section 9.3(b)(iv) of this
Plan, or a "super top heavy plan" (each as defined in Code
Sections 416(g) and 416(h) respectively)) multiplied by the
maximum dollar Annual Additions allowable to the Participant's
accounts or (II) the product of 1.40 multiplied by the maximum
percentage Annual Additions allowable to the Participant's
accounts, calculated in each case as the contributions which
could have been made under a defined contribution plan with
respect to all years of service with the Affiliated Employer and
as if the Affiliated Employer had no defined benefit plan.
4.4.4 Protective Procedures. The following procedures
shall be applied to determine whether the limitations set forth
above may be exceeded by the allocation of contributions to a
Participant's accounts and, if so, to avoid exceeding the
limitations.
(a) Estimation. Prior to determining the Participant's actual
Section 415 Compensation for the Limitation Year, the Plan
Administrator may determine the maximum permissible Annual
Addition for a Participant on the basis of a reasonable
estimation of the Participant's Section 415 Compensation for the
<PAGE>
Limitation Year, uniformly determined for all Participants
similarly situated.
(b) Determination. As soon as is administratively feasible
after the end of the Limitation Year, each Participant's maximum
permissible Annual Addition for the Limitation Year shall be
determined on the basis of the Participant's actual Section 415
Compensation for the Limitation Year.
(c) Disposition of Excess. If there is an allocation in excess
of such amount, the excess shall be eliminated in accordance with
Code Section 415 and regulations promulgated thereunder as
follows:
(i) any voluntary after-tax contributions shall be returned to
the Participant, together with any gains attributed to such
contributions and less any losses, to the extent necessary to
eliminate the excess amount;
(ii) Any Pre-tax Contributions shall be returned to the
Participant, together with any gains attributable to such
contributions and less any losses, to the extent necessary to
eliminate the excess amount;
(iii) If after the application of steps (i) and (ii) an excess
amount still exists (or as necessary to avoid any violation of
Code Sections 401(a)(4) and 401(m) and Section 4.1 of this Plan),
any Matching Contribution shall be forfeited (if forfeitable) or
(if not forfeitable) shall be distributed to the Participant,
together with any gains attributable to such contributions and
less any losses, to the extent necessary to eliminate the excess
amount;
(iv) If after the application of steps (i), (ii) and (iii) an
excess amount still exists, and the Participant is covered by the
Plan at the end of the Limitation Year, the excess amount in the
Participant's accounts shall be used to reduce Matching
Contributions for such Participant in the next Limitation Year,
and each succeeding Limitation Year if necessary.
(v) If after the application of steps (i), (ii) and (iii) an
excess amount still exists, and the Participant is not covered by
the Plan at the end of the Limitation Year, the excess amount
shall be held unallocated in a suspense account. The suspense
account shall be applied to reduce future Matching Contributions
for all remaining Participants in the next Limitation Year, and
each succeeding Limitation Year if necessary.
(d) No Allocation of Investment Gains and Losses. If a
suspense account is in existence at any time during the
Limitation Year pursuant to this Subsection 4.4.4, it shall not
participate in the allocation of the Trust Fund's investment
gains and losses.
ARTICLE V
Benefits
5.1 Retirement Benefits.
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5.1.1 Right to a Benefit. Upon reaching his Normal
Retirement Date, a Participant shall be entitled to receive a
nonforfeitable retirement benefit equal to his Accrued Benefit as
determined in accordance with Article VII, payable in the form
provided in Article VIII, and commencing on his Benefit
Commencement Date as determined in Article IX.
5.1.2 Postponed Retirement. If a Participant remains in an
Affiliated Employer's Service after his Normal Retirement Date,
the payment of his retirement benefit shall be deferred until his
Postponed Retirement Date (but subject to the provisions of
Article IX) and until then the Participant shall continue to
participate and have all the rights under the Plan that he would
have if he had not reached his Normal Retirement Date. On the
Participant's Postponed Retirement Date, he shall be entitled to
benefits equal to his Accrued Benefit as determined in accordance
with Article VII, payable in the form provided in Article VIII,
and commencing on his Benefit Commencement Date as determined in
Article IX.
5.2 Disability Benefits. If a Participant becomes
Disabled, and his Service is terminated prior to his retirement,
death or other termination of employment, then he shall be
entitled to receive his Accrued Benefit as determined in
accordance with Article VII, payable in the form provided in
Article VIII, and commencing on his Benefit Commencement Date as
determined in Article IX.
5.3 Death Benefits.
5.3.1 Right to a Death Benefit. If a Participant dies
prior to his retirement or other termination of Service, then his
designated Beneficiary shall be entitled to receive his Accrued
Benefit, as determined in accordance with Article VII, payable in
the form provided in Article VIII, and commencing on the Benefit
Commencement Date as determined in Article IX.
5.3.2 Limitation on Rights of a Married Participant's
Beneficiary. The right of a Participant's designated Beneficiary
to receive death benefits pursuant to this Section 5.3 shall be
subject to any rights of the Participant's surviving Spouse if
the requirements of Section 8.3 have not been met with respect to
such designated Beneficiary.
5.3.3 No Beneficiary. If no Beneficiary has been
designated, or the designated Beneficiary and any Contingent
Beneficiaries shall not survive the Participant, distribution
shall be made to the Participant's surviving Spouse or, if there
is none, then to his issue per stirpes. If there is neither
surviving Spouse nor issue then living, the benefit shall be paid
to the deceased Participant's executor or administrator.
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5.4 Termination Benefits. If a Participant's Service is
terminated for any reason other than retirement, Disability or
death, then he shall be entitled to a termination benefit equal
to his Vested Benefit, as determined in accordance with Articles
VI and VII, payable in the form provided in Article VIII, and
commencing on his Benefit Commencement Date as determined in
Article IX.
ARTICLE VI
Vesting
6.1 Vesting Percentage. With respect to the Accrued
Benefit of each Participant attributable to Employer
contributions made for all periods prior to July 1, 1997, the
Participant's Vesting Percentage shall be 100% at all times.
With respect to the Accrued Benefits attributable to Employer
contributions made for all periods on or after July 1, 1997, the
Vesting Percentage of each Participant who had at least three (3)
Years of Vesting Service as of July 1, 1997 shall be 100% at all
times and the Vesting Percentage of each other Participant shall
be determined in accordance with the following provisions of this
Section 6.1. The Vesting Percentage of a Participant who is in
the Service of an Employer upon (a) the later of (i) his 65th
birthday and (ii) the third anniversary of his initial Entry
Date, (b) Disability, or (c) death shall be 100%. If the Service
of a Participant who did not have at least three (3) Years of
Vesting Service as of July 1, 1997 is terminated prior to the
earliest of the times determined under the preceding sentence,
his Vesting Percentage shall be determined as follows:
Years of Vesting Forfeited
Vesting Service Percentage Percentage
--------------- ---------- ----------
Less than 1 Year 0 100%
1 Year but less 20% 80%
than 2
2 Years but less 50% 50%
than 3
3 Years or more 100% 0%
6.2 Forfeiture.
(a) In General. The forfeited percentage (determined from the
table in Section 6.1) of a former Participant's Employer
Contribution Accounts shall be held until the earlier of (i)
payment to the Participant of his Vested Benefit or (ii) his
incurrence of five consecutive One-Year Breaks in Service and
then it shall be forfeited and dealt with as provided in Section
4.1.1B of Article IV. Except if a forfeiture must be restored
pursuant to Section 6.5, a forfeiture under the provisions of
this Section 6.2 shall be permanent.
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(b) Amounts Not Forfeited. Any balances remaining in a former
Participant's Employer Contribution Accounts after a forfeiture
pursuant to Paragraph (a) shall be non-forfeitable and the former
Participant's Vested Benefit shall include such non-forfeitable
balances.
(c) Accounting After Reemployment. If a former Participant is
reemployed by an Employer, any non-forfeitable balances held in
the Trust pursuant to Paragraph (b) shall be held as sub-accounts
in the Participant's Employer Contribution Accounts until the
Participant's Vesting Percentage equals 100%, at which time such
sub-accounts shall be combined with the Participant's regular
Employer Contribution Accounts.
6.3 Reemployment After Termination of Service. If a former
Participant is reemployed by an Employer and:
(a) no portion of the Participant's Vested Benefit has been paid
to such Participant in accordance with Section 7.1, the balance
in his Employer Contribution Accounts shall be determined in
accordance with Section 6.2 (and, if applicable, Section 6.5) and
his Vesting Percentage shall be based upon the number of his
Years of Vesting Service after applying Section 6.6;
(b) any portion of the Participant's Vested Benefit has been paid
to such Participant in accordance with Section 7.1 and such
Participant has repaid such portion in accordance with Section
6.4, the balance in his Employer Contribution Accounts shall be
determined in accordance with Sections 6.2 and 6.5, and his
Vesting Percentage shall be based upon the number of his Years of
Vesting Service after applying Section 6.6; or
(c) any portion of the Participant's Vested Benefit has been paid
to such Participant in accordance with Section 7.1 and such
Participant has not repaid such portion in accordance with
Section 6.4, the balance in his Employer Contribution Accounts
shall be determined in accordance with Section 6.2, and his
Vesting Percentage shall be based upon the number of his Years of
Vesting Service after his Reemployment Commencement Date.
6.4 Repayment of Vested Benefits. If at or after a
Participant's prior separation from Service, he received all or
any portion of his Vested Benefit, he may, if he returns to
Service, repay the full amount received before the earlier of (a)
five (5) years from his Reemployment Commencement Date or (b) his
number of consecutive One-Year Breaks in Service equals five (5).
6.5 Restoration of Forfeitures.
(a) In General. A former Participant who has forfeited a
portion of his Employer Contribution Accounts pursuant to Section
6.2 shall have the forfeited amount restored (without interest or
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other adjustment for Trust income, gains or losses during the
period of forfeiture) to his Employer Contribution Accounts if:
(i) the former Participant is reemployed by an Employer before
incurring five (5) consecutive One-Year Breaks in Service; and
(ii) if the former Participant received a distribution of any
portion of his Vested Benefit, the former Participant repays in
accordance with the provisions of Section 6.4 such portion of his
Vested Benefit that he received. No forfeiture shall be restored
to any Participant who does not meet the requirement of paragraph
(i) and, if applicable, the requirement of this paragraph.
(b) Accounting for Restored Forfeitures. Any forfeiture
restored pursuant to Paragraph (a) shall be credited to sub-
accounts in the Participant's Employer Contribution Accounts, and
the Participant's Vested Benefit attributable to such
sub-accounts at any relevant time shall equal an amount (X)
determined by the following formula:
X = P(AB + (R x D)) - (R x D)
For purposes of applying this Formula:
P is the Participant's Vesting Percentage determined pursuant to
Section 6.1 at the relevant time.
D is the amount of the Participant's Vested Benefit originally
distributed to the Participant.
R is the ratio of (i) the balance of the Participant's Employer
Contribution Accounts at the relevant time to (ii) the balance of
his Employer Contribution Accounts after the original
distribution of his Vested Benefits.
AB is the balance of the Participant's Employer Contribution
Accounts at the relevant time.
The relevant time is the time at which, under the Plan, the
Participant's Vesting Percentage in his Employer Contribution
Accounts cannot increase.
(c) Source of Restored Forfeitures. Any forfeitures restored
pursuant to Paragraph (a) shall be restored from amounts
forfeited pursuant to Section 6.2 during the Plan Year in which
the restoration is to be made. Notwithstanding any provisions of
the Plan to the contrary, if the aggregate amount to be so
restored to the Employer Contribution Accounts of Participants
exceeds the amount of such forfeitures, the Employer(s) shall
make a contribution to the Plan in the amount of such excess.
Any such contribution shall not be allocated under Article IV.
6.6 Years of Vesting Service and Break-in-Service Rules.
All Years of Vesting Service shall be taken into account for the
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purpose of determining a Participant's Vesting Percentage except
as follows. Notwithstanding Section 6.3:
(a) Years of Vesting Service credited to an Employee before a
One-Year Break in Service shall be disregarded until and unless
he has completed one Year of Vesting Service after the One-Year
Break in Service.
(b) If a Participant has no Vested Benefit, Years of Vesting
Service before a period of consecutive One-Year Breaks in Service
shall be disregarded if the number of consecutive One-Year Breaks
in Service equals or exceeds the greater of five (5) or the
aggregate number of Years of Vesting Service.
(c) Years of Vesting Service credited to an Employee after five
(5) consecutive One-Year Breaks in Service shall be disregarded
in determining his Vesting Percentage in the balance of his
Employer Contribution Accounts that was credited prior to the
Service break.
