<PAGE>
As filed with the Securities and Exchange Commission
on May 31, 1994
Registration No. 33-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CLARCOR Inc.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 36-0922490
- -------------------- -----------------------
(State or other juris- (IRS Employer
diction of incorporation Identification No.)
or organization)
2323 Sixth Street
P.O. Box 7007
Rockford, Illinois 61125
- --------------------- -----------
(Address of Principal (Zip Code)
Executive Office)
CLARCOR
401(K) RETIREMENT SAVINGS PLAN
------------------------------
(Full title of the plan)
Marshall C. Arne
Secretary
CLARCOR Inc.
2323 Sixth Street
P.O. Box 7007
Rockford, Illinois 61125
---------------------------------------
(Name-and address of agent for service)
(815) 961-5728
------------------------------------------------------------
(Telephone number, including area code, of agent for service)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed maximum
Securities to be Amount to be maximum offering aggregate offering Amount of
registered(1) registered price per share price registration fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 500,000 $18.125(2) $9,062,500.00(2) $3,125.00(2)
- ------------------------------------------------------------------------------------------------------------
Preferred Stock Purchase Rights 222,000 (3) (3) (3)
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
<FN>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated pursuant to Rule 457(h) under the Securities Act of 1933 solely
for the purpose of calculating the amount of the registration fee based
upon the average of the high and low sales prices reported for shares of
the Common Stock in the New York Stock Exchange Composite Transactions on
May 26, 1994, which was $18.125.
(3) The Company's Preferred Stock Purchase Rights initially are carried and
traded with the shares of Common Stock of the Company being registered
hereunder. Value attributable to such Preferred Stock Purchase Rights, if
any, is reflected in the market price of the Common Stock.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated by reference herein and made a
part hereof:
(a) the Annual Report on Form 10-K of CLARCOR Inc., a Delaware
corporation (the "Company"), for the fiscal year ended November 27, 1993;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
February 26, 1994;
(c) the description of the Company's Common Stock which is contained
in a registration statement filed under the Securities Exchange Act of 1934,
including any subsequent amendment or any report or other filing filed with the
Commission updating such description;
(d) the description of the Company's Preferred Stock Purchase Rights
(the "Rights") set forth in Item 1 of the Company's Registration Statement on
Form 8-A, dated April 24, 1986, as amended by the Company's Form 8, Amendment
No. 1, dated June 30, 1989, File No. 0-3801, including any subsequent amendment
or any report or other filing filed with the Commission updating such
description; and
(e) the Annual Report on Form 11-K of the CLARCOR 401(k) Retirement
Savings Plan (the "Plan"), for the fiscal year ended November 30, 1993.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act and all documents filed by the Plan pursuant to
Section 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law contains
provisions permitting corporations organized thereunder to indemnify directors,
officers, employees and agents from
II-1
<PAGE>
liability under certain circumstances. The Certificate of Incorporation of the
Company, as amended, provides indemnification for directors, officers, employees
and agents to the extent permitted by the Delaware General Corporation Law,
eliminates to the extent permitted by the law the personal liability of
directors for monetary damages to the Company and its stockholders and permits
the Company to insure its directors, officers, employees and agents against
certain liabilities as to which they may not be indemnify under the Delaware
General Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit No. Description
- ----------- -----------
4(a)* CLARCOR 401(k) Retirement Savings Plan.
4(b)* Amendment to CLARCOR 401(k) Retirement Savings Plan effective as
of August 1, 1992.
4(c)* Amendment to CLARCOR 401(k) Retirement Savings Plan effective as
of June 1, 1994.
4(d)* CLARCOR 401(k) Retirement Savings Trust, As Amended and Restated
Effective as of June 1, 1994.
4(e) The Company's Restated Certificate of Incorporation.
Incorporated by reference to Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the fiscal year ended November 30, 1983.
4(f) Amendment to ARTICLE NINTH of Restated Certificate of
Incorporation. Incorporated by reference to Exhibit 3.1(a) to
the Company's Annual Report on Form 10-K for the fiscal year
ended November 30, 1988 (the "1988 10-K").
4(g) Amendment changing name of the Company to CLARCOR Inc.
Incorporated by reference to Exhibit 3.1(b) to the 1988 10-K.
4(h) Amendment to ARTICLE FOURTH of the Restated Certificate of
Incorporation. Incorporated by reference to Exhibit 3.1(c) to
the Company's Annual Report on Form 10-K for the fiscal year
ended November 30, 1990.
4(i) The Company's By-laws, as amended. Incorporated by reference to
Exhibit 3.2 to the Company's Annual Report on Form 10-K for the
fiscal year ended November 27, 1993.
II-2
<PAGE>
Exhibit No. Description
- ----------- -----------
4(j) Rights Agreement dated as of April 14, 1986 between the Company
and The First National Bank of Chicago. Incorporated by
reference to Exhibit 1 to the Company's Current Report on Form
8-K dated April 20, 1986.
4(k) Amendment to Rights Agreement dated as of June 27, 1989.
Incorporated by reference to Exhibit 4 to the Company's Current
Report on From 8-K filed on August 14, 1989.
23* Consent of Independent Accountants.
- ----------------------
* Filed herewith.
The company will submit 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
1. The Company hereby undertakes: (i) to file, during any period in
which offers or sales are being made, a post-effective amendment to this
registration statement 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; (ii)
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; and (iii) 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.
2. The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Company'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
II-3
<PAGE>
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rockford, State of Illinois, on May 31, 1994.
CLARCOR Inc.
By Lawrence E. Gloyd
---------------------------
Lawrence E. Gloyd
Chairman, President & Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on May 31, 1994.
Signature Position
--------- --------
Lawrence E. Gloyd Chairman, President & Chief
- -------------------------
Lawrence E. Gloyd Executive Officer and Director
L. Paul Harnois Senior Vice President & Chief
- -------------------------
L. Paul Harnois Financial Officer
William F. Knese Vice President, Treasurer,
- -------------------------
William F. Knese Controller & Chief Accounting Officer
J. Marc Adam Director
- -------------------------
J. Marc Adam
Milton R. Brown Director
- -------------------------
Milton R. Brown
Carl J. Dargene Director
- -------------------------
Carl J. Dargene
Frank A. Fiorenza Director
- -------------------------
Frank A. Fiorenza
II-5
<PAGE>
Dudley J. Godfrey, Jr. Director
- -------------------------
Dudley J. Godfrey, Jr.
Stanton K. Smith, Jr. Director
- -------------------------
Stanton K. Smith, Jr.
Richard A. Snell Director
- -------------------------
Richard A. Snell
Don A. Wolf Director
- -------------------------
Don A. Wolf
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
CLARCOR 401(k) Retirement Savings Plan has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Rockford, State of Illinois on May 31, 1994.
CLARCOR 401(k) RETIREMENT
SAVINGS PLAN
By L. Paul Harnois
--------------------------------
L. Paul Harnois
Member of CLARCOR Inc. Pension
Committee, as Plan Administrator
By William F. Knese
--------------------------------
William F. Knese
Member of CLARCOR Inc. Pension
Committee, as Plan Administrator
By David J. Lindsay
--------------------------------
David J. Lindsay
Member of CLARCOR Inc. Pension
Committee, as Plan Administrator
II-7
<PAGE>
EXHIBIT INDEX
Sequential
Exhibit No. Description Page No.
- ----------- ----------- ----------
4(a)* CLARCOR 401(k) Retirement Savings Plan.
4(b)* Amendment to CLARCOR 401(k) Retirement
Savings Plan effective as of August 1, 1992.
4(c)* Amendment to CLARCOR 401(k) Retirement
Savings Plan effective as of June 1, 1994.
4(d)* CLARCOR 401(k) Retirement Savings
Trust, As Amended and Restated
Effective as of June 1, 1994.
4(e) The Company's Restated Certificate of
Incorporation. Incorporated by reference to
Exhibit 3.1 to the Company's Annual Report on Form
10-K for the fiscal year ended November 30, 1983.
4(f) Amendment to ARTICLE NINTH of Restated Certificate
of Incorporation. Incorporated by reference to
Exhibit 3.1(a) to the Company's Annual Report on
Form 10-K for the fiscal year ended November 30,
1988 (the "1988 10-K").
4(g) Amendment changing name of the Company to CLARCOR
Inc. Incorporated by reference to Exhibit 3.1(b)
to the 1988 10-K.
4(h) Amendment to ARTICLE FOURTH of the Restated
Certificate of Incorporation. Incorporated by
reference to Exhibit 3.1(c) to the Company's
Annual Report on Form 10-K for the fiscal year
ended November 30, 1990.
4(i) The Company's By-laws, as amended. Incorporated
by reference to Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the fiscal year
ended November 27, 1993.
<PAGE>
Sequential
Exhibit No. Description Page No.
- ----------- ----------- ----------
4(j) Rights Agreement dated as of April 14, 1986
between the Company and The First National Bank of
Chicago. Incorporated by reference to Exhibit 1
to the Company's Current Report on Form 8-K dated
April 20, 1986.
4(k) Amendment to Rights Agreement dated as of June 27,
1989. Incorporated by reference to Exhibit 4 to
the Company's Current Report on From 8-K filed on
August 14, 1989.
23* Consent of Independent Accountants.
- ----------------------
* Filed herewith.
<PAGE>
Exhibit 4(a)
CLARCOR 401(k)
RETIREMENT SAVINGS PLAN
Amended and Restated Effective December 1, 1987
Except as Specifically Provided Otherwise
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE 1
GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 PURPOSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 SOURCE OF FUNDS. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.5 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2
ELIGIBILITY AND PARTICIPATION. . . . . . . . . . . . . . . . . . . . . . . . 11
2.1 ELIGIBILITY REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . 11
2.2 LEAVES OF ABSENCE. . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 3
CONTRIBUTIONS BY EMPLOYER. . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.1 EMPLOYER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . 12
3.2 BEFORE-TAX CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . 13
3.3 LIMITATIONS ON BEFORE-TAX CONTRIBUTIONS. . . . . . . . . . . . . . 13
3.4 MATCHING EMPLOYER CONTRIBUTIONS. . . . . . . . . . . . . . . . . . 16
ARTICLE 4
PARTICIPANT CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.1 AFTER-TAX CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . 17
4.2 CODE SECTION 401(M) LIMITATION ON AFTER-TAX CONTRIBUTIONS. . . . . 17
4.3 MULTIPLE USE . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.4 ROLLOVER CONTRIBUTION. . . . . . . . . . . . . . . . . . . . . . . 21
4.5 ALLOCATION OF ROLLOVER CONTRIBUTIONS . . . . . . . . . . . . . . . 22
ARTICLE 5
ACCOUNTING PROVISIONS AND ALLOCATIONS. . . . . . . . . . . . . . . . . . . . 23
5.1 PARTICIPANT'S ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . 23
5.2 INVESTMENT FUNDS.. . . . . . . . . . . . . . . . . . . . . . . . . 23
5.3 ALLOCATION PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . 24
5.4 DETERMINATION OF VALUE OF TRUST FUND . . . . . . . . . . . . . . . 25
5.5 ALLOCATION OF NET EARNINGS OR LOSSES . . . . . . . . . . . . . . . 25
5.6 ELIGIBILITY TO SHARE IN FORFEITURES. . . . . . . . . . . . . . . . 26
5.7 ALLOCATION OF BEFORE-TAX CONTRIBUTIONS . . . . . . . . . . . . . . 26
5.8 ALLOCATION OF MATCHING EMPLOYER CONTRIBUTIONS. . . . . . . . . . . 26
5.9 ALLOCATION OF AFTER-TAX CONTRIBUTIONS. . . . . . . . . . . . . . . 26
5.10 ALLOCATION OF FORFEITURES. . . . . . . . . . . . . . . . . . . . . 26
5.11 PROVISIONAL ANNUAL ADDITION. . . . . . . . . . . . . . . . . . . . 26
5.12 LIMITATION ON ANNUAL ADDITIONS . . . . . . . . . . . . . . . . . . 27
ARTICLE 6
AMOUNT OF PAYMENTS TO PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . 29
6.1 GENERAL RULE . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.2 RETIREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
i
<PAGE>
6.3 DEATH. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.4 DISABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.5 VESTING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.6 RESIGNATION OR DISMISSAL . . . . . . . . . . . . . . . . . . . . . 30
6.7 COMPUTATION OF PERIOD OF SERVICE . . . . . . . . . . . . . . . . . 30
6.8 TREATMENT OF FORFEITURES . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 7
DISTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.1 COMMENCEMENT AND FORM OF DISTRIBUTIONS . . . . . . . . . . . . . . 33
7.2 DISTRIBUTIONS TO BENEFICIARIES . . . . . . . . . . . . . . . . . . 34
7.3 BENEFICIARIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.4 INSTALLMENT OR DEFERRED DISTRIBUTIONS. . . . . . . . . . . . . . . 37
7.5 FORM OF ELECTIONS AND APPLICATIONS FOR BENEFITS. . . . . . . . . . 37
7.6 UNCLAIMED DISTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . 37
7.7 DISTRIBUTION OF AFTER-TAX CONTRIBUTIONS PRIOR TO TERMINATION OF
EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.8 WITHDRAWALS FROM BEFORE-TAX ACCOUNT PRIOR TO TERMINATION OF
EMPLOYMENT (effective for Plan Years before the 1989 Plan Year). . 38
7.8A WITHDRAWALS FROM BEFORE-TAX ACCOUNT PRIOR TO TERMINATION OF
EMPLOYMENT (effective on and after the 1989 Plan Year) . . . . . . 38
7.9 FACILITY OF PAYMENT. . . . . . . . . . . . . . . . . . . . . . . . 41
7.10 CLAIMS PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 8
TOP-HEAVY PLAN REQUIREMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 43
8.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.2 TOP-HEAVY PLAN REQUIREMENTS. . . . . . . . . . . . . . . . . . . . 45
ARTICLE 9
POWERS AND DUTIES OF PLAN COMMITTEE. . . . . . . . . . . . . . . . . . . . . 47
9.1 APPOINTMENT OF PLAN COMMITTEE. . . . . . . . . . . . . . . . . . . 47
9.2 POWERS AND DUTIES OF COMMITTEE . . . . . . . . . . . . . . . . . . 47
9.3 COMMITTEE PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . 48
9.4 CONSULTATION WITH ADVISORS . . . . . . . . . . . . . . . . . . . . 48
9.5 COMMITTEE MEMBERS AS PARTICIPANTS. . . . . . . . . . . . . . . . . 48
9.6 RECORDS AND REPORTS. . . . . . . . . . . . . . . . . . . . . . . . 49
9.7 INVESTMENT POLICY. . . . . . . . . . . . . . . . . . . . . . . . . 49
9.8 DESIGNATION OF OTHER FIDUCIARIES . . . . . . . . . . . . . . . . . 49
9.9 OBLIGATIONS OF COMMITTEE . . . . . . . . . . . . . . . . . . . . . 50
9.10 INDEMNIFICATION OF COMMITTEE . . . . . . . . . . . . . . . . . . . 50
ARTICLE 10
TRUSTEE AND TRUST FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.1 TRUST FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.2 PAYMENTS TO TRUST FUND AND EXPENSES. . . . . . . . . . . . . . . . 51
10.3 TRUSTEE'S RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . 51
10.4 REVERSION TO AN EMPLOYER . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 11
ii
<PAGE>
AMENDMENT OR TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.1 AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.2 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.3 FORM OF AMENDMENT, DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS, AND
TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.4 LIMITATIONS ON AMENDMENTS. . . . . . . . . . . . . . . . . . . . . 52
11.5 LEVEL OF BENEFITS UPON MERGER. . . . . . . . . . . . . . . . . . . 53
11.6 VESTING UPON TERMINATION OR DISCONTINUANCE OF EMPLOYER
CONTRIBUTIONS; LIQUIDATION OF TRUST. . . . . . . . . . . . . . . . 53
ARTICLE 12
ADOPTION BY AFFILIATES . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
12.1 ADOPTION OF PLAN . . . . . . . . . . . . . . . . . . . . . . . . . 55
12.2 THE COMPANY AS AGENT FOR EMPLOYER. . . . . . . . . . . . . . . . . 55
12.3 ADOPTION OF AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . 55
12.4 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
12.5 DATA TO BE FURNISHED BY EMPLOYERS. . . . . . . . . . . . . . . . . 55
12.6 JOINT EMPLOYEES. . . . . . . . . . . . . . . . . . . . . . . . . . 56
12.7 EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
12.8 WITHDRAWAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
12.9 PRIOR PLANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 13
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
13.1 NO GUARANTEE OF EMPLOYMENT, ETC. . . . . . . . . . . . . . . . . . 57
13.2 RIGHTS OF PARTICIPANTS AND OTHERS. . . . . . . . . . . . . . . . . 57
13.3 QUALIFIED DOMESTIC RELATIONS ORDER . . . . . . . . . . . . . . . . 57
13.4 CONTROLLING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . 57
13.5 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
13.6 NOTIFICATION OF ADDRESSES. . . . . . . . . . . . . . . . . . . . . 57
13.7 GENDER AND NUMBER. . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE 14
CHANGE IN CONTROL OF THE EMPLOYER. . . . . . . . . . . . . . . . . . . . . . 59
14.1 CHANGE IN CONTROL - DEFINED. . . . . . . . . . . . . . . . . . . . 59
14.2 INTENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
14.3 PROHIBITIONS ON CHANGE IN CONTROL. . . . . . . . . . . . . . . . . 59
APPENDIX A
APPLICABLE TO MICHIGAN SPRING COMPANY. . . . . . . . . . . . . . . . . . . . 61
APPENDIX B
APPLICABLE TO TIMMS SPRING COMPANY . . . . . . . . . . . . . . . . . . . . . 63
APPENDIX C
APPLICABLE TO BALDWIN FILTERS, INC.. . . . . . . . . . . . . . . . . . . . . 65
iii
<PAGE>
ARTICLE 1
GENERAL
1.1 PURPOSE. It is the intention of the Employer to continue to provide
for the administration of the CLARCOR 401(k) Retirement Savings Plan (formerly
known as the J.L. Clark Retirement Savings Plan and Trust) and a Trust Fund in
conjunction therewith for the benefit of eligible employees of the Employer, in
accordance with the provisions of Code Sections 401 and 501 and in accordance
with other provisions of law relating to profit sharing plans. Except as
otherwise provided in this Plan or the Trust, upon the transfer by the Employer
of any funds to the Trust Fund in accordance with the provisions of this Plan,
all interest of the Employer therein shall cease and terminate, and no part of
the Trust Fund shall be used for, or diverted to, purposes other than the
exclusive benefit of Participants and their beneficiaries.
1.2 SOURCE OF FUNDS. The Trust Fund shall be created, funded and
maintained by contributions of the Employer, by contributions of the
Participants, and by such net earnings as are obtained from the investment of
the funds of the Trust Fund.
1.3 EFFECTIVE DATE. The provisions of the Plan as herein restated shall
be effective as of January 1, 1987, except for certain provisions the effective
dates of which are set forth therein. Except as may be required by ERISA or the
Code, the rights of any person whose status as an employee of the Employer and
all Affiliates has terminated shall be determined pursuant to the Plan as in
effect on the date such employment terminated, unless a subsequently adopted
provision of the Plan is made specifically applicable to such person.
1.4 APPENDICES. To the extent that provisions set forth in an Appendix to
this Plan are different from the terms of the Plan as herein set forth, the
provisions of such Appendix shall preempt any relevant terms of the Plan with
respect to the Participants who are employees of the Employer to which such
Appendix applies.
1.5 DEFINITIONS. Certain terms are capitalized and have the respective
meanings set forth in the Plan.
"ACCOUNT" means each of the individual accounts established pursuant to
Article 5 representing a Participant's allocable share of the Trust Fund.
"ACCOUNTS" means the collective individual accounts established pursuant to
Article 5.
"ACTUAL DEFERRAL PERCENTAGE" and "ACTUAL DEFERRAL PERCENTAGE TESTS" are
described in Section 3.3.
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"AFFILIATE" means any corporation or enterprise, other than the Employer,
which, as of a given date, is a member of the same controlled group of
corporations, the same group of trades or businesses under common control or the
same affiliated service group, determined in accordance with Code Sections
414(b), (c), (m) or (o), as is the Employer. For purposes of determining the
amount of a Participant's Annual Addition or Total Compensation and applying the
limitations of Code Section 415 set forth in Article 5, "Affiliate" shall
include any corporation or enterprise, other than the Employer, which, as of a
given date, is a member of the same controlled group of corporations or the same
group of trades or businesses under common control, determined in accordance
with Code Sections 414(b) or (c) as modified by Code Section 415(h), as is the
Employer.
"AFTER-TAX CONTRIBUTIONS" means the contributions of Participants pursuant
to Section 4.1.
"ANNUAL ADDITION" means for any Limitation Year, all Before-Tax
Contributions, Matching Employer Contributions, Employer Contributions,
forfeitures and After-Tax Contributions allocated to the Accounts of a
Participant under this Plan and any employer contributions, forfeitures and
employee after-tax contributions allocated to such Participant under any other
defined contribution plan maintained by the Employer or an Affiliate; provided,
however, that with respect to a Limitation Year beginning before the 1987 Plan
Year, only the greater of (a) the Participant's After-Tax Contributions under
this Plan and employee after-tax contributions under such other plans for such
year in excess of 6% of the Participant's Total Compensation for the Limitation
Year or (b) one-half of all of the Participant's After-Tax Contributions under
this Plan and employee after-tax contributions under such other plans for such
Limitation Year shall be included in the Annual Addition.
"BASIC BEFORE-TAX CONTRIBUTIONS" mean, with respect to a Participant, the
contributions made on behalf of such Participant pursuant to Section 3.2, which
contributions may not exceed 3%, in one-quarter percentages, of the
Participant's Considered Compensation and, with respect to the Employer, mean
the sum of all such contributions made on behalf of all Participants.
"BEFORE-TAX CONTRIBUTIONS" mean, with respect to a Participant, the sum of
the Basic Before-Tax Contributions and the Supplemental Before-Tax Contributions
made on behalf of such Participant by the Employer as described in Section 3.2
and, with respect to the Employer, mean the sum of all such contributions made
on behalf of all Participants.
