As filed with the Securities and Exchange Commission on March 8, 2000
Registration Statement No. 33-____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------------
CSX CORPORATION
(Exact name of Registrant as specified in its Charter)
Virginia 62-1051971
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
One James Center
901 East Cary Street
Richmond, Virginia 23219
(804) 782-1400
(Address of principal executive office, including zip code)
THE GREENBRIER SAVINGS AND INVESTMENT
PLAN AND TRUST
(Full title of the Plan)
--------------------
Alan A. Rudnick, Esq.
Vice President-General Counsel and Corporate Secretary
CSX Corporation
One James Center
901 East Cary Street
Richmond, Virginia 23219
(804) 782-1400
(Name, address and telephone number including, area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be Offering price aggregate Amount of
to be registered registered per share offering price registration fee
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par 50,000 shares _______ ________ _________ (2)
value (1)
Rights to Purchase
Series B Junior _______
Participating Preferred
Stock, no par value (3)
- --------------------------------------------------------------------------------------------
============================================================================================
</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933 (the
"Securities Act"), also covers additional securities that may be offered as a
result of stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act based on the average of the
high and low prices for the Common Stock reported in the consolidated reporting
system of the New York Stock Exchange on _______ __, 2000.
(3) The Rights are to be attached to and trade with the shares of the
Company's Common Stock. Value attributable to the Rights, if any, will be
reflected in the market price of the Company's Common Stock.
In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by CSX Corporation (the "Company") with
the Commission are incorporated herein by reference and made a part hereof: (i)
the Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1999 (File No. 1-8022); (ii) the description of the Company's Common Stock (the
"Common Stock") contained in the Company's registration statement on Form 8-B
filed on September 25, 1980 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including any amendment or report filed for the
purpose of updating such description; and (iii) the description of the Rights
contained in the Company's Registration Statement on Form 8-A filed with the
Commission on May 29, 1998 under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
In addition to the foregoing, all documents filed by (i) the Company or (ii) the
Greenbrier Savings and Investment Plan and Trust (the "Plan") pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
that indicates that all securities offered have been sold or that deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
by reference herein 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 document that is incorporated by reference
herein modifies or supersedes such earlier 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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Ellen M. Fitzsimmons, General Counsel-Corporate of the Company, has
passed upon the validity of the Common Stock being registered under this
Registration Statement. Ms. Fitzsimmons is paid a salary by the Company, is a
participant in various employee benefit plans offered to employees of the
Company generally, and owns 4,055 shares of Common Stock and has options to
purchase 14,666 shares of Common Stock.
2
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 10 of the Virginia Stock Corporation Act allows, in general, for
indemnification, in certain circumstances, by a corporation of any person
threatened with or made a party to any action, suit or proceeding by reason of
the fact that he or she is, or was, a director, officer, employee or agent of
such corporation. Indemnification is also authorized with respect to a criminal
action or proceeding where the person had no reasonable cause to believe that
his or her conduct was unlawful. Article 9 of the Virginia Stock Corporation Act
provides limitations on damages payable by officers and directors, except in
cases of willful misconduct or knowing violation of criminal law or any federal
or state securities law.
Article VII of the Company's Amended and Restated Articles of
Incorporation provides for mandatory indemnification of any director or officer
of the Company who is, was or is threatened to be made a party to any proceeding
(including any proceeding by or on behalf of the Company) by reason of the fact
that he or she is or was a director or officer of the Company against all
liabilities and reasonable expenses incurred in the proceeding, except such
liabilities and expenses incurred because of such director's or officer's
willful misconduct or knowing violation of the criminal law.
The Company's Amended and Restated Articles of Incorporation also
provide that in every instance permitted under Virginia corporate law in effect
from time to time, the liability of a director or officer of the Company to the
Company or its shareholders arising out of a single transaction, occurrence or
course of conduct shall be limited to one dollar.
The Company maintains standard policies of officers' and directors'
liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No.
4.1 Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3 to the Company's Form 10-K
(File No. 1-8022) dated February 15, 1991).
4.2 By-Laws of the Company, as amended (incorporated by reference to Exhibit
3.2 of the Company's Form 10-K (File No. 1-8022) for the fiscal year
ended December 31, 1999.)
4.3 Rights Agreement, dated as of May 29, 1998, between CSX and Harris Trust
Company of New York, as Rights Agent (incorporated by reference to
Exhibit 99.1 to the Company's Registration on Form 8-A (File No. 1-8022)
filed May 29, 1998).
4.4 The Greenbrier Savings and Investment Plan and Trust.
4.5 The Greenbrier Savings and Investment Plan and Trust
Trust Agreement.
5 Opinion and Consent of Ellen M. Fitzsimmons, General Counsel-Corporate
of the Company, as to the validity of the Common Stock offered
hereunder.