ARTICLE VII
Calculation of Benefits and Accounts
7.1 Calculation of Benefits. For purposes of calculating
the amount of benefits payable under the Plan, the Vested Benefit
and Accrued Benefit of a Participant, former Participant or
Beneficiary shall be determined as of the latest Valuation Date
coinciding with or following the event which gives rise to the
benefit and prior to or coinciding with commencement of payment
of the benefit, or as of such other date as the Plan
Administrator shall select in any instance in accordance with a
non-discriminatory policy.
7.2 Calculation of Accounts. Any contribution or income,
gain, loss, expense or other credit or charge shall be credited
to or charged against the Participant's accounts on the earliest
Valuation Date coinciding with or next following the realization
or incurrence of the item. Any benefit payment shall be charged
against the Participant's accounts as of the day after the
Valuation Date utilized under Section 7.1 to determine the amount
of the benefit payment.
ARTICLE VIII
Payment of Benefits
8.1 Form of Benefits.
8.1.1 Retirement, Disability or Termination Benefits.
Benefits payable on account of a Participant's retirement,
Disability or termination of Service prior to attaining
retirement age shall be payable in any of the following forms, as
selected by the Participant:
(a) In a lump sum paid (at the distributee's option) by check or
by a combination of the shares of Stock in the Participant's
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accounts with the balance paid by check, except that the value of
any fractional shares of Stock shall be paid by check.
(b) Except as provided below, in periodic installments (not less
frequently than annually or more frequently than monthly) paid by
check over a period equal to the shorter of fifteen (15) years or
the joint life expectancies of the Participant and his
Beneficiary; provided that: (i) at least 51% of the
Participant's Vested Benefit (as determined when payment
commences) shall be payable during the Participant's life
expectancy (as determined when payment commences) and (ii) the
amount distributed each year shall at least equal the quotient
obtained by dividing the Participant's Vested Benefit by the
applicable life expectancy or joint life expectancy. (For
purposes of this paragraph (b), payments shall be calculated by
use of the return multiples specified in Section 1.72-9 of the
Income Tax Regulations and the life expectancies of the
Participant and his Spouse (if a Beneficiary) shall be
redetermined annually.) Notwithstanding the foregoing, a
Participant shall not be entitled to elect installment payments
if a lump sum is required pursuant to Section 9.8 (relating to
small benefits) and a Participant shall be entitled to elect
payment in shares of Stock from his Basic Contribution Account,
as required by Section 17.4.
8.1.2 Death Benefits. Benefits paid on account of a
Participant's death shall be payable only in a lump sum, paid (at
the distributee's option) by check or by a combination of the
shares of Stock in the Participant's accounts with the balance by
check, except that the value of any fractional shares of Stock
shall be paid by check.
8.2 Notice and Election of Benefit Form.
8.2.1 Notice. As required by section 1.411(a)-11(c) of the
Income Tax Regulations, not less than 30 days and not more than
90 days before payment or commencement of a benefit, the Plan
Administrator shall give notice to the Participant or Beneficiary
concerning the (i) availability of alternative forms (if any) of
benefits and payment, (ii) direct rollover rights for eligible
rollover distributions (as described in Code Section 402(c)), and
(iii) availability of options (if any) as to timing of payment.
8.2.2 Election. After receiving such notice, and subject
to Subsection 8.2.3 below, the prospective distributee shall
elect (in the manner directed by the Plan Administrator at such
time): (i) if applicable, the form of benefit and payment; (ii)
if the distribution is an eligible rollover distribution, whether
to exercise a direct rollover right; and (iii) if applicable, the
timing of payment.
8.2.3 Conditions for Accelerated Payment. If a
distribution is one to which Code sections 401(a)(11) and 417
(requiring a Spouse's consent) do not apply, such distribution
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may commence less than 30 days after the notice required by this
Section 8.2 is given, provided that either the distribution is
subject to Section 9.8 (for Vested Benefits that do not exceed
$3,500) or both of the following conditions are met:
(a) the Plan Administrator clearly informs the prospective
distributee that such individual has a right to a period of at
least 30 days after receiving the notice to consider the decision
of whether or not to elect a distribution (and, if applicable, a
particular distribution option), and
(b) such prospective distributee, after receiving the notice,
affirmatively elects a distribution.
8.3. Annuity Benefits Generally Not Required.
8.3.1 In General. This Plan is a profit sharing and
elective deferral plan which meets the following two conditions:
(a) Participants may not elect benefit payments in the form of a
life annuity and (b) upon the death of a Participant who leaves a
surviving Spouse, the Participant's Vested Benefit shall be paid
to the surviving Spouse unless the requirements of Subsection
8.3.2 are met for payment to an alternate designated Beneficiary.
8.3.2 Conditions on Payment of Death Benefits to a
Designated Beneficiary. Upon the death of a Participant prior to
payment of his Plan benefits on account of retirement, Disability
or termination, his Vested Benefit shall be paid to his
designated Beneficiary if all of the requirements specified in
paragraph (a) are met or if any of the conditions of paragraph
(b) exist:
(a) the Participant's surviving Spouse has consented in writing
to an alternate designated Beneficiary (to receive the whole or
any part of any death benefit payable under the Plan) and such
consent: (i) acknowledges the effect of such designation; (ii) is
witnessed by the Plan Administrator or its designate or a notary
public; and (iii) is the most recent designation submitted to the
Plan Administrator by or for the Participant at the date of his
death; or
(b) the consent referred to in paragraph (a) cannot be obtained
because it is established to the satisfaction of the Plan
Administrator that: (i) the Participant has no surviving Spouse;
(ii) the Participant's surviving Spouse cannot be located; or
(iii) other circumstances, as may be provided for in regulations
under the Code, exist that prevent the Participant from obtaining
the consent referred to in Paragraph (a).
8.3.3 Restrictions on Transfers into Plan. The Plan shall
not accept any direct or indirect transfers of any benefits from
a defined benefit plan, money purchase pension plan (including a
target benefit plan), or a stock bonus or profit sharing plan
which provides for a life annuity form of payment to a
Participant; provided, however, that an "eligible rollover
distribution" within the meaning of Code Section 402(c)(4) shall
not be prohibited as a Rollover Contribution by this Section.
<PAGE>
8.4 Withdrawals During Employment. Upon the application by
any Participant, the Plan Administrator shall direct the Trustee
to make distributions to the Participant pursuant to Subsections
8.4.1, 8.4.2, 8.4.3 or 8.4.4, subject to the applicable
provisions of such subsections and of Subsection 8.4.5, while the
Participant remains in the Service of an Affiliated Employer. No
such withdrawals shall be permitted from a Participant's Basic
Contribution Account.
8.4.1 Withdrawals from Pre-Tax Contribution Account After
Attaining Age 59-1/2. Once a Participant attains age 59-1/2, he
may withdraw for any reason 25%, 50%, or 100% of his Pre-tax
Contribution Account.
8.4.2 Hardship Withdrawals from Pre-Tax Contribution
Account. A Participant of any age may request a withdrawal from
his Pre-tax Contribution Account, subject to the following
conditions:
(a) Restrictions on Amount. Each hardship withdrawal under
this Subsection 8.4.2 shall be for no more than the lesser of the
amount necessary to alleviate the hardship and the applicable
amount in paragraph (i) or (ii) below:
(i) if made before the Participant attains age 59-1/2, the
Participant's cumulative Pre-tax Contributions, reduced by
amounts previously withdrawn under this Subsection 8.4.2;
(ii) if made after the Participant attains age 59-1/2, the
balance in the Participant's Pre-tax Contribution Account.
(b) Required Purposes -- Facts and Circumstances Test.
Hardship withdrawals shall be permitted under this Subsection
8.4.2: (i) only for the purpose of enabling the Participant to
meet immediate and heavy financial needs (including only (1)
medical expenses of the Participant or his Family Members, (2)
the cost of purchasing or remodeling or of avoiding foreclosure
on or eviction from the Participant's primary residence, (3) the
cost of funeral expenses for the Participant's Family Members,
(4) the cost of providing education to the Participant's Family
Members or (5) in case of any layoff of more than two (2) weeks'
duration) and (ii) only to the extent such needs cannot be met
from other resources reasonably available to the Participant,
including all loans and other withdrawals available under this
Plan; provided that the Plan Administrator shall rely reasonably
on the Participant's representation that he cannot meet the
financial need from insurance, that he has already made
reasonable liquidation of other assets and that he has already
utilized other available distributions and loans from other
employer plans and loans from commercial sources.
8.4.3 Withdrawals from Employer Contribution Accounts. A
Participant of any age may withdraw for any reason all or any of
the vested portions of his Employer Contribution Accounts,
subject to the following limitations:
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(a) Maximum Amount. A Participant's withdrawals under this
Subsection 8.4.3 shall not exceed the applicable amount in
paragraphs (i) or (ii) below:
(i) If the Participant has participated in the Plan for at least
five (5) years or is laid off for more than two (2) weeks, the
entire vested portion of his Employer Contribution Accounts, and
(ii) otherwise, the vested portions of the Participant's
Employer Contribution Accounts that are attributable to
contributions made at least two (2) years prior to the date of
the withdrawal.
(b) Minimum Amount. Each withdrawal under this Subsection
8.4.3 shall be for at least the lesser of 50% of the vested
portions of the participant's Employer Contribution Accounts and
$2,000.
8.4.4 Withdrawals from Rollover Contribution Account. A
Participant of any age may withdraw for any reason all or any
portion of the balance in his Rollover Contribution Account;
provided that any such withdrawal shall be for at least the
lesser of 50% of the balance in such Rollover Contribution
Account and $2,000.
8.4.5 General Provisions Applicable to Withdrawals
(a) Frequency. Only one withdrawal (other than hardship
withdrawals under Subsection 8.4.2) may be made by a Participant
under this Section 8.4 during each Plan Year; provided that (a) a
Participant may request to withdraw amounts simultaneously under
Subsections 8.4.1, 8.4.2, 8.4.3 and 8.4.4 and (b) a Participant
may request a hardship withdrawal under Subsection 8.4.2 as
necessary.
(b) Limitation on Right to Make Pre-tax Contributions Following
a Withdrawal. A Participant's right to make Pre-tax
Contributions shall be suspended for twelve (12) calendar months
from the effective date of any withdrawal made by the Participant
under this Section 8.4.
(c) Accounting for Withdrawals. Withdrawals shall be charged
against a Participant's accounts in the following order:
(i) Rollover Contribution Account;
(ii) Pre-tax Contribution Account;
(iii) Pre-July, 1997 Matching Contribution Account;
(iv) Post-June, 1997 Matching Contribution Account (from the
vested portion);
(v) Profit Sharing Account (from the vested portion); and
(vi) Basic Contribution Account.
Withdrawals shall be charged to the Participant's interest in
each Fund in the Trust Fund in the same proportion that the
portion of his respective account or accounts from which the
withdrawal is being made is invested on the date as of which the
withdrawal is charged. After a withdrawal from any of his
Employer Contribution Accounts, the Participant's vested interest
in each such Employer Contribution Account at any relevant time
shall be equal to an amount (X) determined by the following
formula:
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X = P(AB + (R x D)) - (R x D)
For purposes of applying this formula:
P is the Participant's Vesting Percentage determined pursuant to
Section 6.1 at the relevant time.
D is the amount of the withdrawal.
R is the ratio of (i) the balance of the Participant's withdrawn
Employer Contribution Account at the relevant time to (ii) the
balance of such Employer Contribution Account after the
withdrawal.
AB is the balance of the Participant's withdrawn Employer
Contribution Account at the relevant time.
The relevant time is the time at which, under the Plan, the
Participant's Vesting Percentage in his withdrawn Contribution
Account cannot increase.
(d) Valuation Adjustments for Withdrawals. The balance in a
Participant's accounts in the Plan shall be adjusted equitably to
reflect the effects of any withdrawals made by the Participant in
between Plan Valuation Dates. Any withdrawal requested for
disbursement prior to the next Plan Valuation Date will be
limited in amount by any adjustment necessary to equitably
reflect changes to the value of Plan assets since the immediately
preceding Valuation Date. Notwithstanding the foregoing, the
provisions of this paragraph shall not apply while the Plan
employs daily valuations.
(e) Rules and Regulations. Any withdrawal request under this
Section 8.4 shall be made in the manner and with such advance
notice as is required by the Plan Administrator from time to
time. The Plan Administrator in its discretion shall determine
from time to time such additional non-discriminatory conditions
on and rules governing withdrawals under this Section 8.4 as it
deems appropriate.