"CODE" means the Internal Revenue Code of 1986, as from time to time
amended.
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"COMMITTEE" means the plan administrator and named fiduciary appointed
pursuant to Section 9.1.
"COMPANY" means CLARCOR Inc., formerly known as the J.L. Clark
Manufacturing Co.
"COMPENSATION" means a Participant's "Considered Compensation" or "Total
Compensation," as follows:
(a) "CONSIDERED COMPENSATION" is the Participant's Total Compensation
for the Plan Year paid while he was a Participant plus elective contributions
that are made by an Employer on behalf of Employees that are not includible in
gross income under Code Section 125, 402(a)(8), 402(h) and 403(b), but excluding
reimbursements or other expense allowances, fringe benefits (cash and noncash),
moving expenses, deferred compensation and welfare benefits (even if includible
in gross income); provided, however, that beginning with the 1989 Plan Year,
Considered Compensation shall not include any amount in excess of $200,000 (as
adjusted annually by the Secretary of the Treasury for increases in the cost of
living); provided, further, that for purposes of the preceding clause, the
Considered Compensation of a Participant who is a Highly Compensated Employee
and who at any time during the Plan Year is a Five-Percent Owner or a member of
the group consisting of the 10 employees of the Employer and all Affiliates paid
the greatest Total Compensation for the Plan Year shall include the Considered
Compensation of the Participant's spouse or the Participant's child or
grandchild under the age of 19 and the $200,000 (as adjusted) limitation shall
be applied as if such Participant, spouse, child and grandchild constituted a
single Participant and allocated among such individuals pro rata on the basis of
Considered Compensation determined before application of the $200,000 (as
adjusted) limitation.
(b) "TOTAL COMPENSATION" for a period is the Participant's wages as
defined in Code Section 3401(a) for purposes of income tax withholding at the
source (W-2 earnings) but determined without regard to any rules that limit the
remuneration included in wages based on the nature or location of the employment
or the services performed.
"CONTRIBUTION PERCENTAGE" and "CONTRIBUTION PERCENTAGE TESTS" are described
in Section 4.2.
"DEFINED BENEFIT DOLLAR LIMITATION" means an amount equal to $90,000, or,
if greater, the amount in effect as of the last day of the Limitation Year under
Code Section 415(b)(1)(A), as adjusted by the Secretary of the Treasury pursuant
to Code Section 415(d).
"DEFINED CONTRIBUTION DOLLAR LIMITATION" means an amount equal to $30,000
or, if greater, one-fourth of the Defined Benefit
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Dollar Limitation, prorated for any Limitation Year of less than 12 months.
"DETERMINATION DATE" is the applicable Valuation Date (as determined below)
on which the balance of a Participant's Accounts in the Trust Fund shall be
determined for purposes of determining the amount distributable from the Trust
Fund to the Participant, or in the event of his death, his beneficiary pursuant
to Articles 6 and 7:
(a) In the case where the balance of a Participant's Accounts is to
be determined upon his termination of employment for purposes of distribution,
the applicable Valuation Date shall be the Valuation Date coinciding with or
next succeeding such termination of employment; provided, however, that if the
Participant or beneficiary does not elect to commence distribution of such
Accounts until after the Valuation Date next succeeding the termination of
employment, then the applicable Valuation Date shall be the Valuation Date
coinciding with or next succeeding the date such election is made.
(b) In the case where the balance of a Participant's Account or
Accounts is to be determined prior to his termination of employment: 1) for
purposes of a distribution to the Participant in accordance Section 7.7, 7.8, or
7.8A, 2) because of termination of the Plan in accordance with Article 11, or
3) for purposes of a distribution to the Participant in accordance with Section
7.1(g), the applicable Valuation Date shall be the Valuation Date coinciding
with or next preceding the date of such determination.
"ELIGIBLE EMPLOYEE" means any employee of the Employer who is not a Leased
Employee, a Temporary Employee, a Part-time Employee or a Member of a Collective
Bargaining Unit.
"ELIGIBLE PARTICIPANT" is a Participant as defined in Section 5.6.
"EMPLOYER" means the Company and any Affiliate which adopts this Plan
pursuant to Article 12.
"EMPLOYMENT COMMENCEMENT DATE" for an employee is the first date on which
he performs duties for the Employer or an Affiliate as an employee; provided
that in the case of an employee who returns to service following his Severance
Date, the employee's "Employment Commencement Date" is the first date on which
he performs duties for the Employer or an Affiliate as an employee following
such Severance Date.
"ENTRY DATE" means the first day of each month of each Plan Year.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as from
time to time amended.
"EXCESS FORFEITURE SUSPENSE ACCOUNT" is the account described in
Section 5.12.
"EXCESS TENTATIVE EMPLOYER CONTRIBUTION" is the excess contribution
described in Section 5.12.
"FAMILY GROUP" means all Family Members of a Highly Compensated Employee
who is a Five-Percent Owner or who is a member of the group consisting of the 10
employees of the Employer and all Affiliates paid the greatest Total
Compensation during the Plan Year. If two or more Family Groups include common
Family Members, such Family Groups shall be aggregated as one Family Group.
"FAMILY MEMBER" means a Highly Compensated Employee who is a Five-Percent
Owner or who is a member of the group consisting of the 10 employees of the
Employer and all Affiliates paid the greatest Total Compensation during the Plan
Year, and any individual who is the spouse, lineal ascendant or descendant, or
the spouse of a lineal ascendant or descendant, of such Five-Percent Owner or
such member.
"FIVE-PERCENT OWNER" means an employee described in Code Section 416(i)(1).
"HIGHLY COMPENSATED EMPLOYEE" means, for the Determination Year, an
employee of the Employer or an Affiliate who was a Participant eligible during
the Plan Year to make Before-Tax Contributions and/or After-Tax Contributions
and who:
(a) during the Lookback Year:
(i) was a Five-Percent Owner; or
(ii) received Total Compensation in excess of $75,000 (as
adjusted annually for increases in the cost of living by the Secretary of
the Treasury); or
(iii) received Total Compensation in excess of $50,000 (as
adjusted annually for increases in the cost of living by the Secretary of
the Treasury) and was among the top 20% of the employees (disregarding
those employees excludable under Code Section 414(q)(8)) when ranked on the
basis of Total Compensation paid for that year; or
(iv) was an officer of the Employer or an Affiliate and received
Total Compensation in excess of one-half of the Defined Benefit Dollar
Limitation for that year, provided that for this purpose, no more than 50
employees (or if lesser the greater of 3 or 10% of all employees) shall be
treated as
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officers, or if there is no such officer, was the highest paid officer of
the Employer or an Affiliate for that year; or
(b) at any time during the Determination Year:
(i) is a Five-Percent Owner; or
(ii) is a member of a group consisting of the 100 employees who
received the greatest Total Compensation during that Plan Year and would be
a member of the group of employees described in subsection (a)(ii), (iii)
or (iv) above for the Determination Year. For any Plan Year, the Committee
may, to the extent permitted by law, elect to apply the provisions of this
subsection (b)(ii) without regard to the limitation of the group to 100
employees.
For purposes of this definition, "Determination Year" means the current
Plan Year and "Lookback Year" means the preceding Plan Year or at the election
of the Company, the calendar year ending with or within the Determination Year.
To the extent required by Code Section 414(q)(9), a former employee who was
a Highly Compensated Employee when he separated from service with the Employer
and all Affiliates or at any time after attaining age 55 shall be treated as a
Highly Compensated Employee.
For purposes of determining a Highly Compensated Employee, Total
Compensation shall be determined without regard to Code Sections 125, 402(a)(8),
402(h)(1)(B), and employee contributions made pursuant to a salary reduction
agreement under Code Section 403(b).
"HIGHLY COMPENSATED FAMILY MEMBER" means a Family Member who is a Highly
Compensated Employee without application of the family aggregation rules of Code
Section 414(q)(6).
"INDIVIDUAL BENEFICIARY" means a natural person designated by the
Participant in accordance with Section 7.3 to receive all or any portion of the
amounts remaining in the Participant's Accounts at the time of the Participant's
death. "Individual Beneficiary" also means a natural person who is a
beneficiary of a trust designated by the Participant in accordance with Section
7.3 to receive all or a portion of such amount, provided the trust complies with
the requirements of Code Section 401(a)(9) and regulations promulgated
thereunder, including that the trust is irrevocable, the beneficiaries with
respect to the trust's interest in the Participant's Accounts are identifiable
from the trust agreement and a copy of the trust agreement is provided to the
Committee.
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"LEASED EMPLOYEE" means any individual who is not an employee of the
Employer or an Affiliate and who provides services for the Employer or an
Affiliate if:
(a) such services are provided pursuant to an agreement between the
Employer or an Affiliate and any other person;
(b) such individual has performed such services for the Employer or
an Affiliate (or a related person within the meaning of Code Section 144(a)(3))
on a substantially full-time basis for a period of at least one year; and
(c) such services are of a type historically performed by employees
in the business field of the Employer or an Affiliate.
"LIMITATION YEAR" means the Plan Year.
"MATCHING EMPLOYER CONTRIBUTIONS" means the contributions described in
Section 3.4.
"MEMBER OF A COLLECTIVE BARGAINING UNIT" means any employee who is included
in a collective bargaining unit and whose terms and conditions of employment are
or were covered by a collective bargaining agreement if there is evidence that
retirement benefits were the subject of good-faith bargaining between
representatives of such employee and the Employer, unless such collective
bargaining agreement makes this Plan applicable to such employee.
"MULTIPLE USE" is defined in Section 4.3(a).
"NON-HIGHLY COMPENSATED EMPLOYEE" means, for any Plan Year, any employee of
the Employer or Affiliate who (a) at any time during the Plan Year was a
Participant eligible to make Before-Tax Contributions and/or After-Tax
Contributions, and (b) was not a Highly Compensated Employee for such Plan Year.
"NORMAL RETIREMENT DATE" means a Participant's 65th birthday.
"ONE-PERCENT OWNER" means an employee described in Code Section 416(i)(1).
"ONE YEAR BREAK IN SERVICE" is a one-year period, commencing on an
employee's Severance Date, during which such employee does not perform duties
for the Employer or an Affiliate. Solely for purposes of determining whether a
One-Year Break in Service has occurred, absences shall be disregarded if the
employee otherwise would normally have been credited with service but for the
employee's absence on a maternity or paternity absence. No more than one year
of absence on a single maternity or paternity absence shall be so disregarded.
A maternity or paternity absence is an absence from work;
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(a) by reason of pregnancy of the employee;
(b) by reason of the birth of a child of the employee;
(c) by reason of the placement of a child with the employee in
connection with the adoption of such child by the employee; or
(d) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
Any employee requesting such credit shall promptly furnish the Committee such
information as the Committee requires to show that the absence from work is a
maternity or paternity absence, and the number of days for which there was such
an absence.
"PARTICIPANT" means (a) a current employee of the Employer or an Affiliate
who has become a Participant in the Plan pursuant to Section 2.1 or (b) a former
employee for whose benefit an Account in the Trust Fund is maintained.
"PART-TIME EMPLOYEE" means any individual hired by the Employer or an
Affiliate who is regularly scheduled to work less than 30 hours per week.
"PENSION TRANSFER ACCOUNT" means the individual Account established
pursuant to Article 5 representing a Participant's allocable share of the Trust
Fund attributable to amounts transferred on his behalf from the 1976 Restated
J.L. Clark Pension Trust.
"PLAN" means the CLARCOR 401(k) Retirement Savings Plan.
"PLAN YEAR" means a 12-month period beginning on December 1 and ending on
November 30. References to specific Plan Years are made herein by reference to
the calendar year of the first day of the Plan Year. For example, the "1989
Plan Year" is the Plan Year beginning in 1989.
"PROVISIONAL ANNUAL ADDITION" is the amount described in Section 5.11.
"REQUIRED BEGINNING DATE" means:
(a) for a Participant whose 70th birthday occurs on or after July 1,
1988, the April 1 following the calendar year in which the Participant attains
age 70-1/2;
(b) for a Participant whose 70th birthday occurs on or after July 1,
1987 but prior to July 1, 1988 and whose employment has not terminated prior to
January 1, 1989, April 1, 1990, and for
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any such Participant who has terminated employment prior to January 1, 1989,
April 1, 1989;
(c) for a Participant whose 70th birthday occurred prior to July 1,
1987, the April 1 following the later of the calendar year in which the
Participant attains age 70-1/2 or the calendar year in which the Participant
terminates employment; or
(d) for a Participant whose 70th birthday occurred prior to July 1,
1987 and who at any time during or after the calendar year in which he attained
age 66-1/2 was or became a Five-Percent Owner, the April 1 following the later
of (1) the calendar year in which he attained age 70-1/2 or (2) the earlier of
the calendar year in which he became a Five-Percent Owner or his employment
terminates.
"ROLLOVER CONTRIBUTION" means (i) all or a portion of a qualified total
distribution received by an employee from another qualified plan which is
eligible for tax-free rollover to a qualified plan and which is transferred by
the employee to this Plan within 60 days following his receipt thereof;
(ii) amounts transferred to this Plan from a conduit individual retirement
account which has no assets other than assets (and the earnings thereon) which
were (A) previously distributed to the employee by another qualified plan as a
qualified total distribution, (B) eligible for tax-free rollover to a qualified
plan and (C) deposited in such conduit individual retirement account within 60
days of receipt thereof; and (iii) amounts distributed to the employee from a
conduit individual retirement account meeting the requirements of clause (ii)
above, and transferred by the employee to this Plan within 60 days of his
receipt thereof from such conduit individual retirement account.
"SEVERANCE DATE" for an employee is the earlier of:
(a) the date on which he quits, retires, dies or is discharged; or
(b) the first day following any one-year period during which he
performed no duties for the Employer and all Affiliates, except that for an
employee on an approved leave of absence which exceeds 12 months, the Severance
Date shall be the last day of such leave, unless the employee immediately
returns to work following such leave.
"SUPPLEMENTAL BEFORE-TAX CONTRIBUTIONS" mean, with respect to a
Participant, the contributions made on behalf of such Participant pursuant to
Section 3.2, which contributions may not exceed 12% (prior to the 1989 Plan
Year, 3%), in one-quarter percentages, of the Participant's Considered
Compensation and, with respect to the Employer, mean the sum of all such
contributions made on behalf of all Participants.
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"TEMPORARY EMPLOYEE" means any individual hired by the Employer or an
Affiliate or through an outside agency or contractor for an indefinite period
anticipated to be of short duration.
"TENTATIVE EMPLOYER CONTRIBUTION" is the contribution described in Section
3.1.
"THE 1.25 TEST" is the test described in Sections 3.3(b)(i)(A) and
4.2(a)(i).
"THE 2.0 TEST" is the test described in Sections 3.3(b)(i)(B) and
4.2(a)(ii).
"TRUST" or "TRUST FUND" means the Trust established in accordance with
Article 10.
"TRUSTEE" means the Trustee or Trustees under the Trust referred to in
Article 10.
"VALUATION DATE" means the last day of each quarter of each Plan Year.
"YEAR OF SERVICE" is a unit of service credited to an employee for purposes
of determining an employee's eligibility to participate in the Plan and the
percentage of the balance in a Participant's Employer Account which is
nonforfeitable. An employee who is reemployed shall retain service credited to
him in his previous employment with the Employer or an Affiliate, except as
otherwise provided in the Plan.
(a) An employee shall be credited with one Year of Service for each
full year in the period commencing on his Employment Commencement Date and
ending on his Severance Date. An employee shall also be credited with 1/365 of
a Year of Service for each additional day in such period for which he did not
receive credit pursuant to the preceding sentence.
(b) A former employee who is reemployed and who performs duties for
the Employer or an Affiliate within one year after the date he last performed
duties for the Employer or an Affiliate shall also be credited with 1/365 of a
Year of Service for each day in the period commencing on his Severance Date and
ending on his Employment Commencement Date following such Severance Date.
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ARTICLE 2
ELIGIBILITY AND PARTICIPATION
2.1 ELIGIBILITY REQUIREMENTS.
(a) Every Participant on the first day of the 1987 Plan Year shall
continue as such subject to the provisions of the Plan.
(b) Every other Eligible Employee shall be eligible to participate,
if he is then employed by the Employer, on the Entry Date coinciding with or
next following the later of (i) the date on which he has completed one Year of
Service or (ii) his 21st birthday.
(c) Any former employee of the Employer or an Affiliate who was a
Participant or could have become a Participant under subsection (b) above had he
been employed on a prior Entry Date, and is reemployed by the Employer, shall be
eligible to participate immediately upon reemployment if, on the date of such
reemployment, that employee is an Eligible Employee and:
(i) has not incurred a One-Year Break in Service; or
(ii) had a nonforfeitable right to any part of the balance in
his Employer Account or Before-Tax Account on the date his most recent
employment with the Employer and all Affiliates terminated (or would have
had such right if he had been a Participant); or
(iii) has attained age 21 and has incurred a One-Year Break in
Service, but the number of years and portions thereof in the period after
the employee's Severance Date and before he next performs duties for the
Employer or an Affiliate is less than the greater of 5 or the aggregate
number of Years of Service and portions thereof before such One-Year Break
in Service (excluding any Years of Service and portions thereof previously
disregarded).
2.2 LEAVES OF ABSENCE. During the period that any Participant is granted
a leave of absence, he shall share in Employer Contributions, forfeitures, and
the net earnings or losses of the Trust Fund in the same manner and subject to
the same conditions as if he were not on leave of absence. Any such leave of
absence under this Section 2.2 must be granted in writing and pursuant to the
Employer's established leave policy, which shall be administered in a uniform
and nondiscriminatory manner to similarly situated employees.
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ARTICLE 3
CONTRIBUTIONS BY EMPLOYER
3.1 EMPLOYER CONTRIBUTIONS.
(a) Subject to the right reserved to the Employer to alter, amend or
discontinue this Plan and the Trust, the Employer shall for each Plan Year
contribute to the Trust Fund an amount equal to the sum of:
(i) the Before-Tax Contribution; and
(ii) the Matching Employer Contribution.
Such sum, which is known as the Tentative Employer Contribution, shall be
reduced by an amount equal to the Excess Tentative Employer Contribution (as
provided in Section 5.12).
(b) In the event that the Tentative Employer Contribution, as reduced
by the Excess Tentative Employer Contribution, exceeds the amount deductible by
the Employer for said year for federal income tax purposes, then such Tentative
Employer Contribution shall be further reduced in an amount equal to such excess
(the "Employer Excess Contribution") as follows:
(i) first, the Supplemental Before-Tax Contributions allocated
to the Before-Tax Accounts of Participants for such Plan Year shall be
reduced by the lesser of an amount equal to the Employer Excess
Contribution or such Supplemental Before-Tax Contributions. A
Participant's share of such reduction for such Plan Year shall be in the
same ratio that his share in the Supplemental Before-Tax Contributions
(before reduction) bears to the shares of all Participants in the
Supplemental Before-Tax Contributions (before reduction) for such Plan
Year; and
(ii) second, to the extent that any Employer Excess Contribution
remains after application of (i) above, then the Matching Employer
Contribution allocated to the Matching Accounts of Participants and the
Basic Before-Tax Contributions allocated to the Before-Tax Accounts of
Participants for such Plan Year will each be reduced proportionately in an
amount equal to the lesser of the Employer Excess Contribution for such
Plan Year less the reduction determined in (i) above for such Plan Year and
the sum of the Matching Employer Contribution and Basic Before-Tax
Contribution for such Plan Year. A Participant's share of such reduction
for such Plan Year shall be the same ratio that his share in the Matching
Employer Contribution and Basic Before-Tax Contributions (before reduction)
bears to the shares of all Participants in such contributions (before
reduction) for such Plan Year.
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3.2 BEFORE-TAX CONTRIBUTIONS.
(a) Subject to the provisions of Sections 3.1 and 3.3, each
Participant may elect to have the Employer make a Basic Before-Tax Contribution
on his behalf. Each Participant who elects to make the maximum Basic Before-Tax
Contribution may also elect to have the Employer make a Supplemental Before-Tax
Contribution on his behalf.
(b) Such elections may be revoked or revised at the request of the
Participant by notification to the Committee in a form prescribed by it, and
shall be effective as of the first day of the first payroll period following
such notification by which it is administratively feasible to process the
request.
3.3 LIMITATIONS ON BEFORE-TAX CONTRIBUTIONS.
(a) In no event shall a Participant's Before-Tax Contributions exceed
$7,000 (as adjusted annually for increases in the cost of living by the
Secretary of the Treasury) for any calendar year. If a Participant's Before-Tax
Contributions, together with any additional employer contributions to a
qualified cash or deferred arrangement, any elective deferrals under a
tax-sheltered annuity program or a simplified employee pension plan, exceed
$7,000 (as adjusted annually for increases in the cost of living by the
Secretary of the Treasury) for any calendar year, such excess, and any earnings
allocable thereto, shall be distributed to the Participant by April 15 of such
following year; provided that, if such excess contributions were made to a plan
or arrangement not maintained by the Employer or an Affiliate, the Participant
must first notify the Committee of the amount of such excess allocable to this
Plan by March 1 of the following year.
(b) Notwithstanding any other provision of this Plan to the contrary,
the Before-Tax Contributions for the Highly Compensated Employees for the Plan
Year shall be reduced in accordance with the following provisions:
(i) The Before-Tax Contributions of the Highly Compensated
Employees shall be reduced and refunded if neither of the Actual Deferral
Percentage Tests set forth in (A) or (B) below is satisfied:
(A) THE 1.25 TEST. The Actual Deferral Percentage of the Highly
Compensated Employees is not more than the Actual Deferral Percentage
of the Non-Highly Compensated Employees multiplied by 1.25.
(B) THE 2.0 TEST. The Actual Deferral Percentage of the Highly
Compensated Employees is not more than 2 percentage points greater
than the Actual Deferral Percentage of the Non-Highly Compensated
Employees and
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the Actual Deferral Percentage of the Highly Compensated Employees is
not more than the Actual Deferral Percentage of the Non-Highly
Compensated Employees multiplied by 2.0.