23.1 Consent of Ellen M. Fitzsimmons, General Counsel-Corporate of the
Company (included in the opinion filed as Exhibit 5 hereto).
3
<PAGE>
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of Ernst & Young LLP and KPMG LLP, Independent Auditors.
23.4 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24 Power of Attorney.
ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes:
1. To file, during any period in which offers or sales
are made, a post-effective amendment to this
Registration Statement;
(i) To include any prospectus required by Section 10(a)
(3) of 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;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed
in this Registration Statement or any material
change in such information in this Registration
Statement;
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
---- ----
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the provisions described under Item 6 above, or
otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities
Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the 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.
4
<PAGE>
SIGNATURES
THE COMPANY
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Richmond, Virginia, on this 8th day of March, 2000.
CSX CORPORATION
(Registrant)
By: /s/ Gregory R. Weber
----------------------------
Gregory R. Weber
Vice President and Treasurer
5
<PAGE>
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 8th day of March, 2000.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the each of the undersigned
officers and directors of CSX CORPORATION, a Virginia corporation (the
"Corporation"), hereby constitutes and appoints Ellen M. Fitzsimmons, Alan A.
Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of them acting
individually, his or her true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign and file a registration
statement with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), registering
securities of the Corporation which may be issued pursuant to The Greenbrier
Savings and Investment Plan and Trust, with power to sign and file any amendment
or amendments, including post-effective amendments thereto, with all exhibits
thereto and any and all other documents in connection with therewith, hereby
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary or desirable to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or
their substitutes or his substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney this 8th day of December, 1999.
Signature Title
By: /s/ John W. Snow Chairman, President, Chief Executive
------------------------------ Officer and Director (Principal
John W. Snow Executive Officer)
By: /s/ Paul R. Goodwin Executive Vice President - Finance
------------------------------ and Chief Financial Officer (Principal
Paul R. Goodwin Financial Officer)
By: /s/ James L. Ross Vice President and Controller
------------------------------ (Principal Accounting Officer)
James L. Ross
By: /s/ Elizabeth E. Bailey Director
------------------------------
Elizabeth E. Bailey
By: /s/ H. Furlong Baldwin Director
------------------------------
H. Furlong Baldwin
By: /s/ Claude S. Brinegar Director
------------------------------
Claude S. Brinegar
6
<PAGE>
By: /s/ Robert L. Burrus, Jr. Director
------------------------------
Robert L. Burrus, Jr.
By: /s/ Bruce C. Gottwald Director
------------------------------
Bruce C. Gottwald
By: /s/ John R. Hall Director
------------------------------
John R. Hall
By: /s/ E. Bradley Jones Director
------------------------------
E. Bradley Jones
By: /s/ Robert D. Kunisch Director
------------------------------
Robert D. Kunisch
By: /s/ James W. McGlothlin Director
------------------------------
James W. McGlothin
By: /s/ Southwood J. Morcott Director
------------------------------
Southwood J. Morcott
By: /s/ Charles E. Rice Director
------------------------------
Charles E. Rice
By: /s/ William C. Richardson Director
------------------------------
William C. Richardson
By: /s/ Frank S. Royal Director
------------------------------
Frank S. Royal
7
<PAGE>
SIGNATURES
THE PLAN
Pursuant to the requirements of the Securities Act, the Plan has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Richmond, Virginia on this 8th day of
March, 2000.
The Greenbrier Savings and Investment Plan and Trust
By: /s/ Gregory R. Weber
--------------------------------
Gregory R. Weber
Vice President and Treasurer
CSX Hotels, Inc.
8
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------
EXHIBITS
FILED WITH
REGISTRATION STATEMENT
ON
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
CSX CORPORATION
THE GREENBRIER SAVINGS AND INVESTMENT
PLAN AND TRUST
(FULL TITLE OF THE PLAN)
<PAGE>
EXHIBITS
Exhibit No. Description
4.1 Amended and Restated Articles of
Incorporation of the Company
(incorporated by reference to
Exhibit 3 to the Company's Form 10-K
(File No. 1-8022) dated February 15,
1991).
4.2 By-Laws of the Company, as amended
(incorporated by reference to
Exhibit 3.2 to the Company's Form
10-K (File No. 1-8022 for the fiscal
year ended December 31, 1999).
4.3 Rights Agreement, dated as of May
29, 1998, between CSX and Harris
Trust Company of New York, as Rights
Agent, (incorporated by reference to
Exhibit 99.1 to the Company's
Registration on Form 8-A (File No.
1-8022) filed May 29, 1998 (File No.
2-62373)).
4.4 The Greenbrier Savings and
Investment Plan and Trust.
4.5 The Greenbrier Savings and Investment Plan
and Trust
Trust Agreement.
5 Opinion and Consent of Ellen M.
Fitzsimmons, General Counsel-Corporate of the
Company, as to the validity of the Common
Stock and Rights offered hereunder.