8.5 Participant Loans. Loans shall be available to
Participants from their Accrued Benefits, subject to the
requirements and limitations of this Section 8.5. Upon approval
by the Plan Administrator of properly completed loan documents,
the Trustee shall make such loans.
8.5.1 Loan Terms and Conditions. Each loan shall be
subject to the following terms and conditions:
(a) Maximum Amount. A Participant may elect to borrow an
amount from the Trust Fund which shall not exceed the lesser of
the amounts in paragraphs (i) and (ii) below:
(i) the amount equal to 50% of the first $100,000 of the
Participant's Vested Benefit in the Plan, less the outstanding
balance, if any, of a prior loan from the Plan; or
(ii) $50,000, reduced by the highest outstanding balance of loans
from the Plan to the Participant during the one-year period
ending on the day before the date on which such loan is
disbursed.
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(b) Timing of Disbursements. Each loan shall be disbursed on
the next Loan Disbursement Date, as defined below, following
receipt of properly completed loan documents by the Trustee by
such processing deadline as the Trustee may from time to time
set. The Loan Disbursement Dates shall be such date or dates
each month as the Plan Administrator may from time to time set.
(c) Authorization of Supplemental Loan Rules and Procedures.
The Plan Administrator may impose supplemental rules and
procedures to govern the granting of loans and the terms of such
loans. All such rules and procedures shall be uniform and
nondiscriminatory with respect to Participants in similar
circumstances.
(d) Communication of Terms, Procedures and Forms. The
following terms, procedures, and documents shall be set forth by
the Plan Administrator and made available to all Participants:
(i) a loan application procedure, together with a specimen
application, promissory note and security agreement;
(ii) the basis for approval of loans;
(iii) the minimum and maximum loans permitted;
(iv) the procedure for setting the loan interest rate;
(v) the events that constitute default and the consequences of
default; and
(vi) any other information or procedures pertinent to
administration of the loan program.
Such terms, procedures and documents, as from time to time
revised by the Plan Administrator, are hereby incorporated by
reference and made a part of the Plan.
(e) Eligibility. Only Participants who are actively at work
and receiving regular paychecks are eligible to request loans
from the Plan. Participants on leaves of absence, vested
terminated Participants and Beneficiaries may not obtain loans
from the Plan while in such status.
(f) Number. Each Participant may have no more than one loan
outstanding at any time.
(g) Minimum Amount. The minimum loan shall be $1,000.
(h) Interest Rate. The interest rate charged on each loan
shall be a fixed interest rate equal to the prime lending rate
plus two (2) percentage points, as published by the Wall Street
Journal, pertaining to the base rate on corporate loans at large
US money-center commercial banks on the Interest Determination
Date, as defined below; provided that (i) the loan is disbursed
by the first business day of the next month following the
Interest Determination Date and (ii) if more than one prime rate
is published, the higher of the rates shall be used. The
Interest Determination Date shall mean the tenth (10th) day of
each month (or the next business day if such day is not a
business day). The Interest Determination Date for any loan
shall be the first Interest Determination Date falling on or
after the date that the loan is requested in the manner then
currently directed by the Plan Administrator.
(i) Source of Funds. Each loan shall be funded pro-rata from
all Funds in the Trust Fund in which the borrower's Accrued
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Benefit is invested and shall be charged to his accounts in the
following order:
(i) Rollover Contribution Account;
(ii) Pre-tax Contribution Account;
(iii) Pre- July, 1997 Matching Contribution Account;
(iv) Post-June, 1997 Matching Contribution Account (from the
vested portion);
(v) Profit Sharing Account (from the vested portion); and
(vi) Basic Contribution Account.
(j) Disposition of Payments. Loan repayments shall be credited
to the borrower's accounts in inverse order. Amounts recredited
to Employer Matching and Profit Sharing Contributions and to
Basic Contributions shall be invested in the Company Stock Fund,
and amounts recredited to the Participant's Rollover Contribution
Account and/or Pre-tax Contribution Account shall be invested in
accordance with his then-currently effective investment election
for future Pre-tax Contributions.
(k) Repayment Terms. Repayment shall be by payroll deduction
of substantially equal amounts in each of the borrower's payroll
periods; provided that a borrower who commences an unpaid leave
of absence shall continue making repayments by check on such
schedule as the Plan Administrator shall approve (such approval
to be made in a uniform and non-discriminatory manner); provided
further that such payments by check shall be scheduled in
substantially equal installments not less frequently than
quarterly. Repayment shall commence with the first payroll paid
to the borrower following the date that the loan is disbursed.
Each loan shall be scheduled for repayment over a period of not
more than five (5) years from the date that the loan is
disbursed.
(l) Prepayment. Full repayment of the outstanding balance of a
loan may be made by check at any time without penalty. The Plan
Administrator at its sole discretion, but in a uniform and non-
discriminatory manner, may from time to time permit partial
prepayments to be made of outstanding loan balances.
(m) Default. A loan shall be in default in the event that (i)
a borrower fails to make one or more consecutive payments as
scheduled and such failure is not remedied within three (3)
months of the due date for the first such payment or (ii) the
borrower's employment with the Employer terminates.
(n) Collateral. Fifty percent (50%) of the borrower's vested
interest in the Plan shall be the collateral for each loan.
However, in the event of the borrower's failure to repay the loan
in accordance with the provisions of this Section 8.5 or if the
loan is otherwise in default, the Plan Administrator may require
additional collateral or may take such other action as
appropriate to cause repayment in accordance with the terms of
the loan. Such other action may include, without limitation,
deeming the remaining balance of the loan due and payable at the
time of default, or treating the unpaid balance of the loan as a
withdrawal from the borrower's accounts, provided that such
withdrawal otherwise conforms with the provisions of this Plan.
<PAGE>
(o) Repayment or Distribution Upon Termination. A borrower
whose employment with the Employer terminates while a loan is
outstanding shall have the right to repay the loan in full by the
earlier of (i) three (3) months after such termination and (ii)
the date that any portion of the borrower's Accrued Benefit is
distributed from the Plan. Unless repaid within such period, the
outstanding loan balance shall be deemed to have been distributed
to the borrower as of the end of such period, and no further
repayments of the loan shall be due or accepted.
(p) Directed Investment Status. Any loan to a Participant
shall be a directed investment of the borrower's own Participant
Account, pursuant to Article XVI of the Plan.
(q) Loan Fees. The Plan Administrator may from time to time
impose reasonable initial and/or periodic fees to reflect the
costs of making and administering loans. Each borrower shall be
responsible for the payment of all such fees in effect when the
loan is made and while it remains outstanding. Such fees shall
be deducted from the borrower's accounts in the same manner as a
loan disbursement.
8.5.2 Simultaneous Withdrawals and Loans. If a withdrawal
and a loan are requested for the same disbursement date, the loan
will be charged to the borrower's accounts first, and then the
withdrawal will be charged next.
8.6 Effect of Reemployment. In the case of a Participant
who returns to Service after his Benefit Commencement Date but
before his Normal Retirement Date, payment of benefits to him
shall thereupon cease, and the form of any benefits payable to
him thereafter shall be determined in accordance with the
provisions of this Article VIII but disregarding any previous
benefit elections made by him.
8.7 Claims Procedure.
8.7.1 Notice of Claim: Notice of Denial. In order to
receive any benefits under the Plan, a Participant or his
Beneficiary (the "Applicant") shall first file a notice with the
Plan Administrator submitting his claim in the manner directed by
the Plan Administrator. If a claim for benefits submitted by the
Applicant is denied, the Plan Administrator shall furnish to the
Applicant, within ninety (90) days after receipt of such claim
(or within one hundred and eighty (180) days after such receipt
if extenuating or special circumstances require an extension of
time) a written notice which: (a) specifies the reasons for the
denial, (b) refers to the pertinent provisions of the Plan on
which the denial is based, (c) describes any additional material
or information necessary for the perfection of the claim and
explains why such material or information is necessary, and (d)
explains the claim review procedures of this Section 8.7.
8.7.2 Review of Denial. Upon the written request of the
Applicant submitted within sixty (60) days after his receipt of
<PAGE>
such written notice, the Plan Administrator shall afford the
Applicant a full and fair review of the decision denying the
claim, and, if so requested: (a) permit the Applicant to review
any documents which are pertinent to the claim, (b) permit the
Applicant to submit to the Plan Administrator issues and comments
in writing, and (c) afford the Applicant an opportunity to meet
with a quorum of the Plan Administrator as a part of the review
procedure.
8.7.3 Decision on Review. Within sixty (60) days after its
receipt of a request for review (or within one hundred and twenty
(120) days after such receipt if special circumstances, such as
the need to hold a hearing, require an extension of time) the
Plan Administrator shall notify the applicant in writing of its
decision and the reasons for its decision and shall refer the
Applicant to the provisions of the Plan which form the basis for
its decision.
8.8 Transfers to Other Plans
8.8.1 In General. Notwithstanding any provision of the
Plan to the contrary that would otherwise limit a distributee's
election under this Section 8.8, a distributee may elect, at the
time and in the manner prescribed by the Plan Administrator, to
have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the
distributee in a direct rollover.
8.8.2 Definitions. For purposes of this Section 8.8, the
following definitions shall apply:
(a) Direct rollover. A direct rollover is a payment by the Plan
to the eligible retirement plan specified by the distributee.
(b) 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 alternate payee under a qualified
domestic relations order, as defined in Code Section 414(p) are
distributees with regard to the interest of the Spouse or former
Spouse.
(c) Eligible retirement plan. An eligible retirement plan is an
individual retirement account described in Code Section 408(a),
an individual retirement annuity described in Code Section
408(b), an annuity plan described in Code Section 403(a), or a
qualified trust described in Code Section 401(a) that accepts the
distributee's eligible rollover distribution. However, in the
case of an eligible rollover distribution to the surviving
Spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(d) 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: (i) any distribution that
is one of a series of substantially equal periodic payments (not
<PAGE>
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; (ii)
any distribution to the extent such distribution is required
under Code Section 401(a)(9); and (iii) the portion of any
distribution that is not includable in the distributee's gross
income (determined without regard to the exclusion for net
unrealized appreciation with respect to distributed shares of
Stock).
ARTICLE IX
Benefit Commencement Date
9.1 General Rule. Subject to Sections 9.2 through 9.8, the
Benefit Commencement Date of a Participant who retires upon his
Early Retirement Date, Normal Retirement Date , or Postponed
Retirement Date shall be the Valuation Date coinciding with or
next following such date of retirement. Subject to Sections 9.2
through 9.8 and unless a Participant elects otherwise in
accordance with the provisions of Section 9.2, the Benefit
Commencement Date of a Participant whose Service is terminated
other than by reason of retirement, Disability or death shall be
the Valuation Date coinciding with or next following his Normal
Retirement Date.
9.2 Optional Termination Benefit Commencement Date. Except
as provided in Sections 9.7 and 9.8, any terminated Participant
may choose any Valuation Date coinciding with or following his
termination of employment as his Benefit Commencement Date.
9.3 Disability Benefit Commencement Date. The Benefit
Commencement Date of a Participant whose Service is terminated by
reason of Disability shall be the Valuation Date coinciding with
or next following the termination of his Service; provided that
(a) subject to Sections 9.7 and 9.8, such Participant may choose
any subsequent Valuation Date and (b) if such Participant is
entitled to receive a disability benefit under any plan to which
his Affiliated Employer has contributed, then subject to Sections
9.7 and 9.8, his Benefit Commencement Date shall be the next
Valuation Date following the date disability benefits cease under
such plan, unless the Participant chooses a different Valuation
Date pursuant to clause (a) above.
9.4 Retirement After Reemployment. If, upon reemployment
by an Affiliated Employer, benefits payable to a Participant are
suspended in accordance with any provision of this Plan, such
Participant's new Benefit Commencement Date shall be determined
in accordance with the provisions of this Article IX as if he had
not previously had a Benefit Commencement Date prior to such
suspension of payment of benefits.
<PAGE>
9.5 Death Benefit Commencement Date. If benefits first
become payable to the Spouse or other Beneficiary of a
Participant following such Participant's death, payment of such
benefits shall be made as of the Valuation Date selected by the
distributee, but subject to the applicable limit in Subsections
9.5.1 or 9.5.2 below:
9.5.1 Spouse Beneficiary. If the distributee is the
Participant's surviving Spouse, payment shall be made by the
later of the Participant's Normal Retirement Date and December 31
of the calendar year that includes the fifth (5th) anniversary of
the Participant's death.