(ii) (A) As used in this subsection, "Actual Deferral
Percentage" means the average of the ratios of each Highly
Compensated Employee's or Non-Highly Compensated Employee's, as the
case may be, Before-Tax Contributions which were allocated to the
Participant's Before-Tax Account with respect to the Plan Year, to
each such Participant's Considered Compensation for the Plan Year.
(B) If a Highly Compensated Employee is a member of a
Family Group, such Family Group shall constitute a single Highly
Compensated Employee. The Actual Deferral Percentage of such Family
Group shall be the aggregate Actual Deferral Percentage of all Family
Members and the Actual Deferral Percentage of each Family Member shall
be disregarded for purposes of the Actual Deferral Percentage Tests.
(iii) If neither Actual Deferral Percentage Test is satisfied as
of the end of the Plan Year, the Committee shall cause the Before-Tax
Contributions for the Highly Compensated Employees to be reduced and
refunded to each such Highly Compensated Employee until either Actual
Deferred Percentage Test is satisfied. The sequence of such reductions and
refunds shall begin with Highly Compensated Employees who elected to defer
the greatest percentage, starting with the Supplemental Before-Tax
Contributions, then the second greatest percentage, continuing until either
Actual Deferred Percentage Test is satisfied. For example, all Highly
Compensated Employees who elected a 15% contribution (combined Basic
Before-Tax Contributions of 3% and Supplemental Before-Tax Contributions of
12%) shall have their Supplemental Before-Tax Contributions reduced from
12% to 11%. If neither Actual Deferral Percentage Test is then satisfied,
all Highly Compensated Employees who elected Supplemental Before-Tax
Contributions of 11% (including those reduced to 11% as provided above)
shall have their Supplemental Before-Tax Contributions reduced from 11% to
10%. This process shall continue through the remaining Supplemental
Before-Tax Contributions and continuing with the Basic Before-Tax
Contributions until either Actual Deferral Percentage Test is satisfied.
Once either Actual Deferral Percentage Test is satisfied, the Committee
shall direct the Trustee to distribute to the appropriate Highly
Compensated Employees the amount of the reduction of the Before-Tax
Contributions of each such Highly Compensated Employee together with the
net earnings or losses allocable thereto. The Committee shall
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designate such distribution as a distribution of excess contributions,
determine the amount of the allocable net earnings or losses to be
distributed in accordance with subsection (c) below, and cause such
distributions to occur prior to the end of the Plan Year following the Plan
Year in which the excess Before-Tax Contributions were made.
(c) (i) Net earnings or losses to be refunded with the Before-Tax
Contributions shall be equal to the net earnings or losses on such
contributions for the Plan Year in which the contributions were made.
(ii) The net earnings or losses allocable to the excess
Before-Tax Contributions for the Plan Year shall be determined by
multiplying the net earnings or losses allocable to the Participant's
Before-Tax Account for the Plan Year by a fraction, the numerator of which
is the amount of the Participant's Before-Tax Contributions to be refunded
and the denominator of which is the balance of the Participant's Before-Tax
Account as of the last day of the Plan Year, reduced by the net earnings
(or increased by the net loss) allocable to the Participant's Before-Tax
Account for the Plan Year.
(d) Any excess contributions distributed to a Family Group pursuant
to the reductions in subsection (b)(iii) above shall be allocated to each Family
Member in the same proportion that such Family Member's Before-Tax
Contributions bear to the aggregate Before-Tax Contributions of the Family
Group.
(e) The Committee may adopt such rules as it deems necessary or
desirable to:
(i) impose limitations during a Plan Year on the percentage of
Before-Tax Contributions elected by Participants pursuant to Section 3.2
for the purpose of avoiding the necessity of adjustments pursuant to this
Section or Section 5.12; or
(ii) increase during a Plan Year the percentage of Considered
Compensation with respect to which a Participant may elect a Before-Tax
Contribution for the purpose of providing Participants with the opportunity
to increase their Before-Tax Contributions within the limitations of this
Section 3.3.
(f) The amount of the Before-Tax Contributions to be made pursuant to
a Participant's election shall reduce the compensation otherwise payable to him
by the Employer.
(g) The amount of each Participant's Basic Before-Tax Contributions
and Supplemental Before-Tax Contributions as
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determined under this Section 3.3 is subject to the provisions of Section 5.12.
3.4 MATCHING EMPLOYER CONTRIBUTIONS. Subject to the provisions of Section
3.1, the Employer shall pay to the Trustee for each Plan Year $.50 for each $1
of Basic Before-Tax Contributions made on behalf of each Participant. Such
contribution is known as the "Matching Employer Contribution."
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ARTICLE 4
PARTICIPANT CONTRIBUTIONS
4.1 AFTER-TAX CONTRIBUTIONS.
(a) Each Participant for each Plan Year may elect to contribute to the
Trust Fund an After-Tax Contribution in an amount not in excess of 10% of his
Considered Compensation for each Plan Year. Prior to the 1989 Plan Year, a
Participant may only elect After-Tax Contributions if he elected at least a 1%
Before-Tax Contribution. Subject to the limitation set forth in Section 3.2(c),
such election may revoked or revised by the Participant effective as of the
first day of the month following notification to the Committee of such intent,
provided that such notification is given to the Committee no later than the 15th
day of the month and in a form prescribed by the Committee. Participants'
After-Tax Contributions shall be effected by payroll deductions or otherwise in
accordance with procedures established by the Employer from time to time and
shall be transferred by the Employer to the Trustee within a reasonable time.
Effective as of the 1989 Plan Year, After-Tax Contributions may not be made by
lump sum contributions.
(b) All After-Tax Contributions by a Participant shall be
provisionally accepted and are subject to return to the Participant as provided
in Section 4.2 below and Article 5.
4.2 CODE SECTION 401(M) LIMITATION ON AFTER-TAX CONTRIBUTIONS.
Notwithstanding any other provision to the contrary, effective for the 1987 Plan
Year and each Plan Year thereafter the After-Tax Contributions and the Matching
Employer Contributions of the Highly Compensated Employees (after any reduction
under Section 3.3(b)(iii)) shall be reduced in accordance with the following
provisions:
(a) The After-Tax Contributions and Matching Employer Contributions
of the Highly Compensated Employees shall be reduced if neither of the
Contribution Percentage Tests set forth in (i) or (ii) below is satisfied:
(i) THE 1.25 TEST. The Contribution Percentage of the Highly
Compensated Employees is not more than the Contribution Percentage of all
Non-Highly Compensated Employees multiplied by 1.25.
(ii) THE 2.0 TEST. The Contribution Percentage of the Highly
Compensated Employees is not more than 2 percentage points greater than the
Contribution Percentage of all Non-Highly Compensated Employees, and the
Contribution Percentage of the Highly Compensated Employees is not more
than the Contribution Percentage of all Non-Highly Compensated Employees
multiplied by 2.0.
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(b) (i) As used in this Section 4.2, "Contribution Percentage"
means the average of the ratios of each Highly Compensated Employee's or
Non-Highly Compensated Employee's, as the case may be, share of the
Matching Employer Contribution and After-Tax Contributions plus Designated
Before-Tax Contributions (as defined in subsection (c) below), if any,
which were allocated to the Participant's appropriate Accounts with respect
to the Plan Year, to each such Participant's Considered Compensation for
the Plan Year.
(ii) If a Highly Compensated Employee is a member of a Family
Group, such Family Group shall constitute a single Highly Compensated
Employee. The Contribution Percentage of such Family Group shall be the
aggregate Contribution Percentage of all Family Members and the
Contribution Percentage of each Family Member shall be disregarded for
purposes of the Contribution Percentage Tests.
(c) To the extent necessary, and solely for the exclusive purpose of
satisfying the Contribution Percentage Test in Section 4.2(a), all or part of
the Before-Tax Contributions of Participants may be treated by the Committee as
After-Tax Contributions ("Designated Before-Tax Contributions"), provided that
each of the following is satisfied:
(i) The Before-Tax Contributions, including Designated
Before-Tax Contributions, satisfy the requirements of Section 3.3(b).
(ii) The Before-Tax Contributions, excluding Designated
Before-Tax Contributions, satisfy the requirements of Section 3.3(b).
(d) If neither Contribution Percentage Test is satisfied as of the
end of the Plan Year, the Committee shall cause the After-Tax Contributions of
the Highly Compensated Employees to be reduced and refunded to each affected
Highly Compensated Employee until either Contribution Percentage Test is
satisfied. The sequence of such reductions and refunds shall begin with Highly
Compensated Employees who elected the greatest percentage and then shall proceed
with each lesser percentage until either Contribution Percentage Test is
satisfied. For example, all Highly Compensated Employees who elected a 10%
After-Tax Contributions shall have their After-Tax Contributions reduced from
10% to 9%. If neither Contribution Percentage Test is then satisfied, all
Highly Compensated Employees who elected an After-Tax Contribution of 9%
(including those reduced to 9% as provided above) shall have their After-Tax
Contributions reduced from 9% to 8%. This process shall continue through the
remaining After-Tax Contributions and then through the Matching Employer
Contributions attributable to Basic Before-Tax Contributions until either
Contribution Percentage Test is satisfied. Once either Contribution Percentage
Test is
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satisfied, the Committee shall direct the Trustee to distribute to the
appropriate Highly Compensated Employees the amount of the reduction of the
After-Tax Contribution of each such Highly Compensated Employee and to treat as
a forfeiture the appropriate amount of Matching Employer Contributions, together
with the net earnings or losses allocable thereto. The Committee shall
designate such distribution and forfeiture as a distribution and forfeiture of
excess contributions, determine the amount of the allocable net earnings or
losses to be distributed in accordance with subsection (e) below, and cause such
distributions and forfeitures to occur prior to the end of the Plan Year
following the Plan Year in which such excess After-Tax Contributions and excess
Matching Employer Contributions were made.
(e) Net earnings or losses to be refunded with the excess After-Tax
Contributions shall be equal to the net earnings or losses on such Contributions
for the Plan Year in which the Contributions were made. Net earnings or losses
shall be determined in the same manner as in Section 3.3(c), except that the
phrases "After-Tax Contributions" and "After-Tax Account" shall be substituted
for the phrases "Before-Tax Contributions" and "Before-Tax Account" wherever
used therein.
(f) Net earnings or losses to be treated as forfeitures together with
the Matching Employer Contributions shall be equal to (1) the net earnings or
losses on such contributions for the Plan Year in which the contributions were
made. Net earnings or losses shall be determined in the same manner as in
Section 3.3(c), except that the phrases "Matching Employer Contribution" and
"Matching Account" shall be substituted for the phrases "Before-Tax
Contribution" and "Before-Tax Account" wherever used therein.
(g) Any excess contributions distributed to a Family Group and
treated as forfeitures pursuant to the reductions in subsection (d) above shall
be allocated to each Family Member in the same proportion that such Family
Member's After-Tax Contributions and Matching Employer Contributions bear to the
aggregate After-Tax Contributions and Matching Employer Contributions of the
Family Group.
(h) Any Matching Employer Contributions which are treated as
forfeitures pursuant to subsection (d) above (together with the earnings on such
Contributions determined pursuant to (f) above) shall be used to reduce the
Matching Employer Contribution in Section 3.4.
4.3 MULTIPLE USE.
(a) Beginning with the 1989 Plan Year, this Section 4.3 will be
applicable if The 2.0 Test is used to satisfy BOTH the Actual Deferral
Percentage Test and the Contribution Percentage Test. If this Section 4.3 is
applicable, the Committee shall
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determine whether a "Multiple Use" has occurred, and if such a Multiple Use has
occurred, the After-Tax Contributions of the Highly Compensated Employees shall
be reduced and refunded in accordance with the provisions of subsection (c)
below.
(b) A Multiple Use occurs when for the Highly Compensated Employees,
the sum of the Actual Deferral Percentage used to satisfy The 2.0 Test plus the
Contribution Percentage used to satisfy The 2.0 Test exceeds the "Aggregate
Limit." The Aggregate Limit is the greater of (i) or (ii) below, determined as
follows:
(i) (A) First, multiply 1.25 by the GREATER of (I) the Actual
Deferral Percentage, or (II) the Contribution Percentage of the Non-
Highly Compensated Employees;
(B) Second, add 2.0 to the LESSER of (I) or (II) above
provided that such sum shall not exceed 2 times the lesser of (I) or
(II) above;
(C) Finally, add the results from (A) and (B) to determine
the Aggregate Limit;
(ii) (A) First, multiply 1.25 by the LESSER of (I) the Actual
Deferral Percentage, or (II) the Contribution Percentage of the
Non-Highly Compensated Employees;
(B) Second, add 2.0 to the GREATER of (I) or (II) above
provided that such sum shall not exceed 2 times the greater of (I) or
(II) above;
(C) Finally, add the results from (A) and (B) to determine
the Aggregate Limit.
(c) If a Multiple Use has occurred, such Multiple Use shall be
corrected by reducing the Contribution Percentage of Highly Compensated
Employees in accordance with the provisions of Section 4.2(d) until the sum of
the Actual Deferral Percentage plus the Actual Contribution Percentage for the
Highly Compensated Employees equals the Aggregate Limit.
(d) Net earnings or losses to be refunded with the excess After-Tax
Contributions shall be equal to the net earnings or losses on such contributions
for the Plan Year in which the contributions were made. Net earnings or losses
shall be determined in the same manner as in Section 3.3(c), except that the
phrases "After-Tax Contributions" and "After-Tax Account" shall be substituted
for the phrases "Before-Tax Contributions" and "Before-Tax Account" wherever
used therein.
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(e) Net earnings or losses to be treated as forfeitures together with
the Matching Employer Contributions shall be equal to the net earnings or losses
on such contributions for the Plan Year in which the contributions were made.
Net earnings or losses shall be determined in the same manner as in Section
3.3(c), except that the phrases "Matching Employer Contribution" and "Matching
Account" shall be substituted for the phrases "Before-Tax Contribution" and
"Before-Tax Account" wherever used therein.
(f) Any Matching Employer Contributions which are treated as
forfeitures pursuant to subsection (c) above shall be used to reduce the
Matching Employer Contribution in Section 3.5.
4.4 ROLLOVER CONTRIBUTION.
(a) A Rollover Contribution may be transferred in cash to the Trust
Fund for the benefit of an employee with the permission of the Committee. Prior
to accepting any transfer which is intended to be a Rollover Contribution, the
Committee may require the employee to establish that the amount to be
transferred meets the definition of a Rollover Contribution and any other
limitations of the Code applicable to such transfers.
(b) An employee who is not eligible to participate in the Plan solely
by reason of failing to meet the eligibility requirements of Article 2 and who
reasonably expects to become a Participant when such requirements are met, may
be a Participant in the Plan solely for the limited purposes of making a
Rollover Contribution, and taking actions with respect to his Rollover Account
for the purposes of investment options in accordance with Section 5.2, and the
withdrawal of Rollover Contributions in accordance with (e) below, subject to
the same conditions as any other Participant.
(c) If the Committee determines after a Rollover Contribution has
been made that such Rollover Contribution did not in fact constitute a Rollover
Contribution as defined in Section 1.4, the amount of such Rollover Contribution
and any earnings thereon shall be returned to the employee.
(d) Each employee's Rollover Contribution shall be credited to his
Rollover Account and invested in accordance with Section 5.2. A Participant's
Rollover Account shall be fully vested and nonforfeitable.
(e) Amounts may be distributed from a Participant's Rollover Account
under the same terms and conditions and subject to the same restrictions as
apply to withdrawals or distributions of a Participant's After-Tax Account
pursuant to Articles 6 and 7.
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4.5 ALLOCATION OF ROLLOVER CONTRIBUTIONS. The Rollover Contribution of a
Participant shall be allocated to his Rollover Account as of the Valuation Date
coinciding with or next succeeding the date on which such amount is received by
the Trustee.
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ARTICLE 5
ACCOUNTING PROVISIONS AND ALLOCATIONS
5.1 PARTICIPANT'S ACCOUNTS. For each Participant there shall be
maintained as appropriate a separate Before-Tax Account, Matching Account,
After-Tax Account, Rollover Account and Pension Transfer Account. Each Account
shall be credited with the amount of contributions, forfeitures, interest and
earnings of the Trust Fund allocated to such Account and shall be charged with
all distributions, withdrawals and losses of the Trust Fund allocated to such
Account.
5.2 INVESTMENT FUNDS.
(a) Effective until March 1, 1990, the Trust Fund shall be a common
fund in which each Participant shall have an undivided interest, except as
otherwise provided under Article 7. Except as otherwise provided, the value of
each Participant's Accounts in the Trust Fund shall be measured by the
proportion that the net credits to his Accounts bear to the total net credits to
the Accounts of all Participants and beneficiaries as of the date that such
share is being determined.
(b) Effective March 1, 1990, the Trust Fund shall be divided into
separate investment funds (each a "Fund") as provided in this Section 5.2. Each
Fund as may from time to time be established shall be a common fund in which
each Participant shall have an undivided interest in the respective assets of
the Fund, provided that all Accounts segregated shall, together with any income
or expense of such Accounts, be accounted for separately and will not be
included in any of the adjustments resulting from the application of this
Section 5.2. Except as otherwise provided, the value of each Participant's
Accounts in such Funds shall be measured by the proportion that the net credits
to his Accounts bear to the total net credits to the Accounts of all
Participants and beneficiaries as of the date that such share is being
determined. For purposes of allocation of income and valuation, each Fund shall
be considered separately. No Fund shall share in the gains and losses of any
other, and no Fund shall be valued by taking into account any assets or
distributions from any other.
(i) Each Fund shall be established and invested by the Trustee
in accordance with investment policies determined, or as the Trustee may be
directed, from time to time by the Committee. The Committee may from time
to time also direct that Funds with similar investment objectives be
consolidated.
(ii) A Participant may elect to have a uniform percentage of his
Accounts credited in increments of 10% to one or more of the following
Funds:
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(A) FIXED INCOME FUND. This Fund consists of a
diversified group of guaranteed income contracts and money market
instruments.
(B) BOND FUND. This Fund consists of bonds and notes
issued by the U.S. Government and corporations.
(C) BALANCED FUND. This Fund consists of balanced
proportions of bonds and common stocks.
(D) EQUITY FUND. This Fund consists of a variety of
common stocks.
A Participant may also elect to invest in other funds which may be established
by the Committee from time to time. All contributions to his Accounts shall be
credited to such Funds in accordance with such election. A Participant may
change his election with respect to future contributions as of the first day of
the quarter (March 1, June 1, September 1 or December 1) following notification
to the Committee of such election. If a Participant fails to file an effective
investment election, his Accounts shall be invested in the Fixed Income Fund.
Subject to any restriction on transfer which results from the investment medium
chosen for a Fund, a Participant may elect to transfer, in multiples of 10%, a
uniform percentage of his Accounts held in any Fund to one or more different
Funds effective as of the 1st day of the quarter (March 1, June 1, September 1
or December 1) following notification to the Committee of such election.
(c) Elections under this Section shall be made by filing with the
Committee a written form required thereby at such times and in accordance with
the procedures, limitations and notification requirements established by the
Committee.
5.3 ALLOCATION PROCEDURE. As of each Valuation Date, the Committee shall:
(a) first, allocate the net earnings or losses of the Trust Fund
pursuant to Section 5.5;
(b) second, allocate the Before-Tax Contributions pursuant to Section
5.7;
(c) third, allocate the Matching Employer Contributions pursuant to
Section 5.8;
(d) fourth, allocate the After-Tax Contribution pursuant to
Section 5.9; and
(e) fifth, if the Valuation Date is the last day of the Plan Year,
allocate forfeitures pursuant to Section 5.10.
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5.4 DETERMINATION OF VALUE OF TRUST FUND. As of each Valuation Date the
Trustee shall determine for the period then ended the sum of the net earnings or
losses of the Trust Fund (excluding Accounts segregated pursuant to Article 7),
which shall reflect accrued but unpaid interest, dividends, gains or losses
realized from the sale, exchange or collection of assets, other income received,
appreciation or depreciation in the fair market value of assets, administration
expenses, and taxes and other expenses paid. Gains or losses realized and
adjustments for appreciation or depreciation in fair market value shall be
computed with respect to the difference between such value as of the preceding
Valuation Date or date of purchase, whichever is later, and the value as of the
date of disposition or the current Valuation Date, whichever is earlier. To the
extent that any assets of the Trust have been invested in one or more separate
investment trusts, mutual funds, investment contracts or similar investment
media, the net earnings or losses distributable to such investments shall be
determined in accordance with the procedures of such investment media.
5.5 ALLOCATION OF NET EARNINGS OR LOSSES.
(a) As of each Valuation Date the net earnings or losses of each
investment fund in the Trust Fund for the quarter then ending shall be allocated
to the Accounts of all Participants (or beneficiaries of deceased Participants)
having credits in the Fund both on such date and at the beginning of such
period.
(b) Effective until November 30, 1989, such allocation shall be in
the ratio that (i) the net credits to each such Account of each such Participant
on the first day of such period, less the total amount of any distributions from
such Account to such Participant during such period, bears to (ii) the total net
credits to all such Accounts of all Participants on said first day of the
period, less the total amount of distributions from all such Accounts to all
Participants during such period.
(c) Effective on and after December 1, 1989, such allocation shall be
in the ratio that (i) the net credits to each such Account of each such
Participant on the first day of such period, less the total amount of any
distributions from such Account to such Participant during such period, plus 50%
of any Before-Tax Contributions, Matching Employer Contributions, After-Tax
Contributions or loan repayments made by or on behalf of such Participant during
such period, bears to (ii) the total net credits to all such Accounts of all
Participants on the said first day of the period, less the total amount of
distributions from all such Accounts to all Participants during such period,
plus 50% of the Before-Tax Contributions, Matching Employer Contributions,
After-Tax Contributions and loan repayments made by or on behalf of all
Participants during such period.
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(d) Notwithstanding the foregoing, to the extent the assets of the
Trust have been invested in one or more separate investment trusts, mutual
funds, investment contracts or similar investment media, the net earnings or
losses attributable to such investments shall be allocated to the Accounts of
Participants or beneficiaries in accordance with the procedures of the
respective investment media in which such assets are invested.
