As filed with the Securities and Exchange Commission on November 7, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ROBOTIC VISION SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 11-2400145
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
425 Rabro Drive East
Hauppauge, New York 11788
(Address of principal executive offices)
STOCK OWNERSHIP AND DEFERRED COMPENSATION PLAN
(Full title of the Plan)
PAT V. COSTA, President
Robotic Vision Systems, Inc.
425 Rabro Drive East
Hauppauge, New York 11788
(516) 273-9700
(Name, address and telephone number, including area code,
of agent for service)
with a copy to:
IRA I. ROXLAND, Esq.
Parker Duryee Rosoff & Haft
529 Fifth Avenue
New York, New York 10017
(212) 599-0500
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities to Amount to be Price Per Offering Registration
be Registered Registered Share* Price* Fee
------------- ------------ --------- ----------- ------------
Common Stock, 30,000 shs. $ 23 $ 690,000 $ 237.93
par value $.01
per share
- --------------
* Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h).
</TABLE>
Pursuant to Rule 429, promulgated under the Securities Act of 1933, the
Prospectus forming a part of this Registration Statement also relates to
100,000 shares of Common Stock of the Registrant issuable upon exercise of
options granted or to be granted pursuant to the Stock Ownership and Deferred
Compensation Plan and initially included in the Registrant's Registration
Statement on Form S-8 (File No. 33-45474), effective on February 3, 1992.
A filing fee of $100 was previously paid with such earlier Registration
Statement.
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by Robotic Vision Systems, Inc. (the
"Registrant") with the Securities and Exchange Commission, are
incorporated herein by reference and made a part hereof:
1. Registrant's Annual Report on Form 10-K/A for the fiscal year
ended September 30, 1994;
2. Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended December 31, 1994, March 31, 1995 and June 30,
1995;
3. Registrant's Definitive Proxy Statement dated August 9, 1995
relating to the merger between Registrant and Acuity Imaging,
Inc.;
4. Registrant's Current Report on Form 8-K dated October 3, 1995;
5. Registrant's Current Report on Form 8-K dated October 23, 1995;
and
6. Registrant's Registration Statement on Form 8-A (File No. 0-8623)
containing a description of Registrant's Common Stock, par
value $.01 per share (the "Common Stock").
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") after the date of this Registration Statement and prior to the filing of
a post-effective amendment to this Registration Statement which indicates
that all Common Stock registered hereby has been sold or which deregisters
such Common Stock then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
date of filing of such documents (such documents, and the documents listed
above, being hereinafter referred to as "Incorporated Documents"). Any
statement contained in an Incorporated Document shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that
a statement contained herein or in any other subsequently filed Incorporated
Document modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
The Common Stock of Registrant is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not Applicable
Item 6. Indemnification of Directors and Officers.
Article SEVENTH of the Certificate of Incorporation of the
Registrant provides with respect to the indemnification of directors and
officers that the Registrant shall indemnify to the fullest extent permitted
by Section 145 of the Delaware General Corporation Law, as amended from time
to time, each person that such Section grants the Registrant power to
indemnify. Article TENTH of the Certificate of Incorporation of
<PAGE>
the Registrant also provides that no director shall be liable to the
corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except with respect to (1) a breach of the
director's duty of loyalty to the corporation of its stockholders, (2) acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) liability under Section 174 of the Delaware
General Corporation Law or (4) a transaction from which the director derived
an improper personal benefit, it being the intention of the foregoing
provision to eliminate the ability of the corporation's directors to the
corporation or its stockholders to the fullest extent permitted by Section
102(b)(7) of Delaware General Corporation Law, as amended from time to time.
Section 145 of the Delaware Corporation Law provides, inter alia,
that to the extent a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit
or proceeding, whether civil, criminal, administrative or investigative or in
defense of any claim, issue or matter therein (hereinafter, a "Proceeding"),
by reason of the fact that he is or was a director, officer, employee or
agent of a corporation or is or was serving at the request of such corporation
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise (collectively an "Agent"
of the corporation), he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
Section 145 also provides that a corporation may indemnify any
person who was or is a party or is a party or is threatened to be made a party
to any threatened Proceeding by reason of the fact that he is or was an Agent
of the corporation, against expenses (including attorneys' fees) judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful;
provided, however, that in an action by or in the right of the corporation,
the corporation may not indemnify such person in respect of any claim, issue,
or matter as to which he is adjudged to be liable to the corporation unless,
and only to the extent that, the Court of Chancery or the court in which such
proceeding was brought determines that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is reasonably
entitled to indemnity.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4 Robotic Vision Systems, Inc. Stock Ownership and Deferred
Compensation Plan
5 Opinion of Parker Duryee Rosoff & Haft as to the legality of
the Common Stock registered hereby
23(a) Consent of Parker Duryee Rosoff & Haft (Reference is made to
Exhibit 5 herein)
<PAGE>
23(b) Consent of Deloitte & Touche, LLP
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-
effective amendment to this Registration Statement;
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered hereby which remain unsold
at the termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions of the Certificate of
Incorporation of the Registrant and the provisions of the Delaware law
described under Item 6 above, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Village of Hauppauge, State of New York, on
the 7th day of November, 1995.
ROBOTIC VISION SYSTEMS, INC.
By: /s/ Pat V. Costa
Pat V. Costa, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the dates indicated.
Signature Title Date
Chairman of the Board
President and Director
/s/ Pat V. Costa (Principal Executive Officer) November 7, 1995
Pat V. Costa
Executive Vice President,
Secretary/Treasurer and
Director (Principal Financial
Officer and Principal
/s/ Robert H. Walker Accounting Officer November 7, 1995
Robert H. Walker
Senior Vice President
/s/ Howard Stern and Director November 7, 1995
Howard Stern
Director
Donald F. Domnick
/s/ Jay M. Haft Director November 7, 1995
Jay M. Haft
Director
Frank A. DiPietro
Director
Mark J. Lerner
EXHIBIT 4
Robotic Vision Systems, Inc.
Stock Ownership and Deferred Compensation Plan
<PAGE>
TABLE OF CONTENTS
Page No.
ARTICLE 1 - DEFINITIONS
1.01 Account 1
1.02 Anniversary Date 1
1.03 Annuity Starting Date 2
1.04 Applicable Computation Period 2
1.05 Beneficiary 2
1.06 Board of Directors 2
1.07 Committee 2
1.08 Company 2
1.09 Company Stock 2
1.10 Compensation 3
1.11 Controlled or Affiliated Service Group 4
1.12 Disability 5
1.13 Effective Date/Supplemental Effective Date 5
1.14 Election Period 5
1.15 Employee/Eligible Employee 5
1.16 Employer 6
1.17 Highly Compensated Employee/
Nonhighly Compensated Employee 6
1.18 Internal Revenue Code or Code 8
1.19 Member 8
1.20 Plan 8
1.21 Plan Year 9
1.22 Protected Spouse 9
1.23 Qualified Domestic Relations Order 9
1.24 Retirement 9
1.25 Retirement Dates 9
1.26 Service (Break-in-Service - Month of Service -
Year of Service - Hour of Employment) 9
1.27 Trust Agreement 11
1.28 Trustee 11
1.29 Trust Fund 11
1.30 Valuation Date 11
ARTICLE 2 - ELIGIBILITY AND MEMBERSHIP
2.01 Eligibility for Membership 12
2.02 Change in Employment Status 13
<PAGE>
TABLE OF CONTENTS
Page No.
ARTICLE 3 - CONTRIBUTIONS
3.01 Pay Conversion Contributions 14
3.02 Reduction of Excess Pay Conversion
Contributions 15
3.03 Matching and Stock Contributions 15
3.04 Voluntary Contributions 17
3.05 Contribution Changes 17
3.06 Discontinuance of Contributions 17
3.07 Rollover Contributions from Other
Qualified Plans 18
3.08 Transfer of Assets 19
3.09 Deposit of Contributions 19
3.10 Payment of Expenses 19
ARTICLE 4 - CONTRIBUTIONS LIMITATIONS
4.01 $7,000 Limitation on Pay Conversion
Contributions 20
4.02 Limitation on Pay Conversion, Matching
and Voluntary Contributions 20
4.03 Limitation on Allocations 24
ARTICLE 5 - MAINTENANCE OF ACCOUNTS, INVESTMENT FUNDS AND
VALUATION OF THE TRUST FUND
5.01 Maintenance of Accounts 29
5.02 Investment Election 29
5.03 Investment Funds 30
5.04 Valuation of Trust Fund 31
5.05 Allocation of Investment Earnings and
Expenses 31
5.06 Voting Company Stock 31
ARTICLE 6 - BENEFITS PAYABLE UPON TERMINATION OF EMPLOYMENT
6.01 Upon Retirement 32
6.02 Upon Disability 32
6.03 Upon Death 32
6.04 Upon Other Termination of Employment 33
6.05 Reemployment and Repayment of Benefits 34
<PAGE>
TABLE OF CONTENTS
Page No.
ARTICLE 7 - DISTRIBUTION OF BENEFITS
7.01 Claim Procedure For Benefits 35
7.02 Commencement of Benefits 35
7.03 Method and Form of Payment of Benefits 38
7.04 Disposition of Unclaimed Benefits 40
7.05 Non-Assignability 40
7.06 Substitute Payee 40
7.07 Satisfaction of Liability 40
7.08 Direct Rollover to Eligible Retirement Plan 40
ARTICLE 8 - ADMINISTRATION OF THE PLAN
8.01 Assignment of Administrative Authority 42
8.02 Organization and Operation of the Committee 42
8.03 Authority and Responsibility 43
8.04 Records and Reports 44
8.05 Required Information 44
8.06 Fiduciary Liability 44
8.07 Payment of Expenses 45
8.08 Indemnification 45
8.09 Qualified Domestic Relations Order 45
ARTICLE 9 - AMENDMENT AND TERMINATION
9.01 Amendment 49
9.02 Termination 49
9.03 Vesting Upon Termination 50
9.04 Distribution of Benefits After Termination 50
ARTICLE 10 - PARTICIPATING COMPANIES
10.01 Adoption by Other Entities 51
10.02 Alternative Provisions 51
10.03 Right to Withdraw (Plan Spinoff) 51
10.04 Procedure Upon Withdrawal 51
<PAGE>
TABLE OF CONTENTS
Page No.
ARTICLE 11 - TOP-HEAVY PROVISIONS
11.01 Definition of Top-Heavy and Super
Top-Heavy 52
11.02 Definition of Key Employee 53
11.03 Minimum Employer Contribution 53
11.04 Limitation of Allocations 55
ARTICLE 12 - WITHDRAWAL OF FUNDS DURING EMPLOYMENT
12.01 Withdrawals from Accounts A and D 56
12.02 Withdrawals from Accounts B and C 56
12.03 Withdrawals from Account E 56
12.04 Financial Hardship Rules 56
12.05 General Withdrawal Rules 58
ARTICLE 13 - LOANS
13.01 Activation of Loan Provisions 59
13.02 Amount of Loans and Terms of Repayment 59
ARTICLE 14 - GENERAL PROVISIONS
14.01 Exclusiveness of Benefits 62
14.02 Limitation of Rights 62
14.03 Limitation of Liability and Legal Actions 62
14.04 Construction of Agreement 62
14.05 Title to Assets 63
14.06 Severability 63
14.07 Titles and Headings 63
14.08 Counterparts as Original 63
14.09 Merger of Plans 63
<PAGE>
Robotic Vision Systems, Inc.
Stock Ownership and Deferred Compensation Plan
STATEMENT OF PURPOSE
Robotic Vision Systems, Inc. has had in effect since October 1, 1986 the
Robotic Vision Systems, Inc. Stock Ownership and Deferred Compensation Plan,
to which it made contributions for the purpose of sharing its profits with
its employees in order to provide for the accumulation of funds for the
benefit of eligible employees and their beneficiaries in the manner and to
the extent set forth in such plan.
The Robotic Vision Systems, Inc. Stock Ownership and Deferred Compensation
Plan, hereinafter set forth, constitutes an amendment in its entirety to said
Plan which is continued effective as of October 1, 1989 with respect to
employees and members who had not yet retired, terminated employment or died
as of such date. The rights of anyone covered under the Plan prior to
October 1, 1989, who retired, terminated employment or died before that date,
shall be determined in accordance with the terms and provisions of the Plan
in effect on the date of such retirement, termination of employment or death,
except as otherwise specifically provided herein.
<PAGE>
ARTICLE 1
DEFINITIONS
For purposes of the Plan, the following words and phrases shall have the
following meanings unless a different meaning is plainly required by the
context. Wherever used, the masculine pronoun shall include the feminine
pronoun and the feminine pronoun shall include the masculine and the singular
shall include the plural and the plural shall include the singular.
1.01 "Account"
The interest of a Member in the Trust Fund as represented by his
Accounts "A", "B", "C", "D" and "E".
(a) "Account A" - Portion of Trust Fund attributable to a Member's
Pay Conversion Contributions in accordance with the provisions of
Section 3.01.
(b) "Account B" - Portion of Trust Fund attributable to the Company's
(i) Matching Contributions in accordance with the provisions of
Subsection 3.03(a); and
(ii) Additional Matching Contributions in accordance with the
provisions of Subsection 3.03(b).
(c) "Account C" - Portion of Trust Fund attributable to the Company's
Stock Contributions in accordance with the provisions of
Subsection 3.03(c) and Top-Heavy Contributions in accordance with
Article 11.
(d) "Account D" - Portion of Trust Fund attributable to any rollover
or transfer contributions of distributions received from other
qualified Plans (at the discretion of the Committee).
(e) "Account E" - Portion of Trust Fund attributable to a Member's
Voluntary Contributions in accordance with the provisions of
Section 3.04, including any Voluntary Contributions under the
Robotic Vision Systems, Inc. Pension Plan (as amended) transferred
to this Plan. This account also includes any Company stock
purchased by a Member with aftertax dollars, pursuant to a special
Company Stock offering, which the Member elects to contribute.
1.02 "Anniversary Date"
Each October 1 after the Effective Date.
<PAGE>
1.03 "Annuity Starting Date"
The first day of the first period for which an amount is payable as an
annuity. If a benefit is not payable in the form of an annuity, the
first day on which all events have occurred which entitle the Member to
such benefit.
1.04 "Applicable Computation Period"
(a) For purposes of Hours of Employment for eligibility in accordance
with Section 2.01, an Employee's first Applicable Computation
Period shall be the 12-month period beginning as of the date he
first completed an Hour of Employment with an Employer. Thereafter,
such Employee's Applicable Computation Period shall be each Plan
Year, commencing with the Plan Year which begins after the date he
first completed an Hour of Employment.
(b) For purposes of contributions in accordance with Articles 3 and 11,
Applicable Computation Period shall be a Plan Year.
(c) For all other purposes, Applicable Computation Period shall be the
12-month period beginning as of the first day of the month during
which a person first completed an Hour of Employment with the
Employer and each anniversary thereof.
1.05 "Beneficiary"
The person designated to receive benefits payable under the Plan in the
event of death. In the event a Beneficiary is not designated, the
Member's surviving spouse shall be deemed his Beneficiary or in the
absence of a surviving spouse, the benefits shall be paid to the Member's
estate.
1.06 "Board of Directors"
The Board of Directors of Robotic Vision Systems, Inc.
1.07 "Committee"
The persons appointed in accordance with Section 8.01 to administer the
Plan.
1.08 "Company"
(a) Robotic Vision Systems, Inc. and any successor which shall
maintain this Plan; and
(b) any other business entity which duly adopts the Plan with the
approval of the Board of Directors.
1.09 "Company Stock"
Shares of Common Stock which are issued by the Company.
<PAGE>
1.10 "Compensation"
(a) Unless otherwise indicated, the amount described in Subsection (c),
exclusive of any (i) amount which is paid by the Employer but not
by the Company; and (ii) amount paid before an Eligible Employee
was eligible to become a Member in accordance with Section 2.01.
For purposes of Section 3.01, third party insurance payments shall
be excluded.
(b) For purposes of Section 4.03, the Member's wages for the Plan Year
paid by the Employer of the type reported in box 10 of Form W-2
(1991). Such wages shall include amounts within the meaning of
Section 3401(a) of the Code plus any other amounts paid to the
Member by the Employer for which the Employer is required to furnish
a written statement under Section 6041(d) and 6051(a)(3) of the
Code, determined without regard to any rules that limit the amount
required to be reported based on the nature or location of the
employment or services performed, exclusive of
(i) non-qualified deferred compensation payments;
(ii) any amounts paid or reimbursed by the Employer for moving
expenses which the Employer reasonably believes at the time
of such payment to be deductible by the Employee under
Section 217 of the Code; and
(iii) welfare benefits, fringe benefits (cash and non-cash),
reimbursements of other expense allowances, moving expenses
and deferred compensation.