9.5.2 Non-Spouse Beneficiary. If the distributee is not the
Participant's surviving Spouse, payment shall be made by December
31 of the calendar year that includes the fifth (5th) anniversary
of the Participant's death.
9.6 Limited Administrative Delays. Unless a Participant
elects otherwise, payment of his benefits shall commence not
later than sixty (60) days after the close of the Plan Year in
which the latest of the following occurs: (a) the Participant's
Normal Retirement Date, or (b) the tenth (10th) anniversary of
the Participant's Entry Date, or (c) the date on which the
Participant actually retires or his Service is otherwise
terminated. Subject to the foregoing and to Sections 9.7 and
9.8, the Plan Administrator may take such time as is
administratively reasonable and convenient after the relevant
Benefit Commencement Date or other relevant Valuation Date to
determine the amount of a benefit due and to pay or commence
payment of such benefit.
9.7 Latest Benefit Commencement Date. Notwithstanding the
provisions of Sections 9.1, 9.2 and 9.3 but subject to Section
9.8, distributions to a Participant must commence no later than
the first day of April following the calendar year in which such
Participant attains age 70-1/2.
9.8 Payment Date When Benefit is $3,500 or Less. If the
Participant's Vested Benefit is $3,500 or less, the Plan
Administrator shall as soon as is administratively convenient
distribute such benefit in a lump sum without the Participant's
consent. However, a Participant's Vested Benefit may not be paid
in an immediate lump sum without his written consent if the
Participant's Vested Benefit exceeds $3,500.
ARTICLE X
Top-Heavy Provisions
10.1 Application of Top-Heavy Provisions. The following
provisions shall become effective in any Plan Year in which the
<PAGE>
Plan is determined to be a Top-Heavy Plan, as defined in Section
10.2, and shall supersede any conflicting provisions in the Plan.
10.2 Determination of Top-Heavy Plan Status: Top-Heavy Plan
Definitions. The following words and phrases shall have the
meanings specified:
10.2.1 Key Employee and Non-Key Employee.
The phrase "Key Employee" shall mean any Employee or former
Employee (and the Beneficiaries of such Employee) who at any time
during the determination period was:
(a) an officer of an Affiliated Employer if (i) such
individual's annual compensation exceeds 150% of the dollar
limitation under Code Section 415(c)(1)(A) and (ii) such
individual is in the group of such officers having the highest
annual compensation but that does not exceed the lesser of (1)
fifty (50) officers and (2) the greater of three (3) officers or
10% of all Employees of such Affiliated Employer;
(b) an owner (or considered an owner under Code Section 318) of
one of the ten (10) largest interests in an Affiliated Employer
if such individual's compensation exceeds 100% of the dollar
limitation under Code Section 415(c)(1)(A);
(c) a 5% owner of an Affiliated Employer; or
(d) a 1% owner of an Affiliated Employer if such individual's
Compensation exceeds $150,000.
The determination period is the Plan Year containing the
Determination Date and the four (4) preceding Plan Years. The
determination as to who is a Key Employee shall be made in
accordance with Code Section 416(i)(1) and the Regulations
thereunder.
The phrase "Non-Key Employee" shall mean any Employee (including
a beneficiary of such Employee) who is not a Key Employee.
10.2.2 Top-Heavy Plan. For any Plan Year the Plan shall be
considered a "Top-Heavy Plan" if any of the following conditions
exist:
(a) If the Top-Heavy Ratio for the Plan exceeds 60% and the Plan
is not part of any Required Aggregation Group or Permissive
Aggregation Group of plans.
(b) If the Plan is a part of a Required Aggregation Group of
plans but not part of a Permissive Aggregation Group and the Top-
Heavy Ratio for the group of plans exceeds 60%.
(c) If the Plan is a part of a Required Aggregation Group and
part of a Permissive Aggregation Group of plans and the Top-Heavy
Ratio for the Permissive Aggregation Group exceeds 60%.
10.2.3 Top-Heavy Ratio.
(a) If an Affiliated Employer maintains one or more defined
contribution plans (including any simplified employee pension
plan) and an Affiliated Employer maintains or has maintained one
or more defined benefit plans which, during the five-year period
ending on the Determination Date(s), has or has had any accrued
<PAGE>
benefits, the Top-Heavy Ratio for any Required or Permissive
Aggregation Group as appropriate is a fraction:
(i) the numerator of which is the sum of (1) the account
balances under the aggregated defined contribution plan or plans
for all Key Employees and (2) the Present Value of the accrued
benefits under the aggregated defined benefit plan or plans for
all Key Employees as of the Determination Date(s), and
(ii) the denominator of which is the sum of (1) the account
balances under the aggregated defined contribution plan or plans
for all Participants and (2) the Present Value of accrued
benefits under the defined benefit plan or plans for all
Participants as of the Determination Date(s).
All Top-Heavy Ratio determinations shall be made in accordance
with Code Section 416 and the regulations thereunder. The
account balances under a defined contribution plan and the
accrued benefits under a defined benefit plan in both the
numerator and the denominator of the Top-Heavy Ratio shall be
adjusted for any distribution of an account balance or an accrued
benefit made in the five-year period ending on the Determination
Date.
(b) For purposes of paragraph (a) above, the value of account
balances and the Present Value of accrued benefits shall be
determined as of the most recent Valuation Date that falls within
or at the end of the twelve-month period ending on the
Determination Date, except as provided in Code Section 416 and
the regulations thereunder for the first and second plan years of
a defined benefit plan. The account balances and accrued
benefits of a Participant (i) who is not a Key Employee but who
was a Key Employee in a prior year, or (ii) who has not performed
any service for any Employer maintaining the plan at any time
during the five-year period ending on the Determination Date
shall be disregarded. The calculation of the Top-Heavy Ratio,
and the extent to which distributions, rollovers and transfers
are taken into account shall be made in accordance with Code
Section 416 and the regulations thereunder. Deductible employee
contributions made pursuant to Section 219 of the Internal
Revenue Code of 1986 shall not be taken into account for purposes
of computing the Top-Heavy Ratio. When aggregating plans, the
value of account balances and accrued benefits shall be
calculated with reference to the Determination Dates that fall
within the same calendar year.
10.2.4 Permissive Aggregation Group. The "Permissive
Aggregation Group" shall be the Required Aggregation Group of
plans plus any other plan or plans of an Affiliated Employer
which, when considered as a group with the Required Aggregation
Group, would continue to satisfy the requirements of Code
Sections 401(a)(4) and 410.
10.2.5 Required Aggregation Group. The "Required
Aggregation Group" shall be (a) each qualified plan of an
Affiliated Employer in which at least one Key Employee
participates and (b) any other qualified plan of an Affiliated
<PAGE>
Employer which enables a plan described in clause (a) to meet the
requirements of Code Sections 401(a)(4) or 410(b).
10.2.6 Determination Date. The "Determination Date" shall
be (a) for any Plan Year subsequent to the first Plan Year, the
last day of the preceding Plan Year or (b) for the first Plan
Year of the Plan, the last day of that Year.
10.2.7 Present Value. For purposes of establishing
"Present Value" to compute the Top-Heavy Ratio, any benefit shall
be discounted only for mortality and interest based on (a) annual
interest of 5-1/2% and (b) the 1971 Group Annuity Mortality
Table.
10.2.8 Valuation Date. For purposes of computing the Top-
Heavy Ratio, the Valuation Date shall be the last day of each
Plan Year.
10.3 Top-Heavy Plan Requirements. If the Plan is a Top-
Heavy Plan for any Plan Year or, as part of a Required or
Permissive Aggregation Group, the Plan is deemed to be a Top-
Heavy Plan for any Plan Year, the following requirements shall be
met, notwithstanding any other provisions of the Plan.
10.3.1 Minimum Vesting Schedule. For any Plan Year in
which this Section 10.3 applies, the non-forfeitable percentage
of each Employee in his Accrued Benefit shall be determined in
accordance with Article VI. The Minimum Vesting Schedule applies
to all benefits within the meaning of Code Section 411(a)(7)
except those attributable to Employee contributions and Pre-tax
Contributions, including benefits accrued before the effective
date of Code Section 416 and benefits accrued before the Plan
became a Top-Heavy Plan. Further, no reduction in vested
benefits may occur in the event the Plan's status as a Top-Heavy
Plan changes for any Plan Year. This provision does not apply,
however, to the Accrued Benefit of any Employee who does not have
an Hour of Service after the Plan has initially become a Top-
Heavy Plan and forfeitures of such Accrued Benefits shall be
determined without regard to this provision.
10.3.2 Minimum Contributions. For any Plan Year in which
this Section 10.3 applies, except as is otherwise required to
satisfy Section 10.4, the following contribution provisions shall
apply to the Plan:
(a) Basic Minimum. Each Affiliated Employer shall, on behalf of
each Participant it employs who is a Non-Key Employee for such
Top-Heavy Plan Year, contribute to the Trust Fund, in addition to
any Matching Contribution required pursuant to Section 4.1 for
such Participant the lesser of (i) 3% of the Non-Key Employee's
Compensation for the Plan Year and (ii) the percentage of the
Non-Key Employee's Compensation for the Plan Year that equals the
highest percentage of any Key Employee's Compensation for the
Plan Year contributed by the Employers (including, for this
<PAGE>
purpose, any Pre-tax Contributions made on the Key Employee's
behalf).
(b) Restriction on Right to a Minimum Contribution. Except as
necessary to meet the Top-Heavy minimum benefit accrual
requirements of any defined benefit plan or plans in the Required
or Permissive Aggregation Group for any Non-Key Employee who has
at least 1,000 Hours of Service with an Affiliated Employer
during such Top-Heavy Plan Year, no contribution shall be made
pursuant to paragraph (a) above on behalf of a Non-Key Employee
who was not employed by an Affiliated Employer on the last day of
the Plan Year.
(c) Increased Section-415-Limitation Minimum. If, for any Plan
Year the Top-Heavy Ratio is in excess of 60% but is not in excess
of 90% and the denominator used in determining dollar limitations
on maximum benefits under Code Section 415(e) on behalf of an
Employee who is covered under the Plan and any defined benefit
pension plan maintained by an Affiliated Employer is multiplied
by a factor of 1.25, then the contribution rate in clause (i) of
paragraph (a) above shall be increased to 4%.
10.4 Minimum Accrued Benefits. Notwithstanding the
provisions of Subsection 10.3.2, for any Plan Year during which
the Plan is deemed to be a Top-Heavy Plan as a member of a
Required or Permissive Aggregation Group which includes a defined
benefit pension plan, the contribution rates in clause (i) of
paragraph (a) and in paragraph (c) of Subsection 10.3.2 shall be
increased to 5% and 7.5%, respectively.
ARTICLE XI
Plan Administration
11.1 Appointment of Administrator. References to the
Company shall also include the actions and responsibilities of
the Board where appropriate. The Company shall appoint a
Committee to serve as the Plan Administrator. Such Committee
may, but need not, consist of Plan Participants or Employees or
officers of any Employer. The number of persons serving on the
Committee at any time shall be determined by the Company and
shall always be at least three members, and may be changed from
time to time by the Company. The Company may remove any
Committee member at any time, with or without cause, by filing
written notice of his removal with the Committee and the Trustee.
A Committee member may resign at any time by filing his written
resignation with the Company. In the absence of any contrary
appointment by the Company, the Company's Retirement Committee
shall serve as the Committee.
11.2 Expenses of Plan Administrator. Any expenses incurred
by the Plan Administrator in administering the Plan shall be
considered a cost of the Plan and shall be paid in accordance
with the provisions of Article XII.
<PAGE>
11.3 Duties of the Plan Administrator. In addition to its
duties set forth elsewhere in the Plan, the Plan Administrator
shall have the following rights, powers, and duties, any of which
it may delegate to any member or members of the Plan
Administrator:
(a) to design forms and to prepare and enforce such rules,
regulations, and procedures, as shall be necessary for the
efficient administration of the Plan;
(b) to determine when Employees become eligible to participate in
the Plan, to process their applications for participation;
(c) to keep records containing all relevant data pertaining to
the Plan, provided, however, that any information supplied by a
Participant shall be presumed to be correct and the Plan
Administrator shall incur no liability if it acts upon any such
information which is not correct;
(d) to make all governmental filings required of the Plan; and
(e) in all instances in which the Plan Administrator is granted
authority or discretion which shall affect the benefits, rights
or privileges of Participants under the Plan, to exercise such
authority or discretion uniformly in such manner as to ensure
that all Participants similarly situated shall be similarly
treated.