5.6 ELIGIBILITY TO SHARE IN FORFEITURES. Beginning with the 1989 Plan
Year, a Participant shall be eligible to share in the forfeitures for the Plan
Year as of the last day of which such forfeitures are being allocated if he is
then employed by the Employer as an Eligible Employee and received Matching
Employer Contributions during such Plan Year. Prior to the 1989 Plan Year a
Participant shall be eligible to share in the allocation of forfeitures if he
made Before-Tax Contributions during the Plan Year. A Participant who, during a
Plan Year, retires on or after his Normal Retirement Date, dies or is initially
deemed to be totally and permanently disabled shall also be eligible to share in
the forfeitures for said Plan Year. A Participant who is eligible to share in
the forfeitures shall be known as an "Eligible Participant."
5.7 ALLOCATION OF BEFORE-TAX CONTRIBUTIONS. As of each Valuation Date,
the Before-Tax Contributions made on behalf of each Participant since the prior
Valuation Date shall be allocated to such Participant's Before-Tax Account.
5.8 ALLOCATION OF MATCHING EMPLOYER CONTRIBUTIONS. As of each Valuation
Date, the Matching Employer Contribution made as of the prior Valuation Date
shall be allocated to the Matching Account of each Participant.
5.9 ALLOCATION OF AFTER-TAX CONTRIBUTIONS. As of each Valuation Date, the
After-Tax Contributions of a Participant received since the prior Valuation Date
shall be allocated to such Participant's After-Tax Account.
5.10 ALLOCATION OF FORFEITURES. As of the last day of each Plan Year, the
sum of any amounts which become allocable as forfeitures during the Plan Year
shall be divided by the number of Eligible Participants for such Plan Year and
such amount shall be allocated equally among the Matching Accounts of all such
Eligible Participants.
5.11 PROVISIONAL ANNUAL ADDITION. The sum of the amounts allocated to the
Accounts of the Participants pursuant to Sections 5.7, 5.8, 5.9 and 5.10 for a
Plan Year shall be known as the "Provisional Annual Addition" and shall be
subject to the limitation on Annual Additions in Section 5.12.
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5.12 LIMITATION ON ANNUAL ADDITIONS.
(a) For the purpose of complying with the restrictions on Annual
Additions to defined contribution plans imposed by Code Section 415, for each
Eligible Participant and each other Participant who has made Before-Tax
Contributions and/or After-Tax Contributions during the Plan Year, there shall
be computed a Maximum Annual Addition, which shall be the lesser of
(i) 25% of his Total Compensation for the Plan Year; or
(ii) the Defined Contribution Dollar Limitation for the Plan
Year (reduced by amounts allocated to an individual medical account as
defined in Code Section 415(l)(2) and amounts attributable to
post-retirement medical benefits allocated to an account described in Code
Section 419A(d)(2) maintained by the Employer or an Affiliate).
(b) If the Maximum Annual Addition for a Participant equals or
exceeds the Provisional Annual Addition for that Participant, an amount equal to
the Provisional Annual Addition shall be allocated to the Participant's
respective Accounts.
(c) If the Provisional Annual Addition exceeds the Maximum Annual
Addition for that Participant, the Provisional Annual Addition shall be reduced
as set forth below until the Provisional Annual Addition as so reduced equals
the Maximum Annual Addition for such Participant:
(i) first, there shall be refunded to such Participant a
portion or all of his After-Tax Contributions;
(ii) second, the Tentative Employer Contribution allocable to
such Participant's respective Accounts shall be reduced by reducing (A) the
Supplemental Before-Tax Contributions, and (B) the Basic Before-Tax
Contributions and Employer Matching Contributions, proportionately, in that
order; and
(iii) third, the amount of forfeiture allocable to the
Participant's Employer Account shall be reduced.
The Provisional Annual Addition remaining after such reductions shall be
allocated to the Participant's respective Accounts.
(d) Any forfeiture which cannot be allocated because of the
application of the above limit shall be carried in the Excess Forfeiture
Suspense Account for such Plan Year. In the next succeeding Plan Year the
amounts included in such Account shall be treated as a forfeiture for such Plan
Year and shall be allocated to the Eligible Participants' Matching Accounts in
accordance with
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the provisions of Section 5.10 above (and as such will be again subject to the
limitations of this Section 5.12 for such Plan Year). Amounts which are
included in the Excess Forfeiture Suspense Account as of the end of a Plan Year
shall be treated as a liability of the Trust Fund. Upon termination of the
Plan, amounts then held in the Excess Forfeiture Suspense Account which cannot
be allocated pursuant to this Section shall revert to the Employer.
(e) The Excess Tentative Employer Contribution is an amount equal to
the sum of the reductions in the Tentative Employer Contribution allocable to
the Accounts of Participants pursuant to subsection (c)(ii) above.
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ARTICLE 6
AMOUNT OF PAYMENTS TO PARTICIPANTS
6.1 GENERAL RULE. Upon the retirement, disability, resignation or
dismissal of a Participant, he, or in the event of his death, his beneficiary,
shall be entitled to receive from his respective Accounts in the Trust Fund as
of his Determination Date:
(a) an amount equal to the Participant's Before-Tax Account, After-
Tax Account, Rollover Account and Pension Transfer Account, plus any of the
Participant's Before-Tax Contributions and After-Tax Contributions made to the
Trust Fund but not allocated to the Participant's Accounts as of his
Determination Date; and
(b) the nonforfeitable portion of the Participant's Matching Account
determined as hereafter set forth.
The time and manner of distribution of a Participant's Accounts shall be
determined in accordance with Article 7.
6.2 RETIREMENT. Any Participant may retire on or after his Normal
Retirement Date. If the retirement of a Participant is deferred beyond his
Normal Retirement Date, he shall continue in full participation in the Plan and
Trust Fund.
6.3 DEATH. As of the date any Participant shall die while in the employ
of the Employer or an Affiliate, the forfeitable portion, if any, of his
Matching Account shall become nonforfeitable.
6.4 DISABILITY.
(a) Effective for Plan Years beginning with the 1989 Plan Year, if a
Participant is determined by the Committee to be totally and permanently
disabled because of physical or mental infirmity while in the employ of the
Employer or an Affiliate, the forfeitable portion, if any, of his Matching
Account shall become nonforfeitable as of the date the Participant is determined
to be so disabled. Effective for Plan Years prior to the 1989 Plan Year, if a
Participant becomes totally and permanently disabled because of physical or
mental infirmity while in the employ of the Employer or an Affiliate, the
forfeitable portion, if any, of his Matching Account shall become nonforfeitable
two years after the determination of disability by the Committee.
(b) A Participant shall be deemed totally and permanently disabled
when, on the basis of qualified medical evidence, the Committee finds such
Participant to be totally and presumably permanently prevented from engaging in
any occupation or employment available with the Employer or an Affiliate as a
result of physical or mental infirmity, injury, or disease, either occupational
or nonoccupational in cause; provided, however, that
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disability hereunder shall not include any disability incurred or resulting from
the Participant having engaged in a criminal enterprise, or any disability
consisting of or resulting from the Participant's chronic alcoholism, addiction
to narcotics or an intentionally self-inflicted injury.
(c) A Participant who is totally and permanently disabled pursuant to
subparagraph (b) above may continue to participate in the Plan by making
contributions to the Plan from his short term disability payments.
6.5 VESTING. A Participant's interest in his Before-Tax Account, After-
Tax Account, Rollover Account and Pension Transfer Account shall be
nonforfeitable at all times. Except as otherwise provided in this Article 6, a
Participant's nonforfeitable interest in his Matching Account at any point in
time shall be determined under Section 6.6.
6.6 RESIGNATION OR DISMISSAL. If any Participant shall resign or be
dismissed from the service of the Employer and all Affiliates, there shall
become nonforfeitable a portion or all of his Matching Account determined as of
his Determination Date in accordance with the following schedule, subject to
Section 6.7:
Nonforfeitable
Years of Service Percentage
---------------- --------------
Less than 5 0
5 or more 100
Notwithstanding the foregoing, 100% of a Participant's interest in his
Matching Account shall become nonforfeitable upon his attainment of age 60. Any
part of the Matching Account of such Participant which does not become
nonforfeitable shall be treated as a forfeiture pursuant to Section 6.8.
6.7 COMPUTATION OF PERIOD OF SERVICE. For purposes of determining the
nonforfeitable percentage of the Participant's Matching Account, all Years of
Service shall be taken into account, except that the following shall be
disregarded:
(a) Years of Service before a One-Year Break in Service until such
Participant has completed one Year of Service after such One-Year Break in
Service; and
(b) in the case of a Participant whose nonforfeitable balance of his
Employer Account and Before-Tax Account is 0, Years of Service before a period
consisting of 5 consecutive One-Year Breaks in Service if the number of
consecutive One-Year Breaks in Service equals or exceeds the aggregate number of
Years of Service before such One-Year Breaks in Service. Such aggregate number
of Years of Service before such One-Year Breaks in Service shall not
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include any Years of Service disregarded by reason of any prior One-Year Breaks
in Service; and
(c) Years of Service prior to the 1976 Plan Year which would have
been disregarded under the terms, relating to breaks in service, of this Plan as
in effect prior to such date, as a result of a break in service commencing at a
time prior to such date; and
(d) in the case of a Participant whose employment terminated prior to
the 1985 Plan Year, Years of Service which would have been disregarded on the
last day of the 1984 Plan Year if he had been reemployed on the last day of the
1984 Plan Year.
6.8 TREATMENT OF FORFEITURES.
(a) Effective until the 1989 Plan Year,
(i) upon termination of a Participant's employment with the
Employer and all Affiliates, that part of his Matching Account which
becomes a forfeiture pursuant to Section 6.6 shall be transferred to a
Suspense Account and shall be treated as a liability of the Trust Fund.
Unless such amount has been previously restored to the Participant's
Matching Account as provided below, it shall become allocable pursuant to
Section 5.10 in the first Plan Year in which such Participant incurs 5
consecutive One-Year Breaks in Service.
(ii) if the Participant is reemployed by the Employer or an
Affiliate without incurring 5 consecutive One-Year Breaks in Service, the
amount of the forfeiture transferred to a Suspense Account shall be
restored to his Matching Account as of the date of his reemployment.
(iii) As of the last day of the 1989 Plan Year, all forfeitures
held in the Suspense Account shall be allocated in accordance with Section
5.10.
(b) Effective for the 1989 Plan Year and subsequent Plan Years,
(i) upon termination of a Participant's employment with the
Employer and all Affiliates, that part of his Matching Account which
becomes a forfeiture pursuant to Section 6.6 shall become allocable
pursuant to Section 5.10 at the end of the Plan Year in which the
termination of employment occurred if the Participant is not then
reemployed by the Employer or an Affiliate.
(ii) if a Participant is reemployed by the Employer or an
Affiliate without incurring 5 consecutive One-Year Breaks in Service, and
before distribution of the nonforfeitable portion of his Matching Account,
the amount of
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the forfeiture shall be restored to his Matching Account as of the last day
of the Plan Year in which he is reemployed.
(iii) if the Participant is reemployed by the Employer or an
Affiliate without incurring 5 consecutive One-Year Breaks in Service but
after distribution of the nonforfeitable portion of his Matching Account,
and if the Participant repays the amount distributed before the earlier of
(A) 5 years from the date of such reemployment; or
(B) the end of 5 consecutive One-Year Breaks in Service
following the date of such distribution.
the amount of the Matching Account distributed to him and the amount of the
forfeiture shall be restored to his Matching Account as of the last day of the
Plan Year in which such repayment is made.
(iv) amounts restored to a Participant's Matching Account
pursuant to (ii) or (iii) above shall be deducted from the forfeitures
which otherwise would be allocable for the Plan Year in which such
reemployment or repayment occurs or, to the extent such forfeitures are
insufficient, shall require a supplemental contribution from the Employer.
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ARTICLE 7
DISTRIBUTIONS
7.1 COMMENCEMENT AND FORM OF DISTRIBUTIONS.
(a) Distribution of a Participant's Accounts in the Trust Fund
following termination of employment with the Employer and all Affiliates shall
commence on or as soon as practicable after the first to occur of:
(i) the date set forth in the Participant's request for
distribution, provided such date is at least 30 days after the date the
Participant was provided information concerning the availability of such
distribution; or
(ii) the 60th day after the close of the later of the Plan Year
in which the Participant attains his Normal Retirement Date or terminates
employment with the Employer and all Affiliates, unless the Participant has
requested to defer the distribution to a later date.
(b) In all events, distribution shall commence no later than the
Required Beginning Date and subsequent distributions required to be made each
year in compliance with Code Section 401(a)(9) and the regulations promulgated
thereunder shall be made not later than the December 31 of such year.
(c) The Accounts distributable to a Participant shall be distributed
in one or more of the following ways as the Participant shall request, subject
to applicable laws and regulations:
(i) by payment in one lump sum; or
(ii) by payment in a partial distribution, with the balance
payable in accordance with (iii) below; or
(iii) in substantially equal annual installments which, except
for the final payment, shall not be less than $100; or
(iv) by transfer, at the request of a Participant, to an
employer's trust in which he is a participant, which is described in Code
Section 401(a) and which is exempt from tax under Code Section 501(a), or
effective January 1, 1993, to an individual retirement account described in
Code Section 408(a) or an individual retirement annuity described in Code
Section 408(b) (other than an endowment contract).
(d) The value of the Participant's Accounts shall be paid to the
Participant over a period not to exceed his life expectancy or the joint life
expectancy of the Participant and his Individual Beneficiary. The minimum
amount of any installment
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distribution and determination of the life expectancy of a Participant and the
joint life expectancy of a Participant and his Individual Beneficiary shall be
determined in accordance with the regulations prescribed under Code Section
401(a)(9); provided that the life expectancy of a Participant or his spouse may
be redetermined but not more frequently than annually. In no event shall the
amount distributable in any year be less that the amount determined in
accordance with the minimum distribution incidental benefit requirements of
Treasury Regulation Section 1.401(a)(9)-2.
(e) Notwithstanding anything in this Section 7.1 to the contrary, if
the present value of the nonforfeitable portion of the Participant's Accounts
does not exceed $3,500 at the time a distribution is to be made from the Plan
and distribution pursuant to this Section 7.1 has not otherwise commenced the
Committee shall direct the Trustee to distribute such amount in a lump sum
payment to the individual so entitled and the payment thereof shall be in full
satisfaction of any liability of the Trust to such individual. If the present
value at the time of distribution to the individual so entitled exceeds $3,500,
then the present value at any subsequent time shall be deemed to exceed $3,500.
Any Participant whose nonforfeitable portion of his Employer Account is 0% shall
be deemed to have received a lump sum payment upon termination of employment.
(f) Notwithstanding anything in this Section 7.1 to the contrary, if
the amount of any distribution required to commence on a certain date cannot be
ascertained by such date, a payment retroactive to such date may be made no
later than 60 days after the earliest date on which such amount can be
ascertained.
(g) Effective March 1, 1990, a retired Participant may elect to
receive 80% of the balance in his Accounts in a lump sum at any time, provided
the Participant elects to do so at least 30 days in advance of the requested
distribution date and in the manner prescribed by the Committee. For purposes
of calculating the amount of such distribution, the applicable Valuation Date
shall be the Valuation Date immediately preceding 1) the date of the
distribution or, 2) if data for such Valuation Date is not then available, the
date of the Participant's election.
7.2 DISTRIBUTIONS TO BENEFICIARIES.
(a) Except as otherwise provided in this Section 7.2, the balance of
a deceased Participant's Accounts which is distributable to a spousal
beneficiary shall be distributed in one or more of the forms described in
Section 7.1(c)(i), (ii) or (iii), in accordance with an effective designation
filed by the Participant with the Committee or, if no such designation has been
filed, in one or more of such forms as the Committee in its sole discretion
determines after consultation with the beneficiary; provided, however, that
distributions on and after the first day of
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the 1989 Plan Year shall be made in one of the forms described in Section
7.1(c)(i), (ii) or (iii), as the beneficiary shall elect.
(b) The balance of a deceased Participant's Accounts which is
distributable to a beneficiary other than his surviving spouse shall be
distributed in a lump sum distribution no later than the December 31 coinciding
with or next following the 5th anniversary of the Participant's death.
(c) Any form of distribution to an Individual Beneficiary who is the
Participant's surviving spouse shall be designed to distribute the balance of
the deceased Participant's Accounts as follows:
(i) If the distribution of a Participant's Accounts has not
commenced at the time of his death, any portion of the Accounts payable to
or for the benefit of the surviving spouse may be distributed over a period
not to exceed the life expectancy of such spouse if such payments commence
not later than (1) the December 31 coinciding with or next following the
first anniversary of the Participant's death, or (2) the December 31 of the
calendar year in which the Participant would have attained age 70-1/2,
whichever is later.
(ii) If distribution of the Participant's Accounts has begun in
accordance with Section 7.1 at the time of his death, the balance of the
deceased Participant's Accounts shall be distributed at least as rapidly as
under the method of distribution in effect at the time of the Participant's
death.
(iii) If the Participant's surviving spouse dies prior to the
commencement of benefit payments to such spouse, subsection (i) above shall
be applied as if the Participant's death had occurred on the date of such
spouse's death.
(iv) If the surviving spouse dies after the commencement of
payments but prior to receipt of all such payments, the remaining balance
of the Participant's Accounts shall be distributed in a lump sum in
accordance with (b) above to any contingent or successor beneficiary, or,
if there is no such contingent or successor beneficiary, to the deceased
beneficiary's estate.
(d) The life expectancy of an Individual Beneficiary who is the
surviving spouse of the Participant shall be redetermined annually in accordance
with regulations prescribed under Code Section 401(a)(9).
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7.3 BENEFICIARIES.
(a) Unless a Participant has effectively elected otherwise in
accordance with this Section 7.3, the distributable balance of a deceased
Participant's Accounts shall be paid to his surviving spouse.
(b) The balance of a deceased Participant's Accounts shall be
distributed to the persons effectively designated by the Participant as his
beneficiaries. To be effective, the designation shall be filed with the
Committee in such written form as the Committee requires and may include
contingent or successive beneficiaries; provided that any designation by a
Participant who is married at the time of his death which fails to name his
surviving spouse as the sole primary beneficiary shall not be effective unless
such surviving spouse has consented to the designation in writing, witnessed by
a Plan representative or notary public, acknowledging the effect of the
designation and the specific non-spouse beneficiary, including any class of
beneficiaries or any contingent beneficiary. Such consent shall not be required
if, at the time of filing such designation, the Participant established to the
satisfaction of the Committee that the consent of the Participant's spouse could
not be obtained because there is no spouse, such spouse could not be located or
by reason of such other circumstances as may be prescribed by regulations. Any
consent (or establishment that the consent could not be obtained) shall be
effective only with respect to such spouse. Any Participant may change his
beneficiary designation at any time by filing with the Committee a new
beneficiary designation (with such spousal consent as may be required).
Notwithstanding the foregoing, designation of a beneficiary by a Participant who
did not have an Hour of Service after August 22, 1984, shall not require the
consent of his surviving spouse to be effective.
(c) (i) If a Participant dies, and to the knowledge of the
Committee after reasonable inquiry leaves no surviving spouse, has not
filed an effective beneficiary designation or has revoked all such
designations, or has filed an effective designation but the beneficiary or
beneficiaries predeceased him, the distributable portion of the
Participant's Accounts shall be paid to the executor or administrator of
the Participant's estate.
(ii) If the beneficiary, having survived the Participant, shall
die prior to the final and complete distribution of the Participant's
Accounts, then the distributable portion of said Accounts shall be paid:
(A) to the contingent or successive beneficiary named in
the most recent effective beneficiary designation filed by the
Participant in accordance with such designation; or
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(B) if no such beneficiary has been named, to the executor
or administrator of the beneficiary's estate.
7.4 INSTALLMENT OR DEFERRED DISTRIBUTIONS. If distribution is made to a
Participant or to the beneficiary of a deceased Participant in installments or
is deferred, the undistributed vested balance shall share in the net earnings or
losses (including the net adjustments in the value of the Trust Fund) as
provided in Section 5.5.
7.5 FORM OF ELECTIONS AND APPLICATIONS FOR BENEFITS. Any election,
revocation of an election or application for benefits pursuant to the Plan shall
not be effective unless it is (a) made on such form, if any, as the Committee
may prescribe for such purpose; (b) signed by the Participant and, if required
by Section 7.3, by the Participant's spouse; and (c) filed with the Committee.
7.6 UNCLAIMED DISTRIBUTIONS. In the event any distribution cannot be made
because the person entitled thereto cannot be located and the distribution
remains unclaimed for 2 years after the distribution date established by the
Committee, then such amount shall be treated as a forfeiture and allocated in
accordance with Section 5.10. In the event such person subsequently files a
valid claim for such amount, such amount shall be restored to the Participant's
Accounts in a manner similar to the restoration of forfeitures under Section
6.8.
7.7 DISTRIBUTION OF AFTER-TAX CONTRIBUTIONS PRIOR TO TERMINATION OF
EMPLOYMENT. Upon request of a Participant, the Committee shall direct payment
to such Participant of any amount not in excess of his After-Tax Account on the
Determination Date coinciding with or immediately preceding such Committee
action; provided, however, that the minimum withdrawal is at least $100, or the
Participant's entire account balance, whichever is less. Generally,
distributions under this Section 7.7 will be made within 6 weeks after the end
of the quarter in which the request is submitted to the Committee, provided
such request is submitted no later than the 15th day of the last month of such
quarter and is in a form prescribed by the Committee. Any distribution
hereunder shall be deemed to be made first from the Participant's After-Tax
Contributions made prior to January 1, 1987, and second, pro rata from After-Tax
Contributions made after December 31, 1986 and from the earnings on all such
After-Tax Contributions. Any withdrawals under this Section 7.7 from the
Participant's After-Tax Account shall be paid from the Funds in which such
account is invested in the following order:
(i) Fixed Income Fund;
(ii) Bond Fund;
(iii) Balanced Fund;
(iv) Equity Fund; and
(v) Company Stock Fund.
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7.8 WITHDRAWALS FROM BEFORE-TAX ACCOUNT PRIOR TO TERMINATION OF EMPLOYMENT
(effective for Plan Years before the 1989 Plan Year).