(c) For purposes of Sections 1.17 and 4.02 and Article 11, the amount
described in Subsection (b) increased by the amount of any
contributions made by the Employer under any salary reduction or
similar arrangement to a qualified deferred compensation, pension
or cafeteria plan, contributions to a simplified employee pension
plan described in Section 408(k) of the Code, contributions
towards the purchase of an annuity contract described in Section
403(b) of the Code, compensation deferred under a deferred
compensation plan within the meaning of Section 457(b) of the Code
and Employee contribution (under governmental plans described in
Section 414(h)(2) of the Code which are picked up and treated as
Employer contributions. For purposes of Section 1.16, the amount
described above shall be for the applicable period for making the
determination of Highly Compensated Employees.
Notwithstanding the foregoing provisions, for any Plan Year the amounts
described above in Subsections (a), (b) and (c) shall not exceed $200,000
in accordance with Section 401(a)(17) of the Code, adjusted annually for
increases in the cost-of-living in accordance with Section 415(d) of the
Code, effective as of January 1 of the calendar year such increase is
promulgated and applicable to the Plan Year which begins with or within
such calendar year, or such other amount as determined under Section
401(a)(17) of the Code and Regulations thereunder. For purposes of
determining such $200,000 limitation, the rules of Section 414(q)(6) of
the Code, pertaining to family members, shall apply, except that the
term "family member" shall include only the spouse of the Member and any
lineal descendants of the Member who have not attained age 19 before the
<PAGE>
close of the year. Any Compensation in excess of that amount shall be
prorated among family members in accordance with Section 401(a)(17) of
the Code.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for
Plan Years beginning on or after January 1, 1994, the annual Compensation
of each Employee taken into account under the Plan shall not exceed the
OBRA '93 annual Compensation limit. The OBRA '93 annual Compensation
limit is $150,000, as adjusted by the Commissioner for increases in the
cost of living in accordance with Section 401(a)(17)(B) of the Internal
Revenue Code. The cost-of-living adjustment in effect for a calendar
year applies to any period, not exceeding 12 months, over which
Compensation is determined (determination period) beginning in such
calendar year. If a determination period consists of fewer than 12
months, the OBRA '93 annual Compensation limit will be multiplied by a
fraction, the numerator of which is the number of months in the
determination period and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under Section 401(a)(17) of the Code shall
mean the OBRA '93 annual Compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into account
in determining an Employee's benefits accruing in the current Plan Year,
the Compensation for that prior determination period is subject to the
OBRA '93 annual Compensation limit in effect for that prior determination
period. For this purpose, for determination periods beginning before the
first day of the first Plan Year beginning on or after January 1, 1994,
the OBRA '93 annual Compensation limit is $150,000.
For purposes of determining such $150,000 limitation, the rules of
Section 414(q)(6) of the Code, pertaining to family members, shall apply,
except that the term "family member" shall include only the spouse of the
Member and any lineal descendants of the Member who have not attained age
19 before the close of the year. Any Compensation in excess of that
amount shall be prorated among family members in accordance with Section
401(a)(17) of the Code.
1.11 "Controlled or Affiliated Service Group"
(a) "Controlled Group" - Any group of business entities under common
control, including but not limited to proprietorships and
partnerships, or a controlled group of corporations within the
meaning of Section 4l4(b), (c) and (o) of the Code. For purposes
of Section 4.03, the phrase "more than 50%" is substituted for the
phrase "at least 80%" each place it appears in Section 1563(a)(1)
of the Code.
(b) "Affiliated Service Group" - Any group of business entities within
the meaning of Section 414(m) of the Code.
<PAGE>
1.12 "Disability"
Any physical or mental condition for which a Member shall be eligible to
receive benefits under the disability insurance provisions of the Social
Security Act.
1.13 "Effective Date"
October 1, 1986, the date as of which the Plan was established.
"Supplemental Effective Date"
October 1, 1989, the last date as of which the Plan was amended in its
entirety.
Unless otherwise provided herein, those provisions added or amended to
comply with the Tax Reform Act of 1986 required to be effective as of
October 1, 1987 shall be effective as of such date.
1.14 "Election Period"
The period commencing 90 days before the Annuity Starting Date and
ending on such Annuity Starting Date.
1.15 "Employee"
Any person in the employ of the Company.
Leased Employees shall be included as Employees unless (i) such individual
is covered by a money purchase pension plan providing (A) a nonintegrated
employer contribution rate of at least 10 percent of compensation, as
defined in Section 415(c)(3) of the Code, but including amounts
contributed by the employer pursuant to a salary reduction agreement
which are excludable from the Leased Employee's gross income under Section
125, 401(a)(8), 403(h) or 403(b) of the Code; (B) immediate participation;
and (C) full and immediate vesting; and (ii) Leased Employees do not
constitute more than 20% of the Employer's Nonhighly Compensated Employee
workforce.
"Eligible Employee"
An Employee for whom the Company is required to contribute Federal
Insurance Contributions Act taxes excluding persons (a) who are Leased
Employees, and (b) under the jurisdiction of a collective bargaining
unit (i) having a pension or profit-sharing plan to which the Company
is required to contribute under the terms of the collective bargaining
agreement or (ii) for whom retirement benefits were the subject of good
faith bargaining.
Notwithstanding the above, Leased Employees shall be included in the
definition of Eligible Employee if the requirements of Section 414(n)(2)
of the Code require such inclusion in order to meet the plan qualification
requirements enumerated in Section 414(n) and then only if the coverage
requirements of Section 410(b) of the Code would otherwise not be met.
"Leased Employee"
Any person (other than an Employee of the recipient) who pursuant to an
agreement between the recipient and any other person ("leasing
organization") has performed services for the recipient (or for the
recipient and related persons determined in accordance with Section
414(n)(6) of the Code) on a substantially full time basis for a period
of at least one year, and such services are of a type historically
performed by employees in the business field of the recipient employer.
Contributions or benefits provided a Leased Employee by the leasing
organization which are attributable to services performed for the
recipient employer shall be treated as provided by the recipient
employer.
Notwithstanding any provisions of the Plan to the contrary, except for
purposes of the definition of Highly Compensated Employee, Key Employee
and Service and as used in this amendment, wherever the term "Employee"
appears in the Plan it shall be amended to read "Eligible Employee".
1.16 "Employer"
The Company and any other business entity in a Controlled or Affiliated
Service Group which includes the Company.
1.17 "Highly Compensated Employee"
(a) An Employee who is a Highly Compensated Active Employee or a
Highly Compensated Former Employee.
(b) A Highly Compensated Active Employee is any Employee who performs
Service with the Employer during the Determination Year and is
described in either the Look-back Year Group or the Determination
Year Group or both such groups.
(i) The Look-back Year Group includes any Employee who (A) was at
any time during the Look-back Year a 5% owner, as defined in
Section 416(i)(1) of the Code; (B) received Compensation from
the Employer in excess of $75,000; (C) received Compensation
from the Employer in excess of $50,000 and was in the Top-Paid
Group, as defined in Section 414(q) of the Internal Revenue
Code, of employees for such Look-back Year; or (D) was at any
time an officer and received Compensation greater than 50% of
the maximum dollar limitation under Section 415(b)(1)(A) of
the Code.
The 415(b)(1)(A) limitation and the $75,000 and $50,000
thresholds set forth above shall be adjusted annually for
increases in the cost-of-living in accordance with Section
415(d) of the Code, effective as of January 1 of the calendar
year such increase is promulgated and applicable to the Plan
Year which begins with or within such calendar year.
(ii) The Determination Year Group includes any Eligible Employee
who (A) was at any time during the Determination Year a 5%
owner, as defined in Section 416(i)(1) of the Code; or (B) is
both (1) described in Subparagraphs (i)(B), (i)(C) or (i)(D)
above substituting the Determination Year for the Look-back
Year; and (2) a member of the group consisting of the 100
employees paid the greatest Compensation during the
Determination Year of reference.
(c) A Highly Compensated Former Employee for a Determination Year is
any former Employee who separated from Service prior to such
Determination Year and was a Highly Compensated Active Employee for
either the year in which such Employee separated Service or any
Determination Year ending on or after such Employee's 55th birthday.
(d) For purposes of this definition, the following shall be applicable:
(i) The Determination Year is the applicable Plan Year for which a
determination is being made and the Look-back Year is the 12-
month period immediately preceding such Plan Year.
(ii) If there are no officers as described above in either the
Determination Year or the Look-back Year, then the highest paid
officer of the Employer in each such year shall be deemed a
Highly Compensated Employee with respect to such year.
(iii) The determination of Highly Compensated Employees, including
the determinations of the number and identity of Employees in
the Top-Paid Group, the top 100 Employees and the number of
Employees treated as officers shall be governed by Section
414(q) of the Code and Internal Revenue Service Regulation
1.414(q)-1T.
(iv) The Compensation and contributions under the Plan of a Highly
Compensated Employee who is a 5% owner or in the group
consisting of the 10 Highly Compensated Employees paid the
greatest Compensation during any Determination Year or Look-
back Year shall be determined by aggregating such amounts
with the Compensation and contributions of each other
Employee who is the spouse, lineal ascendant or descendant or
spouse of a lineal ascendant or descendant of such Highly
Compensated Employee.
(e) The Company may make the following elections as provided for in
Internal Revenue Service Regulation 1.414(q)-1T:
(i) the special rule for determining Highly Compensated Former
Employees who separated from Service before January 1, 1987
in accordance with Internal Revenue Service Regulation
1.414(q)-1T, Q&A 4(d). However, once such an election is
made it may not be changed without the consent of the
Commissioner;
(ii) the calendar year election for the Look-back Year in
accordance with Internal Revenue Service Regulation
1.414(q)-1T, Q&A 14(b);
(iii) the modification on a consistent and uniform basis of the
permissible age and service exclusions in accordance with
Internal Revenue Service Regulation 1.414(q)-1T, Q&A 9(b)(2);
(iv) the inclusion of employees covered under a collective
bargaining agreement in accordance with Internal Revenue
Service Regulation 1.414(q)-1T, Q&A 9(b)(2);
(v) the inclusion of leased employees in determining the highly
compensated group in accordance with Internal Revenue Service
Regulation 1.414(q)-1T, Q&A 7(b)(4); and
(vi) the transitional rule in accordance with Internal Revenue
Service Regulation 1.414(q)-1T, Q&A 15.
"Eligible Highly Compensated Employee" - A Highly Compensated Employee
who is an Eligible Employee.
"Nonhighly Compensated Employee" - An Employee who is not deemed to be a
Highly Compensated Employee.
"Eligible Nonhighly Compensated Employee" - A Nonhighly Compensated
Employee who is an Eligible Employee.
1.18 "Internal Revenue Code" or "Code"
The Internal Revenue Code of 1986, and any amendments thereto.
1.19 "Member"
(a) An Employee who participates under the Plan in accordance with
Section 2.01.
(b) Each other Employee or former Employee for whom an Account is
maintained.
1.20 "Plan"
The Plan of the Company, as herein set forth and as from time to time
supplemented and amended, which Plan is intended to be a profit-sharing
Plan for purposes of Sections 401(a), 402, 412 and 417 of the Code.
<PAGE>
1.21 "Plan Year"
A period of 12 consecutive months commencing on the Effective Date and
each Anniversary Date thereof.
1.22 "Protected Spouse"
The spouse to whom the Member had been legally married on the date of
the Member's death.
1.23 "Qualified Domestic Relations Order"
A domestic relations order as defined in Section 414(p) of the Code.
1.24 "Retirement"
The termination of employment of a Member on his Normal or Deferred
Retirement Date.
1.25 "Retirement Dates"
(a) "Normal Retirement Date" - The date on which the Member attains
age 65.
(b) "Deferred Retirement Date" - The first day of any month subsequent
to the Member's Normal Retirement Date.
1.26 "Service"
(a) All periods of employment with an Employer.
A period of employment begins as of the date the Employee first
completes an Hour of Employment for the Employer and ends on the
earlier of the date the Employee resigns, is discharged, retires
or dies or, if the Employee is absent for any other reason, on the
first anniversary of the first day of such absence (with or without
pay) from the Employer. If an Employee is absent for any reason
and returns to the employ of the Employer before incurring a Break-
in-Service, as provided in Subsection (b), he shall receive credit
for his period of absence up to a maximum of 12 months. Service
subsequent to a Break-in-Service will be credited as a separate
period of employment.
(b) "Break-in-Service" - A period of 12-consecutive months during which
an Employee fails to accrue an Hour of Employment with the Employer.
Such period begins on the earlier of the date the Employee resigns,
is discharged, retires or dies or, if the Employee is absent for any
other reason, on the first anniversary of the first day of such
absence (with or without pay) from the Employer. If an Employee is
absent by reason of (i) the pregnancy of the Employee, (ii) the
birth of a child of the Employee, (iii) the placement of a child
with the Employee in connection with an adoption of such child by
such Employee, or (iv) caring for such child immediately following
such birth or placement,
<PAGE>
such Employee will not be treated as having retired, resigned or
been discharged and the period between the first and second
anniversary of the first day of such absence shall not be deemed
a Break-in-Service.
(c) If an Employee, who did not have a vested interest in his Account in
accordance with the provisions of Section 6.04, incurs five or more
consecutive Breaks-in-Service and is then reemployed by the Employer,
he shall be deemed a new Employee and shall not receive credit for
his Service prior to the date he incurred such Breaks-in-Service
unless his Service was equal to or greater than the period of his
absence.
(d) "Month of Service" - A calendar month any part of which is in a
period of employment or credited absence.
(e) "Year of Service" - Unless otherwise indicated, 12 Months of Service.
(f) "Hour of Employment"
(i) For an Employee paid on an hourly basis or for whom hourly
records of employment are required to be maintained, each hour
for which the person is directly or indirectly paid or entitled
to payment for the performance of duties or for the period of
time when no duties are performed, irrespective of whether the
employment relationship has terminated, such as vacation,
holiday or illness.
(ii) For an Employee paid on a non-hourly basis or for whom hourly
records of employment are not required to be maintained, each
week for which the person is directly or indirectly paid or
entitled to payment shall be equal to 45 Hours of Employment.
(iii) A person shall receive an Hour of Employment for each hour for
which back pay has been awarded or agreed to irrespective of
mitigation of damages, provided that each such hour shall be
credited to the Applicable Computation Period to which it
pertains, rather than the Applicable Computation Period in
which the award or agreement is made, and further provided
that no such award or agreement shall have the effect of
crediting an Hour of Employment for any hour for which the
person previously received credit under (i) or (ii) above.
(iv) Notwithstanding the foregoing, Hours of Employment shall be
computed and credited in accordance with Department of Labor
Regulation 2530.200(b)-2, Subparagraphs (b) and (c).
(g) An Employee shall receive credit for the period of his employment
with another business entity to which he had been transferred by
the Company solely for purposes of determining his vested interest
in accordance with Section 6.04.
<PAGE>
1.27 "Trust Agreement"
The instrument executed by the Company and the Trustee fixing the rights
and liabilities of each with respect to holding and administering the
Trust Fund for the purposes of the Plan.
1.28 "Trustee"
The Trustee or any successor Trustee, appointed by the Board of
Directors, acting in accordance with the terms of the Trust Agreement.
1.29 "Trust Fund"
All assets held by the Trustee in accordance with the terms of the Trust
Agreement.
1.30 "Valuation Date"
The last day of each Plan Year or such other date as the Committee may
determine from time to time. Effective October 1, 1993, the last day of
each March, June, September and December or such other date as the
Committee may determine from time to time.
<PAGE>
ARTICLE 2
ELIGIBILITY AND MEMBERSHIP
2.01 Eligibility for Membership
(a) Each Employee on the Supplemental Effective Date who was a Member
of the Plan shall continue as a Member as of the Supplemental
Effective Date.
(b) Each other Eligible Employee shall become a Member as of the
Supplemental Effective Date or the October 1 or April 1 coincident
with or next following the later of the date he completes one Year
of Service or attains age 18. For purposes of this Section, Year
of Service shall mean an Applicable Computation Period in which
the Employee completes 1,000 Hours of Employment with the Employer.