11.4 Plan Administrator's Rights. The Plan Administrator
and each member of any committee acting as Plan Administrator
shall have the right to vote on or decide any matter relating to
himself and to vote on or decide any matter relating to his
rights or benefits under the Plan.
11.5 Actions by the Company. Wherever the Plan specifies
that the Company is required or permitted to take any action,
such action will be taken by the Board or by one or more
directors of the Board, one or more Committee members, officers,
or Employees of the Company duly authorized by the Board.
ARTICLE XII
Expenses of the Plan
12.1 Obligation to Pay Expenses. All expenses incurred in
administering the Plan, including those necessary for the
administration of the Trust Fund, shall be paid out of the
principal or income of the Trust Fund unless paid by the
Employers in the Company's sole discretion. Notwithstanding the
foregoing, neither the Company nor any other Employer shall have
any obligation to pay any of such expenses.
ARTICLE XIII
Amendment of the Plan
13.1 Amendment. The Company reserves the right to amend
the Plan at any time; provided, however, that any amendment
<PAGE>
affecting the duties, responsibilities, or compensation of the
Trustee shall become effective upon acceptance in writing by the
Trustee of such amendment and provided, further that no amendment
shall diminish, or deprive a Participant of any benefit already
accrued.
13.2 Effect of Amendments on Vesting.
13.2.1 No Reduction in Vesting. Notwithstanding the
provisions of the preceding Section 13.1, the Company shall make
no amendment to the Plan's vesting provisions that shall result
in any Participant's Vested Benefit, determined as of the later
of (i) the date of execution of such amendment or (ii) the
effective date of such amendment, being less than such
Participant's Vested Benefit computed without regard to such
amendment.
13.2.2 Right to Elect to Keep Old Schedule. If the Plan's
vesting schedule is amended, a Participant having at least three
(3) Years of Vesting Service may elect to have his Vested Benefit
computed without regard to such amendment. A Participant shall
make such election within the period beginning on the date that
the Company adopts such amendment and ending sixty (60) days
after the latest of (i) the effective date of such amendment,
(ii) the date on which such Participant is given written notice
of such amendment, or (iii) the date of the adoption of such
amendment. Any election made in accordance with this Section
13.2 shall be irrevocable.
13.3 Amendments to Qualify Trust. The Company may make any
amendment to the Plan and Trust Agreement retroactively in order
to ensure the continued qualification of the Trust for tax
exemption under the Code, and further, to conform the Plan and
Trust Agreement to applicable provisions of the Code, ERISA, and
the regulations thereunder or as permitted by the Internal
Revenue Service or the Department of Labor; provided, however,
that any such amendment shall be made effective for all purposes
for the entire period during which the Plan shall have failed (if
at all) to qualify for such tax exemption. Moreover, at the
election of the Plan Administrator, any amendment shall be deemed
to have been made on the first day of a Plan Year if:
(a) such amendment is adopted no later than 2-1/2 months after
the termination of the Plan Year, and
(b) such amendment does not reduce the Accrued Benefit of any
Participant determined either as of the beginning of the Plan
Year or as of the time of adoption of such amendment.
ARTICLE XIV
Termination or Merger of Plan and Trust
14.1 Termination. The Company (for itself and each other
Employer) intends to continue the Plan and the payment of
<PAGE>
contributions hereunder indefinitely, but it does not assume a
contractual obligation to do so. The Company (for itself and
each other Employer) reserves the right, at any time, to
discontinue contributions hereunder permanently or temporarily.
Each Employer reserves the right by action of its board of
directors to withdraw from the Plan or discontinue contributions
thereunder.
14.2 Benefits After Plan Termination. In the event of the
termination of the Plan, each Participant shall have a non-
forfeitable Vesting Percentage equal to 100%. Following
termination of the Plan, but subject to whatever reasonable
administrative delays may be imposed by the Trustee or Plan
Administrator in the circumstances, all benefits under the Plan
shall be paid at the time and in the manner provided in
accordance with Articles VII and VIII.
14.3 Partial Termination. In the event of a partial
termination of the Plan, each affected Participant shall have a
non-forfeitable Vesting Percentage equal to 100% in the portion
of his Employer Contribution Accounts affected by the partial
termination. If such a Participant has a Vesting Percentage of
less than 100% in any portion of his Employer Contribution
Accounts not affected by or credited after the partial
termination, any non-forfeitable balances held in the Trust Fund
pursuant to the preceding sentence shall be held as sub-accounts
in the Participant's Employer Contribution Accounts until the
Participant's Vesting Percentage equals 100%, at which time such
sub-accounts shall be combined with the Participant's regular
Employer Contribution Accounts.
14.4 Plan Merger. If the Plan is merged or consolidated
with, or if its assets or liabilities are transferred to any
other employee plan, the benefit that each Participant would
receive immediately after such merger, consolidation, or
transfer, if the resulting plan were terminated, shall be equal
to or greater than the benefit such Participant would have been
entitled to receive immediately before such merger,
consolidation, or transfer if this Plan had then been terminated.
ARTICLE XV
Named Fiduciaries, Fiduciary Responsibilities and Indemnification
15.1 Identity of Named Fiduciaries. The Company and the
Plan Administrator shall be Named Fiduciaries under the Plan and
shall control and manage the Plan and the Trust Fund to the
extent and in the manner indicated in this Section 15.1. Any
responsibility assigned to a Named Fiduciary shall not be deemed
to be a duty of a "fiduciary" (as that term is defined in ERISA)
solely by reason of such an assignment.
<PAGE>
15.2 Responsibilities and Authority of Plan Administrator.
The Plan Administrator shall control and manage the operation and
administration of the Plan except to the extent that such
responsibilities are specifically assigned hereunder to the
Company or to the Trustee. The responsibilities and authority of
the Plan Administrator are set forth in detail in various
Articles of this Plan, primarily in Article XI, and in the Trust
Agreement.
15.3 Responsibilities and Authority of Trustee. The
Trustee shall manage and control the assets of the Trust Fund,
except to the extent that such responsibilities:
(a) are specifically assigned hereunder to the Company or to the
Plan Administrator;
(b) are delegated to one or more investment managers pursuant to
the terms of the Trust Agreement; or
(c) are to be exercised by Participants or Beneficiaries pursuant
to Article XVI and the Trust Agreement.
The responsibilities and authority of the Trustee are set forth
in detail in the Trust Agreement.
15.4 Responsibilities and Authority of the Company. The
Company shall have the following responsibilities and authority
with respect to control and management of the Plan and the Trust
Fund:
(a) to amend or terminate the Plan;
(b) to merge or consolidate the Plan with, or transfer all or
part of the assets or liabilities to, any other plan;
(c) to establish and carry out a funding policy;
(d) to appoint, remove, and replace the Trustee and Plan
Administrator (and any members of the Committee) and to monitor
their performance;
(e) to communicate such information to the Committee, Trustee and
investment managers as they may need for the proper performance
of their duties; and
(f) to perform such additional duties as are imposed by law.
The responsibilities and authority of the Company are set forth
in further detail in various Articles of the Plan.
15.5 Responsibilities Not Shared. Except as otherwise
specified herein or required by law, each Named Fiduciary shall
have only those responsibilities that are specifically assigned
to it hereunder, and no Named Fiduciary shall incur liability
because of improper performance or non-performance of
responsibilities specifically assigned to another Named
Fiduciary.
15.6 Procedure for Allocation and Delegation of
Responsibilities. The Plan Administrator (and the members of the
Committee), the Board, or a committee of such Board may allocate
among themselves in any reasonable manner their responsibilities
and may designate any other person or persons to carry out any of
their responsibilities by so specifying in a written instrument.
<PAGE>
No Committee member or director shall be liable for the improper
discharge or non-performance of any responsibility so allocated
or delegated to another person, except to the extent liability is
imposed by law.
15.7 Advice. A Named Fiduciary may employ or retain such
attorneys, accountants, investment advisors, consultants,
specialists, and other persons or firms as it deems necessary or
desirable to advise or assist it in the performance of its
duties. Unless otherwise provided by law, the fiduciary shall be
fully protected with respect to any action taken or omitted by it
in reliance upon any such person or firm. Any expenses incurred
by the fiduciary in obtaining such advice or assistance shall be
considered a cost of the Plan and shall be paid in accordance
with the provisions of Article XII.
15.8 Indemnification. Each Employer, to the extent
permitted by law, shall indemnify and hold harmless every
individual serving as a fiduciary (whether a Named Fiduciary or
otherwise) from and against all loss, damages, liability, and
reasonable costs and expenses, incurred in carrying out his
fiduciary responsibilities, unless due to the bad faith or
willful misconduct of such individual, provided that a
fiduciary's counsel fees and any amount paid in a settlement must
be approved by the Company. The preceding sentence shall not
apply (a) to any corporate Trustee or to any investment manager
as defined in ERISA, except as the Company and such corporate
Trustee or investment manager may otherwise agree in writing, or
(b) to any loss, damages, liability, and reasonable costs and
expenses which are covered by insurance.
15.9 Liability Insurance. The Company and any other
Employer may purchase insurance to cover the potential liability
of persons who serve in a fiduciary capacity with regard to the
Plan.
15.10 Multiple Capacities. Any person or group of persons
may serve in more than one fiduciary capacity with respect to the
Plan and may participate in the Plan and receive benefits under
the Plan as a Participant or Beneficiary.
ARTICLE XVI
Trust Fund Administration and Fund Investment
16.1 Appointment of Trustee. The Board shall point one or
more individuals, banks or trust companies as Trustee to
administer all contributions paid into the Trust Fund. Such
Trustee or Trustees shall serve at the pleasure of the Board and
shall have such rights, powers and duties as are contained in the
Trust Agreement.
<PAGE>
16.2 Receipt and Management of Trust Fund Assets. All
contributions to the Plan in cash shall be paid over to the
Trustee and all Employer contributions to the Plan in the form of
Stock shall be delivered to the Trustee. All contributions shall
be invested and managed upon such terms and in such manner as set
forth in the Plan and Trust Agreement.
16.3 Investment of Funds. The Trustee's investment policy
for the Company Stock Fund described in this Section 16.3 shall
be to invest in Stock for purposes of initially investing all
Matching Contributions and all Profit Sharing Contributions, and
those portions of all Matching Contribution Accounts, all Profit
Sharing Contribution Accounts and all Basic Contribution Accounts
which the Participant has not elected pursuant to this Article
XVI to be invested in something other than such Fund, and those
portions of a Participant's Pre-tax Contributions and/or Rollover
Contributions (or of the Participant's Pre-tax Contribution
Account and/or Rollover Contribution Account) which the
Participant has elected pursuant to this Article XVI to be
invested in such Fund. In this regard, the Trustee may purchase
Stock either from the Company or in the open market or receive
Stock contributed by the Company. All Stock purchased or
contributed shall be valued as described in Section 16.7. To the
extent earnings on Stock acquired by the Company Stock Fund are
available, the Trustee may invest such earnings temporarily in
savings accounts, certificates of deposit, high-grade short-term
or medium-term securities, stocks, bonds or similar investments,
or such earnings may be held in cash or cash equivalents until
such time as the earnings may be reinvested in Stock. The
investment policy for those portions of a Participant's Pre-tax
Contributions and/or Rollover Contributions (or of the
Participant's Pre-tax Contribution Account and/or Rollover
Contribution Account and/or Employer Contribution Accounts) which
the Participant has elected pursuant to this Article XVI to not
have invested in the Company Stock Fund shall be invested as
provided for in Section 16.4.
Notwithstanding the foregoing, the Plan Administrator may direct
the Trustee to maintain the Company Stock Fund as a unit fund
wherein each person's interest shall be represented by the number
of units of the fund credited to such person's Plan account from
time to time based on the market value of the assets received by
the fund on the person's behalf relative to the total market
value of the assets in the fund at the time such assets are
received on the person's behalf. If a unit fund is employed for
the Company Stock Fund, the number of units credited to each
person with an interest in the fund, the allocation of income
received by the fund, and the market value of the fund's assets
shall be as determined by the Trustee in a uniform and non-
discriminatory manner and the provisions of Section 16.7 shall
not apply to such unit fund.
16.4 Investment Options. Each Participant may direct the
investment of his future Pre-tax Contributions and Rollover
<PAGE>
Contributions and any or all of his existing Employer
Contribution Accounts, Pre-tax Contribution Account and Rollover
Contribution Account in minimum multiples of 5% among such other
or additional investment Funds as may be designated from time to
time by the Plan Administrator at its sole discretion.