(a) A Participant may for any of the purposes listed in
subsection (b) below elect to withdraw from his Before-Tax Account, with the
approval of the Committee, any amount not in excess of his Before-Tax Account as
of the Determination Date coinciding with or immediately preceding the date of
such withdrawal; provided, however, that no portion of his Before-Tax Account
shall be withdrawn prior to the determination by the Committee that he has
incurred a financial hardship. In any case where the Participant claims
financial hardship, he shall submit a written request for such distribution in
accordance with procedures prescribed by the Committee. As used herein
"financial hardship" means an immediate and heavy financial need created by the
hardship, and the funds necessary to meet the Participant's needs are not
reasonably available from his other resources. Notwithstanding the above, any
amounts withdrawn in accordance with this Section 7.8 shall not exceed 50% of
the nonforfeitable balance of the Participant's Accounts as of the Determination
Date coinciding with or immediately preceding the date of such withdrawal.
(b) A Participant may request a withdrawal for only one of the
following purposes: the purchase of a residence for the Participant; the
financing of the higher education of a child or children of the Participant; the
payment of the extraordinary medical expenses of the Participant, his spouse or
any other person dependent upon him; the provision of supplemental pay to the
Participant during a period of layoff; or for any other good reason approved by
the Committee.
(c) Any withdrawals under this Section 7.8 shall be made pro rata
from the Funds in which the Participant's Before-Tax Account is invested.
7.8A WITHDRAWALS FROM BEFORE-TAX ACCOUNTS AND ROLLOVER ACCOUNT PRIOR TO
TERMINATION OF EMPLOYMENT (effective on and after the 1989 Plan Year).
(a) A Participant may, upon the determination by the Committee that
he has incurred a financial hardship, make a hardship withdrawal from his
Before-Tax Accounts and his Rollover Account. In any case where the Participant
claims financial hardship, he shall submit a written request for such
distribution in accordance with procedures prescribed by the Committee. The
Committee shall determine whether the Participant has a "financial hardship" on
the basis of such written request in accordance with this Section 7.8A, and such
determination shall be made in a uniform and nondiscriminatory manner. The
Committee shall only make a determination of "financial hardship" if (A) the
distribution to be made is made on account of an immediate and heavy financial
need of the Participant and (B) the funds distributed are necessary to satisfy
the Participant's need.
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(i) The determination of whether a Participant has an immediate
and heavy financial need is to be made by the Committee on the basis of all
relevant facts and circumstances. A distribution will be deemed to be on
account of an immediate and heavy financial need if made on account of:
(A) Expenses for medical care (as described in Code
Section 213(d)) previously incurred by the Participant, the
Participant's spouse or any dependents of the Participant (as defined
in Code Section 152) or necessary for these persons to obtain such
medical care;
(B) The purchase (excluding mortgage payments) of a
principal residence for the Participant;
(C) Tuition and related educational fees due for the next
12 months of post-secondary education for the Participant, the
Participant's spouse, children or dependents;
(D) The need to prevent the eviction of the Participant
from his principal residence or foreclosure on the mortgage of the
Participant's principal residence; or
(E) Any other event or expense deemed an immediate and
heavy financial need by the Department of the Treasury.
(ii) The determination of whether a distribution is necessary to
satisfy the immediate and heavy financial need of the Participant shall be
made by the Committee on the basis of all relevant facts and circumstances.
The Committee shall determine that a distribution is necessary to satisfy
the financial need if the Committee reasonably relies on the
representations of the Participant that the immediate and heavy financial
need cannot be relieved
(A) through reimbursement or compensation by insurance or
otherwise;
(B) by reasonable liquidation of the Participant's assets
to the extent such liquidation would not itself cause an immediate and
heavy financial need;
(C) by cessation of Before-Tax Contributions and After-Tax
Contributions;
(D) by other distributions or nontaxable loans available
from the Plan or any other plan in which the Participant participates;
or
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(E) by borrowing from commercial sources on reasonable
commercial terms.
For purposes of this paragraph (ii), a Participant's resources shall
include assets of the Participant's spouse and minor children which are
reasonably available to the Participant.
(b) Any withdrawals under this Section 7.8A shall be paid from the
Participant's accounts in the following order:
(i) the Participant's Rollover Account;
(ii) the portion of the Participant's Before-Tax Account
attributable to his Basic Before-Tax Contributions; and
(iii) the portion of the Participant's Before-Tax Account
attributable to his Supplemental Before-Tax Contributions.
However, no withdrawals shall be made under this Section 7.8A until all amounts
have been withdrawn from the Participant's After-Tax Account pursuant to Section
7.7.
(c) Within each account specified in Section 7.8A(b), any withdrawals
under this Section 7.8A shall be paid from the Funds in which such account is
invested in the following order:
(i) Fixed Income Fund;
(ii) Bond Fund;
(iii) Balanced Fund;
(iv) Equity Fund; and
(v) Company Stock Fund.
(d) Distributions from the Participant's Before-Tax Accounts and
Rollover Account because of hardship pursuant to paragraph (a) shall not exceed
the least of:
(i) the amount of the immediate and heavy financial need; or
(ii) the balance of the Participant's Before-Tax Account
Accounts and Rollover Account as of the Determination Date
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coinciding with or immediately preceding the date of such withdrawal; or
(iii) (A) the sum of the Participant's Before-Tax Accounts and
Rollover Account as of November 30, 1988 plus the Participant's Before-Tax
Contributions and Rollover Contributions made on or after December 1, 1989,
reduced by (B) the aggregate amount distributed from the Participant's
Before-Tax Accounts and Rollover Account on or after January 1, 1989.
7.9 FACILITY OF PAYMENT. When, in the Committee's opinion, a Participant
or beneficiary is under a legal disability or is incapacitated in any way so as
to be unable to manage his affairs, the Committee may direct the Trustee to make
payments:
(a) directly to the Participant or beneficiary;
(b) to a duly appointed guardian or conservator of the Participant or
beneficiary;
(c) to a custodian for the Participant or beneficiary under the
Uniform Gifts to Minors Act;
(d) to an adult relative of the Participant or beneficiary; or
(e) directly for the benefit of the Participant or beneficiary.
Any such payment shall constitute a complete discharge therefor with respect to
the Trustee and the Committee.
7.10 CLAIMS PROCEDURE.
(a) Any person who believes that he is then entitled to receive a
benefit under the Plan, including one greater than that initially determined by
the Committee, may file a claim in writing with the Committee.
(b) The Committee shall within 90 days of the receipt of a claim
either allow or deny the claim in writing. A denial of a claim shall be written
in a manner calculated to be understood by the claimant and shall include:
(i) the specific reason or reasons for the denial;
(ii) specific references to pertinent Plan provisions on which
the denial is based;
(iii) a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of why
such material or information is necessary; and
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(iv) an explanation of the Plan's claim review procedure.
(c) A claimant whose claim is denied (or his duly authorized
representative) may, within 60 days after receipt of denial of his claim:
(i) submit a written request for review to the Committee;
(ii) review pertinent documents; and
(iii) submit issues and comments in writing.
(d) The Committee shall notify the claimant of its decision on review
within 60 days of receipt of a request for review. The decision on review shall
be written in a manner calculated to be understood by the claimant and shall
include specific reasons for the decision and specific references to the
pertinent Plan provisions on which the decision is based.
(e) The 90-day and 60-day periods described in subsections (b) and
(d), respectively, may be extended at the discretion of the Committee for a
second 90- or 60-day period, as the case may be, provided that written notice of
the extension is furnished to the claimant prior to the termination of the
initial period, indicating the special circumstances requiring such extension of
time and the date by which a final decision is expected.
(f) Participants and beneficiaries shall not be entitled to challenge
the Committee's determinations in judicial or administrative proceedings without
first complying with the procedures in this Article. The Committee's decisions
made pursuant to this Section are intended to be final and binding on
Participants, beneficiaries and others.
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ARTICLE 8
TOP-HEAVY PLAN REQUIREMENTS
8.1 DEFINITIONS. For purposes of this Article 8:
(a) A "Key Employee" is any current or former employee (and the
beneficiaries of such employee) who at any time during the Determination Period
was an officer of the Employer or an Affiliate if such individual's annual
compensation exceeds 50% of the Defined Benefit Dollar Limitation, an owner (or
considered an owner under Code Section 318) of one of the 10 largest interests
in the Employer if such individual's compensation exceeds 100% of the Defined
Contribution Dollar Limitation, a Five-Percent Owner, or a One-Percent Owner of
the Employer who has an annual compensation of more than $150,000. Annual
compensation means Total Compensation plus amounts contributed by the Employer
pursuant to a salary reduction agreement which are excludable from the
employee's gross income under Code Section 125, 402(a)(8), 402(h) or 403(b).
The "Determination Period" is the Plan Year containing the "Top-Heavy
Determination Date" and the 4 preceding Plan Years.
The determination of who is a Key Employee will be made in accordance
with Code Section 416(i)(1) and the regulations thereunder.
(b) For any Plan Year beginning after December 31, 1983, this Plan is
"Top-Heavy" if any of the following conditions exists:
(i) The Top-Heavy Ratio for this Plan exceeds 60% and this Plan
is not part of any Required Aggregation Group or Permissive Aggregation
Group of plans.
(ii) This Plan is a part of a Required Aggregation Group of
plans but not part of a Permissive Aggregation Group and the Top-Heavy
Ratio for the group of plans exceeds 60%.
(iii) This Plan is a part of a Required Aggregation Group and
part of a Permissive Aggregation Group of plans and the Top-Heavy Ratio for
the Permissive Aggregation Group exceeds 60%.
(c) The "Top-Heavy Ratio" shall be determined as follows:
(i) If the Employer maintains one or more defined contribution
plans and the Employer has not maintained any defined benefit plan which
during the 5-year period ending on the Top-Heavy Determination Date(s) has
or has had accrued benefits, the Top-Heavy Ratio for this Plan alone or for
the Required or Permissive Aggregation Group as appropriate is a fraction,
the numerator of which is the sum of the account balances of all Key
Employees as of the Top-Heavy
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Determination Date(s) (including any part of any account balance
distributed in the 5-year period ending on the Top-Heavy Determination
Date(s)), and the denominator of which is the sum of all account balances
(including any part of any account balance distributed in the 5-year period
ending on the Top-Heavy Determination Date(s)), both computed in accordance
with Code Section 416 and the regulations thereunder. Both the numerator
and denominator of the Top-Heavy Ratio are increased to reflect any
contribution not actually made as of the Top-Heavy Determination Date, but
which is required to be taken into account on that date under Code Section
416 and the regulations thereunder.
(ii) If the Employer maintains one or more defined contribution
plans and the Employer maintains or has maintained one or more defined
benefit plans which during the 5-year period ending on the Top-Heavy
Determination Date(s) has or has had any accrued benefits, the Top-Heavy
Ratio for any Required or Permissive Aggregation Group as appropriate is a
fraction, the numerator of which is the sum of account balances under the
aggregated defined contribution plan or plans for all Key Employees,
determined in accordance with (i) above, and the Present Value of accrued
benefits under the aggregated defined benefit plan or plans for all Key
Employees as of the Top-Heavy Determination Date(s), and the denominator of
which is the sum of the account balances under the aggregated defined
contribution plan or plans for all Participants, determined in accordance
with (i) above, and the Present Value of accrued benefits under the defined
benefit plan or plans for all Participants as of the Top-Heavy
Determination Date(s), all determined in accordance with Code Section 416
and the regulations thereunder. The accrued benefits under a defined
benefit plan in both the numerator and denominator of the Top-Heavy Ratio
are increased for any distribution of an accrued benefit made in the 5-year
period ending on the Top-Heavy Determination Date.
(iii) For purposes of (i) and (ii) above the value of account
balances and the Present Value of accrued benefits will be determined as of
the most recent valuation date that falls within or ends with the 12-month
period ending on the Top-Heavy 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 (A) who is not a Key Employee but who was a Key
Employee in a prior year, or (B) who has not been credited with at least
one hour of service with any employer maintaining the Plan at any time
during the 5-year period ending on the Top-Heavy Determination Date will be
disregarded. The calculation of the Top-Heavy Ratio, and the extent to
which distributions, rollovers, and transfers are taken into account will
be made in accordance
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with Code Section 416 and the regulations thereunder. Deductible employee
contributions will not be taken into account for purposes of computing the
Top-Heavy Ratio. When aggregating plans the value of account balances and
accrued benefits will be calculated with reference to the Top-Heavy
Determination Date(s) that fall within the same calendar year. The accrued
benefit of a Participant other than a Key Employee shall be determined
under (1) the method, if any, that uniformly applies for accrual purposes
under all defined benefit plans maintained by the Employer, or (2) if there
is no such method, as if such benefit accrued not more rapidly than the
slowest accrual rate permitted under the fractional rule of Code Section
411(b)(1)(C).
(d) "Permissive Aggregation Group" means the Required Aggregation
Group of plans plus any other plan or plans of the Employer which, when
considered as a group with the Required Aggregation Group, would continue to
satisfy the requirements of Code Sections 401(a)(4) and 410.
(e) "Required Aggregation Group" means (i) each qualified plan of the
Employer in which at least one Key Employee participates or participated at any
time during the Determination Period (regardless of whether the plan has
terminated), and (ii) any other qualified plan of the Employer which enables a
plan described in (i) to meet the requirements of Code Section 401(a)(4) or 410.
(f) "Top-Heavy Determination Date" means, for any Plan Year
subsequent to the first Plan Year, the last day of the preceding Plan Year or,
for the first Plan Year of the Plan, the last day of that year.
(g) "Present Value" shall be based on an interest assumption of 5%
and a post-retirement mortality assumption based on the Unisex Pension 1984
Mortality Table.
(h) "Employer" means the Employer and all Affiliates except for
purposes of determining ownership under Code Section 416(i)(1).
8.2 TOP-HEAVY PLAN REQUIREMENTS.
(a) (i) Except as otherwise provided in (ii) and (iii) below, the
Employer contributions and forfeitures allocated on behalf of any
Participant who is not a Key Employee shall not be less than the lesser of
three percent of such Participant's Considered Compensation or in the case
where the Employer has no defined benefit plan which designates this Plan
to satisfy Code Section 401, the largest percentage of Employer
contributions and forfeitures, as a percentage of the Key Employee's
Considered Compensation, allocated on behalf of any
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Key Employee for that year. The minimum allocation is determined without
regard to any Social Security contribution. This minimum allocation shall
be made even though, under other Plan provisions, the Participant would not
otherwise be entitled to receive an allocation, or would have received a
lesser allocation for the year because of (A) the Participant's failure to
complete 1,000 Hours of Service (or any equivalent provided in the Plan),
(B) the Participant's failure to make mandatory employee contributions to
the Plan, or (C) Considered Compensation less than a stated amount.
(ii) The provision in (i) above shall not apply to any
Participant who was not employed by the Employer or an Affiliate on the
last day of the Plan Year.
(iii) The provision in (i) above shall not apply to any
Participant to the extent the Participant is covered under any other plan
or plans of the Employer and the Employer's contribution and forfeitures
allocated under such plan or plans are equal to or exceed the amount
required to be allocated under (i) above.
(b) The minimum allocation required (to the extent required to be
nonforfeitable under Code Section 416(b)) may not be forfeited under Code
Section 411(a)(3)(B) or 411(a)(3)(D).
(c) For any Plan Year in which this Plan is Top-Heavy, the following
schedule shall be substituted for the schedule set forth in Section 6.6,
provided that Section 6.6 shall apply to the extent that the nonforfeitable
percentage thereunder is greater than the following schedule:
Nonforfeitable
Years of Service Percentage
---------------- --------------
Less than 3 0
3 or more 100
The minimum vesting schedule applies to all benefits within the meaning of Code
Section 411(a)(7) except those attributable to After-Tax Contributions,
including benefits accrued before the effective date of Code Section 416 and
benefits accrued before the Plan became Top-Heavy. Further, no reduction in
vested benefits may occur in the event the Plan's Top-Heavy status changes for
any Plan Year. However, this Section does not apply to the account balances of
any employee who does not have an hour of service after the Plan has initially
become Top-Heavy and such employee's account balance attributable to Employer
contributions and forfeitures will be determined without regard to this Section.
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ARTICLE 9
POWERS AND DUTIES OF PLAN COMMITTEE
9.1 APPOINTMENT OF PLAN COMMITTEE.
(a) The Board of Directors of the Company (the "Board of Directors")
may name a Plan Committee (the "Committee") to consist of not less than 3
persons to serve as administrator and named fiduciary of the Plan. Any person,
including directors, shareholders, officers and employees of the Employer, shall
be eligible to serve on the Committee. Every person appointed a member of the
Committee shall signify his acceptance in writing to the Board of Directors. In
the event the Board of Directors does not appoint a Committee pursuant to this
Section 9.1, the Employer shall act as the administrator and named fiduciary of
the Plan and all references to the Committee shall mean references to the
Company so acting as administrator and named fiduciary of the Plan.
(b) Members of the Committee shall serve at the pleasure of the Board
of Directors and may be removed by the Board of Directors at any time with or
without cause. Any member of the Committee may resign by delivering his written
resignation to the Board of Directors, and such resignation shall become
effective at delivery or at any later date specified therein. Vacancies in the
Committee shall be filled by the Board of Directors.
(c) Usual and reasonable expenses of the Committee may be paid in
whole or in part by the Employer and any such expenses not paid by the Employer
shall be paid by the Trustee out of the principal or income of the Trust Fund.
The members of the Committee shall not receive any compensation for their
services as such.
9.2 POWERS AND DUTIES OF COMMITTEE. The Committee shall have final and
binding discretionary authority to control and manage the operation and
administration of the Plan, including all rights and powers necessary or
convenient to the carrying out of its functions hereunder, whether or not such
rights and powers are specifically enumerated herein. In exercising its
responsibilities hereunder, the Committee may manage and administer the Plan
through the use of agents who may include employees of the Employer.
Without limiting the generality of the foregoing, and in addition to the
other powers set forth in this Article 9, the Committee shall have the following
discretionary authorities:
(a) To construe and interpret the Plan, decide all questions of
eligibility and determine the amount, manner and time of payment of any benefits
hereunder.
(b) To prescribe procedures to be followed by Participants or
beneficiaries filing applications for benefits.
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(c) To prepare and distribute, in such manner as the Committee
determines to be appropriate, information explaining the Plan.
(d) To request and receive from the Employer, Participants and others
such information as shall be necessary for the proper administration of the
Plan.
(e) To furnish the Employer upon request such annual and other
reports with respect to the administration of the Plan as are reasonable and
appropriate.
(f) To receive, review and maintain on file reports of the financial
condition and of the receipts and disbursements of the Trust Fund from the
Trustee.
(g) To amend the Plan in accordance with Article 11.
9.3 COMMITTEE PROCEDURES.
(a) The Committee may adopt such bylaws and regulations as it deems
desirable for the conduct of its affairs.
(b) A majority of the members of the Committee at the time in office
shall constitute a quorum for the transaction of business. All resolutions or
other actions taken by the Committee at any meeting shall be by the vote of the
majority of the members of the Committee present at the meeting. The Committee
may act without a meeting by written consent of a majority of its members.
(c) The Committee may elect one of its members as chairman and may
appoint a secretary, who may or may not be a Committee member, and shall advise
the Trustee and the Employer of such actions in writing. The secretary shall
keep a record of all actions of the Committee and shall forward all necessary
communications to the Employer or the Trustee.
(d) Filing or delivery of any document with or to the secretary of
the Committee in person or by registered or certified mail, addressed in care of
the Employer, shall be deemed a filing with or delivery to the Committee.
9.4 CONSULTATION WITH ADVISORS. The Committee (or any fiduciary
designated by the Committee pursuant to Section 9.8) may employ or consult with
counsel, actuaries, accountants, physicians or other advisors (who may be
counsel, actuaries, accountants, physicians or other advisors for the Employer).
9.5 COMMITTEE MEMBERS AS PARTICIPANTS. Any Committee member may also be a
Participant, but no Committee member shall have power to take part in any
discretionary decision or action affecting his own interest as a Participant
under this Plan unless such decision
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or action is upon a matter which affects all other Participants similarly
situated and confers no special right, benefit or privilege not simultaneously
conferred upon all other such Participants.
9.6 RECORDS AND REPORTS. The Committee shall take all such action as it
deems necessary or appropriate to comply with governmental laws and regulations
relating to the maintenance of records, notifications to Participants,
registrations with the Internal Revenue Service, reports to the U.S. Department
of Labor and all other requirements applicable to the Plan.
9.7 INVESTMENT POLICY.
(a) The Committee from time to time shall determine the Plan's
short-term and long-term financial needs, with which the investment policy of
the Trust shall be appropriately coordinated, and such needs shall be
communicated from time to time to the Trustee, Investment Managers or others
having any responsibility for management and control of the Trust assets.
(b) Subject to (c) below, the Trustee shall have exclusive authority
and discretion to manage and control the assets of the Trust pursuant to an
investment policy coordinated with the needs of the Plan as determined by the
Committee.
(c) The Committee may in its discretion appoint one or more
Investment Managers to manage (including the power to direct the Trustee to
acquire and dispose of) any assets of the Plan pursuant to an investment policy
coordinated with the needs of the Plan as determined by the Committee, in which
event the Trustee shall not be liable for the acts or omissions of any such
Investment Manager or be under an obligation to invest or otherwise manage any
asset of the Plan which is subject to the management of any such Investment
Manager except as directed. Any such Investment Manager shall acknowledge in
writing that he is a fiduciary with respect to the Plan.
(d) The term "Investment Manager" shall mean: (i) a registered
investment adviser under the Investment Advisers Act of 1940; (ii) a bank as
defined in the Investment Advisers Act of 1940; or (iii) an insurance company
qualified under the laws of more than one state to manage, acquire and dispose
of plan assets.
9.8 DESIGNATION OF OTHER FIDUCIARIES. The Committee may designate in
writing other persons to carry out a specified part or parts of its
responsibilities hereunder (including the power to designate other persons to
carry out a part of such designated responsibility), but not including the power
to appoint Investment Managers. Any such designation shall be accepted by the
designated person, who shall acknowledge in writing that he is a fiduciary with
respect to the Plan.
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9.9 OBLIGATIONS OF COMMITTEE.