(c) If a person otherwise satisfied the eligibility requirements of
this Section and subsequently becomes an Employee, he shall be
eligible to become a Member as of the date he became an Employee
and may elect to comply with the provisions of Section 3.01 as of
such date or any subsequent October 1 or April 1.
Effective October 1, 1993, if a person otherwise satisfied the
eligibility requirements of this Section and subsequently becomes
an Employee, he shall be eligible to become a Member as of the date
he became an Employee and may elect to comply with the provisions of
Section 3.01 as of such date or any subsequent October 1, January 1,
April 1 or July 1.
(d) If a former Member is reemployed, he shall be eligible to resume his
membership as of the date of his reemployment. Such Member may
elect to comply with the provisions of Section 3.01 as of the date of
his reemployment or any subsequent October 1 or April 1.
Effective October 1, 1993, if a former Member is reemployed, he shall
be eligible to resume his membership as of the date of his
reemployment. Such Member may elect to comply with the provisions of
Section 3.01 as of the date of his reemployment or any subsequent
October 1, January 1, April 1 or July 1.
(e) Effective October 1, 1993, each other Eligible Employee shall become
a Member as of the October 1, January 1, April 1 or July 1 coincident
with or next following the later of the date he completes three
consecutive Months of Service or attains age 18, providing he
completes 250 Hours of Employment with the Employer during such three
month period.
Notwithstanding the above, an Employee hired on a "temporary basis"
shall become a Member as of the October 1, January 1, April 1 or
July 1 coincident with or next following the later of the date he
completes one Year of Service or attains age 18. For purposes of
this Section, a Year of Service shall mean an Applicable Computation
Period
<PAGE>
in which the Employee completes 1,000 Hours of Employment with the
Employer. For purposes of this Section, a "temporary basis" means
employment that is expected to be for less than one year and for
less than 1,000 Hours of Employment with the Employer.
2.02 Change in Employment Status
(a) In the event a Member ceases to be an Eligible Employee as the
result of becoming part of an excluded class, only Compensation up
to the date he ceased to be an Eligible Employee shall be
considered for purposes of contributions in accordance with
Articles 3 and 11. Such Employee shall remain a Member but shall
not be permitted to contribute in accordance with Article 3 or
share in any Company contributions or forfeitures allocated in
accordance with Articles 3 and 11 for the period beyond the date
he ceased to be an Eligible Employee.
In the event such Member returns to an eligible class and again
becomes an Eligible Employee, he shall be permitted to share in
Company contributions or forfeitures allocated in accordance with
Articles 3 and 11 as of the date he again became an Eligible
Employee and may elect to comply with the provisions of Section
3.01 as of such date or any subsequent October 1 or April 1.
Effective October 1, 1993, such Member may elect to comply with
the provisions of Section 3.01 as of the date he again becomes an
Eligible Employee or any subsequent October 1, January 1, April 1
or July 1. Only Compensation from the date he again became an
Eligible Employee shall be considered for purposes of such
contributions.
(b) If a person otherwise satisfied the eligibility requirements of
Section 2.01 and subsequently becomes an Eligible Employee, he
shall be eligible to become a Participant as of the date he became
an Eligible Employee.
(c) In the event a collective bargaining agreement is entered into
between the Company and a representative for any class of
Employees in the employ of the Company subsequent to the
Supplemental Effective Date, eligibility for participation in the
Plan by such Employees who are not Members shall not be extended
beyond the effective date of the collective bargaining agreement
unless the agreement extends participation in the Plan to such
Employees. The provisions of Subsection (a) shall apply to those
Employees who are currently Members.
<PAGE>
ARTICLE 3
CONTRIBUTIONS
3.01 Pay Conversion Contributions
A Member may, when first eligible or as of any subsequent October 1 or
April 1 elect to save, through pay reduction each payroll period, no
less than 2% nor more than 10%, in whole percentages, of that portion of
his Compensation attributable to such payroll period, subject to the
limitations on Elective Deferral Contributions under Sections 4.01 and
4.02 and the limitations on annual additions under Section 4.03.
Effective October 1, 1993, a Member may, when first eligible or as of
any subsequent October 1, January 1, April 1 or July 1 elect to save,
through pay reduction each payroll period, no less than 2% nor more than
10%, in whole percentages, of that portion of his Compensation
attributable to such payroll period, subject to the limitations on
Elective Deferral Contributions under Sections 4.01 and 4.02 and the
limitations on annual additions under Section 4.03.
Effective October 1, 1995, a Member may, when first eligible or as of
any subsequent October 1, January 1, April 1 or July 1 elect to save,
through pay reduction each payroll period, no less than 2% nor more than
15%, in whole percentages, of that portion of his Compensation
attributable to such payroll period, subject to the limitations on
Elective Deferral Contributions under Sections 4.01 and 4.02 and the
limitations on annual additions under Section 4.03.
Such contributions shall take the form of before-tax contributions
(hereinafter known as "Pay Conversion Contributions") and shall be
deemed to be Company contributions for purposes of Section 414(h) of the
Code.
(a) An initial written election must be made by an Employee and
submitted to the Committee at least 30 days (or such other period
as the Committee may fix from time to time) prior to the first
date the Employee would be eligible to become a Member of the Plan
in accordance with Section 2.01 or any subsequent October 1 or
April 1.
Effective October 1, 1993, an initial written election must be
made by an Employee and submitted to the Committee at least 30
days (or such other period as the Committee may fix from time to
time) prior to the first date the Employee would be eligible to
become a Member of the Plan in accordance with Section 2.01 or
any subsequent October 1, January 1, April 1 or July 1.
(b) An election, once made, shall remain in effect until subsequently
changed by the Employee in accordance with the provisions of
Section 3.05 or 3.06.
<PAGE>
3.02 Reduction of Excess Pay Conversion Contributions
If Pay Conversion Contributions under Section 3.01 are projected to
exceed the limitations of Sections 4.01 or 4.02 at any time during a
Plan Year, the Committee, in a good faith effort to comply with such
limitation, retains the right to reduce the rate of pay reductions made
by Highly Compensated Employees. Such reduction shall be made in the
sole discretion of the Committee and shall be accomplished by
progressively reducing the Pay Conversion Contributions of those Highly
Compensated Employees with the highest deferral percentage until the
limitations are met.
Contributions made prior to the date of such reduction shall be deemed
to be made pro rata throughout the Plan Year of reference for purposes
of entitlement to a Matching Contribution under Section 3.03.
3.03 Matching and Stock Contributions
Subject to the limitations on annual additions under Section 4.03, the
Company shall contribute the following amounts:
(a) Matching Contributions - 25% of that portion of the Member's Pay
Conversion Contributions each Plan Year which does not exceed 6%
of the Member's Compensation for such Plan Year will be credited
to the Member's Account B. Matching Contributions shall be so
allocated to Members who are in the employ of the Company on the
last business day of the Plan Year. Only Pay Conversion
Contributions which are not required to be restricted under
Sections 3.02, 4.01 or 4.02 shall be matched. No Matching
Contribution will be provided in excess of the limitations under
Subsections 4.02(b) and (c).
(b) Additional Matching Contributions - For any Plan Year, the Company
may contribute such additional amounts as it shall determine.
Such Additional Matching Contributions shall be allocated to
Members in the employ of the Company on the last business day of
such Plan Year in the same proportion that the Pay Conversion
Contributions of each such Member for such Plan Year bears to the
aggregate Pay Conversion Contributions of all Members for such
Plan Year, taking into consideration only that portion of each
Member's Pay Conversion Contributions which does not exceed 6% of
such Member's Compensation for such Plan Year.
Notwithstanding the foregoing provision of (a) and (b) above, a Member
otherwise eligible shall share in such Matching and Additional
Contributions for the Plan Year of (i) his Retirement, Disability or
death, (ii) the commencement of a "leave of absence" authorized by the
Company or (iii) his transfer to another business entity to which such
Member had been transferred by the Company, even if the Member is not
in the employ of the Company on the last business day of such Plan Year.
<PAGE>
As used herein, "leave of absence" shall mean a leave granted for
pregnancy, Disability, sickness, death or any other family obligation or
status; personal or family hardship or special business circumstances;
educational purposes; and/or civic, charitable or governmental services,
provided that all Employees under similar circumstances shall be treated
in a similar manner.
(c) Company Stock Contributions - Such amount as the Company shall
determine for each Plan Year, which, along with forfeitures, shall
be allocated to each Member in the same proportion that his
Compensation bears to the aggregate Compensation of all Members
for such Plan Year, provided the Member is in the employ of the
Company on the last business day of such Plan Year and completes
1,000 Hours of Employment with the Company during such Plan Year,
which amount shall be credited at the end of the Plan Year.
Notwithstanding the foregoing provision, a Member shall be
entitled to a share of the Company's Stock Contributions plus
forfeitures, if any, for the Plan Year of (i) his Retirement,
Disability or death, (ii) the commencement or end of a "leave of
absence" authorized by the Company or (iii) his transfer to
another business entity to which such Member had been transferred
by the Company, even if the Member is not in the employ of the
Company on the last business day of such Plan Year or does not
complete 1,000 Hours of Employment during such Plan Year.
As used herein, "leave of absence" shall mean a leave granted for
pregnancy, Disability, sickness, death or any other family
obligation or status; personal or family hardship or special
business circumstances; educational purposes; and/or civic,
charitable or governmental services, provided that all Employees
under similar circumstances shall be treated in a similar manner.
A Member shall not share in the allocation of the Company's stock
contributions or forfeitures for any Plan Year during which he
terminated his employment for reasons other than specified in (i),
(ii) or (iii) even if he had completed 1,000 Hours of Employment
with the Company during such Plan Year.
Company contributions shall be made in cash or Company Stock,
subject to the provisions of Article 5.
Effective October 1, 1994, the Company shall no longer allocate Company
Stock Contributions and forfeitures as provided in this Section 3.03(c).
Notwithstanding the above, in the event the Plan fails to meet the
requirements of Section 401(a)(26) or 410(b) of the Code, those Members
who are in the employ of the Company as of the last business day of the
Plan Year but who did not complete 1,000 Hours of Employment during
such Plan Year shall share in the allocation of the Company's Stock
<PAGE>
Contribution to the extent necessary by progressively including those
Members with the greatest number of Hours of Employment until such
requirements are met. If after the inclusion of such Members the
requirements of Section 401(a)(26) or 410(b) are still not met, those
Members who are not in the employ of the Company on the last business
day of the Plan Year shall share in the allocation of the Company's
Stock Contribution to the extent necessary by progressively including
those Members with the greatest number of Hours of Employment to a
minimum of 501 such hours until such requirements are met.
3.04 Voluntary Contributions
(a) The Committee, solely at its discretion, may elect to provide
Members with the option of making Voluntary after-tax
contributions for each Plan Year any amount from 2% to 10%, in
whole percentages, of Compensation, as defined in Subsection
l.09(c) excluding Compensation that is not paid by the Company.
(b) The Committee may also, solely at its discretion, permit such
Members to contribute the difference between (i) 10% of such
Member's Compensation while a Member of the Plan and (ii) the sum
of all previous Voluntary Contributions actually made by the
Member.
(c) If implemented, all contributions under this Section shall be
subject to the limitations on Voluntary Contributions under
Section 4.02 and the limitations on annual additions under Section
4.03.
(d) The Committee shall promulgate such specific rules and regulations
as may be required with respect to the implementation and
operation of these provisions.
3.05 Contribution Changes
A Member may, subject to the minimum and maximum percentages as
specified in Section 3.01, increase or reduce the percentage rate of his
Pay Conversion Contributions and/or, if applicable, his Voluntary
Contributions once during a Plan Year, as of any October 1 or April 1
(or as of such other dates as the Committee may fix from time to time),
by written notification to the Committee at least 30 days (or such other
period as the Committee may fix from time to time) prior to the
effective date of such change.
Effective October 1, 1993, a Member may, subject to the minimum and
maximum percentages as specified in Section 3.01, increase or reduce the
percentage rate of his Pay Conversion Contributions and/or, if
applicable, his Voluntary Contributions four times during a Plan Year,
as of any October 1, January 1, April 1 or July 1 (or as of such other
dates as the Committee may fix from time to time), by written
notification to the Committee at least 30 days (or such other period as
the Committee may fix from time to time) prior to the effective date of
such change.
3.06 Discontinuance of Contributions
(a) A Member may discontinue his Pay Conversion Contributions and/or,
if applicable, his Voluntary Contributions at any time, but
limited to once during a Plan Year, by written notification to the
Committee at least 30 days (or such other period as the Committee
may fix from time to time) prior to the effective date of such
discontinuance.
<PAGE>
(b) A Member may resume his Pay Conversion Contributions and/or, if
applicable, his Voluntary Contributions as of any subsequent
October 1 or April 1 (or such other dates as the Committee may fix
from time to time) following a suspension of contributions for at
least 6 months by written notification to the Committee at least
30 days (or such other period as the Committee may fix from time
to time) prior to the effective date of such resumption.
Effective October 1, 1993, a Member may resume his Pay Conversion
Contributions and/or, if applicable, his Voluntary Contributions
as of any subsequent October 1, January 1, April 1 or July 1 (or
such other dates as the Committee may fix from time to time)
following a suspension of contributions for at least 6 months by
written notification to the Committee at least 30 days (or such
other period as the Committee may fix from time to time) prior to
the effective date of such resumption.
(c) The discontinuance of Pay Conversion Contributions pursuant to
paragraph (a) above to the Member's Account A will automatically
include a discontinuance of the Matching Contributions to the
Member's Account B. A discontinuance only of the Member's
Voluntary Contributions will not affect contributions to the
Member's other accounts.
3.07 Rollover Contributions from Other Qualified Plans
(a) The Committee may elect to provide all Eligible Employees, upon
commencement of employment with the option of making a rollover
contribution to the Trust Fund of all or any portion of the entire
amount (including money or any other property acceptable to the
Committee and Trustee) which is an eligible rollover distribution,
as defined in Section 402(c)(4) of the Code and temporary Treasury
Regulation 1.402(C)-2T, Q&A 3 and 4, provided such rollover
contribution is either (i) a direct transfer from another
qualified plan or (ii) received on or before the 60th day
immediately following the date the Employee received such
distribution from a qualified plan or conduit Individual
Retirement Account or Annuity.
(b) The Committee shall credit the fair market value of any rollover
contribution and investment earnings attributable thereto to the
Member's Rollover Account. A Member shall be 100% vested in his
Rollover Account at all times.
(c) An Eligible Employee who becomes a Member by virtue of the
acceptance of such rollover contribution, but who is not otherwise
eligible for participation in accordance with Section 2.01, shall
not be entitled to make contributions or share in any Company
contribution allocated in accordance with this Article 3 or
Article 11.
(d) The Committee may promulgate specific rules and regulations
governing all aspects of this Section.
<PAGE>
3.08 Transfer of Assets
(a) The Committee may accept the direct transfer to the Trust Fund
from the Robotic Vision Systems, Inc. Pension Trust Fund or any
other qualified trust of those assets (including money or any
other property acceptable to the Committee and Trustee)
attributable to a Member's participation in the qualified Plan to
which such trust relates. Such transferred amounts shall not be
considered annual additions for purposes of Section 4.03.
(b) The amount transferred shall be credited to the Member's Accounts
in accordance with Section 1.01.
(c) An Employee who becomes a Member by virtue of a transfer of
assets, but who is not otherwise eligible for membership in
accordance with Section 2.01, shall not be entitled to make
contributions or share in any Company contribution allocated in
accordance with this Article 3 or Article 11.
(d) The Committee may promulgate specific rules and regulations
governing all aspects of this Section but until promulgated, all
other provisions of the Plan shall be applicable based on the
Account to which such assets were transferred.
3.09 Deposit of Contributions
The Company shall deposit the Pay Conversion Contributions with the
Trustee as soon as practicable (in no event to exceed 90 days) following
the date on which such amounts would otherwise have been paid to the
Member. In no event shall Voluntary Contributions be deposited later
than 30 days after the end of the Plan Year. All other Company
contributions must be deposited by the earlier of the end of the
subsequent Plan Year or 30 days after the end of the period described in
Code Section 404(a)(6) applicable to the tax year of the Company with or
within which the Plan Year ends.
3.10 Payment of Expenses
In addition to its contributions, the Company may elect to pay all the
administrative expenses of the Plan and all fees and retainers of the
Plan's Trustee, accountant, counsel, consultant, administrator or other
specialist so long as the Plan or Trust Fund remains in effect. If the
Company does not pay all or part of such expenses, the Trustee shall
pay these expenses from the Trust Fund. All expenses relating directly
to the investments of the Trust Fund, including taxes, brokerage
commissions and registration charges, must be paid from the Trust Fund.