Notwithstanding the foregoing or anything to the contrary in the
Plan or the Trust Agreement, available investment Funds may be
changed from time to time by the Plan Administrator at its sole
discretion by the addition, deletion or substitution of any Fund
or Funds.
16.5 Investment Elections. Participants shall make any
investment elections pursuant to Section 16.4 in such manner and
upon such notice as is directed by the Plan Administrator from
time to time. Each Participant may change the investment
allocation of his future Pre-Tax Contributions and the investment
allocation of his existing accounts (including elections out of
the Company Stock Fund) on a daily basis (or at such other
intervals, not less frequently than quarterly, as the Plan
Administrator may set from time to time). Each Participant who
makes a Rollover Contribution may direct the investment
allocation of such contribution at the time that such
contribution is made.
16.6 Investment Rules. The following rules shall govern
all aspects of this Article XVI in regard to the investment of
contributions and accounts:
16.6.1 Participant Directions Generally Control. Any
investment direction given by a Participant shall continue in
effect until changed by the Participant.
16.6.2 No Automatic Adjustments; Procedures. Changes in
investments to an existing Pre-tax or Rollover Contribution
Account will be made based on the value of existing investments
as of the previous Valuation Date. Once the transfer among
investment Funds is made in order to carry out a Participant's
investment election, no additional transfer will be made in order
to maintain the relative percentages selected by the Participant
except pursuant to a new investment election duly made by the
Participant. Changes in investment elections shall be made in
such manner and upon such notice as is directed by the Plan
Administrator from time to time.
16.6.3 Default Fund. In the absence of any effective
investment election for Pre-tax Contributions and/or Rollover
Contributions, the Trustee shall invest all such undirected
contributions received on behalf of any Participant in the Fund
that provides the most stable return and protection of principal.
16.6.4 Trustee's Discretion Over Funds. Notwithstanding
any instruction from any Participant for investment of Fund(s) as
provided in this Article XVI, the Trustee shall have the right to
<PAGE>
hold uninvested, or invested in short-term fixed income
investments, any Fund(s) intended for investment or reinvestment
as otherwise provided in this Article XVI from time to time, and
for such time as the Trustee, in its sole discretion, determines
advisable.
16.6.5 Adverse Liquidity Procedures. The Plan
Administrator may limit changes otherwise permitted hereunder in
the investment allocation of a Participant's previously
accumulated Pre-tax Contribution Account and/or Rollover
Contribution Account to the extent a change is precluded as a
result of a temporary period of adverse liquidity with respect to
a Fund or to the extent a change would adversely affect the
investment return of the accounts of other Participants.
16.7 Valuation of Stock. Except when the unit-fund
provisions of Section 16.3 are applicable to the Company Stock
Fund, the provisions of this Section shall apply to such stock
fund. All Stock purchased by the Trustee (either from the
Company or in the open market) shall be valued at its actual
purchase price for the purpose of allocating such Stock among
Participants' accounts in the Company Stock Fund described in
Subsection 16.3. All Stock contributed to the Plan by an
Employer shall be valued for such purpose at the closing price of
the Stock, as reported by the New York Stock Exchange (or such
other market on which the Stock is then principally traded) in
the following day's Wall Street Journal, on Wednesday (or on the
next business day if such Wednesday is not a business day) of the
week in which the payroll period on account of which the
contribution is made ends.
16.8 Voting of Stock. Except when the unit-fund provisions
of Section 16.3 are applicable to the Company Stock Fund, the
provisions of this paragraph shall apply to voting of the shares
of Stock in such stock fund. When the unit-fund provisions are
applicable to the Company Stock Fund, the provisions of the
second paragraph of this Section 16.8 shall instead apply. All
Stock (including fractional shares) in a Participant's accounts
shall be voted by the Trustee in accordance with instructions
from such Participant or, in the absence of such instructions
with respect to any particular share or shares of Stock, in
accordance with instructions from the Plan Administrator. The
Company shall provide Participants with notices and information
statements when voting rights are to be exercised, the content of
which must generally be the same as for all holders of Stock.
Fractional shares may be voted by the Trustee on a combined
basis, in order to reflect the direction of the Participants
holding such shares. The Trustee may in its sole discretion vote
any Stock for which it has not received instructions, but the
Company may solicit Participants under proxy provisions
applicable to all holders of Stock.
When the unit-trust provisions of Section 16.3 are applicable to
the Company Stock Fund, each person with an interest in such fund
<PAGE>
shall have the right to instruct the Trustee how to vote the
number of shares of Stock in the fund equal to the total number
of such shares then in the fund multiplied by the fraction equal
to the number of the person's units then in the fund divided by
the total number of units then making up the fund. In the
absence of any such instructions with respect to any unit or
units of the Company Stock Fund, the Trustee shall vote the
shares of Stock as to which such instructions would have applied
in accordance with instructions from the Plan Administrator or,
in the absence of any such instructions from the Plan
Administrator, as the Trustee in its sole discretion decides,
provided that the Company may solicit persons with an interest in
the Company Stock Fund under proxy provisions applicable to all
holders of Stock. Fractional shares of Stock may be voted by the
Trustee on a combined basis, in order to reflect the direction of
the persons holding the units as to which such fractional-share
votes apply. The Company shall provide the holders of units in
the Company Stock Fund with notices and information statements
when voting rights are to be exercised, the content of which must
generally be the same as for all holders of Stock.
ARTICLE XVII
Special Rules for Basic Contribution Accounts
17.1 In General. The special rules of this Article XVII
shall apply to all Basic Contribution Accounts.
17.2 Stock Must Stay in Plan.
17.2.1 Eighty-Four Month Rule. No Stock allocated to a
Basic Contribution Account may be distributed from such account
before the end of the 84th month after the month in which such
Stock was so allocated; provided that such restriction shall not
apply:
(a) in the case of the Participant's termination of Service for
any reason;
(b) in case of termination of the Plan;
(c) in case of transfer of a Participant's employment to an
acquiring employer as the result of a sale of substantially all
of the assets used by the Participant's Employer in the trade or
business which employed the Participant;
(d) in case the Participant's employment continues with a former
subsidiary of the Company after the Company disposes of its
interest in such subsidiary; or
(e) to any distribution required under Code Section 401(a)(9) or
any distribution or reinvestment required under Code Section
401(a)(28).
17.2.2 No Exception for Loss of Tax Credit. Stock
transferred to the Plan shall remain in the Plan (and if
<PAGE>
allocated to Basic Contribution Accounts, shall remain so
allocated) to the extent required under Code Section 409(g), even
though part or all of the employee plan credit is recaptured or
redetermined.
17.3 Voting Rights.The voting provisions of Section 16.8
shall apply to all shares of Stock in each Basic Contribution
Account.
17.4 Right to Elect Payment in Stock. A Participant shall
have the right to elect payment of his benefit from his Basic
Contribution Account in shares of Stock; except that the value of
any fractional shares of Stock shall be paid by check.
17.5 Put Option If Stock Not Publicly Traded.
17.5.1 Put Option. Shares of Stock acquired by this Plan
shall be subject to the following "put option" if they are not
readily tradable on an established market when distributed or if
they are subject to a trading limitation when distributed. For
purposes of this paragraph, a "trading limitation" on a security
is a restriction under any federal or state securities law, any
regulation thereunder, or an agreement, not prohibited by this
Plan or by applicable laws and regulations, affecting the
security which would make the security not as freely tradable as
one not subject to such restrictions. The put option shall be
exercisable only by a Participant or Beneficiary, by such
person's donees, or by a person (including an estate or its
distributee) to whom the security passes by reason of the death
of a Participant or Beneficiary. The put option shall permit
such holder to put to the Company all (and not less than all) of
the Stock distributed from this Plan. The put option shall grant
this Plan an option to assume the rights and obligations of the
Company at the time the put option is exercised, provided that
under no circumstances shall the put option bind this Plan. If
it is known at the time the Stock is acquired that federal or
state law will be violated by the Company's honoring such put
option, the put option shall permit the Stock to be put, in a
manner consistent with such law, to a third party who has
substantial net worth at the time the Stock is acquired and whose
net worth is reasonably expected to remain substantial.
17.5.2 Put Option Provisions.
(a) Duration. The put option required by this Section 17.5 shall
be exercisable at least during (i) the 60-day period beginning on
the date the shares of Stock subject to such option are
distributed by this Plan and (ii) a period of at least 60 days in
the Plan Year following the Plan Year in which the distribution
was made. Such period shall not include any time when a
distributee is unable to exercise the put option because the
party bound by the put option is prohibited from honoring it by
applicable federal or state law.
<PAGE>
(b) Manner of Exercise. Such put option shall be exercisable by
the holder notifying the Company in writing.
(c) Price. The price at which such put option shall be
exercisable is the appraised value of the Stock subject to the
option, determined in accordance with Section 17.6.
(d) Payment Terms and Restrictions. Payment under such put
option shall be made in accordance with the requirements of Code
Section 409(h)(5) (for a lump sum distribution of Stock made
within one calendar year) or Code Section 409(h)(6) (for
installment distributions of Stock). Unless required by
applicable state law, payment under a put option shall not be
restricted by the provisions of any arrangement, including the
terms of the Company's Articles of Incorporation.
(e) Non-Terminable Rights. The put option rights granted under
this Section 17.5 shall not be reduced or eliminated by amendment
of this Plan, except in accordance with applicable laws and
regulations.
17.6 Determination of Value If Stock Not Publicly Traded.
If at any time shares of Stock are not readily tradable on an
established securities market (within the meaning of Code Section
401(a)(28)(C)), then all valuations of the Stock with respect to
activities carried on by the Plan in connection with all Basic
Contribution Accounts shall be determined by an independent
appraiser who meets the requirements of Code Section 401(a)(28)
(C) and the regulations thereunder.
17.7 Distribution and Payment Requirements for Stock
Acquired After 1986. Stock acquired by any Basic Contribution
Account after December 31, 1986 shall be subject to the benefit
payment requirements of Code Section 409(o). Such requirements
are met by the terms of Articles VIII and IX of the Plan as in
effect on the Effective Date.
17.8 Diversification Rights for Stock Acquired After 1986.
17.8.1 In General. In addition to any rights of self-
direction of the investment of a Participant's Basic Contribution
Account provided under any other provision of this Plan, each
"qualified Participant" may elect within 90 days after the close
of each Plan Year during the "qualified election period" to
direct the investment of up to 25% of the "eligible portion" of
his account in the Plan in the manner provided in Subsection
17.8.3 below. Until the Plan Year in which the Participant may
make his last election pursuant to this Section 17.8, he may not
direct the investment of more than 25% of the eligible portion of
his account in the aggregate, but when he may make his last
election, he may direct the investment of up to 50% of the
eligible portion of his account. The terms "qualified
Participant," "qualified election period," and "eligible portion"
are defined in Subsection 17.8.2 below.
17.8.2 Definitions.
<PAGE>
(a) "Qualified Participant" means any Participant who has
completed at least 10 years of participation under the Plan and
who has attained age 55.
(b) "Qualified election period" means for any Participant, the
six-Plan-Year period beginning with the Plan Year in which he
becomes a qualified Participant.
(c) "Eligible portion" means the portion of a qualified
Participant's Basic Contribution Account in the Plan which holds
shares of Stock acquired after December 31, 1986; provided that
no part of an otherwise-eligible Participant's Basic Contribution
Account shall be eligible for diversification under this Section
17.8 unless the part that would be so eligible exceeds $500 in
value (or any other applicable minimum amount then permitted by
the Internal Revenue Service) at the time that such rights would
otherwise apply.
17.8.3 Directed Investment Options.
(a) At the election of the qualified Participant, the Trustee
shall distribute the portion of the Participant's Basic
Contribution Account that is covered by the election within 90
days after the last day of the period during which the election
may be made. Such distribution shall be subject to the put-
option provisions of Section 17.5 and to the provisions of
Section 17.4. This Section 17.8 shall apply notwithstanding any
other provision of the Plan other than the provisions of Section
9.8, which require the consent of the Participant when his Plan
benefit exceeds $3,500. If the Participant does not consent, the
amount shall be retained in the Plan and dealt with under
paragraphs (b) or (c) below as applicable.
(b) In lieu of distribution under paragraph (a), the qualified
Participant whose Plan benefit exceeds $3,500 and who has the
right to receive such a distribution may direct the Trustee to
transfer the portion of the Participant's Basic Contribution
Account that is covered by the election to another qualified plan
of the Employer that accepts such transfers; provided that such
plan permits participant-directed investment and does not invest
in employer securities to a substantial degree. Such transfer
shall be made no later than 90 days after the last day of the
period during which the election may be made.