23.1 Consent of Ellen M. Fitzsimmons,
General Counsel-Corporate of the
Company (included in the opinion
filed as Exhibit 5 hereto).
23.2 Consent of Ernst & Young LLP, Independent
Auditors.
23.3 Consent of Ernst & Young LLP and
KPMG LLP, Independent Auditors.
23.4 Consent of PricewaterhouseCoopers
LLP, Independent Accountants.
24 Power of Attorney.
THE GREENBRIER
SAVINGS AND INVESTMENT PLAN AND TRUST
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
ADMINISTRATION
2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER....................15
2.2 DESIGNATION OF ADMINISTRATIVE AUTHORITY........................16
2.3 POWERS AND DUTIES OF THE ADMINISTRATOR.........................16
2.4 RECORDS AND REPORTS............................................17
2.5 APPOINTMENT OF ADVISERS........................................17
2.6 PAYMENT OF EXPENSES............................................18
2.7 CLAIMS PROCEDURE...............................................18
2.8 CLAIMS REVIEW PROCEDURE........................................18
ARTICLE III
ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY......................................19
3.2 EFFECTIVE DATE OF PARTICIPATION................................19
3.3 DETERMINATION OF ELIGIBILITY...................................19
3.4 TERMINATION OF ELIGIBILITY.....................................19
3.5 OMISSION OF ELIGIBLE EMPLOYEE..................................19
3.6 INCLUSION OF INELIGIBLE EMPLOYEE...............................20
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1 FORMULA FOR DETERMINING EMPLOYER CONTRIBUTION..................20
4.2 PARTICIPANT'S SALARY REDUCTION ELECTION........................21
4.3 TIME OF PAYMENT OF EMPLOYER CONTRIBUTION.......................25
4.4 ALLOCATION OF CONTRIBUTION AND EARNINGS........................25
4.5 ACTUAL DEFERRAL PERCENTAGE TESTS...............................28
4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS.................32
4.7 ACTUAL CONTRIBUTION PERCENTAGE TESTS...........................33
4.8 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS.............37
4.9 MAXIMUM ANNUAL ADDITIONS.......................................39
4.10 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS......................43
4.11 TRANSFERS FROM QUALIFIED PLANS.................................44
4.12 DIRECTED INVESTMENT ACCOUNT....................................46
(i)
ARTICLE V
VALUATIONS
5.1 VALUATION OF THE TRUST FUND....................................48
5.2 METHOD OF VALUATION............................................48
ARTICLE VI
DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT......................48
6.2 DETERMINATION OF BENEFITS UPON DEATH...........................49
6.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY...............50
6.4 DETERMINATION OF BENEFITS UPON TERMINATION.....................50
6.5 DISTRIBUTION OF BENEFITS.......................................51
6.6 DISTRIBUTION OF BENEFITS UPON DEATH............................53
6.7 TIME OF SEGREGATION OR DISTRIBUTION............................55
6.8 DISTRIBUTION FOR MINOR BENEFICIARY.............................55
6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN.................56
6.10 PRE-RETIREMENT DISTRIBUTION....................................56
6.11 ADVANCE DISTRIBUTION FOR HARDSHIP..............................56
6.12 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION................58
6.13 DIRECT ROLLOVER................................................59
ARTICLE VII
AMENDMENT, TERMINATION AND MERGERS
7.1 AMENDMENT......................................................60
7.2 TERMINATION....................................................60
7.3 MERGER OR CONSOLIDATION........................................61
ARTICLE VIII
TOP HEAVY
8.1 TOP HEAVY PLAN REQUIREMENTS....................................61
8.2 DETERMINATION OF TOP HEAVY STATUS..............................61
ARTICLE IX
MISCELLANEOUS
9.1 PARTICIPANT'S RIGHTS...........................................65
9.2 ALIENATION.....................................................65
9.3 CONSTRUCTION OF PLAN...........................................66
9.4 GENDER AND NUMBER..............................................66
9.5 LEGAL ACTION...................................................66
9.6 PROHIBITION AGAINST DIVERSION OF FUNDS.........................66
(ii)
9.7 BONDING........................................................67
9.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE.....................67
9.9 INSURER'S PROTECTIVE CLAUSE....................................67
9.10 RECEIPT AND RELEASE FOR PAYMENTS...............................67
9.11 ACTION BY THE EMPLOYER.........................................68
9.12 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY.............68
9.13 HEADINGS.......................................................68
9.14 APPROVAL BY INTERNAL REVENUE SERVICE...........................69
9.15 UNIFORMITY.....................................................69
ARTICLE X
PARTICIPATING EMPLOYERS
10.1 ADOPTION BY OTHER EMPLOYERS....................................69
10.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS........................69
10.3 DESIGNATION OF AGENT...........................................70
10.4 EMPLOYEE TRANSFERS.............................................71
10.5 PARTICIPATING EMPLOYER CONTRIBUTION............................71
10.6 AMENDMENT......................................................71
10.7 DISCONTINUANCE OF PARTICIPATION................................71
10.8 ADMINISTRATOR'S AUTHORITY......................................72
(iii)
THE GREENBRIER
SAVINGS AND INVESTMENT PLAN AND TRUST
THIS PLAN, hereby adopted this 1st day of June, 1998, by CSX
Hotels, Inc. dba The Greenbrier (herein referred to as the "Employer").