<PAGE>
ARTICLE 4
CONTRIBUTION LIMITATIONS
4.01 $7,000 Limitation on Pay Conversion Contributions
Each Member's Pay Conversion Contributions under Section 3.01, when
added to any additional elective deferrals, as defined in Section 402(g)
of the Code, under all other Plans maintained by the Employer, shall be
limited to $7,000 during any calendar year, adjusted annually for
increases in the cost-of-living in accordance with Section 415(d) of the
Code, or such other maximum permitted under Section 402(g) of the Code.
The foregoing limit shall not apply to Pay Conversion Contributions
attributable to service performed in 1986 and described in Section
1105(c)(5) of the Tax Reform Act of 1986.
To the extent a Member's Pay Conversion Contributions exceed the above
limitation the Employer will notify the Plan of such excess and such
amount will be designated as an excess deferral. Such excess deferral
will be distributed to such Member with investment experience no later
than April 15 following the close of the calendar year to which such
excess relates. Such excess may be distributed prior to the close of
the calendar year of reference provided the correcting distribution is
made after the date on which the plan received the excess deferral and
is specifically designated as an excess deferral.
Investment experience will be determined in accordance with the fourth
paragraph of Section 4.02(d) below.
4.02 Limitation on Pay Conversion, Matching and/or Voluntary Contributions
(a) The Actual Deferral Percentage of Highly Compensated Employees in
the Testing Group for any Plan Year shall be limited to the
greater of
(i) the Actual Deferral Percentage for the Nonhighly Compensated
Employees in the Testing Group multiplied by 1.25; or
(ii) the Actual Deferral Percentage for the Nonhighly Compensated
Employees in the Testing Group multiplied by 2.00, provided,
however, that the Actual Deferral Percentage for the Highly
Compensated Employees in the Testing Group may not exceed the
Actual Deferral Percentage for such Nonhighly Compensated
Employees by more than two percentage points.
(b) The Actual Contribution Percentage of Highly Compensated Employees
in the Testing Group for any Plan Year shall be limited to the
greater of
(i) the Actual Contribution Percentage for Nonhighly Compensated
Employees in the Testing Group multiplied by 1.25; or
<PAGE>
(ii) the Actual Contribution Percentage for Nonhighly Compensated
Employees in the Testing Group multiplied by 2.00, provided,
however, that the Actual Contribution Percentage for the
Highly Compensated Employees in the Testing Group may not
exceed the Actual Contribution Percentage for such Nonhighly
Compensated Employees by more than two percentage points.
(c) If one or more Highly Compensated Employees are eligible for both
Pay Conversion Contributions and to receive Matching Contributions
or to make Voluntary Contributions, such contributions shall be
limited to the greater of (i) or (ii) below. Notwithstanding the
above, this Subsection (c) shall only be applicable if both the
Actual Deferral Percentage and the Actual Contribution Percentage
of the Highly Compensated Employees exceeds 1.25 multiplied by the
respective Nonhighly Compensated Employee percentages.
(i) The sum of
(A) 1.25 times the greater of
(1) the Actual Deferral Percentage for the Nonhighly
Compensated Employees, or
(2) the Actual Contribution Percentage for the
Nonhighly Compensated Employees; and
(B) two plus the lesser of Subparagraph (1) or (2) above,
provided that such amount may not exceed 200% of the
lesser of Subparagraph (1) or (2).
(ii) The sum of
(A) 1.25 times the lesser of
(1) the Actual Deferral Percentage for the Nonhighly
Compensated Employees, or
(2) the Actual Contribution Percentage for the
Nonhighly Compensated Employees; and
(B) two plus the greater of Subparagraph (1) or (2) above,
provided that such amount may not exceed 200% of the
greater of Subparagraph (1) or (2).
(d) To the extent the otherwise applicable Pay Conversion, Voluntary
and Matching Contributions for any Plan Year must be limited due
to the restrictions described in Subsections (a), (b) and (c),
such limitations shall be applied to the Highly Compensated
Employees' Pay Conversion, Matching and/or Voluntary Contribution
percentages, whichever applicable, beginning with the highest of
such percentages until the limitations are met. In satisfying the
limited percentages applicable to any individual Highly
<PAGE>
Compensated Employee, reductions will first be made to Voluntary
Contributions. Additional reductions to satisfy Subsection (c)
shall be applied first to unmatched Pay Conversion Contributions,
if any, and then to matched Pay Conversion Contributions and
Matching Contributions proportionately.
Excess Pay Conversion, Voluntary and Matching Contributions shall
be allocated to Members who are subject to the family aggregation
rules of Section 414(q)(6) of the Code in proportion to their
unadjusted deferrals and contributions.
Any excess Pay Conversion or Voluntary Contributions that result
from the above limitations shall be refunded to such Highly
Compensated Employees with investment experience, no later than
the last day of the Plan Year subsequent to the Plan Year to which
the excess relates. The limitation on Matching Contributions is
effected by limiting the otherwise applicable Matching
Contributions in accordance with Subsection 3.03(a).
Investment experience shall be the sum of (i) the income or loss
allocable to the Member's Pay Conversion Contribution Account or
Voluntary Contribution Account for the Plan Year multiplied by a
fraction, the numerator of which is such Member's excess Pay
Conversion or Voluntary Contributions for the year and the
denominator is the sum of (A) the Member's Pay Conversion
Contribution Account or Voluntary Contribution Account balance as
of the beginning of the Plan Year and (B) the Member's Pay
Conversion or Voluntary Contributions for the Plan Year; and (ii)
ten percent of the amount determined under (i) multiplied by the
number of whole calendar months between the end of the Plan Year
and the date of distribution, counting the month of distribution
if distribution occurs after the 15th of such month.
(e) Definitions and Special Rules
(i) The Actual Deferral Percentage for the Highly Compensated
Employees and Nonhighly Compensated Employees for a Plan Year
shall be the average of the ratios (calculated separately for
each such Employee in the Testing Group) of
(A) the amount of contributions credited to the Pay
Conversion Contribution Account on behalf of each such
Employee in the Testing Group during such Plan Year, to
(B) the Compensation of each such Employee in the Testing
Group for such Plan Year.
For purposes of the above, Qualified Matching Contributions
and Qualified Nonelective Contributions may be taken into
account in determining the Actual Deferral Percentage for
each Employee in the Testing Group for such Plan Year
provided such amounts comply with the provisions of Treasury
Regulation 1.401(k)-1(b).
<PAGE>
Qualified Matching Contributions, Qualified Nonelective
Contributions and Pay Conversion Contributions included in
the calculation of the Actual Contribution Percentages will
not be included in the calculation of Actual Deferral
Percentages.
(ii) The Actual Contribution Percentage for the Highly Compensated
and Nonhighly Compensated Employees in the Testing Group for
a Plan Year shall be the average of the ratios (calculated
separately for each such Employee in the Testing Group) of
(A) the amount of Matching and Voluntary Contributions
credited on behalf of each such Employee in the Testing
Group during such Plan Year, to
(B) the Compensation of each such Employee in the Testing
Group for such Plan Year.
For purposes of the above, Qualified Matching Contributions,
Qualified Nonelective Contributions and Pay Conversion
Contributions may be taken into account in determining the
Actual Contribution Percentage for each Employee in the
Testing Group for such Plan Year provided such amounts comply
with the provisions of Treasury Regulation 1.401(m)-1(b).
Qualified Matching Contributions, Qualified Nonelective
Contributions and Pay Conversion Contributions included in
the calculation of the Actual Deferral Percentages will not
be included in the calculation of Actual Contribution
Percentages.
(iii) Testing Group shall mean the group of all Eligible
Employees eligible for participation in accordance with
Section 2.01.
(iv) All Eligible Employees in the Testing Group will be included
in determining the Actual Deferral Percentages and/or the
Actual Contribution Percentages, whichever is applicable.
The ratio averaged into the respective percentages will be
zero for any Eligible Employee in the Testing Group if the
otherwise applicable numerator is zero.
(v) All such ratios and the average of such ratios shall be
calculated to the nearest one-hundredth of one percent.
(vi) The deferral percentage and/or contribution percentage for a
Plan Year for any Highly Compensated Employee who is eligible
to participate under two or more plans or arrangements
described in Section 401(a) or 401(k) of the Code that are
maintained by the Employer shall be determined as if all
contributions were made under a single plan.
<PAGE>
(vii) In the event that this Plan satisfies the requirements
of Section 401(k), 401(a)(4) or 410(b) of the Code only if
aggregated with one or more other plans, or if one or more
other plans satisfy the requirements of such Sections of the
Code only if aggregated with this Plan, deferral and
contribution percentages shall be determined as if all such
plans were a single plan. Any other plan may be aggregated
with this Plan at the discretion of the Company. Plans may
be aggregated in order to satisfy Section 401(k) of the Code
only if they have the same Plan Year.
(viii) The ratio for any 5% owner, as defined in Section 416(i)(1)
of the Code, and for any Highly Compensated Employee in the
group consisting of the 10 Highly Compensated Employees paid
the greatest Compensation shall be determined by aggregating
the Pay Conversion Contributions or Matching and Voluntary
Contributions and Compensation of such individual with the
respective amounts of each other Eligible Employee who is a
family member of such Highly Compensated Employee.
Once the ratio for the family group is determined, the
individual ratios of the family members are not taken into
account.
For purposes of this paragraph, family member shall mean the
spouse, lineal ascendant or descendant or spouse of a lineal
ascendant or descendant of the Highly Compensated Employee.
4.03 Limitation on Allocations
(a) The "annual addition" for any Member shall not exceed the amount
determined hereunder. Annual addition shall mean the sum of
Employer contributions, Employee contributions and forfeitures
allocated on behalf of a Member for a Plan Year, which is defined
to be the limitation year.
Annual additions shall also include excess deferrals, excess
contributions and excess aggregate contributions, other than
excess deferrals distributed in accordance with Treasury
Regulation 1.402(g)-1(e)(2) or (3).
The determination of the annual addition will be made as if all
defined contribution Plans of the Employer were one Plan and any
Member contributions to defined benefit Plans will be treated as
contributions to defined contribution Plans. Annual additions
will be applied to the applicable Plan Year in accordance with
Section 1.415-6(b) of the Internal Revenue Service Regulations.
For purposes of Subsection (b)(i), annual addition shall also
include amounts allocated, after March 31, 1984, to an individual
medical account, as defined in Section 415(l) of the Code which is
part of a defined benefit Plan maintained by the Employer and
amounts derived from contributions paid or accrued after December
31, 1985, in taxable years ending after such date, which are
attributable to post-retirement medical benefits allocated to the
separate account of a Key Employee (as defined in Section 11.02)
under a welfare benefit Plan (as defined in Section 419A(d) of the
Code) maintained by the Employer.
<PAGE>
(b) The annual addition for any Member shall not exceed the lesser of
(i) or (ii) below:
(i) $30,000, or if greater, one-fourth of the defined benefit
dollar limitation set forth in Section 415(b)(1)(A) of the
Code as in effect for the limitation year.
In the event of a short Plan Year, the maximum dollar
limitation shall be divided by 12 and multiplied by the
number of months in the short Plan Year.
(ii) 25% of the Member's Compensation.
(c) If a Member also is or has been a member in one or more defined
benefit plans of the Employer, whether or not terminated, the
projected annual benefit from such defined benefit plans shall be
reduced so that a "combined benefit factor" in excess of 1.0 shall
not result. The combined benefit factor is the sum of (i) the
defined benefit factor and (ii) the defined contribution factor
where
(i) the defined benefit factor is a fraction
(A) the numerator of which is the Member's projected annual
benefit under all defined benefit Plans of the Employer
at the end of the limitation year of the Plan, and
(B) the denominator of which is the lesser of
(l) 1.25 multiplied by the maximum allowable annual
benefit under Sections 415(b)(1)(A) and 415(d) of
the Code at the end of the limitation year of the
Plan, or
(2) 1.4 multiplied by the maximum allowable annual
benefit under Section 415(b)(1)(B) of the Code at
the end of the limitation year of the Plan, and
(ii) the defined contribution factor is a fraction
(A) the numerator of which is the sum of the annual
additions for such Member under all defined contribution
Plans of the Employer, whether or not terminated, for
all such years during which he was a member in such
Plans, and
(B) the denominator of which is the sum of the lesser of the
amounts determined in (1) or (2) for the current year
and each prior year during
<PAGE>
which the Member was employed by the Employer,
regardless of whether or not a Plan was in existence
during those years:
(l) 1.25 multiplied by the maximum dollar limitation as
defined in Subsection (b)(i), or
(2) 1.4 multiplied by the compensation limitation as
defined in Subsection (b)(ii).
(d) A Member shall not be permitted to defer Compensation or
contribute amounts, nor shall he be entitled to an allocation of
any Employer contributions or forfeitures under any qualified
defined contribution plan which exceeds the limitations described
herein.
(e) The limitations on allocations to a Member's Account will be
applied by limiting otherwise allocable amounts starting with the
latest allocations during the limitation year. To the extent more
than one type of addition is allocated as of any date, the
limitation will be applied in the following order:
(i) forfeitures;
(ii) Employer contributions under profit-sharing plans other than
matching contributions;
(iii) Employer contributions under money purchase plans other
than matching contributions;
(iv) Employer matching contributions under money purchase plans.
(v) Employer matching contributions under profit-sharing plans;
(vi) Employee contributions; and
(vii) pay conversions.
Amounts listed above which would have been added to a Member's Account
based on an allocation method specified in a Plan will be reallocated
among the remaining Members eligible to share under the Plan.
Amounts listed above which would have been added to the Member's Account
based on an individually defined entitlement will reduce the Employer's
contribution commitment.
Employee contributions and pay conversions will be limited at the time
deposited and will not be permitted to the extent the limits of this
Section would be violated.
<PAGE>
In the event annual additions on behalf of a Member participating in
more than one plan of the same type during a Plan Year are required to
be limited under this Section, the limitation shall be ratably
apportioned among all such plans.
(f) Notwithstanding the above, if an excess allocation occurs as a
result of
(i) an allocation of forfeitures;
(ii) a reasonable error in determining a Member's Compensation;
(iii) a reasonable error in determining the amount of pay
conversions that may be made under this Section; or
(iv) any other reason acceptable to the Internal Revenue Service,
the resulting additions to the Member's Account will be reduced by
first eliminating Employee contributions and pay conversions to
the extent otherwise required to be refunded under Sections
402(g), 401(k)(3) or 401(m)(2) of the Code. Any additional
reductions permitted under this Subsection will be applied in the
manner described in Subsection (e).
However, any amounts paid to the Trust for the limitation year
which are not allocated to other Members will be held in a
suspense account, without investment earnings, and allocated and
reallocated in the following limitation year and, to the extent
necessary, each subsequent limitation year. Allocations from a
suspense account in a money purchase plan will be viewed as an
allocation of accrual requirement for the year in which the amount
is ultimately allocated.
In the event a plan is terminated, suspense accounts shall revert
to the Employer to the extent such accounts may not then be
allocated on behalf of any remaining eligible Members.
(g) Notwithstanding any provision of the Plan to the contrary,
(i) the annual addition for any Plan Years beginning before
January 1, 1987 shall not be recomputed to include all
Employee contributions.
(ii) if the Employee was a Member as of the first day of the first
limitation year beginning after December 31, 1986, in one or
more defined benefit plans maintained by the Employer which
were in existence on May 6, 1986, the denominator of the
defined benefit fraction will not be less than 125 percent of
the sum of the annual benefits under such plans which the
Member had accrued benefits under such plans as of the close
of the last limitation year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of the
plan after May 5, 1986. The preceding sentence applies only
if the defined
<PAGE>
benefit plans individually and in the aggregate satisfied the
requirements of Section 415 of the Code for all limitation
years beginning before January 1, 1987.
(iii) if the Employee was a Member as of the end of the first
day of the first limitation year beginning after
December 31, 1986, in one or more defined contribution
plans maintained by the Employer which were in existence
on May 6, 1986, the numerator of the defined
contribution fraction will be adjusted if the sum of
this fraction and the defined benefit fraction would
otherwise exceed 1.0 under the terms of this Plan. Under
the adjustment, an amount equal to the product of (A)
the excess of the sum of the fractions over 1.0 times
(B) the denominator of the defined contribution
fraction, will be permanently subtracted from the
numerator of the defined contribution fraction. The
adjustment is calculated using the fractions as they
would be computed as of the end of the last limitation
year beginning before January 1, 1987, and disregarding
any changes in the terms and conditions of the plan made
after May 5, 1986, but using the Code Section 415
limitation applicable to the first limitation year
beginning on or after January 1, 1987.