(c) Or, the qualified Participant may invest the portion of his
Basic Contribution Account that is covered by the election in any
of the investment options available from time to time in the
Trust Fund. Such investment shall be made no later than 90 days
after the last day of the period during which the election may be
made.
ARTICLE XVIII
Miscellaneous
18.1 Plan Benefits Limited to Amounts in Trust Fund. The
continuance of this Plan and the payment of contributions
hereunder shall not be contractual obligations of any Employer,
<PAGE>
and the Employers do not guarantee or promise to pay or to cause
to be paid any of the benefits provided by this Plan. Each
person who shall claim the right to any payment or benefit under
this Plan shall be entitled to look only to the Trust Fund for
any such payment or benefit and shall not have any right, claim,
or demand therefore against any Employer, except as provided by
applicable law.
18.2 Notices and Certifications.
18.2.1 Reliance on Notices, etc. In any case in which the
Company, the Plan Administrator or Trustee shall be directed to
take any action upon the occurrence of any event, the Company,
the Plan Administrator or the Trustee, as the case may be, shall
take the appropriate action only upon receipt of any notice,
paper or document reasonably believed by such actor to be
genuine, and to have been signed or sent by the person or persons
properly authorized. The Plan Administrator shall advise the
Trustee from time to time of changes in the Company's authorized
personnel.
18.2.2 Effectiveness of Notices. Any notice required or
given hereunder shall be conclusively deemed to be received by
the addressee, if sent by certified or registered mail, postage
prepaid, addressed to (a) the Company at its principal office, if
notice is to the Company, (b) care of the Company at its
principal office, if notice is to the Plan Administrator, and (c)
the Trustee, at an individual's home address or a corporate
Trustee's principal office, if notice is to the Trustee. Any
party may change its address for the receipt of notices by
informing the others, in writing, of such change of address.
18.3 No Employment Contract. Nothing contained in this
Plan shall be construed to be a contract of employment between
any Affiliated Employer and any Employee or to be a consideration
for, or an inducement for, the employment of any person. Nothing
contained herein shall be deemed to give to any Employee the
right to be retained in the employ of any Affiliated Employer or
to interfere with the right of any Affiliated Employer to
discharge any Employee at any time, with or without cause and
without regard to the effect that such discharge may have on any
rights under the Plan.
18.4 Return of Company Contributions. The Company has
established the Plan for the exclusive benefit of Participants
and their Beneficiaries. Except as provided in this Section 18.4
with respect to contributions made (a) under a mistake of fact,
(b) conditioned upon the qualification of the Plan, or (c)
conditioned upon the deductibility of the contributions, no
amendment, termination or other action shall divert any part of
the assets of the Trust to any purposes other than the exclusive
benefit of Participants and their Beneficiaries after defraying
reasonable expenses of Plan administration.
<PAGE>
18.4.1 Mistake of Fact. If an Employer makes a contribution
to the Plan under a mistake of fact, the Trustee shall return
such contribution, less any expenses incurred in connection
therewith and losses incurred thereon, to such Employer within
one (1) year of the payment of such contribution.
18.4.2 Denial of Initial Plan Qualification. In the event
the District Director of Internal Revenue shall determine that
the Plan or Trust is not qualified under the applicable
provisions of the Code upon a timely application for an initial
favorable determination letter, any contributions to the Plan
made by any Employer for Plan Years that are affected by such
disqualification shall be deemed to be conditioned upon such
qualification and shall be returned to the respective Employers,
less expenses incurred in connection therewith and losses
incurred thereon, within one (1) year after the date of denial of
qualification.
Denial of Tax Deduction. In the event the deduction of any
contribution to the Plan by any Employer is disallowed under the
applicable provisions of the Code, such contribution shall be
deemed to be conditioned upon such deduction and shall be
returned to the Employer, less any expenses incurred in
connection therewith and losses incurred thereon, within one (1)
year after the date of the disallowance.
18.5 Spendthrift Provisions and Domestic Relations Orders.
18.5.1 General Rule Prohibiting Alienation. The interest
hereunder of any Participant or Beneficiary shall not be
alienable by such Participant or Beneficiary either by assignment
or by any other method and shall not be subject to be taken by
his creditors by any process whatever, except as permitted by law
or pursuant to the Participant loan provisions of Section 8.5.
The Trust Fund shall not in any manner be liable for, or subject
to, the debts, contracts, liabilities, engagements or torts of
any person entitled to benefits hereunder.
18.5.2 QDRO Exception. The preceding paragraph shall also
apply to the creation, assignment or recognition of a right to
any benefit payable with respect to a Participant pursuant to a
domestic relations order, unless such order is determined to be
(a) a qualified domestic relations order, as defined in Code
Section 414(p), or (b) a domestic relations order entered before
July 1, 1987.
18.5.3 QDRO Definitions. The term "qualified domestic
relations order" means a domestic relations order which creates
or recognizes the existence of an alternate payee's right to
receive all or a portion of the benefits payable with respect to
a Participant under a plan and with respect to which the
requirements of this Section 18.5 are satisfied. The term
"domestic relations order" means any judgment, decree, or order
<PAGE>
(including approval of a property settlement agreement) which
relates to the provision of child support, alimony payments, or
marital property rights to a spouse, child, or other dependent of
a Participant, and is made pursuant to a State domestic relations
law (including a community property law).
18.5.4 QDRO Requirements. A domestic relations order meets
the requirements of this Subsection only if such order clearly
specifies (a) the names and mailing addresses of the Participant
and of each alternate payee covered by the order, (b) the amount
or percentage of the Participant's benefits to be paid by the
plan to each alternate payee, or the manner in which such amount
or percentage is to be determined, (c) the number of payments or
periods to which such order applies, and (d) each plan to which
such order applies. A domestic relations order meets the
requirements of this Subsection only if such order does not
require a plan to provide any type or form of benefit, or any
options, not otherwise provided under the Plan, does not require
the Plan to provide increased benefits (determined on the basis
of actuarial value) and does not require the payment of benefits
to an alternate payee which are required to be paid to another
alternate payee under another order previously determined to be a
"qualified domestic relations order."
18.5.5 QDRO Procedures. Upon receipt of a domestic
relations order: (a) the Plan Administrator shall promptly
notify the Participant and any alternate payee of the receipt of
such order and of the Plan's procedures for determining the
qualified status of domestic relations orders, and (b) within any
reasonable period after receipt of such order, the Plan
Administrator shall determine whether such order is a qualified
domestic relations order and shall notify the Participant and
each alternate payee of such determination. During any period in
which the issue of whether a domestic relations order is a
qualified domestic relations order is being determined (by the
Plan Administrator, by a court of competent jurisdiction, or
otherwise), the Plan Administrator shall segregate in a separate
account in the Plan or in an escrow account the amounts which
would have been payable to the alternate payee during such period
if the order had been determined to be a qualified domestic
relations order. If within 18 months the order (or modification
thereof) is determined to be a qualified domestic relations
order, the Plan Administrator shall pay the segregated amounts
(plus any interest thereon) to the person or persons entitled
thereto. If within 18 months: (a) it is determined that the
order is not a qualified domestic relations order or (b) the
issue as to whether such order is a qualified domestic relations
order is not resolved, then the Plan Administrator shall pay the
segregated amounts (plus any interest thereon) to the person or
persons who would have been entitled to such amounts if there had
been no order. Any determination that an order is a qualified
domestic relations order which is made after the close of the 18-
month period shall be applied prospectively only.
<PAGE>
18.6 Payments to Minors and Incompetents. If a
Participant, Spouse, or Beneficiary entitled to receive any
benefits hereunder is a minor or is deemed by the Plan
Administrator to be, or is adjudged to be, legally incapable of
giving a valid receipt and discharge for such benefits, they
shall be paid to such person or institution as the Plan
Administrator may designate or to the distributee's duly
appointed guardian. Such payment shall, to the extent made, be
deemed a complete discharge of any liability for such payment
under the Plan.
18.7 Governing Law. Except in such areas as have been
preempted by federal law, the Plan shall be construed, enforced,
and regulated by the laws of the Commonwealth of Massachusetts.
18.8 Binding Effect. This Plan and every amendment shall
be binding upon the heirs, executors and administrators,
successors and assigns of Participants, Beneficiaries, the
Company, each Employer, Plan Administrator and Trustee.
18.9 Interpretation. As may be appropriate, pronouns used
in the Plan shall be read and construed to refer to the
masculine, feminine, or neuter. Likewise, words in the singular
shall be read and construed to refer to the plural.
18.10 Titles. Titles are included only for convenience and
are not to be considered in the interpretation of this document.
NEW ENGLAND BUSINESS SERVICE, INC.
By:________________________________
Title:______________________________
Originally Executed: __________________, 1996
Re-executed ________________, 1997 as Conformed
to Include the Second Amendment
<PAGE
7/22/97
NEW ENGLAND BUSINESS SERVICE, INC.
401(k) Plan for Employees of New England Business Service, Inc.
(Restated Effective July 1, 1989)
(Conformed February, 1996 to Include the First Amendment)
(Conformed July, 1997 to Include the Second Amendment)
<PAGE
401(k) Plan For Employees of
New England Business Service, Inc.