W l T N E S S E T H :
WHEREAS, the Employer heretofore established a Profit Sharing
Plan effective September 1, 1993, (hereinafter called the "Effective Date")
known as The Greenbrier Savings and Investment Plan and Trust (herein referred
to as the "Plan") in recognition of the contribution made to its successful
operation by its employees and for the exclusive benefit of its eligible
employees; and
WHEREAS, under the terms of the Plan, the Employer has the
ability to amend the Plan, provided the Trustee joins in such amendment if the
provisions of the Plan affecting the Trustee are amended;
NOW, THEREFORE, effective February 1, 1998, except as otherwise
provided, the Employer in accordance with the provisions of the Plan pertaining
to amendments thereof, hereby amends the Plan in its entirety and restates the
Plan to provide as follows:
ARTICLE I
DEFINITIONS
1.1 "Act" means the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
1.2 "Administrator" means the Employer unless another person or entity
has been designated by the Employer pursuant to Section 2.2 to administer the
Plan on behalf of the Employer.
1.3 "Affiliated Employer" means any corporation which is a member of a
controlled group of corporations (as defined in Code Section 414(b)) which
includes the Employer; any trade or business (whether or not incorporated) which
is under common control (as defined in Code Section 414(c)) with the Employer;
any organization (whether or not incorporated) which is a member of an
affiliated service group (as defined in Code Section 414(m)) which includes the
Employer; and any other entity required to be aggregated with the Employer
pursuant to Regulations under Code Section 414(o).
1.4 "Aggregate Account" means, with respect to each Participant, the
value of all accounts maintained on behalf of a Participant, whether
attributable to Employer or Employee contributions, subject to the provisions of
Section 8.2.
1.5 "Anniversary Date" means December 31st.
1
1.6 "Beneficiary" means the person to whom the share of a deceased
Participant's total account is payable, subject to the restrictions of Sections
6.2 and 6.6.
1.7 "Code" means the Internal Revenue Code of 1986, as amended or
replaced from time to time.
1.8 "Compensation" with respect to any Participant means such
Participant's wages as defined in Code Section 3401(a) and all other payments of
compensation by the Employer (in the course of the Employer's trade or business)
for a Plan Year for which the Employer is required to furnish the Participant a
written statement under Code Sections 6041(d), 605l(a)(3) and 6052. Compensation
must be determined without regard to any rules under Code Section 3401(a) that
limit the remuneration included in wages based on the nature or location of the
employment or the services performed (such as the exception for agricultural
labor in Code Section 3401(a)(2)).
For purposes of this Section, the determination of Compensation
shall be made by:
(a) excluding tips as reported as income for Social Security
purposes.
(b) including amounts which are contributed by the Employer
pursuant to a salary reduction agreement and which are not
includible in the gross income of the Participant under
Code Sections 125, 402(e)(3), 402(h)(1)(B), 403(b) or
457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer
contributions.
For a Participant's initial year of participation, Compensation
shall be recognized as of such Employee's effective date of participation
pursuant to Section 3.2.
Compensation in excess of $150,000 shall be disregarded. Such
amount shall be adjusted for increases in the cost of living in accordance with
Code Section 401(a)(17), except that the dollar increase in effect on January 1
of any calendar year shall be effective for the Plan Year beginning with or
within such calendar year. For any short Plan Year the Compensation limit shall
be an amount equal to the Compensation limit for the calendar year in which the
Plan Year begins multiplied by the ratio obtained by dividing the number of full
months in the short Plan Year by twelve (12).
For purposes of this Section, if the Plan is a plan described in
Code Section 413(c) or 414(f) (a plan maintained by more than one Employer), the
limitation applies separately with respect to the Compensation of any
Participant from each Employer maintaining the Plan.
If, in connection with the adoption of this amendment and
restatement, the definition of Compensation has been modified, then, for Plan
Years prior to the Plan Year which includes the adoption date of this amendment
and restatement, Compensation means compensation determined pursuant to the Plan
then in effect.
2
1.9 "Contract" or "Policy" means any life insurance policy, retirement
income or annuity policy, or annuity contract (group or individual) issued
pursuant to the terms of the Plan.
1.10 "Deferred Compensation" with respect to any Participant means the
amount of the Participant's total Compensation which has been contributed to the
Plan in accordance with the Participant's deferral election pursuant to Section
4.2 excluding any such amounts distributed as excess "annual additions" pursuant
to Section 4.10(a).