(a) The Committee or its properly authorized delegate shall make such
determinations as are necessary to accomplish the purposes of the Plan with
respect to individual Participants or classes of such Participants. The
Employer shall notify the Committee of facts relevant to such determinations,
including, without limitation, length of service, compensation for services,
dates of death, permanent disability, granting or terminating of leaves of
absence, ages, retirement and termination of service for any reason (but
indicating such reason), and termination of participation. The Employer shall
also be responsible for notifying the Committee of any other facts which may be
necessary for the Committee to discharge its responsibilities hereunder.
(b) The Committee is hereby authorized to act solely upon the basis
of such notifications from the Employer and to rely upon any document or
signature believed by the Committee to be genuine and shall be fully protected
in so doing. For the purpose of this Section, a letter or other written
instrument signed in the name of the Employer by any officer thereof shall
constitute a notification therefrom; except that any action by the Company or
its Board of Directors with respect to the appointment or removal of a member of
the Committee or the amendment of the Plan and Trust or the designation of a
group of employees to which the Plan is applicable shall be evidenced by an
instrument in writing, signed by a duly authorized officer or officers,
certifying that said action has been authorized and directed by a resolution of
the Board of Directors of the Company.
(c) The Committee shall notify the Trustee of its actions and
determinations affecting the responsibilities of the Trustee and shall give the
Trustee directions as to payments or other distributions from the Trust Fund to
the extent they may be necessary for the Trustee to fulfill the terms of the
Trust Agreement.
(d) The Committee shall be under no obligation to enforce payment of
contributions hereunder or to determine whether contributions delivered to the
Trustee comply with the provisions hereof relating to contributions, and is
obligated only to administer this Plan pursuant to the terms hereof.
9.10 INDEMNIFICATION OF COMMITTEE. The Company shall indemnify members of
the Committee and its authorized delegates who are employees of the Employer for
any liability or expenses, including attorneys' fees, incurred in the defense of
any threatened or pending action, suit or proceeding by reason of their status
as members of the Committee or its authorized delegates, to the full extent
permitted by the law of the Company's state of incorporation.
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ARTICLE 10
TRUSTEE AND TRUST FUND
10.1 TRUST FUND. A Trust Fund to be known as the CLARCOR 401(k) Retirement
and Savings Trust (herein referred to as the "Trust" or the "Trust Fund") has
been established by the execution of a trust agreement with one or more Trustees
and is maintained for the purposes of this Plan. The assets of the Trust will
be held, invested and disposed of by the Trustee, in accordance with the terms
of the Trust, for the benefit of the Participants and their beneficiaries.
10.2 PAYMENTS TO TRUST FUND AND EXPENSES. All contributions hereunder will
be paid into and credited to the Trust Fund and all benefits hereunder and
expenses chargeable thereto will be paid from the Trust Fund and charged
thereto.
10.3 TRUSTEE'S RESPONSIBILITIES. The powers, duties and responsibilities
of the Trustee shall be as set forth in the Trust Agreement and nothing
contained in this Plan, either expressly or by implication, shall impose any
additional powers, duties or responsibilities upon the Trustee.
10.4 REVERSION TO AN EMPLOYER. An Employer has no beneficial interest in
the Trust Fund and no part of the Trust Fund shall ever revert or be repaid to
an Employer, directly or indirectly, except that an Employer shall upon written
request have a right to recover:
(a) within one year of the date of payment of a contribution by such
Employer, any amount (less any losses attributable thereto) contributed through
a mistake of fact;
(b) within one year of the date on which any deduction for a
contribution by such Employer under Code Section 404 is disallowed, an amount
equal to the amount disallowed (less any losses attributable thereto); and
(c) at the termination of the Plan, any amounts with respect to its
employees remaining in the Excess Forfeiture Suspense Account.
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ARTICLE 11
AMENDMENT OR TERMINATION
11.1 AMENDMENT. Subject to the provisions of Article 14, both the Company
and the Committee reserve the right to amend this Plan at any time to take
effect retroactively or otherwise, in any manner including, but not by way of
limitation, the right to increase or diminish contributions to be made by the
Employer hereunder, to change or modify the method of allocation of its
contributions, to change any provision relating to the distribution or payment,
or both, of any assets of the Trust.
11.2 TERMINATION. Subject to the provisions of Article 14, the Company
further reserves the right to terminate this Plan at any time.
11.3 FORM OF AMENDMENT, DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS, AND
TERMINATION. Any such amendment, discontinuance of Employer contributions or
termination shall be made only by resolution of the Board of Directors of the
Company or the Committee or by any person duly authorized to do so by the Board
of Directors.
11.4 LIMITATIONS ON AMENDMENTS. The provisions of this Article are subject
to the following restrictions:
(a) Except as provided in Section 10.4, no amendment shall operate
either directly or indirectly to give the Employer any interest whatsoever in
any funds or property held by the Trustee under the terms hereof, or to permit
corpus or income of the Trust to be used for or diverted to purposes other than
the exclusive benefit of the Participants and their beneficiaries.
(b) Except to the extent necessary to conform to the laws and
regulations or to the extent permitted by any applicable law or regulation, no
amendment shall operate either directly or indirectly to deprive any Participant
of his nonforfeitable beneficial interest in his Accounts as they are
constituted at the time of the amendment.
(c) No amendment shall change any vesting schedule unless each
Participant who has completed 5 (effective beginning with the 1989 Plan Year, 3)
or more Years of Service is permitted to elect to have the nonforfeitable
percentage of his Employer Account computed under the Plan without regard to
such amendment. The period for making such election shall expire no earlier
than 60 days after the latest of the following dates: (i) the date the Plan
amendment is adopted, (ii) the date the Plan amendment becomes effective, or
(iii) the date the Participant is issued written notice of the Plan amendment by
the Committee. Notwithstanding the foregoing, no election need be offered to a
Participant whose nonforfeitable percentage of his Employer Account cannot at
any
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time be lower than such percentage determined without regard to such amendment.
(d) Except as permitted by applicable law, no amendment shall
eliminate or reduce an early retirement benefit or a retirement-type subsidy or
eliminate an optional form of benefit.
11.5 LEVEL OF BENEFITS UPON MERGER. This Plan shall not merge or
consolidate with, or transfer assets or liabilities to, any other plan, unless
each Participant shall be entitled to receive a benefit immediately after said
merger, consolidation or transfer (if such other plan were then terminated)
which shall be not less than the benefit he would have been entitled to receive
immediately before said merger, consolidation or transfer (if this Plan were
then terminated).
11.6 VESTING UPON TERMINATION OR DISCONTINUANCE OF EMPLOYER CONTRIBUTIONS;
LIQUIDATION OF TRUST.
(a) This Plan shall be deemed terminated if and only if the Plan
terminates by operation of law or pursuant to Section 11.2. In the event of any
termination or partial termination within the meaning of the Code, or in the
event the Employer permanently discontinues the making of contributions to the
Plan, the Employer Account of each affected Participant who is employed by the
Employer on the date of the occurrence of such event shall be nonforfeitable;
provided, however, that in no event shall any Participant or beneficiary have
recourse to other than the Trust Fund for the satisfaction of benefits
hereunder.
(b) In the event an Employer permanently discontinues the making of
contributions to the Plan, the Trustee shall make or commence distribution to
each Participant or his beneficiaries of the value of such Participant's
Accounts as provided herein within the time prescribed in Article 7. However,
if, after such discontinuance, the Company shall determine it to be
impracticable to continue the Trust any longer, the Company may, in its
discretion, declare a date to be the Determination Date for all Participants
whose Determination Date has not yet occurred. Such date shall also constitute
the final distribution date for each Participant or beneficiary whose Accounts
are being distributed in installments.
(c) The liquidation of the Trust, if any, in connection with any Plan
termination shall be accomplished by the Committee acting on behalf of the
Company. After directing that sufficient funds be set aside to provide for the
payment of all expenses incurred in the administration of the Plan and the
Trust, to the extent not paid or provided for by the Employer, the Committee
shall, as promptly as shall then be reasonable under the circumstances,
liquidate the Trust assets and distribute to each Participant or beneficiary his
Accounts in the Trust Fund.
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Notwithstanding the foregoing, if the Employer or an Affiliate maintains another
defined contribution plan, the Accounts of such Participant shall be transferred
to such other plan unless the distributable balance of such Accounts does not
exceed $3,500 or the Participant consents to distribution of such Accounts.
Upon completion of such liquidation and distribution, the Trust shall finally
and completely terminate. In the event the Committee is no longer in existence,
the actions to be taken by the Committee pursuant to this Section shall be taken
by the Trustee.
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ARTICLE 12
ADOPTION BY AFFILIATES
12.1 ADOPTION OF PLAN. Subject to any resolution or terms of any agreement
approved by the Board of Directors or a committee thereof to the contrary, any
Affiliate may adopt this Plan for the benefit of its eligible employees if
authorized to do so by the Board of Directors of the Company. Such adoption
shall be by resolution of such Affiliate's board of directors, a certified copy
of which shall be filed with the Company, the Committee and the Trustee. Upon
such adoption, such Affiliate shall become an "Employer" and all terms and
conditions of the Plan shall apply to eligible employees of such Employer,
subject to Section 1.4.
12.2 THE COMPANY AS AGENT FOR EMPLOYER. Each Employer which has adopted
this Plan pursuant to Section 12.1 hereby irrevocably gives and grants to the
Company full and exclusive power conferred upon it by the terms of the Plan and
Trust to take or refrain from taking any and all action which such Employer
might otherwise take or refrain from taking with respect to the Plan, including
sole and exclusive power to exercise, enforce or waive any rights whatsoever
which such Employer might otherwise have with respect to the Trust, and each
such Employer, by adopting this Plan, irrevocably appoints the Company its agent
for such purposes. Neither the Trustee nor the Committee nor any other person
shall have any obligation to account to any such Employer or to follow the
instructions of or otherwise deal with any such Employer, the intention being
that all persons shall deal solely with the Company as if it were the sole
company which had adopted this Plan. Each such Employer shall contribute such
amounts as determined under Article 3.
12.3 ADOPTION OF AMENDMENTS. Any Employer which adopts this Plan pursuant
to Section 12.1 may amend this Plan with respect to its own employees by
resolution of its board of directors, if authorized to do so by the Board of
Directors of the Company or any person so duly authorized by the Board of
Directors of the Company.
12.4 TERMINATION. Any Employer which adopts this Plan pursuant to Section
12.1 may terminate this Plan with respect to its own employees by resolution of
its board of directors, if authorized to do so by the Board of Directors of the
Company, or any person so duly authorized by the Board of Directors of the
Company.
12.5 DATA TO BE FURNISHED BY EMPLOYERS. Each Employer which adopts this
Plan pursuant to Section 12.1 shall furnish information and maintain such
records with respect to its employees as called for hereunder, and its
determinations and notifications with respect thereto shall have the same force
and effect as comparable determinations by the Company with respect to its
employees.
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12.6 JOINT EMPLOYEES. If a Participant receives Considered Compensation
during a Plan Year from more than one Employer, the total amount of such
Considered Compensation shall be considered for the purposes of the Plan, and
the respective Employers shall share in contributions to the Plan on account of
said Participant based on the Considered Compensation paid to such Participant
by the Employer.
12.7 EXPENSES. Each Employer shall pay such part of actuarial and other
necessary expenses incurred in the administration of the Plan as the Company
shall determine.
12.8 WITHDRAWAL. An Employer may withdraw from the Plan by giving 60 days'
written notice of its intention to the Company and the Trustee, unless a shorter
notice shall be agreed to by the Company.
12.9 PRIOR PLANS. If an Employer adopting the Plan already maintains a
defined contribution plan covering employees who will be covered by this Plan,
it may, with the consent of the Company, provide in its resolution adopting this
Plan for the termination of its own plan or for the merger, restatement and
continuation, of its own plan by this Plan. In either case, such Employer may,
subject to the approval of the Company, provide in its resolution of adoption of
this Plan for the transfer of the assets of such plan to the Trust for this Plan
for the payment of benefits accrued under such other plan.
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ARTICLE 13
MISCELLANEOUS
13.1 NO GUARANTEE OF EMPLOYMENT, ETC. Neither the creation of the Plan nor
anything contained in the Plan or trust agreement shall be construed as a
contract of employment between the Employer and the Participant or as giving any
Participant hereunder or other employee of the Employer any right to remain in
the employ of the Employer, any equity or other interest in the assets, business
or affairs of the Employer, or any right to complain about any action taken or
any policy adopted or pursued by the Employer.
13.2 RIGHTS OF PARTICIPANTS AND OTHERS.
(a) Except as may be provided in the Plan with respect to loans to a
Participant, no Participant shall have any right to sell, assign, pledge,
hypothecate, anticipate or in any way create a lien upon any part of the Trust
Fund. Except to the extent required by law or provided in the Plan, no interest
in the Trust Fund, or any part thereof, shall be assignable in or by operation
of law, or be subject to liability in any way for the debts or defaults of
Participants, their beneficiaries, spouses or heirs-at-law, whether to the
Employer or to others.
(b) Prior to the time that distributions are to be made hereunder,
the Participants, their spouses, beneficiaries, heirs-at-law or legal
representatives shall have no right to receive cash or other things of value
from the Employer or the Trustee from or as a result of the Plan and Trust.
13.3 QUALIFIED DOMESTIC RELATIONS ORDER. Notwithstanding anything in this
Plan to the contrary, the Committee shall distribute a Participant's Accounts,
or any portion thereof, in accordance with the terms of any domestic relations
order entered on or after January 1, 1985, which the Committee determines to be
a qualified domestic relations order described in Code Section 414(p).
13.4 CONTROLLING LAW. To the extent not preempted by the laws of the
United States of America, the laws of the State of Illinois shall be controlling
state law in all matters relating to the Plan.
13.5 SEVERABILITY. If any provision of this Plan shall be held illegal or
invalid for any reason, said illegality or invalidity shall not affect the
remaining parts of this Plan, but this Plan shall be construed and enforced as
if said illegal or invalid provision had never been included herein.
13.6 NOTIFICATION OF ADDRESSES. Each Participant and each beneficiary of a
deceased Participant shall file with the Committee from time to time in writing
his post-office address and each change of post-office address. Any
communication, statement or
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notice addressed to the last post-office address filed with the Committee, or if
no such address was filed with the Committee, then to the last post-office
address of the Participant or beneficiary as shown on the Employer's records,
will be binding on the Participant and his beneficiary for all purposes of this
Plan and neither the Committee nor the Employer shall be obliged to search for
or ascertain the whereabouts of any Participant or beneficiary.
13.7 GENDER AND NUMBER. Whenever the context requires or permits, the
gender and number of words shall be interchangeable.
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ARTICLE 14
CHANGE IN CONTROL OF THE EMPLOYER
14.1 CHANGE IN CONTROL - DEFINED. "Change in control" of the Employer
shall be deemed to have taken place if
(a) a third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, becomes the beneficial owner of
shares of the Company having 15% or more of the total number of votes that may
be cast for the election of directors of the Company; or
(b) as the result of, or in connection with, any cash tender or
exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of the Company before such
Transaction shall cease to constitute a majority of the Board of Directors of
the Company or any successor to the Company.
14.2 INTENT. Since financial transactions concerning the control of
corporations have involved the investment of retirement trust assets for the
direct or indirect purpose of acquiring such control over corporations, the
Employer and the Trustees intend by this Article 14 and the related Article 11
to prohibit the use of this Trust's assets for any purpose except the exclusive
benefit of participants in the event of a Change in Control. Therefore, all
other Sections of this Plan shall be subject to this Article 14 in the event of
a Change in Control.
14.3 PROHIBITIONS ON CHANGE IN CONTROL. In the event of a Change in
Control, the following acts are prohibited for a period of thirty-six (36)
months beginning on the first day of the month in which the Change occurs and
ending on the first day of the thirty-seventh (37th) calendar month thereafter:
(a) Amendment to this Article 14 or to Article 11 of this Plan.
(b) Amendment to any other section of this Plan or of any other
provision of the Plan which would allow any assets of the Trust to revert or
otherwise be paid to the Employer unless required by a final order of a court of
competent jurisdiction to maintain the status of the Plan as qualified under
Section 401(a) of the Code.
(c) Investment of any portion of Trust assets in any employer
security as defined in Section 407 of ERISA.
(d) Investment in any security, bond, note or other financial
instrument in order to seek financial control of an entity.
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(e) Investment in any security, bond, note or other financial
instrument in order to confer a benefit directly or indirectly upon any person
other than the Participants in their capacity as beneficiaries of this Plan.
(f) Merger of the Plan with any other plan except a plan maintained
by the Company or its subsidiaries prior to the Change in Control.
(g) Termination of the Plan unless all assets are distributed to the
persons entitled to benefits under the Plan within one year after the
termination has been approved by the Internal Revenue Service.
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APPENDIX A
APPLICABLE TO MICHIGAN SPRING COMPANY
1. EFFECTIVE DATE. A participant in the Michigan Spring Company Profit
Sharing Plan ("MSC Plan") on November 30, 1989 shall automatically become a
Participant in this Plan as of December 1, 1989. Such Participant's account
balance(s) in the MSC Plan shall be allocated to his Rollover Account as of such
date, and shall be fully vested. Any other Eligible Employee of Michigan Spring
Company shall become eligible to participate in the Plan in accordance with the
requirements of Section 2.1.
2. TERMS AND CONDITIONS. All terms and conditions of the Plan shall apply to
Michigan Spring Company Participants, with the following exceptions:
(a) The definition of "Basic Before-Tax Contributions" set forth in
Article I is modified to provide that Basic Before-Tax Contributions shall not
exceed 2% of a Participant's Considered Compensation.
(b) The definition of "Supplemental Before-Tax Contributions" set
forth in Article I is modified to provide that Supplemental Before-Tax
Contributions shall not exceed 13% of a Participant's Considered Compensation.
3. INVESTMENT FUNDS -- OPTIONS. A participant in the MSC Plan on November 30,
1989 who elected to invest his account balance(s) in a real estate limited
partnership under that Plan shall be allowed to continue to invest any or all of
the amount so invested in such partnership after his account balance(s) is
transferred to this Plan on December 1, 1989. Amounts so invested shall be
treated as invested in a separate investment fund for purposes of Article 5.
4. OUTSTANDING LOANS.
(a) Any participant in the MSC Plan on November 30, 1989 who has an
outstanding loan made under the provisions of that plan shall remain liable for
such loan according to its terms after the transfer of his accounts to this Plan
on December 1, 1989. Loans shall be an asset of the Participant's Accounts and
shall be treated in the manner of a segregated account.
(b) Effective for loans granted before October 19, 1989, upon the
Participant's termination of employment, the unpaid balance of any loan,
including any unpaid interest, shall be charged first against his After-Tax
Account, then against his Rollover Account, then against the vested portion of
his Matching Account and then against his Before-Tax Account, before
distribution to the Participant. If after charging the Participant's Accounts
in the manner described above with the unpaid balance of the loan, including any
unpaid interest, there
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still remains an unpaid balance of any such loan and interest, then the
remaining unpaid balance of such loan and interest shall be charged against any
property pledged as security with respect to such loan.
(c) Effective for loans granted after October 19, 1989, upon the
failure of a Participant to make loan payments or some other event of default
set forth in the promissory note, or upon termination of the Plan pursuant to
Section 11.2, such loan shall become due and payable, and the unpaid balance of
such loan, including any unpaid interest, may in the Committee's discretion be
charged against the Participant's segregated loan account; provided, that any
unpaid balance of such loan, including any unpaid interest, shall be charged
against the Participant's segregated loan account before any distribution to the
Participant. If after the Participant's segregated loan account has been so
charged, there remains an unpaid balance of any such loan and interest, then the
remaining unpaid balance of such loan shall be charged against any property
pledged as security with respect to such loan.
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APPENDIX B
APPLICABLE TO TIMMS SPRING COMPANY
1. EFFECTIVE DATE. A participant in the Timms Spring Company 401(k) CIGNA
Plan (the "Timms Plan") on November 30, 1989 shall automatically become a
Participant in this Plan as of December 1, 1989. Such Participant's account
balance(s) in the Timms Plan shall be allocated to his Before-Tax Account as of
such date, and shall be fully vested. Any other Eligible Employee of Timms
Spring Company shall become eligible to participate in the Plan in accordance
with the requirements of Section 2.1, subject to item 2(a) below.
2. TERMS AND CONDITIONS. All terms and conditions of the Plan shall apply to
Timms Spring Company Participants, with the following exceptions:
(a) The definition of "Basic Before-Tax Contributions" set forth in
Article I is modified to provide that Basic Before-Tax Contributions shall not
exceed 0% of a Participant's Considered Compensation.
(b) The definition of "Supplemental Before-Tax Contributions" set
forth in Article I is modified to provide that Supplemental Before-Tax
Contributions shall not exceed 15% of a Participant's Considered Compensation.
(c) No Matching Employer Contributions shall be made by Timms Spring
Company to the Plan and all references to "Matching Employer Contributions" and
"Matching Employer Account" in the Plan shall be inoperative with respect to
Timms Spring Company Participants; and
(d) Section 2.1(b) is modified to provide that an Eligible Employee
of Timms Spring Company hired before December 1, 1989 who is not a Participant
in the Plan on such date pursuant to Section 1 of this Appendix B shall be
eligible to participate in the Plan, if he is then employed by the Employer, on
the Entry Date coinciding with or next following the later of (i) the date on
which he has completed six (6) months of service or (ii) his 21st birthday.
Eligible Employees of Timms Spring Company hired on or after December 1, 1989
shall be eligible to participate in the Plan in accordance with Section 2.1 of
the Plan.
3. OUTSTANDING LOANS.
(a) Any participant in the Timms Plan on November 30, 1989 who has an
outstanding loan made under the provisions of that plan shall remain liable for
such loan according to its terms after the transfer of his accounts to this Plan
on December 1, 1989. Loans shall be an asset of the Participant's Accounts and
shall be treated in the manner of a segregated account.
63
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(b) Effective for loans granted before October 19, 1989, upon, the
unpaid balance of any loan, including any unpaid interest, shall be charged
first against his After-Tax Account, then against his Rollover Account, and then
against his Before-Tax Account, before distribution to the Participant. If
after charging the Participant's Accounts in the manner described above with the
unpaid balance of the loan, including any unpaid interest, there still remains
an unpaid balance of any such loan and interest, then the remaining unpaid
balance of such loan and interest shall be charged against any property pledged
as security with respect to such loan.