(iv) transitional rules provided in conjunction with legislative
changes and changes in the Plan's top-heavy status will be
applied in accordance with Internal Revenue Service
promulgations and legislative history.
<PAGE>
ARTICLE 5
MAINTENANCE OF ACCOUNTS, INVESTMENT FUNDS AND
VALUATION OF THE TRUST FUND
5.01 Maintenance of Accounts
The Committee shall establish and maintain a separate accounting in the
name of each Member to which it shall credit all amounts contributed in
accordance with Articles 3 and 11.
5.02 Investment Election
(a) Initial Election - Each Member shall designate one or more of the
investment funds established in accordance with Section 5.03 for
the investment of his Account's A, and if applicable, Accounts D
and E. The percentage elected for investment in any one of the
investment funds shall be at least 10%, or multiples thereof, and
the same percentage shall be applied equally to each of the
Member's Accounts.
Effective October 1, 1993, the percentage elected for investment
in any one of the investment funds shall be at least 5%, or
multiples thereof, and the same percentage shall be applied
equally to each of the Member's Accounts.
Each Member's Accounts B and C shall automatically be invested in
accordance with the provisions of 5.03(b).
(b) Subsequent Election - A Member may, by written notice to the
Committee at least 60 days prior to the Anniversary Date as of
which such election is to be effective, change his investment fund
election with respect to subsequent Company contributions but,
until changed, an investment fund election, once made, shall
remain in effect for all subsequent Plan Years.
Effective October 1, 1993, a Member may, by written notice to the
Committee at least 30 days prior to the October 1, January 1,
April 1 or July 1 as of which such election is to be effective,
change his investment fund election with respect to subsequent
Company contributions but, until changed, an investment fund
election, once made, shall remain in effect for all subsequent
Plan Years.
(c) Transfer Election - A Member may by written notice to the
Committee at least 60 days prior to the Anniversary Date as of
which such election is to be effective, elect a change in
investment funds applicable to all or a portion of his then
existing Accounts A, D and E, provided such change (i) is for at
least 10% or multiples thereof, and (ii) is applied to the ending
balance determined as of the applicable Valuation Date; and (iii)
is applicable equally to each of the Member's Accounts. Such
change shall become effective within such period of time as may be
administratively required for the orderly liquidation of
investments following the applicable Valuation Date.
Effective October 1, 1993, a Member may by written notice to the
Committee at least 30 days prior to the October 1, January 1,
April 1 or July 1 as of which such election is to be effective,
elect a change in investment funds applicable to all or a portion
of his then existing Accounts A, D and E, provided such change (i)
is for at least 5% or multiples thereof, and (ii) is applied to
the ending balance determined as of the applicable Valuation Date;
and (iii) is applicable equally to each of the Member's Accounts.
Such change shall become effective within such period of time as
may be administratively required for the orderly liquidation of
investments following the applicable Valuation Date.
<PAGE>
(d) The Committee may promulgate any additional rules and regulations
it deems necessary or appropriate to govern all aspects of this
Section.
5.03 Investment Funds
(a) The assets of the Trust Fund attributable to a Member's Account A
and, if applicable, Accounts D and E shall be divided into such
investment funds as designated by the Committee and approved by
the Trustee for the investment of such Accounts, which shall be
administered as a unit. Until changed, the investment funds
shall include, but not be limited to, the following:
(i) The Money Market Fund - Short-term assets, such as U.S.
Treasury bills, commercial paper and banker's acceptance
notes.
(ii) The Equity Fund - Common and preferred stocks and other
securities convertible into stocks. It may, however, also
be invested in fixed income assets, such as U.S. Treasury
bills and notes, certificates of deposit, corporate bonds and
even cash to the extent considered necessary or advisable
when the current outlook for stocks is not deemed
appropriate.
(iii) The Fixed Income Fund - Short and medium-term fixed income
assets, such as U.S. Treasury bills, certificates of deposit,
savings accounts and commercial paper. The assets may also
be invested under special investment contracts with insurance
companies fully guaranteeing the annual interest rate and
principal value of the assets.
(b) Member Accounts B and C will be invested in Company Stock.
Company contributions in cash and other cash received by the Trust
Fund will be applied to purchase shares of Company Stock either
directly from the Company or in the open market. The value of
Company Stock shall be determined in accordance with Subsection
5.04(c). Dividends paid on the Company Stock held in the Trust
Fund, if any, will be invested in Company Stock. To the extent
funds are available thereafter, such funds may be held in cash or
cash equivalents.
<PAGE>
5.04 Valuation of Trust Fund
(a) The Trust Fund shall be valued by the Trustee as of each Valuation
Date on the basis of its fair market value.
(b) The Trust Fund may also be valued by the Trustee as of any other
date as the Committee may authorize for any reason the Committee
deems appropriate.
(c) Whenever it is necessary to determine the value of any Company
Stock purchased, held or sold by the Trustee on behalf of the
Plan, the value of such Company Stock shall be determined in good
faith by the Committee. Such fair market value shall be the
average of the closing prices for such shares as reported by the
National Association of Securities Dealers Automated Quotation
System for the 20 consecutive days immediately preceding the date
of reference. Notwithstanding the foregoing, the price paid by
the Trustee for Company Stock purchased from a shareholder shall
not exceed the fair market value of such Company Stock as of the
date of such transaction.
Effective October 1, 1991, such fair market value shall be the
average of the closing prices for such shares as quoted by the
exchange where they are currently being traded as of the Valuation
Date plus the 19 consecutive business days immediately preceding
the Valuation Date.
Effective October 1, 1993, such fair market value shall be the
average of closing prices for such shares as quoted by the
exchange where they are currently being traded as of each
Valuation Date plus the 19 consecutive business days immediately
preceding such Valuation
Date.
5.05 Allocation of Investment Earnings and Expenses
On the basis of the valuation as of a Valuation Date, the Accounts of
all Members and all forfeitures which have not yet been reallocated,
shall be (a) proportionately adjusted to reflect expenses in accordance
with Section 3.10 and investment earnings such as interest, dividends,
realized and unrealized investment profits and losses; and (b) directly
adjusted to reflect all other applicable transactions during the Plan
Year attributable to such Accounts including, but not limited to, any
contributions or distributions.
5.06 Voting Company Stock
All Company Stock in the Trust Fund will be held in the name of the
Trustee.
Members may direct the voting of the Company Stock credited to their
Accounts B and C by furnishing the Trustee with instructions on forms to
be provided by the Trustee. Company Stock with respect to which no
instructions are received will be voted at the discretion of the
Trustee.
<PAGE>
ARTICLE 6
BENEFITS PAYABLE UPON TERMINATION OF EMPLOYMENT
6.01 Upon Retirement
A Member shall be 100% vested in his Account at all times after first
becoming eligible for Retirement.
A Member shall be eligible to retire on his Normal or Deferred
Retirement Date.
In the event a Member does not retire on his Normal Retirement Date,
he shall continue to be credited with contributions in accordance with
Articles 3 and 11 until his actual retirement.
6.02 Upon Disability
(a) A Member who incurs a Disability prior to termination of
employment shall be 100% vested in his Account, determined as of
the last day of the Plan Year during which such Disability
occurred.
(b) The Committee shall require evidence that the application for such
benefits has been approved by the Social Security Administrator.
The final determination shall be made by the Committee on the
basis of such evidence.
(c) If such Member returns to the employ of the Company, he shall
resume his membership as of the date of his return. The Member's
vested interest in that portion of his Account attributable to
Service from the date of his last reemployment shall be determined
in accordance with the provisions of Article 6, without regard to
his prior Disability.
6.03 Upon Death
(a) A Member who dies prior to termination of employment shall be 100%
vested in his Account.
(b) Upon the death of a Member, his Beneficiary shall be entitled to
100% of such Member's vested Account. Such vested Account shall
take into account any Member loans made in accordance with Article
13.
(c) Each Member, upon becoming eligible for participation in the Plan,
may designate a primary Beneficiary to receive the benefits
payable in the event of his death, may designate a secondary
Beneficiary to receive any benefits payable in the event of the
death of the primary Beneficiary. If a Member designates a
primary Beneficiary but not a secondary Beneficiary or if any such
secondary Beneficiary dies, the Beneficiary last in receipt of or
entitled to any benefit shall have the right to designate a
successor Beneficiary to receive
<PAGE>
any benefits payable in the event of his death. In the absence of
any such designation, benefits payable upon the death of the last
living Beneficiary shall be paid in a lump sum to the
Beneficiary's estate. A Member may change his Beneficiary at any
time. All Beneficiary designations and changes shall be made on
an appropriate form and filed with the Committee. If the primary
Beneficiary designated by the Member is anyone other than the
Member's Protected Spouse, such designation must include the
written acknowledgment and consent of such spouse and be witnessed
by a Plan representative or a notary public, to the extent
required by law and the Committee. Such consent will be limited
to a specific alternate Beneficiary and any change in such
alternate Beneficiary will require a new spousal consent.
6.04 Upon Other Termination of Employment
(a) Upon a Member's termination of employment for reasons other than
Retirement, Disability or death, the following provisions shall be
applicable:
(i) Such Member shall have a 100% vested interest in his Accounts
A, D and E.
(ii) Such Member's vested interest in Accounts B and C shall,
subject to Subsection 6.05(a), be determined in accordance
with the following schedule on the basis of such Member's
full Years of Service excluding any Service before the month
within which the Plan's Effective Date occurred.
Number of Years Percentage of Account
Less than 1 full year 0%
1 full year 20%
2 full years 40%
3 full years 60%
4 full years 80%
5 or more full years 100%
(b) The portion of a Member's Account which is not vested shall be
forfeited on the earlier of the date on which the Member receives
a distribution of his vested benefits or the date on which such
Member incurs five consecutive Breaks-in-Service, but in no event
shall such forfeiture occur earlier than the first day after the
Valuation Date next following the date on which the Member
terminated employment. If a Member does not have a vested
interest in his Account, he shall be deemed to have received an
immediate distribution as of the first day after the Valuation
Date next following the date on which such Member terminated
employment.
That portion of the Member's Account which is not vested shall be
reallocated in accordance with Subsection 3.03(b) and Article
11.
<PAGE>
6.05 Reemployment and Repayment of Benefits
(a) If a Member is reemployed by the Employer prior to incurring five
consecutive Breaks-in-Service, the dollar amount which was subject
to forfeiture in accordance with Subsection 6.04(b) will be
restored to the Member's Accounts B and C if the Member repays the
amount distributed from his Account A. Such amounts must be
repaid to the Trust Fund in a lump sum within five years from the
date such Member resumes his employment with the Employer. The
funds required for the restoration of a Member's Accounts B and C
may, as determined by the Committee, be paid from forfeitures,
Company Regular Contributions, or investment gains of the Trust
Fund attributable to the Account C's of all Members. If a Member
who is deemed to receive a distribution pursuant to Subsection
6.04(b) is reemployed by the Employer prior to incurring five
consecutive Breaks-in-Service, the dollar amount which was subject
to forfeiture in accordance with such Subsection will be restored
to the Member's Account.
Such repaid amounts shall be credited to the Member's Accounts as
determined by the Committee, taking into account the applicable
vesting schedules, amounts subject to special tax treatment and
withdrawal rules. Additional Accounts will be established, if
required, to accommodate these objectives. Amounts repaid and
restored in accordance with this Subsection will not be treated
as annual additions for purposes of Section 4.03.
(b) Notwithstanding the above, no restoration shall be made to a
Member's Accounts B and C and no repayment will be permitted with
respect to funds accumulated prior to reemployment in the case of
(i) any Member who was fully vested, or
(ii) any Member who is reemployed after incurring five
consecutive Breaks-in-Service.
<PAGE>
ARTICLE 7
DISTRIBUTION OF BENEFITS
7.01 Claim Procedure For Benefits
(a) Any request for specific information with respect to benefits
under the Plan must be made to the Committee in writing by a
Member or his Beneficiary. Oral communications will not be
recognized as a formal request or claim for benefits.
(b) The Committee shall provide adequate notice in writing to any
Member or Beneficiary whose claim for benefits under the Plan has
been denied, (i) setting forth the specific reasons for such
denial; specific references to pertinent Plan provisions; a
description of any material and information which had been
requested but not received by the Committee; and, (ii) advising
such Member or Beneficiary that any appeal of such adverse
determination must be in writing to the Committee, within such
period of time designated by the Committee but, until changed, not
more than 60 days after receipt of such notification, and must
include a full description of the pertinent issues and basis of
claim.
(c) If the Member or Beneficiary fails to appeal such action to the
Committee in writing within the prescribed period of time, the
Committee's adverse determination shall be final.
(d) If an appeal is filed with the Committee, the Member or
Beneficiary shall submit such issues he feels are pertinent and
the Committee shall re-examine all facts, make a final
determination as to whether the denial of benefits is justified
under the circumstances, and advise the Member or Beneficiary in
writing of its decision and the specific reasons on which such
decision was based, within 60 days of receipt of such written
request, unless special circumstances require a reasonable
extension of such 60-day period.
7.02 Commencement of Benefits
The following provisions shall be applicable for determining when
distribution of benefits shall be made. These provisions are intended
to conform to the requirements of Section 401(a)(9) of the Code,
including the minimum distribution incidental benefit proposed Treasury
Regulation 1.401(a)(9)-(2), and shall be construed accordingly.
(a) Unless otherwise provided in Subsection (c) or (h), in the event
of termination of employment, benefits which total $3,500 or less
will commence as soon as administratively feasible following the
Valuation Date next subsequent to such termination.
(b) Unless otherwise provided in this Section, in the event of
termination of employment, benefits which total more than $3,500
will commence as soon as administratively feasible following the
Valuation Date next subsequent to such termination, provided that,
<PAGE>
if the Member has not attained his Normal Retirement Date, the
Member consents to such distribution within his Election Period.
Notwithstanding the above, no consent to a distribution prior to
the date the Member attained his Normal Retirement Date shall be
valid until after written notification of the right to defer is
received by the Member. The Committee shall provide such written
notification of the right to defer any benefit payable no less
than 30 days nor more than 90 days before the Annuity Starting
Date.
If a Member does not consent to the distribution at the time
specified above and fails to elect deferral in accordance with
Subsection (d), benefits will commence as of the 60th day
following the last day of the Plan Year during which the Member's
Normal Retirement Date occurs.
If a distribution is one to which sections 401(a)(11) and 417 of
the Internal Revenue Code do not apply, such distribution may
commence less than 30 days after the notice required under section
1.411(a)-11(c) of the Income Tax Regulations is given, provided
that:
(i) the administrator clearly informs the participant that the
participant has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or
not to elect a distribution (and, if applicable, a particular
distribution option), and
(ii) the participant, after receiving the notice, affirmatively
elects a distribution.
(c) The amount of any benefit payable will be determined as of the
Valuation Date preceding the date such benefit is processed,
adjusted to reflect intervening contributions and withdrawals but
not investment experience.
If the amount of any payment under this Section would adversely
affect the Trust Fund by forcing the premature liquidation of
assets, such payment may be delayed until the timely and orderly
liquidation of investments can be accomplished, but in no event
later than the 60th day following the last day of the Plan Year
during which occurs the latest of
(i) the date a Member attains the earlier of his Normal
Retirement Date or age 65;
(ii) the tenth anniversary of the year during which the Member
commenced participation in the Plan; or
(iii) the date the Member terminates his employment.
If the amount of any payment under this Section would adversely
affect the Trust Fund by permitting former Members to enter into
direct competition with the Company, such payment will be delayed
until the 60th day after the end of the Plan Year during which the
Member's Normal Retirement Date occurs.
<PAGE>
If the amount of any payment under this Section cannot be
ascertained by the applicable commencement date, payment shall be
made no later than 60 days after the earliest date on which the
amount of such payment can be ascertained.
(d) A Member who terminates employment may elect that benefit payments
commence at a date later than specified in Subsection (b) by
submitting a signed, written statement describing the benefit and
the date on which the payment of such benefit shall commence,
provided such date is not later than the April 1 following the
calendar year during which the Member attains age 70-1/2 or such
later date as may be promulgated by the Internal Revenue Service.
(e) Effective for Plan Years beginning before January 1, 1989,
distribution of benefits to a 5% owner, within the meaning of
Section 416(i)(1)(B)(i) of the Code, must commence not later than
the April 1 following the calendar year in which the Member
attains age 70-1/2, or such later date as promulgated by the
Internal Revenue Service, whether or not the Member terminates
employment in that year and whether or not the Member applies for
benefit payment.