1.11 "Designated Investment Alternative" means a specific investment
identified by name by a Fiduciary as an available investment under the Plan
which may be acquired or disposed of by the Trustee pursuant to the investment
direction by a Participant.
1.12 "Directed Investment Option" means one or more of the following:
(a) a Designated Investment Alternative.
(b) any other investment permitted by the Plan and the
Participant Direction Procedures and acquired or disposed
of by the Trustee pursuant to the investment direction of
a Participant.
1.13 "Early Retirement Date." This Plan does not provide for a
retirement date prior to Normal Retirement Date.
1.14 "Elective Contribution" means the Employer contributions to the
Plan of Deferred Compensation excluding any such amounts distributed as excess
"annual additions" pursuant to Section 4.10(a). In addition, any Employer
Qualified Non-Elective Contribution made pursuant to Section 4.1(c) and Section
4.6(b) which is used to satisfy the "Actual Deferral Percentage" tests shall be
considered an Elective Contribution for purposes of the Plan. Any contributions
deemed to be Elective Contributions (whether or not used to satisfy the "Actual
Deferral Percentage" tests) shall be subject to the requirements of Sections
4.2(b) and 4.2(c) and shall further be required to satisfy the nondiscrimination
requirements of Regulation 1.401(k)-1 (b)(5), the provisions of which are
specifically incorporated herein by reference.
1.15 "Eligible Employee" means any Employee; provided that employees of
Affiliated Employers shall not be Eligible Employees eligible to participate in
the Plan unless such Affiliated Employer specifically adopts the Plan by action
of its board of directors and then only employees of such Affiliated Employer
who are not excluded from coverage by the adopting resolution or who are not
covered by another qualified plan containing a cash or deferred arrangement in
which such Affiliated Employer participates and in which they are eligible to
participate shall be considered Eligible Employees for purposes of the Plan.
1.16 "Employee" means any person who is employed by, and actually
rendering services for, the Employer or an Affiliated Employer who is classified
as an employee by the Employer or such Affiliated Employer for U.S. federal
income tax withholding purposes (whether or not such classification is
ultimately determined to be correct as a matter of law); provided that, the term
"Employee" does not include employees of the Grand Teton Lodge
3
Company employed on a "no-benefits" basis or on a "non-benefit" payroll or
Leased Employees within the meanings of Code Sections 414(n)(2) and 414(o)(2).
1.17 "Employer" means CSX Hotels, Inc. dba The Greenbrier and any
successor which shall maintain this Plan; and any predecessor which has
maintained this Plan. The Employer is a corporation, with principal offices in
the State of West Virginia. In addition, where appropriate, the term Employer
shall include any Participating Employer (as defined in Section 10.1) which
shall adopt this Plan.
1.18 "Excess Aggregate Contributions" means, with respect to any Plan
Year, the excess of the aggregate amount of the Employer matching contributions
made pursuant to Section 4.1(b) and any qualified non-elective contributions or
elective deferrals taken into account pursuant to Section 4.7(c) on behalf of
Highly Compensated Participants for such Plan Year, over the maximum amount of
such contributions permitted under the limitations of Section 4.7(a).
1.19 "Excess Contributions" means, with respect to a Plan Year, the
excess of Elective Contributions used to satisfy the "Actual Deferral
Percentage" tests made on behalf of Highly Compensated Participants for the Plan
Year over the maximum amount of such contributions permitted under Section
4.5(a). Excess Contributions shall be treated as an "annual addition" pursuant
to Section 4.9(b).
1.20 "Excess Deferred Compensation" means, with respect to any taxable
year of a Participant, the excess of the aggregate amount of such Participant's
Deferred Compensation and the elective deferrals pursuant to Section 4.2(f)
actually made on behalf of such Participant for such taxable year, over the
dollar limitation provided for in Code Section 402(g), which is incorporated
herein by reference. Excess Deferred Compensation shall be treated as an "annual
addition" pursuant to Section 4.9(b) when contributed to the Plan unless
distributed to the affected Participant not later than the first April 15th
following the close of the Participant's taxable year. Additionally, for
purposes of Sections 8.2 and 4.4(f), Excess Deferred Compensation shall continue
to be treated as Employer contributions even if distributed pursuant to Section
4.2(f). However, Excess Deferred Compensation of Non-Highly Compensated
Participants is not taken into account for purposes of Section 4.5(a) to the
extent such Excess Deferred Compensation occurs pursuant to Section 4.2(d).
1.21 "Family Member" means, with respect to an affected Participant,
such Participant's spouse and such Participant's lineal descendants and
ascendants and their spouses, all as described in Code Section 414(q)(6)(B).