(c) Effective for loans granted after October 19, 1989, upon the
failure of a Participant to make loan payments or some other event of default
set forth in the promissory note, or upon termination of the Plan pursuant to
Section 11.2, such loan shall become due and payable, and the unpaid balance of
such loan, including any unpaid interest, may in the Committee's discretion be
charged against the Participant's segregated loan account; provided, that any
unpaid balance of such loan, including any unpaid interest, shall be charged
against the Participant's segregated loan account before any distribution to the
Participant. If after the Participant's segregated loan account has been so
charged, there remains an unpaid balance of any such loan and interest, then the
remaining unpaid balance of such loan shall be charged against any property
pledged as security with respect to such loan.
64
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APPENDIX C
APPLICABLE TO BALDWIN FILTERS, INC.
1. EFFECTIVE DATE. Effective December 1, 1989, an Eligible Employee of
Baldwin Filters, Inc. shall become eligible to participate in the Plan in
accordance with the requirements of Section 2.1.
2. TERMS AND CONDITIONS. All terms and conditions of the Plan shall apply to
Baldwin Filters, Inc. Participants with the following exceptions:
(a) The definition of "Basic Before-Tax Contributions" set forth in
Article I is modified to provide that Basic Before-Tax Contributions shall not
exceed 2% of a Participant's Considered Compensation.
(b) The definition of "Supplemental Before-Tax Contributions" set
forth in Article I is modified to provide that Supplemental Before-Tax
Contributions shall not exceed 13% of a Participant's Considered Compensation.
65
<PAGE>
Exhibit 4(b)
AMENDMENT
TO THE
CLARCOR 401(k) RETIREMENT SAVINGS PLAN
1. The following new Section 7.9 shall be added to the Plan and
Sections 7.9 and 7.10 shall be renumbered Sections 7.10 and 7.11 respectively:
7.9 LOANS
(a) Effective August 1, 1992, upon the submission by the
Participant of a written loan application form as prescribed by the
Committee, the Committee shall grant a loan to such Participant from
his Accounts; provided, however, that if the Committee reasonably
believes that the Participant either does not intend to repay the loan
or lacks proper financial ability to repay the loan, it shall not
grant such a loan; and further provided that a Participant may have
only one loan outstanding at any time, and may not receive more than
one loan per Plan Year. A reasonable loan processing fee shall be
charged to the Participant in connection with each loan application.
(b) The amount of any loan shall not be less than $1,000
and shall not exceed 50% of the amount which the Participant would be
entitled to receive from his Accounts if he had resigned from the
service of the Employer and all Affiliates and his Determination Date
next preceded the date of authorization; provided, however, that the
amount of such loan shall not exceed $50,000 reduced by the highest
outstanding balance of loans to the Participant from the Trust Fund
during the one-year period ending on the day before the date on which
such loan is made or modified.
(c) Such loans shall be made available on a reasonably
equivalent basis to all Participants and beneficiaries who have vested
Account balances in the Plan and who either (i) are active employees
or (ii) are determined by the Committee to be "parties in interest" as
that term is defined in Section 3(14) of ERISA, so long as the making
of such loans does not discriminate in favor of Highly Compensated
Employees.
(d) Loans shall be made on such terms as the Committee may
prescribe, provided that any such loan shall be evidenced by a note,
shall bear a rate of interest on the unpaid principal thereof equal to
2 percentage points above the prime rate as quoted by the
<PAGE>
Wall Street Journal on the first business day of the Plan Quarter
coincident with or preceding the date the loan request is approved, unless
the Committee determines that such interest rate is not commensurate with
the interest rates charged by persons in the business of lending money for
loans which would be made under similar circumstances, and shall be secured
by 50% of the Participant's vested Account balances and such other security
as the Committee in its discretion deems appropriate.
(e) The funds needed to provide the principal amount of the
loan shall be paid from the Participant's accounts according to the
following schedule: (i) first, from the Participant's After-Tax
Account; (ii) second, from the Participant's Rollover Account; (iii)
third, from the Participant's Before-Tax Account (and within such
Account, from the Basic Before-Tax sub-account first); and (iv)
fourth, from the Participant's Matching Account. Within each such
account, the funds needed to provide the principal amount of the loan
shall come from the Fixed Income Fund, the Bond Fund, the Balanced
Fund, the Equity Fund, and the Company Stock Fund, in that order.
(f) Loans shall be repaid by the Participant by payroll
deduction or any other method approved by the Committee which requires
level amortization of principal and repayments not less frequently
than quarterly. Such loans shall be repaid over a period not to
exceed 5 years (except for loans used to acquire a dwelling unit which
within a reasonable time is to be used as the principal residence of
the Participant as determined under the applicable Code provisions) in
accordance with procedures established by the Committee from time to
time. Notwithstanding the foregoing, a Participant may prepay a loan
in full at any time without penalty.
(g) Periodic loan repayments shall first be credited to the
Matching Account, until all amounts which were liquidated from the
loan principal amount from that Account, if any, have been repaid.
Repayments shall then be credited to the Before-Tax Account loan
balance, if any, then the Rollover Account loan balance, if any, then
the After-Tax Account loan balance, if any.
(h) Loan repayments shall be invested in the same
proportions within each such Account as the Participant's current
contributions are being invested in the Funds, until all amounts which
were liquidated for the loan principal amount from those Accounts have
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<PAGE>
been repaid. If a Participant is not currently contributing to the Plan or
if no current investment election is on file, all repayments will then be
credited in the same sequence as provided in (g) above in the same
proportions within each such Account as the latest investment election on
file for the Participant, until all amounts which were liquidated for the
loan principal amount from those Accounts have been repaid. Any accrued
interest on the loan balance in the various Accounts will be credited to
the Fund to which the related principal repayment is credited and shall be
allocated pursuant to Article 5.
(i) Loans shall be an asset of the Participant's Accounts
and shall be treated in the manner of a segregated account. Upon the
failure of a Participant to make loan payments or some other event of
default set forth in the promissory note, upon the Participant's
termination of employment, or upon termination of the Plan pursuant to
Section 11.2, such loan shall become due and payable, and the unpaid
balance of such loan, including any unpaid interest, may in the
Committee's discretion be charged against the Participant's Account
balances pledged as security for the loan; provided, that any unpaid
balance of such loan, including any unpaid interest, shall be charged
against such Account balances before any distribution to the
Participant. If after the Participant's Account balances have been so
charged, there remains an unpaid balance of any such loan and
interest, then the remaining unpaid balance of such loan shall be
charged against any property pledged as security with respect to such
loan.
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<PAGE>
Exhibit 4(c)
AMENDMENT
TO THE
CLARCOR 401(k) RETIREMENT SAVINGS PLAN
1. Section 1.5 of the Plan is amended by adding the following
definition of "Company Stock" thereto:
"COMPANY STOCK" means the common stock of CLARCOR Inc.
2. Paragraph (ii) of subsection 5.2(b) of the Plan is amended to read
as follows:
(ii) A Participant may elect to have a uniform percentage of his
Accounts credited in increments of 10% to one or more of the following
Funds:
(A) FIXED INCOME FUND. This Fund consists of a diversified
group of guaranteed income contracts and money market instruments.
(B) BOND FUND. This Fund consists of bonds and notes issued by
the U.S. Government and corporations.
(C) BALANCED FUND. This Fund consists of balanced proportions
of bonds and common stocks.
(D) EQUITY FUND. This Fund consists of a variety of common
stocks.
(E) COMPANY STOCK FUND. This Fund is invested in common stock
of the Company. Such stock shall be acquired by the Trustee from the
Company or on the open market at such times as the Committee may
direct.
The Committee may establish other funds from time to time. All
contributions to the Accounts of a Participant shall be credited to such
Funds in accordance with the most recent election filed by the Participant
with the Committee. A Participant may change his election with respect to
future contributions as of the first day of the quarter (March 1, June 1,
September 1 or December 1), or any other date selected by the Committee,
provided that the Participant notifies the Committee of such change prior
to the effective date of such change, at such time and in such manner as
designated by the Committee. If a Participant fails to file an effective
investment election, his Accounts shall be invested in the Fixed Income
Fund. Subject to any restriction on transfer which results from the
investment medium chosen for a Fund, a Participant may elect to transfer,
in multiples of 10%, a uniform percentage of his
<PAGE>
Accounts held in any Fund to one or more different Funds effective as of
the 1st day of the quarter (March 1, June 1, September 1 or December 1), or
any other date selected by the Committee, provided that the Participant
notifies the Committee of such change prior to the effective date of such
change, at such time and in such manner as designated by the Committee.
3. Section 7.1(c) is amended by adding the following sentences to the
end thereof:
In the event a Participant's Accounts are to be distributed in a
lump sum, the Participant may elect to receive the portion invested in the
Company Stock Fund in shares of Company Stock. Such request must be
received at least 15 days in advance of the date of distribution. Partial
distributions, loans and hardship withdrawals shall be made in cash.
Distributions of Company Stock shall be in whole shares only, and any
fractional share shall be distributed in cash.
4. A new Section 10.5 is added to the Plan to read as follows:
10.5 VOTING OF COMPANY STOCK.
A Participant shall be entitled to direct the Trustee as to the
manner in which voting and other rights will be exercised with respect to
the shares of Company Stock allocated to the Participant's Accounts. All
Participants whose Accounts include investments in the Company Stock Fund
shall be notified within a reasonable time before such rights are to be
exercised. Such notification shall include all information distributed by
the Company to shareholders regarding the exercise of such rights. To the
extent a Participant fails to provide the Trustee with directions, the
Trustee shall abstain from voting or otherwise exercising such rights. The
Committee may establish such additional procedures with respect to voting
and other rights as it, in its discretion, deems appropriate.
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<PAGE>
Exhibit 4(d)
CLARCOR 401(K) RETIREMENT SAVINGS TRUST
AS AMENDED AND RESTATED
EFFECTIVE AS OF JUNE 1, 1994
<PAGE>
CLARCOR 401(K) RETIREMENT SAVINGS TRUST
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 - TRUST, TRUSTEE AND TRUST FUND. . . . . . . . . . . . . . . . . . 1
SECTION 1.1. TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.3. TRUST FUND. . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 - AUTHORIZED EMPLOYER REPRESENTATIVES. . . . . . . . . . . . . . . 2
SECTION 2.1. EMPLOYER. . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.2. INFORMATION FURNISHED TO TRUSTEE. . . . . . . . . . . . . 2
ARTICLE 3 - CONTRIBUTIONS AND DIRECT TRANSFERS . . . . . . . . . . . . . . . 2
ARTICLE 4 - DISTRIBUTIONS FROM TRUST FUND. . . . . . . . . . . . . . . . . . 3
SECTION 4.1. COMPANY TO DIRECT DISTRIBUTIONS . . . . . . . . . . . . . 3
SECTION 4.2. WITHHOLDING OF TAXES. . . . . . . . . . . . . . . . . . . 3
SECTION 4.3. INTERESTS NONASSIGNABLE . . . . . . . . . . . . . . . . . 3
ARTICLE 5 - INVESTMENT OF TRUST FUND . . . . . . . . . . . . . . . . . . . . 4
SECTION 5.1. INVESTMENTS AUTHORIZED. . . . . . . . . . . . . . . . . . 4
SECTION 5.2. LIMITATIONS ON INVESTMENT AUTHORITY OF TRUSTEE. . . . . . 5
SECTION 5.3. INVESTMENT IN COMMINGLED TRUST. . . . . . . . . . . . . . 6
ARTICLE 6 - POWERS AND RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . 6
SECTION 6.1. TRUSTEE'S POWERS. . . . . . . . . . . . . . . . . . . . . 6
SECTION 6.2. VOTING, TENDERING AND EXERCISING OTHER SHAREHOLDER RIGHTS
WITH RESPECT TO COMPANY STOCK . . . . . . . . . . . . . . 8
SECTION 6.3. ADVICE OF COUNSEL . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.4. INDEMNIFICATION OF TRUSTEES . . . . . . . . . . . . . . . 8
SECTION 6.5. COMPENSATION AND EXPENSES . . . . . . . . . . . . . . . . 9
ARTICLE 7 - ACCOUNTS AND REPORTS OF THE TRUSTEE. . . . . . . . . . . . . . . 9
SECTION 7.1. RECORDS AND ACCOUNTS OF THE TRUSTEE . . . . . . . . . . . 9
SECTION 7.2. ACCRUAL BASIS FOR ACCOUNTS. . . . . . . . . . . . . . . . 9
SECTION 7.3. FISCAL YEAR . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 7.4. ANNUAL REPORT . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 7.5. APPROVAL OF REPORTS . . . . . . . . . . . . . . . . . . . 10
ARTICLE 8 - REMOVAL, RESIGNATION AND SUCCESSION OF THE TRUSTEE . . . . . . . 10
SECTION 8.1. REMOVAL . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 8.2. RESIGNATION . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 8.3. APPOINTMENT, QUALIFICATIONS AND POWERS OF SUCCESSOR
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 8.4. CHANGES IN ORGANIZATION OF CORPORATE TRUSTEE. . . . . . . 11
ARTICLE 9 - AMENDMENT OR TERMINATION . . . . . . . . . . . . . . . . . . . . 12
SECTION 9.1. AUTHORITY TO AMEND OR TERMINATE . . . . . . . . . . . . . 12
SECTION 9.2. METHOD OF MAKING AMENDMENT. . . . . . . . . . . . . . . . 12
SECTION 9.3. TERMINATION OF TRUST. . . . . . . . . . . . . . . . . . . 12
SECTION 9.4. DIVERSION OF FUND PROHIBITED. . . . . . . . . . . . . . . 13
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ARTICLE 10 - CONTINUANCE BY A SUCCESSOR. . . . . . . . . . . . . . . . . . . 14
ARTICLE 11 - PARTICIPATION BY EMPLOYERS. . . . . . . . . . . . . . . . . . . 14
SECTION 11.1. EMPLOYERS BECOME PARTIES TO TRUST. . . . . . . . . . . . 14
SECTION 11.2. COMPANY APPOINTED AGENT BY EMPLOYERS . . . . . . . . . . 14
SECTION 11.3. SEPARATION OF FUND . . . . . . . . . . . . . . . . . . . 15
ARTICLE 12 - CONTROLLING LAW AND LEGAL ACTIONS . . . . . . . . . . . . . . . 15
SECTION 12.1. CONTROLLING LAW. . . . . . . . . . . . . . . . . . . . . 15
SECTION 12.2. LEGAL ACTIONS. . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 13 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 13.1. PROTECTION OF PERSONS DEALING WITH TRUSTEE . . . . . . . 16
SECTION 13.2. TAX EXEMPTION OF TRUST . . . . . . . . . . . . . . . . . 16
SECTION 13.3. NO INTEREST IN EMPLOYER GIVEN BY TRUST . . . . . . . . . 16
ARTICLE 14 - EXECUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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CLARCOR, Inc., a Delaware corporation (the "Company"), hereby
establishes the CLARCOR 401(k) Retirement Savings Trust to implement the
provisions of the CLARCOR 401(k) Retirement Savings Plan (the "Plan"). The
Trust shall constitute an amendment and restatement of the trust provisions set
forth in the J.L. Clark Retirement Savings Plan and Trust, as amended.
ARTICLE 1
TRUST, TRUSTEE AND TRUST FUND
SECTION 1.1. TRUST. This instrument and the Trust evidenced hereby,
as amended from time to time, shall be known as the CLARCOR 401(k) Retirement
Savings Trust (the "Trust"). The Trust is intended to be exempt from federal
income tax pursuant to section 501(a) of the Internal Revenue Code of 1986, as
amended (the "Code").
SECTION 1.2. TRUSTEE. (a) IN GENERAL. AMCORE Bank N.A., Rockford,
is hereby designated as Trustee to receive, hold, invest, administer and
distribute the assets held under the Trust in accordance with the provisions of
the Trust and for the exclusive purpose of providing benefits to participants in
the Plan and their beneficiaries and defraying reasonable expenses of
administering such Plan. Such corporation in its capacity as Trustee shall be
referred to hereinafter as "the Trustee".
(b) DELIVERY OF PLAN TO TRUSTEE. The Company shall deliver to the
Trustee a certified copy of the Plan and of each amendment thereto, for
convenience of reference, but the rights, powers, titles, duties and discretions
of the Trustee shall be governed solely by the Trust without reference to the
Plan.
SECTION 1.3. TRUST FUND. The assets held under the Trust by the
Trustee are herein referred to as the "Trust Fund" or the "Fund". Except as
herein otherwise provided, title to assets of the Fund shall at all times be
vested in the Trustee subject to the right of the Trustee to hold title in
bearer form or in the name of a nominee or nominees, and the interest of others
in the
<PAGE>
assets of the Fund shall be only the right to have such assets received, held,
invested, administered and distributed in accordance with the provisions of the
Trust.
ARTICLE 2
AUTHORIZED EMPLOYER REPRESENTATIVES
SECTION 2.1. EMPLOYER. The term "Employer" wherever used herein
shall mean the Company or an affiliate of the Company which has adopted the Plan
and has become a party to the Trust in accordance with Article 11 hereof.
SECTION 2.2. INFORMATION FURNISHED TO TRUSTEE. The Company on its
own behalf and as agent for each Employer shall furnish the Trustee the name and
specimen signature of each person upon whose statement of the decision or
direction of the Company or an Employer the Trustee is authorized to rely.
Until notified of a change in the identity of such person or persons the Trustee
shall act upon the assumption that there has been no change.
ARTICLE 3
CONTRIBUTIONS AND DIRECT TRANSFERS
All contributions made under the Plan which, pursuant to the terms of
the Plan, are required to be delivered to the Trustee shall be delivered to the
Trustee. The Trustee shall be accountable for all contributions received by it
but shall have no duty to require any contributions to be made to it or to
determine that the contributions received comply with the Plan or with the
resolutions of the board of directors of the Company or the Employer providing
therefor. Upon written direction from the administrator of the Plan (the "Plan
Administrator"), the Trustee shall accept direct transfers of eligible rollover
distributions (as defined in section 402(c)(4) of the Code), and shall be
accountable for all such direct transfers.
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<PAGE>
ARTICLE 4
DISTRIBUTIONS FROM TRUST FUND
SECTION 4.1. COMPANY TO DIRECT DISTRIBUTIONS. Distributions in cash
or in kind shall be made from the Trust Fund by the Trustee to such persons or
other entities, in such manner, at such times, in such amounts and for such
purposes as the Plan Administrator, shall direct in writing. The Trustee shall
also discontinue distributions from the Fund in accordance with the directions
of the Plan Administrator. The Trustee shall have no responsibility as Trustee
to see to the application of distributions so made or to ascertain whether the
directions of the Plan Administrator comply with the terms of the Plan.
SECTION 4.2. WITHHOLDING OF TAXES. The Trustee shall withhold, or
require the withholding, from any distribution which the Trustee is directed to
make (i) any amounts required to be withheld as a result of the distribution
election of the distributee, or (ii) such sum as the Trustee may reasonably
estimate is necessary to cover any taxes for which the Trustee may be liable, or
which are, or may be, assessed with regard to such distribution. Upon discharge
or settlement of such tax liability the Trustee shall distribute the balance of
such sum, if any, to or on behalf of the distributee from whose distribution it
was withheld, or if such distributee is then deceased, to or on behalf of such
other person as the Company shall direct. Prior to making any distribution
hereunder the Trustee may require such releases or other documents from any
taxing authority, or may require such indemnity and surety bond, as the Trustee
shall reasonably deem necessary for its protection.
SECTION 4.3. INTERESTS NONASSIGNABLE. No right or interest of any
Plan participant or distributee to receive distributions from the Fund shall be
assignable or transferable in whole or in part, either directly or by operation
of law or otherwise, including, but not by way of limitation, execution, levy,
garnishment, attachment, pledge, or bankruptcy, but excluding devolution by
death or mental incompetency, and no right or interest of any Plan participant
or distributee to
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<PAGE>
receive distributions from the Fund shall be liable for, or subject to, any
obligation or liability of such participant or distributee, including claims for
alimony or the support of any spouse other than as may be required by a domestic
relations order which is determined to be a qualified domestic relations order
within the meaning of section 414(p) of the Code by the Plan Administrator.
ARTICLE 5
INVESTMENT OF TRUST FUND
SECTION 5.1. INVESTMENTS AUTHORIZED. Except as provided otherwise in
the Trust, the net income of the Trust Fund shall be accumulated, added to the
principal of the Fund and invested and reinvested therewith as a single Fund.
Subject to the provisions of Section 5.2, the Trustee is authorized to invest
the Fund in such preferred and common stocks, bonds, notes, and debentures
(including convertible stocks and securities, but not including any stock or
securities of the Trustee or its affiliates, other than the AMCORE Vintage
Mutual Fund Group with AMCORE Capital Management, Inc. as investment adviser,
provided that the Trustee shall make such investment (including, but not limited
to, the charging of any fees in connection with such investment) in accordance
with Department of Labor Prohibited Transaction Class Exemption 77-4)), land
contracts, mortgages, equipment trust certificates, investment trust
certificates, shares of investment companies and mutual funds, interests in
partnerships and trusts, insurance policies or contracts, certificates of
deposit and savings accounts, including deposits of the Trustee bank, which bear
a reasonable rate of interest, or in such other property, real or personal,
either within or without the United States, as the Trustee may deem to be in the
interest of the participants and beneficiaries of the Plan. The Trustee shall
diversify the investments of the Fund so as to minimize the risk of large
losses, unless under the circumstances it is clearly prudent not to do so. The
Trustee in its discretion may hold any portion of the Fund in cash pending
investment or payment of expenses or distribution of benefits, without liability
for interest.