Effective for Plan Years beginning after December 31, 1988,
distribution of benefits must commence not later than the April 1
following the calendar year in which the Member attains age 70-
1/2, or such later date as promulgated by the Internal Revenue
Service, whether or not the Member terminates employment in that
year and whether or not the Member applies for benefit payment.
The foregoing shall not apply to a Member (i) who attains age
70-1/2 before January 1, 1988 unless such Member was or becomes a
5% owner, within the meaning of Section 416(i)(1)(B)(i) of the
Code, at any time during the Plan Year ending with or within the
calendar year in which he attains age 66-1/2 or any subsequent
Plan Year, or (ii) who had made a valid election under Section
242(b) of the Tax Equity and Fiscal Responsibility Act of 1982
(TEFRA) to commence his benefits at a later date.
(f) If the designated Beneficiary is,
(i) the Member's spouse, such spouse may elect that benefit
payments commence at a date later than specified in
Subsection (b) by submitting a signed written statement
describing the benefit and the date on which the payment of
such benefit shall commence, provided such date is not later
than the latest of (A) December 31 of the calendar year in
which the Member dies, (B) December 31 of the calendar year
during which the Member would have attained age 70-1/2, or
(C) such later date as may be promulgated by the Internal
Revenue Service.
If such spouse dies prior to the commencement of benefits,
and if the distribution of any death benefit payable to the
spouse's Beneficiary is made in a form that may extend beyond
the December 31 of the calendar year during which the fifth
anniversary of such spouse's death occurs, such distribution
<PAGE>
must commence no later than the December 31 of the calendar
year immediately following the date of such spouse's death or
such later date as may be promulgated by the Internal Revenue
Service.
(ii) other than the Member's spouse, and the death benefit payable
is made in a form that may extend beyond the December 31 of
the calendar year during which the fifth anniversary of such
Member's death occurs, such distribution must commence no
later than the December 31 of the calendar year immediately
following the date of such Member's death or such later date
as may be promulgated by the Internal Revenue Service.
(g) If a Member is in receipt of benefits from the Company's insured
long-term disability program, payment of the Member's Accounts A,
B and C shall be deferred to the first day of the month in which
such Member is no longer eligible to receive such benefits or, if
earlier, the 60th day following the last day of the Plan Year
during which the Member's Normal Retirement Date occurs, provided
the benefits payable under the long-term disability program would
otherwise be reduced by the benefits payable under the Plan.
(h) A Beneficiary, or retired or terminated Member may, subject to the
provisions of Subsections (c) and (g) and any required deferral
under Section 7.03, irrevocably elect to receive earlier payment
of his benefits prior to the Valuation Date next subsequent to the
occurrence of the applicable event, providing the market value of
Trust Fund assets, adjusted for contributions and payment activity
has not declined and there is no significant adverse economic
effect on the Trust Fund. Under such circumstances the Member's
Account shall be determined as of the Valuation Date prior to the
occurrence of such event, adjusted to reflect intervening
contributions and withdrawals, but not investment experience.
Investment experience will not be credited with respect to such
early distributions. Any subsequent allocation of contributions
will be distributed after the end of the Plan Year.
7.03 Method and Form of Payment of Benefits
The following provisions shall be applicable for determining the method
and form of payment of all benefits. These provisions are intended to
conform to the requirements of Section 401(a)(9) of the Code, including
the minimum distribution incidental benefit proposed Treasury Regulation
1.401(a)(9)-2, and shall be construed accordingly.
(a) If the benefit payable to the Member or his spouse, if any, is for
more than $3,500, the Member shall choose one of the following
forms of distribution:
(i) Lump sum: All benefits attributable to Accounts A, D, E (if
applicable) and F shall be distributed in cash, and benefits
attributable to Accounts B, C and (if applicable) E shall be
distributed in Company Stock, with cash payment for
fractional shares valued at one dollar or more;
<PAGE>
(ii) Installments: Any benefit may be distributed in cash or
whole shares of Company Stock in substantially equal
installments directly from the Trust Fund. This option shall
only be available to employees hired on or before December
31, 1990.
If a Member's benefit is for $3,500 or less, then his Accounts
shall be paid in a lump sum in accordance with (i) above as soon
as administratively feasible after the first Valuation Date
following his separation from service. A Member or Beneficiary
may elect to have his Account distributed prior to such Valuation
Date, subject to Section 7.02(h).
(b) Notwithstanding the provisions of Section 5.05, when distribution
of benefits from the Trust Fund is to be deferred in accordance
with Section 7.02, whether in whole or in part, the Committee may
direct the Trustee to deposit the Member's Account in an interest-
bearing account. Thereafter, such Member's Account shall be
credited with the interest attributable to such account and the
provisions of Section 5.05 shall not be applicable.
(c) Subject to Section 7.02, if a Member's benefits are required to
commence in accordance with Subsection 7.02(e), in lieu of an
immediate lump sum distribution, the Member may elect to have the
minimum amount required to be distributed each year under Code
Section 401(a)(9) with the remaining balance payable in a lump sum
upon termination of employment. Such benefit shall be payable
directly from the Trust Fund and shall reflect the Member's
elections regarding Beneficiary and recalculation of life
expectancies in accordance with regulations under Code Section
401(a)(9).
In the absence of an election by the Member, the form of payment
shall irrevocably be the minimum amount required to be distributed
each year under Code Section 401(a)(9) payable directly from the
Trust Fund with the remaining balance payable in a lump sum upon
such Member's termination of employment and life expectancies
shall not be recalculated.
(d) The method of distribution under the above provisions shall not
(A) defer all or part of a Member's benefits or other non-
forfeitable interest so as to be payable only after his death to
his beneficiary; (B) result in benefits to the Member of less than
51% of the benefits otherwise payable to him, unless such benefits
are being paid over the lives or the life expectancy of the Member
and his spouse; (C) result in the benefits being payable over a
period extending beyond the (1) life of such Member or the lives
of such Member and his Beneficiary or (2) the life expectancy of
such Member or the life expectancy of such Member and his
Beneficiary; or (D) distribute any remaining balance, in the event
of a Member's death after the commencement of his benefits, less
rapidly than the method of distribution in effect prior to his
death.
The distribution of a lump sum payment to the Member or his
Beneficiary will constitute the complete discharge of all
obligations of the Plan.
<PAGE>
7.04 Disposition of Unclaimed Benefits
In the event that any check or notice with respect to the payment of
benefits under the Plan remains outstanding at the expiration of six
months from the date of mailing of such check to the last known address
of the payee, the Committee shall notify the Trustee to stop payment of
all such outstanding checks and to suspend the issuance of any further
checks, if any, to such payee. If, during the three-year period (or
such other period as specified in the Trust Agreement) from the date of
mailing of the first such check or of notice that a benefit is due under
the Plan, the Committee cannot establish contact with the payee by
taking such action as it deems appropriate and the payee does not make
contact with the Committee, the remaining benefits shall be forfeited
and used to reduce Company's contributions in accordance with Section
3.03. In the event the payee is located subsequent to the date the
benefits were forfeited, the dollar amount of such benefits shall be
restored in accordance with the provisions of Subsection 6.05(a).
7.05 Non-Assignability
No benefit under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, and any such action shall be void for all
purposes of the Plan. No benefit shall in any manner be subject to the
debts, contracts, liabilities, engagements or torts of any person, nor
shall it be subject to attachments or other legal process for or against
any person, except with respect to a Qualified Domestic Relations Order
and in such other instances and to such extent as may be required by law
and except with respect to the debts of Members to the Trust Fund and
except as provided in Article 13.
7.06 Substitute Payee
If a Member or Beneficiary entitled to receive any benefits hereunder is
in his minority or is, in the judgment of the Committee, legally,
physically, or mentally incapable of personally receiving and receipting
any distribution, the Committee may instruct the Trustee to make
distributions to his legally appointed guardian or to such other person
or institution as, in the judgment of the Committee, is then maintaining
or has custody of the payee.
7.07 Satisfaction of Liability
After all benefits have been distributed in full to a Member or to his
Beneficiary, all liability to such Member or to his Beneficiary shall
cease.
7.08 Direct Rollover to Eligible Retirement Plans
(a) Notwithstanding any provisions of the Plan to the contrary that
would otherwise limit a Distributee's election under this Section,
a Distributee may elect, at the time and in the manner prescribed
by the Committee, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover.
<PAGE>
(b) Definitions
(i) Eligible Rollover Distribution
An Eligible Rollover Distribution is any distribution of all
or any portion of the balance to the credit of the
Distributee, except that an Eligible Rollover Distribution
does not include: (A) any distribution that is one of a
series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint
life expectancies) of the Distributee and the Distributee's
designated Beneficiary, or for a specified period of ten
years or more; (B) any distribution to the extent such
distribution is required under Section 401(a)(9) of the Code;
and (C) the portion of any distribution that is not
includable in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
Employer securities).
(ii) Eligible Retirement Plan
An Eligible Retirement Plan is an individual retirement
account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of
the Code, an annuity plan described in Section 403(a) of the
Code, or a qualified trust described in Section 401(a) of the
Code, that accepts the Distributee's Eligible Rollover
Distribution. However, in the case of an Eligible Rollover
Distribution to the surviving spouse, an Eligible Retirement
Plan is an individual retirement account or individual
retirement annuity.
(iii) Distributee
A Distributee includes an Employee or former Employee. In
addition, the Employee's or former Employee's surviving
spouse and the Employee's or former Employee's spouse of
former spouse who is the alternate payee under a Qualified
Domestic Relations Order, are Distributees with regard to the
interest of the spouse or former spouse.
(iv) Direct Rollover
A Direct Rollover is a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
<PAGE>
ARTICLE 8
ADMINISTRATION OF THE PLAN
8.01 Assignment of Administrative Authority
The Board of Directors shall appoint a Committee to administer the Plan.
The Committee may consist of directors, officers, Employees, or any
other individuals, who, upon acceptance of such appointment, shall serve
at the pleasure of the Board of Directors. Any member may resign by
delivering his written resignation to the Board of Directors and to the
Committee. Vacancies in the Committee arising from resignation, death,
or removal shall be filled by the Board of Directors. The Board of
Directors shall also appoint the Trustee and may appoint an investment
manager.
8.02 Organization and Operation of the Committee
(a) The Committee shall act, in carrying out its duties and
responsibilities, in the interest of the Members and Beneficiaries
with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man, acting in a like
capacity and familiar with such matters, would use in the conduct
of an enterprise of like character and aims.
(b) The Committee shall act by a majority of its members unless
unanimous consent is required by the Plan or by unanimous approval
of its members if there are two or less members in office at the
time. In the event of a Committee deadlock, the Committee shall
determine the method for resolving such deadlock. If there are
two or more Committee members, no member shall act upon any
question pertaining solely to himself, and the other member or
members shall make any determination required by the Plan in
respect thereof.
(c) The Committee may authorize any one or more of its members to
execute documents on behalf of the Committee and shall notify the
Trustee in writing of such action and the name or names of the
member or members so designated.
(d) The Committee may, by unanimous consent, delegate specific
authority and responsibilities to one or more of its members. The
member or members so designated shall be solely liable, jointly
and severally, for their acts or omissions with respect to such
delegated authority and responsibilities. Members not so
designated, except as provided under Subsection 8.06(b), shall be
relieved from liability for any act or omission resulting from
such delegation.
(e) The Committee shall endeavor not to engage in any prohibited
transactions, as specified in the Employee Retirement Income
Security Act of 1974, or any successor act. However, any member
of the Committee who is a Member or Beneficiary shall not be
precluded from receiving benefits payable under the Plan.
<PAGE>
8.03 Authority and Responsibility
The Committee and its delegates shall have full discretionary authority
and responsibility for the administration of the Plan. Such authority
and responsibility shall include, but shall not be limited to, the
following areas.
(a) Appointment of qualified accountants, consultants, administrators,
counsel, or other persons it deems necessary or advisable, who
shall serve the Committee as advisors only and shall not exercise
any discretionary authority, responsibility or control with
respect to the management or administration of the Plan.
Any action of the Committee on the basis of advice, opinion,
reports, etc. furnished by such qualified accountants,
consultants, administrators, and counsel shall be the sole
responsibility of the Committee.
Members of the Committee shall not be precluded from serving the
Committee in any other capacity, provided any compensation paid
for such services is reasonable.
(b) Determination of eligibility to participate and all benefits, and
resolution of all questions arising from the administration,
interpretation and application of the Plan including the
determination of the validity of any Qualified Domestic Relations
Order.
(c) Notification to the Trustee of all benefits payable under the Plan
and the manner in which such benefits are to be paid.
(d) Adoption of forms and regulations for the administration of the
Plan.
(e) Remedy of any inequity resulting from incorrect information
received or communicated, or of administrative error.
(f) Assurance that its members, the Trustee and other persons who
handle funds or other property of the Trust Fund are bonded as
required by law.
(g) Settlement or compromise of any claims or debts arising from the
operation of the Plan and the commencement of any legal actions or
administrative proceeding.
(h) Direction to the Trustee as to specific investments which, under
the terms of the Trust Agreement, may be made only upon written
direction of the Committee or which are made in accordance with
specific provisions of the Plan, such as annuity or group
investment contracts, loans to Members, or earmarked investments
selected by Members.
(i) Action as agent for the service of legal process.
(j) Communication regarding the liquidity needs of the Plan so that
investment discretion can be exercised to effect specific
objectives.
<PAGE>
8.04 Records and Reports
(a) The Committee shall keep a record of its proceedings and acts and
shall keep books of account, records and other data necessary for
the proper administration of the Plan.
(b) The Committee shall make its records available for examination by
the Employer, or any Member or Beneficiary during business hours
at the principal place of business of the Company. However, a
Member or Beneficiary may examine only records pertaining
exclusively to himself and such other records specified by law.
(c) The Committee shall make available to any Member or Beneficiary
any material required by law without cost. The Committee may,
upon written request by any Member or Beneficiary, provide copies
of such material as it deems appropriate and shall furnish copies
of such material required by law. The Member or Beneficiary may
be required to pay the reasonable cost as determined by the
Committee of preparing and furnishing such material or the cost as
prescribed by law.
8.05 Required Information
The Company, Members or Beneficiaries entitled to benefits shall furnish
forms, and any information or evidence, as requested by the Committee
for the proper administration of the Plan. Failure on the part of any
Member or Beneficiary to comply with such request within a reasonable
period of time shall be sufficient grounds for delay in the payment of
benefits until the information or evidence requested is received.
8.06 Fiduciary Liability
(a) A member of the Committee who breaches the responsibilities,
obligations, or duties imposed by law shall be liable to the Plan
for any losses resulting from such breach.
(b) A member of the Committee shall be liable for a breach of
fiduciary responsibility by another Committee member or Trustee,
with respect to the Plan or Trust Fund, under the following
circumstances.
(i) The member knowingly participates in or undertakes to conceal
an act or omission of another member of the Committee or
Trustee, with knowledge that the act or omission is such a
breach.
(ii) If the member's failure to comply with Subsection 8.02(a) has
enabled another member or Trustee to commit such a breach.
(iii) The member has knowledge of such a breach by another member
or Trustee and does not make reasonable efforts under the
circumstances to remedy the breach.
<PAGE>
8.07 Payment of Expenses
Those members of the Committee who are full-time paid employees of the
Company shall serve without compensation. The expenses of the
Committee, including reasonable compensation as may be agreed upon in
writing between the Company and the Committee for members of the
Committee who are not full-time employees of the Company, shall be
deemed administrative expenses payable in accordance with Section 3.10.
8.08 Indemnification
The Company shall indemnify members of the Committee against personal
financial loss resulting from liability incurred in the administration
of the Plan, unless such liability and loss were caused by such
individual's gross negligence or willful misconduct.
8.09 Qualified Domestic Relations Orders
(a) Qualified Domestic Relations Order
(i) A Qualified Domestic Relations Order (hereinafter referred to
as "QDRO") is a Domestic Relations Order which creates or
recognizes the existence of an Alternate Payee's right to, or
assigns to an Alternate Payee the right to, receive all or a
portion of the benefits payable with respect to a Member
under the Plan, and which the Committee has determined meets
the requirements of Paragraphs (ii) and (iii).