1.22 "Fiduciary" means any person who (a) exercises any discretionary
authority or discretionary control respecting management of the Plan or
exercises any authority or control respecting management or disposition of its
assets, (b) renders investment advice for a fee or other compensation, direct or
indirect, with respect to any monies or other property of the Plan or has any
authority or responsibility to do so, or (c) has any discretionary authority or
discretionary responsibility in the administration of the Plan, including, but
not limited to, the Trustee, the Employer and its representative body, and the
Administrator.
4
1.23 "Fiscal Year" means the Employer's accounting year of 12 months
commencing on January 1st of each year and ending the following December 31st.
1.24 "Forfeiture." Under this Plan, Participant accounts are 100% Vested
at all times. Any amounts that may otherwise be forfeited under the Plan
pursuant to Sections 3.6, 4.2(f), 4.6(a) or 6.9 shall be used to reduce the
contribution of the Employer.
1.25 "Former Participant" means a person who has been a Participant, but
who has ceased to be a Participant for any reason.
1.26 "415 Compensation" with respect to any Participant means such
Participant's wages as defined in Code Section 3401(a) and all other payments of
compensation by the Employer (in the course of the Employer's trade or business)
for a Plan Year for which the Employer is required to furnish the Participant a
written statement under Code Sections 6041(d), 6051(a)(3) and 6052. "415
Compensation" must be determined without regard to any rules under Code Section
3401(a) that limit the remuneration included in wages based on the nature or
location of the employment or the services performed (such as the exception for
agricultural labor in Code Section 3401(a)(2)).
For Plan Years beginning after December 31, 1997, for purposes of
this Section, the determination of "415 Compensation" shall be made by including
amounts which are contributed by the Employer pursuant to a salary reduction
agreement and which are not includible in the gross income of the Participant
under Code Sections 125, 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and Employee
contributions described in Code Section 414(h)(2) that are treated as Employer
contributions.
If, in connection with the adoption of this amendment and
restatement, the definition of "415 Compensation" has been modified, then, for
Plan Years prior to the Plan Year which includes the adoption date of this
amendment and restatement, "415 Compensation" means compensation determined
pursuant to the Plan then in effect.
1.27 "414(s) Compensation" with respect to any Participant means such
Participant's "415 Compensation" paid during a Plan Year. The amount of "414(s)
Compensation" with respect to any Participant shall include "414(s)
Compensation" for the entire twelve (12) month period ending on the last day of
such Plan Year, except that "414(s) Compensation" shall only be recognized for
that portion of the Plan Year during which an Employee was a Participant in the
Plan.
For purposes of this Section, the determination of "414(s)
Compensation" shall be made by including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions.
"414(s) Compensation" in excess of $150,000 shall be
disregarded. Such amount shall be adjusted for increases in the cost of
living in accordance with Code Section 401(a)(17),
5
except that the dollar increase in effect on January 1 of any calendar year
shall be effective for the Plan Year beginning with or within such calendar
year. For any short Plan Year the "414(s) Compensation" limit shall be an
amount equal to the "414(s) Compensation" limit for the calendar year in which
the Plan Year begins multiplied by the ratio obtained by dividing the number
of full months in the short Plan Year by twelve (12).
If, in connection with the adoption of this amendment and
restatement, the definition of "414(s) Compensation" has been modified, then,
for Plan Years prior to the Plan Year which includes the adoption date of this
amendment and restatement, "414(s) Compensation" means compensation determined
pursuant to the Plan then in effect.
1.28 "Highly Compensated Employee" means an Employee described in Code
Section 414(q) and the Regulations thereunder, and generally means an Employee
who performed services for the Employer during the "determination year" and is
in one or more of the following groups:
(a) Employees who at any time during the "determination year"
or "look-back year" were "five percent owners" as defined
in Section 1.34(c).
(b) Employees who received "415 Compensation" during the
"look-back year" from the Employer in excess of $80,000
and were in the Top Paid Group of Employees during the
"look-back year."
The "determination year" shall be the Plan Year for which testing
is being performed, and the "look-back year" shall be the immediately preceding
twelve-month period.
For purposes of this Section, the determination of "415
Compensation" shall be made by including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions. Additionally, the
dollar threshold amount specified in (b) above shall be adjusted at such time
and in the same manner as under Code Section 415(d), except that the base period
shall be the calendar quarter ending September 30, 1996. In the case of such an
adjustment, the dollar limit which shall be applied is the limit for the
calendar year in which the "look-back year" begins.
In determining who is a Highly Compensated Employee, Employees
who are non-resident aliens and who received no earned income (within the
meaning of Code Section 911(d)(2)) from the Employer constituting United States
source income within the meaning of Code Section 861(a)(3) shall not be treated
as Employees. Additionally, all Affiliated Employers shall be taken into account
as a single employer and Leased Employees within the meaning of Code Sections
414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased
Employees are covered by a plan described in Code Section 414(n)(5) and are not
covered in any qualified plan maintained by the Employer. The exclusion of
Leased Employees for this purpose shall be applied on a uniform and consistent
basis for all of the Employer's retirement plans.