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<PAGE>
SECTION 5.2. LIMITATIONS ON INVESTMENT AUTHORITY OF TRUSTEE. (a)
The Company may from time to time appoint any person or persons, partnership or
corporation as an investment adviser to the Trustee. Upon receipt of written
notice from the Company of the appointment of such an investment adviser, the
Trustee shall thereafter invest and reinvest the Fund as such investment adviser
shall direct in writing. It shall be the duty of the Trustee to act strictly in
accordance with any direction given by such an investment adviser pursuant to
this section. The Trustee shall be under no duty to question any such
direction, to review any securities or other property held in the Fund pursuant
to any such direction, or to make suggestions to any such investment adviser
with respect to the exercise or nonexercise of its powers with respect to the
investment and reinvestment of the Fund. The Trustee shall be under no
liability for any loss of any kind which may result by reason of any action
taken by it in accordance with any direction of any such investment adviser
pursuant to this section, or by reason of the Trustee's failure to take any
investment action in the absence of directions from any such investment adviser.
(b) Under the Plan, each participant is entitled to direct the
investment of all or a portion of the balances of his or her Plan accounts in
accordance with any of the investment options provided in the Plan or
subsequently offered by the Plan Committee named by the board of directors of
the Company under the Plan (the "Committee"). The Plan Administrator shall
transmit the investment directions of participants to the Trustee and the
Trustee will invest Plan assets strictly in accordance with such directions.
The Trustee shall be under no duty to question any such direction, to review any
securities or other property held in the Fund pursuant to any such direction, or
to make suggestions to any such participant with respect to his or her
investment directions. The Trustee shall be under no liability for any loss
that is the direct and necessary result of any participant's investment
direction. Notwithstanding any other provision herein, the Trustee may decline
to implement investment instructions by a participant which (1) would not be in
accordance with the documents and instruments governing the Plan insofar as such
documents are consistent with the provisions of Title I of the Employee
Retirement Income Security Act of 1974,
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as amended ("ERISA"); (2) would cause the Trustee to maintain the indicia of
ownership of any assets of the Plan outside the jurisdiction of the district
courts of the United States other than as permitted by section 404(b) of ERISA;
(3) would jeopardize the Plan's tax qualified status under the Code; (4) could
result in a loss in excess of the balances of the participant's accounts; or (5)
would result in a transaction set forth in section 2550.404c - 1(d)(2)(ii)(E) of
regulations promulgated by the Department of Labor. The Trustee reserves the
right to deduct from an account balance of a participant who is directing the
investment of his or her account, all reasonable costs, charges, and expenses
incurred by the Trustee in connection with such participant's direction.
SECTION 5.3. INVESTMENT IN COMMINGLED TRUST. Notwithstanding any
other provision of the Trust, the person or persons, natural or legal, who
control the investment of the assets held hereunder which are not subject to the
investment instructions of a participant, may cause any part or all of such
assets to be commingled with the assets of other trusts by investment in a
common trust fund, as described in section 584 of the Code, or in a collective
investment fund, the provisions of which govern the investment of such assets
and which the Trust incorporates by this reference, which the Trustee (or its
affiliate, as defined in section 1504 of the Code) maintains exclusively for the
collective investment of money contributed by the bank (or the affiliate) in its
capacity as trustee and which conforms to the rules of the Comptroller of the
Currency.
ARTICLE 6
POWERS AND RIGHTS OF TRUSTEE
SECTION 6.1. TRUSTEE'S POWERS. The Trustee shall have the following
powers, rights and duties in addition to those vested in it elsewhere in the
Trust or by law:
(A) to retain, manage, improve, repair, operate and control any asset
of the Fund;
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(B) to sell, convey, transfer, exchange, partition, grant options
with respect to, lease for any term (even though such term extends beyond
the duration of this Trust or commences in the future), mortgage, pledge,
or otherwise deal with or dispose of any asset of the Fund in such manner,
for such consideration and upon such terms and conditions as the Trustee,
in its discretion, shall determine, subject to any investment instruction
by a Participant or Beneficiary as authorized by the Plan and this Trust;
(C) to employ such agents and counsel as may be reasonably necessary
in collecting, managing, administering, investing, distributing and
protecting the Fund or the assets thereof and to pay them reasonable
compensation;
(D) to settle, compromise or abandon all claims and demands in favor
of or against the Fund;
(E) subject to the shareholder rights granted to participants who
direct the investment of their accounts in the fund designed primarily to
invest in common stock of the Company, the "Company Stock Fund" under the
Plan, to vote any corporate stock either in person or by proxy for any
purposes; to exercise any conversion privilege, subscription right or any
other right or option given to the Trustee as the owner of record of any
security owned by the Fund and to make any payments incidental thereto; to
consent to, take any action in connection with, and receive and retain any
securities resulting from any reorganization, consolidation, merger,
readjustment of the financial structure, sale, lease or other disposition
of the assets of any corporation or other organization, the securities of
which may be an asset of the Fund;
(F) to organize and incorporate (or participate in the organization
or incorporation of), under the laws of any state, a corporation for the
purpose of acquiring and holding title to any property which the Trustee is
authorized to acquire for the Fund and to exercise with respect thereto any
of the powers, rights and duties it has with respect to other assets of the
Fund;
(G) to cause any asset of the Fund to be issued, held or registered
in the name of its nominee, or in such form that title will pass by
delivery, provided the records of the Trustee shall indicate the true
ownership of such asset;
(H) to place part or all of the Fund in the name of a custodian bank
or trust company and to enter into or to become a party to an agreement
with any such custodian bank or trust company under which such custodian
bank or trust company will receive, hold and administer part or all of the
Fund; and
(I) to exercise any of the powers and rights of individual owners
with respect to any property of the Fund and to do all other acts which in
its judgment are necessary or desirable for the proper administration of
the Fund, although such powers, rights and acts are not specifically
enumerated in the Trust.
The Trustee shall discharge its duties solely in the interest of
participants and their beneficiaries and with the care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent individual
acting in a like capacity and familiar with such matter would use in the conduct
of an enterprise of a like character and with like aims.
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SECTION 6.2. VOTING, TENDERING AND EXERCISING OTHER SHAREHOLDER
RIGHTS WITH RESPECT TO COMPANY STOCK. (a) IN GENERAL. The Trustee shall vote
shares of Company Stock held in the Company Stock Fund (and exercise other
shareholder rights with respect thereto), in person or by proxy, according to
the written instructions of Plan participants timely received by the Trustee on
the instruction form designated by the Plan Administrator.
(b) TENDER OFFERS. In the event a tender offer is made generally to
the shareholders of the Company to transfer all or a portion of their shares of
Company Stock in return for valuable consideration, including but not limited
to, offers regulated by section 14(d) of the Securities Exchange Act of 1934, as
amended, the Trustee shall respond to such tender as the Trustee shall decide in
the Trustee's sole discretion; PROVIDED, HOWEVER, that the Trustee shall tender
or not tender the shares of Company Stock allocated to Participants' accounts
invested in the Company Stock Fund according to the written instructions of the
Participants that have been timely submitted to the Trustee on forms provided by
the Plan Administrator for such purpose. A participant shall not be limited in
the number of instructions to tender or withdraw from tender that he or she may
give, but shall have the right to give instructions to tender or withdraw from
tender as necessary to comply with federal or state laws not preempted by ERISA.
Notwithstanding the foregoing sentence, the Trustee shall provide such
information as an independent tabulator or auditor may require if such tabulator
or auditor shall agree to keep such information confidential.
SECTION 6.3. ADVICE OF COUNSEL. The Trustee may consult with legal
counsel, who may be counsel for any Employer, in respect of any of its rights,
duties or obligations hereunder.
SECTION 6.4. INDEMNIFICATION OF TRUSTEES. The Trustee shall be
indemnified and saved harmless by the Company from and against any and all
claims, loss, damages, expenses and liability to which the Trustee may be
subjected by reason of any act reasonably taken or omitted in
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good faith with respect to the Fund, including all expenses reasonably incurred
in its defense in case the Company fails to provide such defense.
SECTION 6.5. COMPENSATION AND EXPENSES. The Trustee shall be
entitled to such reasonable compensation as may be agreed upon from time to time
by the Company and the Trustee. The Trustee is authorized and directed to pay
from the Fund all reasonable costs, charges and expenses incurred in
administering the Plan and the Fund, including the fees and expenses of the
Trustee, and fees of counsel for the Trustee and other administrative expenses
to the extent such expenses are not paid by the Employers. The Trustee is
authorized, when so directed by the Company, to pay from the Fund any specified
expenses of administration of the Plan.
ARTICLE 7
ACCOUNTS AND REPORTS OF THE TRUSTEE
SECTION 7.1. RECORDS AND ACCOUNTS OF THE TRUSTEE. The Trustee shall
maintain accurate and detailed records and accounts of all transactions of the
Trust and make them available at all reasonable times for inspection or audit by
any person designated by the Committee. At the direction of the Committee, the
Trustee shall submit to the auditors for the Company and to others designated by
the Committee such valuations, reports or other information as they may
reasonably require.
SECTION 7.2. ACCRUAL BASIS FOR ACCOUNTS. All accounts of the Trustee
shall be kept on an accrual basis.
SECTION 7.3. FISCAL YEAR. The fiscal year of the Trust shall be the
plan year of the Plan, and if the Company notifies the Trustee that the plan
year of the Plan has been changed, the Trustee shall take the necessary steps to
change the fiscal year of the Trust to correspond therewith.
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SECTION 7.4. ANNUAL REPORT. As soon as practicable following the
close of each fiscal year of the Trust and following the effective date of the
removal or resignation of any Trustee, the Trustee shall file with the Committee
a written report setting forth all transactions with respect to the Fund during
such fiscal year or during the period from the close of the last fiscal year to
the date of such removal or resignation and listing the assets of the Fund and
the market value thereof as of the close of the period covered by such report.
SECTION 7.5. APPROVAL OF REPORTS. Upon the receipt by the Trustee of
the Committee's written approval of any such report, or upon the expiration of
six months after delivery of any such report to the Committee, such report (as
originally stated if no objection has been theretofore filed by the Committee,
or as theretofore adjusted pursuant to agreement between the Committee and the
Trustee) shall be deemed to be approved by the Company except as to matters, if
any, covered by written objections theretofore delivered to the Trustee by the
Company regarding which the Trustee has not given an explanation or made
adjustments satisfactory to the Company, and the Trustee shall be released and
discharged as to all items, matters and things set forth in such report which
are not covered by such written objections as if such report has been settled
and allowed by a decree of a court having jurisdiction regarding such report and
of the Trustee and the Employers. The Trustee, nevertheless, shall have the
right to have its accounts and reports settled by judicial proceedings if it so
elects, in which the Company and the Trustee shall be the only necessary parties
(although the Trustee may also join such other parties as it may deem
appropriate).
ARTICLE 8
REMOVAL, RESIGNATION AND SUCCESSION OF THE TRUSTEE
SECTION 8.1. REMOVAL. The Company, by resolution of its board of
directors may remove any Trustee at any time, such removal to take effect upon
the effective date of the appointment of a successor Trustee as hereinafter
provided.
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SECTION 8.2. RESIGNATION. Any Trustee may resign by delivering to
the Company a written resignation to take effect upon the 60th day after the
delivery thereof to the Company or upon such earlier date as may be acceptable
to the Company.
SECTION 8.3. APPOINTMENT, QUALIFICATIONS AND POWERS OF SUCCESSOR
TRUSTEE. The Company may appoint additional or successor Trustees at any time
by resolution of its board of directors, such appointment to become effective
upon the delivery to any Trustee then in office and to any removed or resigning
Trustee of a copy of such resolution certified by an officer of the Company and
upon written acceptance of the Trust by the additional or successor Trustee so
appointed. Each additional or successor Trustee shall have all the rights,
powers, title, discretions, duties and immunities given to, or acquired by, the
original Trustee. The legal title to the assets of the Fund shall be and remain
vested in the Trustee from time to time acting hereunder without any transfer or
conveyance to, by, or from any succeeding or retiring Trustee. No successor
Trustee shall be liable for the acts or omissions of any prior Trustee or be
obliged to examine the accounts, words, acts or omissions of any prior Trustee.
If there shall at any time be more than one Trustee acting hereunder, such
Trustees may act at a meeting, or by writing without a meeting, by the unanimous
vote or unanimous written assent; PROVIDED, HOWEVER, that checks drawn in the
name of the Trust or such Trustees and instruments transferring property on
behalf of the Trust or such Trustees need be signed by only one Trustee and,
FURTHER PROVIDED, that any written instruction, direction, request, consent or
other communication delivered to any third party shall, if signed by only one
Trustee, be sufficient to evidence the action of such Trustees and may be
accepted and relied upon by any such recipient as fully as though signed by all
of the Trustees. The term "Trustee" shall refer herein to all of the Trustees
acting hereunder at the time of reference.
SECTION 8.4. CHANGES IN ORGANIZATION OF CORPORATE TRUSTEE. In the
event that any corporate Trustee hereunder shall be converted into, shall merge
or consolidate with, or shall sell or transfer substantially all of its assets
and business to, another corporation, state or federal, the
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corporation resulting from such conversion, merger or consolidation, or the
corporation to which such sale or transfer shall be made, shall thereupon become
and be a Trustee of the Trust with the same effect as though specifically so
named.
ARTICLE 9
AMENDMENT OR TERMINATION
SECTION 9.1. AUTHORITY TO AMEND OR TERMINATE. Subject to Section
9.4, the Committee shall have the right at any time and from time to time to
amend the Trust in any manner, in whole or in part, provided that no amendment
which changes the duties or liabilities of the Trustee shall be made without its
written consent, and the board of directors of the Company shall have the right
to terminate the Trust.
SECTION 9.2. METHOD OF MAKING AMENDMENT. Each amendment of the Trust
shall be made by delivery of a written instrument to the Trustee which sets
forth such amendment as duly executed by the Committee. Such written instrument
(with the consent of the Trustee endorsed thereon, if its duties or liabilities
are changed thereby) shall constitute the instrument of amendment.
SECTION 9.3. TERMINATION OF TRUST. Termination of the Trust shall be
effected by resolution of the board of directors of the Company. Written notice
of such termination, together with a certified copy of such resolution, shall be
delivered to the Trustee, and the Trustee shall dispose of the Fund in the
manner directed in writing by the Company or, in the absence of directions from
the Company, in such manner as may be directed by a judgment or decree of a
court of competent jurisdiction. The powers of the Trustee hereunder shall
continue as long as any assets of the Fund shall remain in its possession.
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SECTION 9.4. DIVERSION OF FUND PROHIBITED. (a) Subject to the
exceptions in paragraphs (b) and (c) below, at no time (either by operation,
amendment or termination of the Plan or Trust, or otherwise) shall any part of
the Fund (other than such part as is required to pay taxes and administration
expenses) be used for, or diverted to, purposes other than for the exclusive
benefit of the Plan participants and their beneficiaries.
(b) Any amount contributed by an Employer by reason of a good faith
mistake of fact, or the amount contributed by an Employer that exceeds the
maximum amount for which a deduction is allowable to such Employer for federal
income tax purposes by reason of a good faith mistake in determining the maximum
allowable deduction, shall upon the request of such Employer be returned by the
Trustee to the Employer. An Employer's request and the return of any such
contribution must be made within one year after the amount was mistakenly
contributed or after the deduction of such excess portion of such contribution
was disallowed, as the case may be. The amount to be returned to an Employer
pursuant to this paragraph shall be the excess of (i) the amount contributed
over (ii) the amount that would have been contributed had there not been a
mistake of fact or a mistake in determining the maximum allowable deduction.
Earnings attributable to the mistaken contribution shall not be returned to the
Employer, but losses attributable thereto shall reduce the amount to be so
returned. If the return to the Employer of the amount attributable to the
mistaken contribution would cause the balance of any Participant's account as of
the date such amount is to be returned (determined as if such date coincided
with the close of a Plan Year) to be reduced to less than what would have been
the balance of such account as of such date had the mistaken amount not been
contributed, the amount to be returned to the Employer shall be limited so as to
avoid such reduction.
(c) If the Internal Revenue Service refuses to issue an initial,
favorable determination letter to the effect that the Plan and Trust Fund as
adopted by an Employer meets the requirements of section 401(a) of the Code and
that the Trust is exempt from tax under section
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501(a) of the Code, the Employer may terminate its participation in the Plan and
the Plan Administrator shall direct the Trustee to pay and deliver to such
Employer the portion of the Fund attributable to the Plan participants who are
employees of such Employer.
ARTICLE 10
CONTINUANCE BY A SUCCESSOR
In the event that any Employer shall be reorganized by way of merger,
consolidation, transfer of assets or otherwise, so that another corporation
other than an Employer shall succeed to all or substantially all of such
Employer's business, such successor corporation may be substituted for such
Employer as a party to the Trust by executing an appropriate supplemental
agreement with the Trustee.
ARTICLE 11
PARTICIPATION BY EMPLOYERS
SECTION 11.1. EMPLOYERS BECOME PARTIES TO TRUST. Any affiliate of
the Company which shall adopt the Plan shall become a party to the Trust by
filing with the Company and the Trustee a duly executed instrument in the form
hereto annexed as "Exhibit A." Moneys thereafter remitted to the Trustee by or
on behalf of such an Employer and its employees and the income therefrom shall
be held by the Trustee as a part of the Fund.
SECTION 11.2. COMPANY APPOINTED AGENT BY EMPLOYERS. Each Employer
which shall become a party to the Trust pursuant to Article 12 of the Trust
shall be deemed to have appointed the Company and the Committee its agents to
exercise on its behalf all of the powers and authorities hereby conferred upon
the Company and the Committee by the terms of the Trust, including, but not by
way of limitation, the power to amend or terminate the Trust. The authority of
the Company and the Committee to act as such agent shall continue unless and
until the portion
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of the Fund held for the benefit of the Plan participants (and their
beneficiaries) who are employees of an Employer is set aside in a separate trust
as provided in Section 11.3.
SECTION 11.3. SEPARATION OF FUND. Each Employer reserves the right
to cause the Trustee to set aside from the Fund such portion of the Fund as the
Company shall determine to be held for the benefit of the Plan participants (and
their beneficiaries) who are employees of such Employer (such Employer being
hereinafter referred to as the "withdrawing employer"). Any portion which is so
segregated shall thereafter constitute a separate trust fund and shall be held
as a separate trust identical to that hereby established, except that with
respect thereto this agreement shall be construed as if the withdrawing employer
were the only Employer named herein. Thereafter with respect to such separate
trust fund all powers and authority herein conferred upon the Company shall
devolve upon the withdrawing employer. Upon the request of a withdrawing
employer, the Company shall give written directions to the Trustee with respect
to such segregation, a copy of which shall be given to each Employer which shall
then be a party to this Trust. Such directions shall specify not only the
amount to be segregated, but the particular assets of the Fund which shall be
used to constitute such separate trust fund. The Trustee shall follow such
directions of the Company which shall constitute a conclusive determination that
the amount and the assets so segregated represent the share which should be held
as a separate trust for the benefit of the employees of the withdrawing employer
and their beneficiaries under the Plan, unless one or more of the Employers
shall file with the Trustee and the Company a written protest within 30 days
after such directions are given to the Trustee.
ARTICLE 12
CONTROLLING LAW AND LEGAL ACTIONS
SECTION 12.1. CONTROLLING LAW. To the extent not preempted by ERISA,
the Trust shall be construed, enforced and administered according to Illinois
law, other than its law respecting choice of law.
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SECTION 12.2. LEGAL ACTIONS. The Company shall have the authority to
enforce the Trust on behalf of any and all persons having or claiming any
interest in the Fund. In any legal action or equitable proceeding pertaining to
the Trust or the Fund or any interest therein or the administration thereof, or
for instructions to the Trustee, the Company and the Trustee shall be the only
necessary parties.
ARTICLE 13
MISCELLANEOUS
SECTION 13.1. PROTECTION OF PERSONS DEALING WITH TRUSTEE. No person
dealing with the Trustee shall be required or entitled to see to the application
of any money paid or property delivered to the Trustee, or to determine whether
or not the Trustee is acting pursuant to authority granted to it hereunder or to
authorizations or directions herein required.
SECTION 13.2. TAX EXEMPTION OF TRUST. The Trust is hereby designated
as constituting a part of a Plan intended to qualify and to be tax exempt under
section 401(a) and section 501(a) of the Code. Until advised otherwise, the
Trustee may conclusively assume that the Trust is exempt from federal income tax
under section 501(a) of the Code.
SECTION 13.3. NO INTEREST IN EMPLOYER GIVEN BY TRUST. Neither the
creation of the Trust nor anything contained in the Trust shall be construed as
giving any person or employee of any Employer any equity or interest in the
assets, business, or affairs of any Employer or any right to continue in the
employ of any Employer.
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ARTICLE 14
EXECUTION
The Trust may be executed in any number of counterparts, each of which
shall be considered an original, and no other counterpart need be produced.
IN WITNESS WHEREOF, the Committee, to evidence the establishment of
the Trust, and the Trustee, to evidence its acceptance of the Trust and its
agreement to perform the duties given or required of it by the Trust, have
caused the Trust to be signed, all on this 26 day of May, 1994.
CLARCOR, INC.
By: /s/David J. Lindsay
--------------------------------
V.P Group Services
---------------------------------
Title
ATTEST:
/s/M.C. Arne
- -----------------
AMCORE BANK N.A., ROCKFORD
By: /s/Lillie L. Rude
----------------------------------------
Executive Vice President & Trust Officer
-----------------------------------------
Title
ATTEST:
/s/ Ann-Marie Carlson
- ---------------------------
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EXHIBIT A
To: ____________________
As Trustee
The undersigned is an "Employer" as defined in the CLARCOR 401(k)
Retirement Savings Plan and hereby elects to join in and become a party to a
certain Trust agreement, dated ____________, 19__, between CLARCOR, Inc. and
you, as Trustee, thereby becoming an "Employer" as provided in Section 11.1 of
such Trust agreement.
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed by its duly authorized officers on this ____ day of ________, 19__.
______________________________
ATTEST: By____________________________
President
_________________________
Secretary
_________________________
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Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-8 of our
reports dated January 7, 1994 on our audits of the financial statements and
financial statement schedules of CLARCOR Inc., included in the Annual Report on
Form 10-K, and our report dated May 20, 1994 on our audits of the financial
statements of the CLARCOR 401(k) Retirement Savings Plan, included in the Annual
Report on Form 11-K, filed concurrently with this Form S-8, which reports are
incorporated herein by reference.
COOPERS & LYBRAND
Rockford, Illinois
May 27, 1994