(ii) A Domestic Relations Order meets the requirements of a QDRO
only if the order clearly specifies
(A) the name and the last known mailing address (if any) of
the Member and the name and mailing address of each
Alternate Payee covered by the order;
(B) the amount or percentage of the Member's benefits to be
paid by the Plan to each such Alternate Payee, or the
manner in which such amount or percentage is to be
determined;
(C) the number of payments or period to which such order
applies; and
(D) that the order applies to this Plan.
(iii) A Domestic Relations Order meets the requirements of a
QDRO only if the order
(A) does not require the Plan to provide any type or form of
benefits, or any option, not otherwise provided under
the Plan;
<PAGE>
(B) does not require the Plan to provide increased benefits
(determined on the basis of actuarial value); and
(C) does not require the payment of benefits to an Alternate
Payee which are required to be paid to another Alternate
Payee under another Domestic Relations Order previously
determined to be a QDRO.
(iv) In the case of any payment before a Member has separated from
service, a QDRO shall not be treated as failing to meet the
requirements of Paragraph (iii)(A) above solely because the
order requires the payment of benefits to an Alternate Payee
(A) on or after the date on which the Member attains (or
would have attained) the Earliest Retirement Age;
(B) as if the Member had retired on the date such payment is
to begin under such order; and
(C) in any form in which such benefits may be paid under the
Plan to the Member (other than in the form of a joint
and survivor annuity with respect to the Alternate Payee
and his or her subsequent spouse).
(v) For purposes of Paragraph (iv), Earliest Retirement Age means
the earlier of
(A) the date on which the Member is entitled to a
distribution under the Plan; or
(B) the later of (1) the date the Member attains age 50 or
(2) the earliest date on which the Member could begin
receiving benefits under the Plan if such Member
separated from service.
Notwithstanding any provisions of the Plan to the contrary,
for purposes of Subparagraph (A) above, a distribution to an
Alternate Payee may be made prior to the date on which the
Member is entitled to a distribution under Section 7.02 or
Article 12 if requested by the Alternate Payee to the extent
such distribution is permitted under the QDRO. Nothing in
this provision shall permit the Member to receive a
distribution at a date otherwise not permitted under Section
7.02 or Article 12 nor shall it permit the Alternate Payee to
receive a form of payment not permitted in Section 7.03.
(b) Procedures
Upon receipt of a Domestic Relations Order, the Committee shall
take, or cause to be taken, the following actions:
<PAGE>
(i) The Committee shall promptly notify the Member, each
Alternate Payee covered by the order and each representative
for these parties of the receipt of the Domestic Relations
Order. Such notice shall include a copy of the order and
these QDRO Procedures for determining whether such order is a
QDRO.
(ii) Once a Domestic Relations Order has been received (A) the
affected Member will not be permitted to request a withdrawal
or a loan from the Plan and (B) no distributions will be made
from the Plan to the Member upon a subsequent termination
until after the payment to the Alternate Payee has been
determined, unless the Committee determines the order not to
be a QDRO.
(iii) Within a reasonable period after receipt of a Domestic
Relations Order, the Committee shall determine whether it is
a QDRO and shall notify the parties indicated in Paragraph
(i) of such determination. Such notice shall indicate whether
the benefits payable to the Alternate Payee in accordance
with the QDRO are subject to a previously existing QDRO.
(iv) Pending the Committee's determination of whether a Domestic
Relations Order is a QDRO, if payments are due to be paid to
the Member, the Committee shall withhold payment and
separately account for the amounts otherwise payable to the
Alternate Payee during such period if the order is
subsequently determined to be a QDRO (hereinafter referred to
as the "segregated amounts"). If, within the 18-month period
beginning with the date the first payment would have been
required to be made under the Domestic Relations Order, the
Committee determines the order to be a QDRO, the Committee
shall pay the segregated amounts, including any interest
thereon, to the person or persons entitled thereto. If,
within such 18-month period, the Committee determines an
order is not a QDRO or the Committee fails to reach a
decision, the Committee shall pay the segregated amounts to
the Member. If, after the 18-month period, the Committee
subsequently determines that the order is a QDRO, the
Committee shall pay benefits subsequent to such determination
in accordance with the order. If action is taken in
accordance with this Subsection (b), the Plan's obligation to
the Member and each Alternate Payee shall be discharged to
the extent of any payment made pursuant to the QDRO.
(v) In determining the segregated amount in accordance with
Paragraph (iv), the Member's vested interest shall be
prorated between the Member and Alternate Payee and the
entire amount of any nonvested interest or any outstanding
Plan loans will be credited to the Member and not taken into
consideration in making such determination. Any future
contributions or loan repayment will be credited to the
Member and not the Alternate Payee.
(vi) Upon a determination by the Committee that a Domestic
Relations Order is a QDRO, the Committee shall arrange for
benefits to be paid to the Alternate Payee
<PAGE>
in accordance with such order and Sections 7.02 and 7.03 as
if the Member had terminated employment at such time.
(vii) If benefits are not immediately distributable to the
Alternate Payee, such amount shall be separately accounted
for until such time as the distribution is made. Any amount
subject to a QDRO will not be available to the Member under
the Plan withdrawal provisions nor will it be available as
collateral for a Plan loan.
(viii) The Alternate Payee shall be treated as a Beneficiary for all
purposes of the Plan. The Alternate Payee will be eligible
for the same investment election option in accordance with
Article 5 as the Member.
(ix) Any expense charges related to the administration of the QDRO
will be prorated between the Member and the Alternate Payee
and will be automatically deducted by the Committee from the
amount payable.
The foregoing provisions are effective for QDROs entered into on or
after January 1, 1985, except that, in the case of a Domestic Relations
Order entered into before January 1, 1985, the Committee (i) may treat
such order as a QDRO even though such order fails to meet the
requirements of Subsections (a)(ii) and (iii) above, and (ii) must treat
such order as a QDRO if benefits were being paid pursuant to such
order on January 1, 1985.
<PAGE>
ARTICLE 9
AMENDMENT AND TERMINATION
9.01 Amendment
(a) The Plan may be amended or otherwise modified by the Board of
Directors, or the Committee to the extent authorized in accordance
with Subsection (c). Copies of any such amendment or modification
shall be sent to the governing body of each Company. It shall be
deemed each Company consented to such amendment or modification
unless its governing body delivers written notice to the contrary
to the Board of Directors, the Committee and the Trustee within 30
days of its receipt of such amendment or modification.
(b) No amendment or modification shall
(i) permit any part of the Trust Fund, other than such part as is
required to pay taxes, administrative expenses and expenses
incurred in effectuating such changes, to be used for or
diverted to purposes other than the exclusive benefit of the
Members or Beneficiaries and/or persons entitled to benefits
under the Plan or permit any portion of the Trust Fund to
revert to or become the property of the Company;
(ii) have the effect of reducing the Account of any Member as of
the date of such amendment or deprive any Member or
Beneficiary of a benefit accrued and payable; or
(iii) eliminate any option which constitutes a valuable right
available to a Member with respect to benefits previously
accrued to the extent the Member satisfied, either before
or after the amendment, the conditions for the form of
payment except as otherwise permitted by applicable law and
regulations.
(c) The Committee may amend or modify the Plan in order to bring the
Plan into compliance with applicable law or regulations, provided
said amendment or modification does not have a material effect on
the estimated cost of maintaining the Plan and does not create a
new class of benefits or shares.
9.02 Termination
While the Plan and Trust Fund are intended to be permanent, they may be
terminated at the discretion of the Board of Directors. Written
notification of such action shall be given to each Company, the Trustee
and the Committee. Thereafter, no further contributions shall be made
to the Trust Fund.
<PAGE>
9.03 Vesting Upon Termination
Upon the complete discontinuance of Company contributions or the
termination or partial termination of the Plan and Trust Fund, the
Account of each affected Member shall become fully vested and shall not
be reduced except
(a) for adjustments resulting from a valuation in accordance with
Article 5, which valuation shall also reflect the expenses
incurred for administration of the Plan and/or Trust Fund after
such discontinuance or termination date, and all expenses incurred
in effectuating the complete discontinuance of Company
contributions or termination or partial termination of the Plan
and Trust Fund, such as the fees and retainers of the Plan's
Trustee, accountant, custodian, administrator, consultant, counsel
and other specialists if such expenses are not paid by the
Company;
(b) for distributions of benefits by the Trustee to the Member in
accordance with the Plan and at the written direction of the
Committee; and
(c) as provided in Section 14.01.
9.04 Distribution of Benefits After Termination
As soon as administratively feasible following receipt of a favorable
letter of determination from the Internal Revenue Service with regard to
the termination of the Plan and Trust Fund, the Trustee, as authorized
and directed by the Committee, shall, provided there is no successor
defined contribution Plan within the meaning of Section 401(k)(10)(A)(i)
of the Code, distribute each Account, after adjustment in accordance
with Subsection 9.03(a), in a manner consistent with the provisions of
Article 7.
<PAGE>
ARTICLE 10
PARTICIPATING COMPANIES
10.01 Adoption by Other Entities
Any corporation or other business entity may, by resolution of its own
governing body, and with the approval of the Board of Directors, adopt
the Plan and thereby become a Company. Notwithstanding the adoption of
the Plan by other entities, the Plan will be administered as a single
plan and all Plan assets will be available to pay benefits to all
Members under the Plan.
10.02 Alternative Provisions
No Company may adopt alternative provisions as to itself or its
Employees.
Upon request of the governing body of a Company, the Board of Directors
may amend the Plan with respect to the Employees of such Company
provided that any change will only apply if any inequity resulting from
such changed Plan provisions is not found to be discriminatory on behalf
of Highly Compensated Employees.
10.03 Right to Withdraw (Plan Spinoff)
Each Company having adopted the Plan shall have the right as of the last
day of any month to withdraw from the Plan and/or Trust Agreement by
delivering to the Board of Directors, the Committee and the Trustee
written notification from its own governing body of such action and
setting forth the date as of which the withdrawal shall be effective.
The date specified in such written notice shall be deemed a Valuation
Date.
10.04 Procedure Upon Withdrawal
(a) If a Company withdraws from the Plan and Trust Agreement as the
result of its adoption of a different plan, the Trustee shall
segregate the portion of the Trust Fund attributable to the
Accounts of Members employed solely by such Company.
As soon as administratively feasible following receipt of a
favorable letter of determination from the Internal Revenue
Service with regard to the adoption of such successor Plan, the
Trustee shall transfer the segregated assets to the insurance
carrier or fiduciary designated by the Company as the agency
through which the benefits of such successor Plan are to be
disbursed.
(b) If a Company withdraws from the Plan and Trust Agreement as the
result of its adoption of a resolution to terminate its
participation in the Plan and to distribute assets to its
Employees who are Members, the Trustee shall segregate the portion
of the Trust Fund attributable to the Accounts of the Members who
are employed solely by such Company, and the termination
provisions of Section 9.03 and 9.04 shall apply with respect to
such segregated assets.
<PAGE>
ARTICLE 11
TOP-HEAVY PROVISIONS
11.01 Definition of Top-Heavy and Super Top-Heavy
(a) The Plan will be Top-Heavy for a Plan Year if, as of the Valuation
Date of the preceding Plan Year (or the Valuation Date of the
current Plan Year, if such year is the first Plan Year),
hereinafter referred to as the Determination Date,
(i) the aggregate value of the Accounts of all Members who are
Key Employees (as defined in Section 11.02) exceeds 60% of
the aggregate value of such Accounts of all Members and the
Plan cannot be aggregated with any other plans which would
result in the formation of a non-Top-Heavy aggregation group
of Plans; or
(ii) the Plan is required to be part of an aggregation group of
Plans and the aggregation group is Top-Heavy. The group will
be deemed Top-Heavy if the aggregate value of all defined
contribution Plan accounts and the value of all defined
benefit Plan accrued benefits attributable to Key Employees
exceeds 60% of such values attributable to all members of the
aggregated Plans. Such benefit values and accounts shall be
aggregated using the Determination Dates of the individual
Plans which fall within the same calendar year.
For purposes of this Section, aggregation group means all Plans,
including terminated Plans, maintained by the Employer if
maintained within the last five years ending on the Determination
Date, in which a Key Employee is a member or which enables any
Plan in which a Key Employee is a member to meet the requirements
of Section 401(a)(4) or Section 410 of the Code, as well as all
other Plans maintained by the Employer, provided that inclusion of
such other Plans in the aggregation group would not prevent the
group of Plans from continuing to meet the requirements of such
sections of the Code.
(b) The Plan will be Super Top-Heavy for a Plan Year if the aggregate
value of all defined contribution Plan accounts and the value of
all defined benefit Plan accrued benefits attributable to all
Members who are Key Employees exceeds 90% of such values
attributable to all Members in lieu of 60% as stated in Subsection
(a).
(c) For purposes of determining the aggregate value of the benefit
values and accounts under this Section, distributions, other than
rollovers or direct transfers to another qualified Plan maintained
by the Employer or rollovers or direct transfers not initiated by
the Member, made during the five-year period ending on the
Determination Date of the Plan from which such distributions were
made, shall be included to the extent such distributions are not
otherwise reflected in the value of any accrued benefit under a
defined benefit Plan as determined with respect to such Plan's
Determination Date. Such aggregate value shall not include any
<PAGE>
(i) assets rolled over or transferred at the initiation of the
Member directly from a qualified Plan maintained by a business
entity other than an Employer to the Plan, (ii) amounts
attributable to former Key Employees, (iii) amounts attributable
to Members not employed during such five-year period, or (iv)
amounts attributable to deductible employee contributions under
former Section 219(e)(2) of the Code.
A Member's accounts under any defined contribution Plan as of any
Determination Date, other than the Determination Date which falls
within the first Plan Year, shall not include any Employer
contributions due and not yet paid as of the Determination Date,
if the Plan under which the account is maintained is not subject
to Section 412 of the Code.
Accrued benefit values under defined benefit Plans aggregated with
this Plan shall be determined, subject to the rules set forth in
Section 416(g)(4)(F)(ii) of the Code, as of the dates of the most
recent valuations preceding or coincident with such defined
benefit Plans' Determination Dates, in accordance with the
interest and mortality rate assumptions specified in such defined
benefit Plans for this purpose or, if not specified, shall be
determined using an interest rate of 5% and mortality rates in
accordance with Group Annuity Mortality Table for 1951 (Projection
"C" to 1970, set back five years for females). Such accrued
benefit values shall be determined under the method of accrual
used for all Plans of the Employer or, if such method is not
identical, as if such benefit accrued under the fractional rule
as described in Section 411(b)(1)(C) of the Code.
11.02 Definition of Key Employee
An Employee will be considered to be a Key Employee for a Plan Year if,
at any time during the Plan Year or the preceding four Plan Years, he is
an officer of the Employer earning more than 50% of the maximum dollar
limitation under Section 415(b)(1)(A) of the Code; one of the 10
employees owning the largest interests (minimum 1/2%) in the Employer
earning more than the maximum dollar limitation under Section
415(c)(1)(A) of the Code; a 5% owner; or a 1% owner whose compensation
exceeds $150,000. This definition of Key Employee shall be governed by
Section 416 of the Code and Regulations thereunder. For purposes of
this definition, but only to the extent required by law, a Key
Employee's Beneficiary shall be treated as a Key Employee, and ownership
percentages shall be determined without regard to aggregation of
entities under common control within the meaning of Sections 414(b), (c)
and (m) of the Code. In no event shall more than 50 employees (or, if
less, the greater of three employees or 10 percent of the employees) be
deemed officers for purposes of this definition.
11.03 Minimum Employer Contribution
(a) Unless otherwise provided in this Section, for any Plan Year in
which the Plan is determined to be Top-Heavy the sum of the
Company contribution and forfeitures, if any, allocated to any non
Key Employee Member in the employ of the Company on the last
business day of that Plan Year, shall not be less than an amount
which, in combination with all other such amounts allocated to him
under all other defined contribution Plans maintained by the
Employer, is equal to the lesser of
<PAGE>
(i) 3% of the Member's Compensation or
(ii) the highest percentage of Compensation (net of amounts
contributed under a qualified salary reduction or similar
arrangement) at which contributions (including Employer
matching contributions and forfeitures) are allocated for the
Plan Year under the Plan and under any other defined
contribution Plan required to be aggregated with the Plan on
behalf of any Key Employee, times the Member's Compensation.
(b) Any contributions made solely to comply with the provisions of
this Section shall be credited at the end of the Plan Year to the
Member's Account C.