6
Highly Compensated Former Employees shall
be treated as Highly Compensated Employees without regard to whether they
performed services during the "determination year."
1.29 "Highly Compensated Former Employee" means a former Employee who
had a separation year prior to the "determination year" and was a Highly
Compensated Employee in the year of separation from service or in any
"determination year" after attaining age 55. Notwithstanding the foregoing, an
Employee who separated from service prior to 1987 will be treated as a Highly
Compensated Former Employee only if during the separation year (or year
preceding the separation year) or any year after the Employee attains age 55 (or
the last year ending before the Employee's 55th birthday), the Employee either
received "415 Compensation" in excess of $50,000 or was a "five percent owner."
For purposes of this Section, "determination year," "415 Compensation" and "five
percent owner" shall be determined in accordance with Section 1.28. Highly
Compensated Former Employees shall be treated as Highly Compensated Employees.
The method set forth in this Section for determining who is a "Highly
Compensated Former Employee" shall be applied on a uniform and consistent basis
for all purposes for which the Code Section 414(q) definition is applicable.
1.30 "Highly Compensated Participant" means any Highly Compensated
Employee who is eligible to participate in the Plan.
1.31 "Hour of Service" means (1) each hour for which an Employee is
directly or indirectly compensated or entitled to compensation by the Employer
for the performance of duties (these hours will be credited to the Employee for
the computation period in which the duties are performed); (2) each hour for
which an Employee is directly or indirectly compensated or entitled to
compensation by the Employer (irrespective of whether the employment
relationship has terminated) for reasons other than performance of duties (such
as vacation, holidays, sickness, jury duty, disability, lay-off, military duty
or leave of absence) during the applicable computation period (these hours will
be calculated and credited pursuant to Department of Labor regulation
2530.200b-2 which is incorporated herein by reference); (3) each hour for which
back pay is awarded or agreed to by the Employer without regard to mitigation of
damages (these hours will be credited to the Employee for the computation period
or periods to which the award or agreement pertains rather than the computation
period in which the award, agreement or payment is made). The same Hours of
Service shall not be credited both under (1) or (2), as the case may be, and
under (3).
Notwithstanding the above, (i) no more than 501 Hours of Service
are required to be credited to an Employee on account of any single continuous
period during which the Employee performs no duties (whether or not such period
occurs in a single computation period); (ii) an hour for which an Employee is
directly or indirectly paid, or entitled to payment, on account of a period
during which no duties are performed is not required to be credited to the
Employee if such payment is made or due under a plan maintained solely for the
purpose of complying with applicable worker's compensation, or unemployment
compensation or disability insurance laws; and (iii) Hours of Service are not
required to be credited for a payment which solely reimburses an Employee for
medical or medically related expenses incurred by the Employee.
7
For purposes of this Section, a payment shall be deemed to be
made by or due from the Employer regardless of whether such payment is made by
or due from the Employer directly, or indirectly through, among others, a trust
fund, or insurer, to which the Employer contributes or pays premiums and
regardless of whether contributions made or due to the trust fund, insurer, or
other entity are for the benefit of particular Employees or are on behalf of a
group of Employees in the aggregate.
For purposes of this Section, Hours of Service will be credited
for employment with other Affiliated Employers. The provisions of Department of
Labor regulations 2530.200b-2(b) and (c) are incorporated herein by reference.
1.32 "Income" means the income or losses allocable to "excess amounts"
which shall equal the allocable gain or loss for the "applicable computation
period." The income allocable to "excess amounts" for the "applicable
computation period" is determined by multiplying the income for the "applicable
computation period" by a fraction. The numerator of the fraction is the "excess
amount" for the "applicable computation period." The denominator of the fraction
is the total "account balance" attributable to "Employer contributions" as of
the end of the "applicable computation period," reduced by the gain allocable to
such total amount for the "applicable computation period" and increased by the
loss allocable to such total amount for the "applicable computation period." The
provisions of this Section shall be applied:
(a) For purposes of Section 4.2(f), by substituting:
(1) "Excess Deferred Compensation" for "excess
amounts";
(2) "taxable year of the Participant" for "applicable
computation period";
(3) "Deferred Compensation" for "Employer
contributions"; and
(4) "Participant's Elective Account" for "account
balance."
(b) For purposes of Section 4.6(a), by substituting:
(5) "Excess Contributions" for "excess amounts";
(6) "Plan Year" for "applicable computation period";
(7) "Elective Contributions" for "Employer
contributions"; and
(8) "Participant's Elective Account" for "account
balance."