TABLE OF CONTENTS
ARTICLE I - Name 2
ARTICLE II - Definitions 2
2.1 Accrued Benefit 2
2.2 Actual 401(m) Contribution Percentage 2
2.3 Actual Pre-tax Contribution Percentage 2
2.4 Adjustment Factor 3
2.5 Affiliated Employer 3
2.6 Annual Addition 3
2.7 Average Actual 401(m) Contribution Percentage 3
2.8 Average Actual Pre-tax Contribution Percentage 3
2.9 Basic Contribution Account 3
2.10 Beneficiary 3
2.11 Benefit Commencement Date 4
2.12 Board. 4
2.13 Code 4
2.14 Committee. 4
2.15 Company 4
2.16 Compensation 4
2.17 Disability 5
2.18 Early Retirement Date 6
2.19 Effective Date 6
2.20 Employee 6
2.21 Employee Contribution Account or Rollover
Contribution Account 6
2.22 Employer 6
2.23 Employer Basic Contributions 6
2.24 Employer Contribution Account 6
2.25 Employment Commencement Date 6
2.26 Entry Date 7
2.27 ERISA 7
2.28 Excess Aggregate 401(m) Contributions 7
2.29 Excess Aggregate Pre-tax Contributions 7
2.30 Excess Individual Pre-tax Contributions 7
2.31 Family Member 7
2.32 Fund 7
2.33 Highly Compensated Employee 7
2.34 Hours of Service 7
2.35 Matching Contributions 9
2.36 Matching Contributions Account 9
2.37 Non-highly Compensated Employee 9
2.38 Non-Regular Employee 9
2.39 Non-Regular Employee Entry Date 9
2.40 Non-Regular Employee Participant 9
2.41 Normal Retirement Date 9
2.42 One-Year Break in Service 9
2.43 Participant 9
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2.44 Plan 9
2.45 Plan Administrator 9
2.46 Plan Year 10
2.47 Postponed Retirement Date 10
2.48 Pre-tax Contributions 10
2.49 Pre-tax Contribution Account 10
2.50 Profit Sharing Contributions 10
2.51 Profit Sharing Contribution Account 10
2.52 Reemployment Commencement Date 10
2.53 Regular Employee 10
2.54 Regular Employee Entry Date 11
2.55 Regular Employee Participant 11
2.56 Rollover Contributions 11
2.57 Rollover Contribution Account 11
2.58 Section 415 Compensation 11
2.59 Service 12
2.60 Spouse 12
2.61 Stock 12
2.62 Trust Agreement 12
2.63 Trust Fund 12
2.64 Trustee 12
2.65 Valuation Date 12
2.66 Vested Benefit 12
2.67 Vesting Percentage 12
2.68 Year of Eligibility Service 12
2.69 Year of Vesting Service 13
ARTICLE III - Participation Standards 13
3.1 Initial Participation 13
3.2 Age and Service Requirements 13
3.2.1 For Employer Contributions 13
(a) Regular Employees 13
(b) Non-Regular Employees 13
3.2.2 For Pre-tax Contributions 14
(a) Regular Employees 14
(b) Non-Regular Employees 14
3.2.3 For Rollover Contributions 14
3.3 Termination of Participation 14
3.4 Participation of Re-hired Former Participants 14
3.5 Years of Eligibility Service and Break-in-Service
Rules 14
3.5.1 One-Year Hold-Out Rule 14
3.5.2 Five-Year Break-in-Service Rule 14
ARTICLE IV - Contributions to Trust 15
4.1 Employer Contributions 15
4.1.1 Matching Contributions 15
(a) To All Participants 15
(b) To Participants with Five (5) or More Years of
Vesting Service 15
(c) General Rules for Matching Contributions 16
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4.1.2 Frequency 16
4.1.3 Medium 16
4.1.4 Separate Accounts 16
4.1.5 Vesting 16
4.1.6 Distribution 16
4.1.7 Status and Use of Contributions 16
4.1.8 No Employee Contributions Required 16
4.1.9 Average Actual 401(m) Contribution Percentage Test 16
(a) In General 16
(b) Special Rules 17
(c) Coordination with Combined Section 401(k)/401(m)
Limit 18
(d) Coordination with Top-Heavy Plan Contribution
Requirement 18
4.1.10 Forfeiture or Distribution of Excess
Aggregate 401(m) Contributions 18
(a) In General 19
(b) Determination of Required Forfeitures or
Distributions 19
(c) Determination of Income or Loss 19
(d) Forfeitures 19
(e) Sources for Distribution of Excess Aggregate
401(m) Contributions 19
(f) Ordering of Pre-tax Contribution and 401(m)
Contribution Determinations 20
4.1.1A. Profit Sharing Contributions 20
(a) Amount 20
(b) Allocation and Accounting 20
4.1.1B General Provisions Applicable to
Employer Contributions 20
(a) Eligibility for Employer Contributions 20
(b) Frequency 20
(c) Medium 21
(d) Separate Accounts 21
(e) Vesting 21
(f) Forfeitures 21
(g) Distribution 21
(h) Status and Use of Contributions 21
(i) No Employee Contributions Required 21
4.2 Pre-tax Contributions 21
4.2.1 Compensation Reduction Elections 21
4.2.2 Maximum Amount of Pre-tax Contributions 22
4.2.3 Commencement of Pre-tax Contributions 22
4.2.4 Modification and Termination of Pre-tax
Contributions 22
4.2.5 Separate Accounts 22
4.2.6 Vesting 23
4.2.7 Distribution 23
4.2.8 Deadline for Pre-tax Contributions 23
4.2.9 Distribution of Excess Individual Pre-tax
Contributions 23
(a) In General 23
(b) Requirements for Making a Claim 23
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(c) Determinations of Income or Loss 23
4.2.10 Average Actual Pre-tax Contribution
Percentage Test 24
(a) In General 24
(b) Special Rules 24
4.2.11 Distribution of Excess Aggregate Pre-tax
Contributions 25
(a) In General 25
(b) Determination of Required Distributions 25
(c) Determination of Income or Loss 25
(d) Sources for Distribution of Excess Aggregate
Pre-tax Contributions 26
4.3 Rollover Contributions and Direct Transfers
into Plan 26
4.3.1 Authorization 26
4.3.2 Protection of the Plan 26
4.3.3 Eligibility for Rollover Treatment 26
4.3.4 Service Requirement 26
4.3.5 Separate Accounts 26
4.3.6 Vesting 27
4.3.7 Distribution 27
4.4 Limitations on Annual Additions 27
4.4.1 In General 27
4.4.2 Multiple Defined Contribution Plans 27
4.4.3 Combination of Defined Contribution and
Defined Benefit Plans 27
(a) Defined Benefit Plan Fraction 28
(b) Defined Contribution Plan Fraction 28
4.4.4 Protective Procedures 28
(a) Estimation 28
(b) Determination 29
(c) Disposition of Excess 29
(d) No Allocation of Investment Gains and Losses 29
ARTICLE V - Benefits 29
5.1 Retirement Benefits 29
5.1.1 Right to a Benefit 30
5.1.2 Postponed Retirement 30
5.2 Disability Benefits 30
5.3 Death Benefits 30
5.3.1 Right to a Death Benefit 30
5.3.2 Limitation on Rights of a Married
Participant's Beneficiary 30
5.3.3 No Beneficiary 30
5.4 Termination Benefits 31
ARTICLE VI - Vesting 31
6.1 Vesting Percentage 31
6.2 Forfeiture 31
(a) In General 31
(b) Amounts Not Forfeited 32
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(c) Accounting After Reemployment 32
6.3 Reemployment After Termination of Service 32
6.4 Repayment of Vested Benefits 32
6.5 Restoration of Forfeitures 32
(a) In General 32
(b) Accounting for Restored Forfeitures 33
ARTICLE VII - Calculation of Benefits and Accounts 34
7.1 Calculation of Benefits 34
7.2 Calculation of Accounts 34
ARTICLE VIII - Payment of Benefits 34
8.1 Form of Benefits 34
8.1.1 Retirement, Disability or Termination Benefits 34
8.1.2 Death Benefits 35
8.2 Notice and Election of Benefit Form 35
8.2.1 Notice 35
8.2.2 Election 35
8.2.3 Conditions for Accelerated Payment 35
8.3 Annuity Benefits Generally Not Required 36
8.3.1 In General 36
8.3.2 Conditions on Payment of Death Benefits
to a Designated Beneficiary 36
8.3.3 Restrictions on Transfers into Plan 36
8.4 Withdrawals During Employment 36
8.4.1 Withdrawals from Pre-Tax Contribution
Account After Attaining Age 59-1/2 37
8.4.2 Hardship Withdrawals from Pre-Tax Contribution
Account 37
(a) Restrictions on Amount 37
(b) Required Purposes -- Facts and Circumstances Test 37
8.4.3 Withdrawals from Employer Contribution Accounts 37
(a) Maximum Amount 38
(b) Minimum Amount 38
8.4.4 Withdrawals from Rollover Contribution Account 38
8.4.5 General Provisions Applicable to Withdrawals 38
(a) Frequency 38
(b) Limitation on Right to Make Pre-tax
Contributions Following a Withdrawal 38
(c) Accounting for Withdrawals 38
(d) Valuation Adjustments for Withdrawals 39
(e) Rules and Regulations 39
8.5 Participant Loans 39
8.5.1 Loan Terms and Conditions 39
(a) Maximum Amount 39
(b) Timing of Disbursements 40
(c) Authorization of Supplemental Loan Rules and
Procedures 40
(d) Communication of Terms, Procedures and Forms 40
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(e) Eligibility 40
(f) Number 40
(g) Minimum Amount 40
(h) Interest Rate 40
(i) Source of Funds 40
(j) Disposition of Payments 41
(k) Repayment Terms 41
(l) Prepayment 41
(m) Default 41
(n) Collateral 41
(o) Repayment or Distribution Upon Termination 42
(p) Directed Investment Status 42
(q) Loan Fees 42
8.5.2 Simultaneous Withdrawals and Loans 42
8.6 Effect of Reemployment 42
8.7 Claims Procedure 42
8.7.1 Notice of Claim: Notice of Denial 42
8.7.2 Review of Denial 42
8.7.3 Decision on Review 43
8.8 Transfers to Other Plans 43
8.8.1 In General 43
8.8.2 Definitions 43
(a) Direct rollover 43
(b) Distributee 43
(c) Eligible retirement plan 43
(d) Eligible rollover distribution 43
ARTICLE IX - Benefit Commencement Date 44
9.1 General Rule 44
9.2 Optional Termination Benefit Commencement Date 44
9.3 Disability Benefit Commencement Date 44
9.4 Retirement After Reemployment 44
9.5 Death Benefit Commencement Date 45
9.5.1 Spouse Beneficiary 45
9.5.2 Non-Spouse Beneficiary 45
9.6 Limited Administrative Delays 45
9.7 Latest Benefit Commencement Date 45
9.8 Payment Date When Benefit is $3,500 or Less 45
ARTICLE X - Top-Heavy Provisions 45
10.1 Application of Top-Heavy Provisions 45
10.2 Determination of Top-Heavy Plan Status:
Top-Heavy Plan Definitions 45
10.2.1 Key Employee and Non-Key Employee 46
10.2.2 Top-Heavy Plan 46
10.2.3 Top-Heavy Ratio 46
10.2.4 Permissive Aggregation Group 47
10.2.5 Required Aggregation Group 47
10.2.6 Determination Date 48
10.2.7 Present Value 48
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10.2.8 Valuation Date 48
10.3 Top-Heavy Plan Requirements 48
10.3.1 Minimum Vesting Schedule 48
10.3.2 Minimum Contributions 48
(a) Basic Minimum 48
(b) Restriction on Right to a Minimum Contribution 49
(c) Increased Section-415-Limitation Minimum 49
10.4 Minimum Accrued Benefits 49
ARTICLE XI - Plan Administration 49
11.1 Appointment of Administrator 49
11.2 Expenses of Plan Administrator 49
11.3 Duties of the Plan Administrator 50
11.4 Plan Administrator's Rights 50
11.5 Actions by the Company 50
ARTICLE XII - Expenses of the Plan 50
12.1 Obligation to Pay Expenses 50
ARTICLE XIII - Amendment of the Plan 50
13.1 Amendment 50
13.2 Effect of Amendments on Vesting 51
13.2.1 No Reduction in Vesting 51
13.2.2 Right to Elect to Keep Old Schedule 51
13.3 Amendments to Qualify Trust 51
ARTICLE XIV - Termination or Merger of Plan and Trust 51
14.1 Termination 51
14.2 Benefits After Plan Termination 52
14.3 Partial Termination 52
14.4 Plan Merger 52
ARTICLE XV - Named Fiduciaries, Fiduciary
Responsibilities and Indemnification 52
15.1 Identity of Named Fiduciaries 52
15.2 Responsibilities and Authority of Plan
Administrator 53
15.3 Responsibilities and Authority of Trustee 53
15.4 Responsibilities and Authority of the Company 53
15.5 Responsibilities Not Shared 53
15.6 Procedure for Allocation and Delegation
of Responsibilities 53
15.7 Advice 54
15.8 Indemnification 54
15.9 Liability Insurance 54
15.10 Multiple Capacities 54
ARTICLE XVI - Trust Fund Administration and
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Fund Investment 54
16.1 Appointment of Trustee 54
16.2 Receipt and Management of Trust Fund Assets 55
16.3 Investment of Funds 55
16.4 Investment Options 55
16.5 Investment Elections 56
16.6 Investment Rules 56
16.6.1 Participant Directions Generally Control 56
16.6.2 No Automatic Adjustments; Procedures 56
16.6.3 Default Fund 56
16.6.4 Trustee's Discretion Over Funds 56
16.6.5 Adverse Liquidity Procedures 57
16.7 Valuation of Stock 57
16.8 Voting of Stock 57
ARTICLE XVII - Special Rules for Basic
Contribution Accounts 58
17.1 In General 58
17.2 Stock Must Stay in Plan 58
17.2.1 Eighty-Four Month Rule 58
17.2.2 No Exception for Loss of Tax Credit 58
17.3 Voting Rights 59
17.4 Right to Elect Payment in Stock 59
17.5 Put Option If Stock Not Publicly Traded 59
17.5.1 Put Option 59
17.5.2 Put Option Provisions 59
(a) Duration 59
(b) Manner of Exercise 60
(c) Price 60
(d) Payment Terms and Restrictions 60
(e) Non-Terminable Rights 60
17.6 Determination of Value If Stock Not
Publicly Traded 60
17.7 Distribution and Payment Requirements for
Stock Acquired After 1986 60
17.8 Diversification Rights for Stock
Acquired After 1986 60
17.8.1 In General 60
17.8.2 Definitions 60
(A) "QUALIFIED PARTICIPANT 61
(B) "QUALIFIED ELECTION PERIOD 61
(C) "ELIGIBLE PORTION 61
17.8.3 Directed Investment Options 61
ARTICLE XVIII - Miscellaneous 61
18.1 Plan Benefits Limited to Amounts in Trust Fund 61
18. 2 Notices and Certifications 62
18.2.1 Reliance on Notices, etc 62
18.2.2 Effectiveness of Notices 62
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18.3 No Employment Contract 62
18.4 Return of Company Contributions 62
18.4.1 Mistake of Fact 63
18.4.2 Denial of Initial Plan Qualification 63
18.4.3 Denial of Tax Deduction 63
18.5 Spendthrift Provisions and Domestic
Relations Orders 63
18.5.1 General Rule Prohibiting Alienation 63
18.5.2 QDRO Exception 63
18.5.3 QDRO Definitions 63
18.5.4 QDRO Requirements 64
18.5.5 QDRO Procedures 64
18.6 Payments to Minors and Incompetents 65
18.7 Governing Law 65
18.8 Binding Effect 65
18.9 Interpretation 65
18.10 Titles 65
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