(c) If any Member is also covered by a defined benefit Plan or
Plans maintained by the Employer, then for each year the Plan
is determined to be Top-Heavy, 5% will be substituted in lieu
of the 3% minimum allocation under Paragraph (a)(i) for such
Member and Paragraph (a)(ii) shall not be applicable, unless
the Member receives the Top-Heavy defined benefit minimum
under the defined benefit Plan or Plans in accordance with
Section 416(c)(1) of the Code, notwithstanding any offset
attributable to defined contribution account balances, in
which event no minimum contribution will be required under
the Plan.
(d) For purposes of this Section, only benefits derived from Employer
contributions under the Plan, or any other defined contribution
Plan or Plans are to be taken into account to determine whether
the minimum Employer contribution or benefit has been satisfied,
excluding matching contributions and any contributions
attributable to a salary reduction or similar arrangement, but
including contributions as defined in Internal Revenue Service
Regulation 1.401(k)-1(g)(7). Such salary reduction contributions
will be taken into account to determine the Employer contribution
made on behalf of any Key Employee under Subsection 11.03(a)(ii),
but not to determine whether the minimum Employer contribution or
benefit has been satisfied.
(e) For purposes of this Section only, Member shall also include any
Member who did not meet the 1,000 Hours of Employment requirement
necessary to share in the Company's Stock Contributions.
(f) An Employee who has not met the 1,000 Hours of Employment
requirement for eligibility in accordance with Article 2, shall
not be considered a Member for purposes of this Section.
(g) An employee of a business entity which has not adopted the Plan
shall not be considered a Member for purposes of this Section
unless also employed by the Company.
(h) An Employee who becomes a Member by virtue of the acceptance of a
rollover contribution in accordance with Section 3.07 or a
transfer of assets in accordance with Section 3.08 but who is not
otherwise eligible in accordance with Section 2.01, shall not be
entitled to share in any Company contribution allocated in
accordance with this Article.
11.04 Limitation of Allocations
For any Plan Year in which the Plan is determined to be Top-Heavy or
Super Top-Heavy, the reference to "1.25" in Item (1) of Paragraph (B) of
Subsection 4.03(c) will be changed to read "1.0".
<PAGE>
ARTICLE 12
WITHDRAWAL OF FUNDS DURING EMPLOYMENT
12.0l Withdrawals from Account A and D
Subject to the general withdrawal rules below, a Member may withdraw up
to 100% of Accounts A and D (a) after attaining age 59-1/2 or (b) before
attaining age 59-1/2, provided such withdrawal meets the Financial
Hardship Rules below.
12.02 Withdrawals from Accounts B and C
No withdrawals shall be permitted from Accounts B and C while the Member
is in the employ of the Employer.
12.03 Withdrawals from Account E
Subject to the general withdrawal rules below, a Member may elect to
withdraw up to 100% of his Account E.
12.04 Financial Hardship Rules
(a) For purposes of this Article, a Financial Hardship withdrawal may
be made only if it is on account of an immediate and heavy
financial need of the Member and is necessary to satisfy such
financial need.
(b) The following needs shall be recognized as immediate and heavy
financial needs:
(i) medical expenses, as described in Section 213(d) of the Code,
previously incurred by the Member, the Member's spouse or the
Member's dependents, or funds necessary for these persons to
obtain medical care described in Section 213(d) of the Code,
(ii) purchase of a principal residence for the Member,
(iii) tuition payments and related educational fees for the next 12
months of post-secondary education for the Member or the
Member's spouse, children or other dependents,
(iv) the need to prevent eviction from or foreclosure on the
mortgage of the Member's principal residence,
(v) any other financial need as may be promulgated by the
Internal Revenue Service, and
<PAGE>
(vi) any other financial stress the satisfaction of which is
necessary for the safety, well-being, livelihood or health of
the Member or his immediate family.
(c) Unless otherwise provided in Subsection (d), the Member shall
provide the Committee with a signed written statement certifying
that the Financial Hardship cannot be relieved
(i) through reimbursement of compensation by insurance or
otherwise,
(ii) by reasonable liquidation of such Member's assets, including
those of his spouse and minor children if they are reasonably
available to him,
(iii) by discontinuance of Pay Conversion or Voluntary
Contributions, or
(iv) by other distributions or loans from the Plan or any other
qualified Plan or loans from commercial sources on reasonable
commercial terms.
(d) In the absence of the above certification, the following
requirements will be applicable:
(i) The Member must have obtained all other distributions and
loans available under all Plans maintained by the Employer.
(ii) Pay Conversion Contributions and any other Employee
contributions under all Plans maintained by the Employer will
be suspended for 12 months following the receipt of the
Financial Hardship withdrawal. The Member's Pay Conversion
Contributions under Section 3.01 will automatically be
resumed following the required period of suspension, unless
the Member elects otherwise.
(iii) The limitation of Section 4.01 which is imposed on a Member's
Pay Conversion Contributions for the calendar year
immediately following the calendar year of the Financial
Hardship withdrawal will be reduced by the amount of such
contributions and/or deferrals for the calendar year of such
withdrawal.
(e) The amount of such Financial Hardship withdrawal may not exceed
the amount required to meet the specified need plus any amounts
necessary to pay any federal, state or local income taxes or
penalties reasonably anticipated to result from the withdrawal.
In addition, effective for Plan Years beginning after December 31,
1988, the amount of such withdrawal from Account A shall be
limited to the sum of the Member's Pay Conversion Contributions
made, plus the income credited to Account A as of the last
Valuation Date in 1988.
(f) A Financial Hardship withdrawal from Account A will be available
only after the total amount available from all other Accounts has
been withdrawn.
<PAGE>
12.05 General Withdrawal Rules
Any withdrawal shall be subject to the following requirements:
(a) Only one withdrawal will be permitted during any Plan Year or at
such other frequencies as the Committee may fix from time to time.
(b) A written request for a withdrawal must be submitted to the
Committee at least 30 days prior to the withdrawal date specified,
or such other periods of time as the Committee may fix from time
to time.
(c) A withdrawal may be requested as of any Anniversary Date or at
such other dates as the Committee may fix from time to time with
respect to a hardship withdrawal, providing the market value of
Trust Fund assets, adjusted for contributions and payment activity
has not declined and there is no significant adverse economic
effect on the Trust Fund. If requested as of any date other than
the day after a Valuation Date, no investment earnings will be
credited on the amount withdrawn for the period from the last
Valuation Date to the date specified for the withdrawal.
(d) The minimum amount that may be withdrawn is $500 or the balance in
the Member's Accounts from which a current withdrawal is
permitted, if less. The minimum amount limitation shall not apply
in the case of a hardship withdrawal.
<PAGE>
ARTICLE 13
LOANS
l3.01 Activation of Loan Provisions
The Committee, solely in its discretion and in accordance with the
provisions of this Article, may permit Members to borrow from the Trust
Fund attributable to a Member's Account A and, if applicable, Accounts
D and E.
13.02 Amount of Loans and Terms of Repayment
At such time as loans are permitted, the Committee shall promulgate any
additional specific rules and regulations governing all aspects of this
Article as it deems necessary. The following general rules shall serve
as the basis for any specific rules and regulations:
(a) Upon written application on forms provided by the Committee, the
Committee may grant a loan to a Member, except shareholders or
owner employees as referred to in Section 4975(d) of the Code, for
the following purposes:
(i) medical expenses, as described in Section 213(d) of the Code,
previously incurred by the Member, the Member's spouse or the
Member's dependents, or the funds necessary for these persons
to obtain medical care described in Section 213(d) of the
Code,
(ii) purchase of a principal residence for the Member,
(iii) tuition payments and related educational fees for the next 12
months of post-secondary education for the Member or the
Member's spouse, children or other dependents,
(iv) the need to prevent eviction from or foreclosure on the
mortgage of the Member's principal residence, or
(v) any other financial stress the satisfaction of which is
necessary for the safety, well-being, livelihood or health of
the Member or his immediate family.
The Member may be required to furnish such evidence of purpose and
need as the Committee deems necessary.
(b) The minimum amount of any loan shall be $1,000.
(c) In no event shall a loan exceed the lesser of
<PAGE>
(i) $50,000, reduced by the highest outstanding loan balance
during the one-year period ending on the day before the date
on which any new loan is to be granted, or
(ii) 50% of the amount to which the Member is vested under this
Plan on the date the loan is granted.
(d) Each loan granted to a Member must be repaid in full before any
subsequent loan is granted to such Member.
(e) All loans under this Article shall be considered investments of
the Trust Fund.
Interest shall be charged thereon at a rate determined on the
basis of loans granted under similar circumstances by financial
institutions in the locale of the Company's principal place of
business.
(f) Each loan shall be secured by the assignment of not more than 50%
of the Member's vested Account balance on the date the loan is
granted, a promissory note executed by the Member and such
additional collateral as the Committee shall require to assure
repayment of the loan and all interest payable thereon.
(g) Each loan shall be repaid by the Member either through payroll
deductions or in such other manner as the Committee shall
determine, provided such payment schedule does not permit payment
less frequently than quarterly. All payment schedules shall be
calculated to amortize principal and interest in level payments
over the period of the loan as agreed to by the Committee and the
Member not to exceed five years from the date of such loan.
Notwithstanding the foregoing, in the event a loan is approved for
the purchase of a principal residence, the five-year repayment
requirement will not be applicable.
(h) If a Member should fail to make a payment when due, the entire
unpaid balance of the loan shall be in default and the Committee
shall take any one or more of the following steps, as it deems
necessary, to secure repayment of such loan:
(i) Deduct the amount of the outstanding indebtedness from the
Member's Account, to the extent permitted and available under
law and in accordance with the terms of the Plan. Such
deduction will not occur until a distributable event occurs
under the terms of the Plan.
(ii) Instruct the Trustee to sell any property held as collateral
for such loan.
(iii) Take such other steps as may be required.
(i) Each loan will require that within the 90-day period before the
granting of the loan, the Member and, if married, his spouse,
consent to such loan in writing, and acknowledge the reduction in
the Member's Account in the event the loan is in default.
<PAGE>
(j) No distribution from the Plan upon termination of employment for
any reason shall be made to any Member or Beneficiary unless and
until all loans, including interest thereon, have been fully
repaid.
(k) Any Member who is a "party in interest" as defined in ERISA
Section 3(14) and who ceases to be an active Eligible Employee
may be eligible to borrow from the Plan under terms and conditions
reflecting valid differences between active Members and other
Members which would be considered in a normal commercial setting,
such as the unavailability of payroll deductions for repayment.
In addition, there will be an annual fee for the administration of
each of such loans of $100. In no event will loans be
unreasonably withheld from any eligible applicant.
<PAGE>
ARTICLE 14
GENERAL PROVISIONS
14.01 Exclusiveness of Benefits
The Plan has been created for the exclusive benefit of the Members and
their Beneficiaries. No part of the Trust Fund shall ever revert to the
Company nor shall such Trust Fund ever be used other than for the
exclusive benefit of the Members and their Beneficiaries, except as
provided in Sections 3.10 and 9.03 9.03 and Subsection 4.02(d) provided,
however, that contributions made by the Company by mistake of fact or
which are not deductible under Section 404 of the Code, may be returned
to the Company within one year of the mistaken payment of the
contribution or the date of disallowance of the deduction, as the case
may be. All contributions made by the Company shall be conditional upon
their deductibility under Section 404 of the Code. No person shall have
any interest in or right to any part of the Trust Fund, or any equitable
right under the Trust Agreement, except to the extent expressly provided
in the Plan or Trust Agreement.
14.02 Limitation of Rights
Neither the establishment of the Plan, nor any modification thereof, nor
the creation of any fund, trust or account, nor the purchase of any
policy, nor the payment of any benefits shall be construed as giving any
Member, Beneficiary, or any other person whomsoever, any legal or
equitable right against the Company, the Committee, or the Trustee,
unless such right shall be specifically provided for in the Plan or
conferred by affirmative action of the Committee or the Company in
accordance with the terms and provisions of the Plan; or as giving any
Member or any other employee of the Company the right to be retained in
the service of the Company and all Members and other employees shall
remain subject to discharge to the same extent as if the Plan had never
been adopted.
14.03 Limitation of Liability and Legal Actions
In any action or proceeding involving the Trust Fund, or any part
thereof, or the administration thereof, the Company, the Committee, and
the Trustee shall be the only necessary parties. Any final judgment
entered in any such action or proceeding, which is not appealed or
appealable, shall be binding and conclusive on the parties thereto, and
all persons having or claiming to have an interest in the Trust Fund or
under the Plan.
14.04 Construction of Agreement
The Plan shall be construed according to the laws of the State in which
the Company named under Article l has its principal place of business,
and all provisions hereof shall be administered according to, and its
validity shall be determined under, the laws of such State except where
pre-empted by Federal law.
<PAGE>
14.05 Title to Assets
No Member, Beneficiary or any other person shall have any legal or
equitable right or interest in the funds set aside by the Company, or
otherwise received or held under the Plan, or in any assets of the Trust
Fund, except as expressly provided in the Plan, and no Member,
Beneficiary or any other person shall be deemed to possess a right to
any assets except as herein provided.
14.06 Severability
Should any provision of the Plan or any regulations adopted thereunder
be deemed or held to be unlawful or invalid for any reason, such fact
shall not adversely affect the other provisions or regulations unless
such invalidity shall render impossible or impractical the functioning
of the Plan and, in such case, the appropriate parties shall immediately
adopt a new provision or regulation to take the place of the one held
illegal or invalid.
14.07 Titles and Headings
The titles and headings of the Sections in this instrument are for
convenience of reference only and, in the event of any conflict, the
text rather than such titles or headings shall control.
14.08 Counterparts as Original
The Plan has been prepared in counterparts, each of which so prepared
shall be construed an original.
14.09 Merger of Plans
Upon the merger or consolidation of any other Plan with this Plan or the
transfer of assets or liabilities from this Plan to any other Plan, all
members of this Plan shall be entitled to a benefit immediately after
the merger, consolidation or transfer (if the merged, consolidated or
transferee Plan had then been terminated) at least equal to the benefit
they would have been entitled to immediately prior to such merger,
consolidation or transfer (if the Plan had then terminated).
<PAGE>
IN WITNESS WHEREOF, Robotic Vision Systems, Inc. has caused its
Corporate Seal to be affixed hereto and these presents to be duly
executed in its name and behalf by its proper officer thereunto
authorized this _______________ day of __________________ 19____.
ROBOTIC VISION SYSTEMS, INC.
By __________________________
Title:
(SEAL)
ATTEST
By ________________________
Title:
EXHIBIT 5
[Letterhead of PDR&H]
November 7, 1995
Robotic Vision Systems, Inc.
425 Rabro Drive East
Hauppauge, New York 11788
Re: Registration of 30,000 shares of Common Stock,
par value $.01 per share, under the Securities
Act of 1933, as amended
Ladies and Gentlemen:
In our capacity as counsel to Robotic Vision Systems, Inc., a Delaware
corporation (the "Company"), we have been asked to render this opinion in
connection with a Registration Statement on Form S-8 being filed
contemporaneously herewith by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Registration
Statement"), covering an aggregate of 30,000 shares of Common Stock, par
value $.01 per share, of the Company (the "Stock") to be issued upon the
exercise of options heretofore granted or which may be granted subsequent
hereto to acquire shares of Common Stock under the Company's Stock Ownership
and Deferred Compensation Plan (the "Plan").
In that connection, we have examined the Certificate of Incorporation,
as amended, and the By-Laws, as amended, of the Company, the Registration
Statement, the Plan, corporate proceedings of the Company relating to the
issuance of the Stock pursuant to the Plan, and such other instruments and
documents as we deemed relevant under the circumstances.
In making the aforesaid examinations, we have assumed the genuineness of
all signatures and the conformity to original documents of all copies
furnished to us as photostatic copies. We have also assumed that the
corporate records furnished to us by the Company include all corporate
proceedings taken by the Company to date.
Based upon and subject to the foregoing, we are of the opinion that the
Stock has been duly and validly authorized and, when issued and paid for as
described in the Plan, will be duly and validly issued, fully paid and non-
assessable.
We hereby consent to the use of our opinion as herein set forth as an
exhibit to the Registration Statement.
Very truly yours,
PARKER DURYEE ROSOFF & HAFT
By: /s/Ira Roxland
A Member of the Firm
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Robotic Vision Systems, Inc. on Form S-8 of our reports dated December 14,
1994, appearing in the Annual Report on Form 10K/A of Robotic Vision Systems,
Inc. for the year ended September 30, 1994 and in the Company's definitive
Proxy Statement dated August 9, 1995 relating to the Acuity Merger.
/s/DELOITTE & TOUCHE LLP
Jericho, New York
November 2, 1995