(c) For purposes of Section 4.8(a), by substituting:
(9) "Excess Aggregate Contributions" for "excess
amounts";
(10) "Plan Year" for "applicable computation period";
8
(11) "Employer matching contributions made pursuant to
Section 4.1(b) and any qualified non-elective
contributions or elective deferrals taken into
account pursuant to Section 4.7(c)" for "Employer
contributions"; and
(12) "Participant's Account" for "account balance."
Income allocable to any distribution of Excess Deferred
Compensation on or before the last day of the taxable year of the Participant
shall be calculated from the first day of the taxable year of the Participant to
the date on which the distribution is made pursuant to either the "fractional
method" or the "safe harbor method." Under such "safe harbor method," allocable
Income for such period shall be deemed to equal ten percent (10%) of the Income
allocable to such Excess Deferred Compensation multiplied by the number of
calendar months in such period. For purposes of determining the number of
calendar months in such period, a distribution occurring on or before the
fifteenth day of the month shall be treated as having been made on the last day
of the preceding month and a distribution occurring after such fifteenth day
shall be treated as having been made on the first day of the next subsequent
month.
1.33 "Investment Manager" means an entity that (a) has the power to
manage, acquire, or dispose of Plan assets and (b) acknowledges fiduciary
responsibility to the Plan in writing. Such entity must be a person, firm, or
corporation registered as an investment adviser under the Investment Advisers
Act of 1940, a bank, or an insurance company.
1.34 "Key Employee" means an Employee as defined in Code Section 416(i)
and the Regulations thereunder. Generally, any Employee or former Employee (as
well as each of his Beneficiaries) is considered a Key Employee if he, at any
time during the Plan Year that contains the "Determination Date" or any of the
preceding four (4) Plan Years, has been included in one of the following
categories:
(a) an officer of the Employer (as that term is defined within
the meaning of the Regulations under Code Section 416)
having annual "415 Compensation" greater than 50 percent
of the amount in effect under Code Section 415(b)(1)(A)
for any such Plan Year.
(b) one of the ten employees having annual "415 Compensation"
from the Employer for a Plan Year greater than the dollar
limitation in effect under Code Section 415(c)(1)(A) for
the calendar year in which such Plan Year ends and owning
(or considered as owning within the meaning of Code
Section 318) both more than one-half percent interest and
the largest interests in the Employer.
(c) a "five percent owner" of the Employer. "Five percent
owner" means any person who owns (or is considered as
owning within the meaning of Code Section 318) more than
five percent (5%) of the outstanding stock of the Employer
or stock possessing more than five percent (5%) of the
total combined voting power of all stock of the Employer
or, in the case of an
9
unincorporated business, any person who owns more than
five percent (5%) of the capital or profits interest in
the Employer. In determining percentage ownership
hereunder, employers that would otherwise be aggregated
under Code Sections 414(b), (c), (m) and (o) shall be
treated as separate employers.
(d) a "one percent owner" of the Employer having an annual
"415 Compensation" from the Employer of more than
$150,000. "One percent owner" means any person who
owns (or is considered as owning within the meaning of
Code Section 318) more than one percent (1%) of the
outstanding stock of the Employer or stock possessing
more than one percent (1%) of the total combined voting
power of all stock of the Employer or, in the case of an
unincorporated business, any person who owns more than
one percent (1%) of the capital or profits interest in
the Employer. In determining percentage ownership
hereunder, employers that would otherwise be aggregated
under Code Sections 414(b), (c), (m) and (o) shall be
treated as separate employers. However, in determining
whether an individual has "415 Compensation" of more than
$150,000, "415 Compensation" from each employer required
to be aggregated under Code Sections 414(b), (c), (m)
and (o) shall be taken into account.
For purposes of this Section, the determination of "415
Compensation" shall be made by including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions.
1.1 "Late Retirement Date" means a Participant's actual Retirement
Date after having reached his Normal Retirement Date.
1.35 "Leased Employee" means 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 Code Section
414(n)(6)) on a substantially full time basis for a period of at least one year,
and such services are performed under primary direction or control by the
recipient. 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. A Leased
Employee shall not be considered an Employee of the recipient:
(a) if such employee is covered by a money purchase pension
plan providing:
(13) a non-integrated employer contribution rate of at
least 10% of compensation, as defined in Code
Section 415(c)(3), but including amounts which are
contributed by the Employer pursuant to a salary
reduction agreement and which are not includible in
the
10
gross income of the Participant under Code Sections
125, 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and
Employee contributions described in Code Section
414(h)(2) that are treated as Employer
contributions.
(14) immediate participation; and
(15) full and immediate vesting; and
(b) if Leased Employees do not constitute more than 20% of the
recipient's non-highly compensated work force.
1.36 "Non-Elective Contribution" means the Employer contributions to the
Plan excluding, however, contributions made pursuant to the Participant's
deferral election provided for in Section 4.2 and any Qualified Non-Elective
Contribution used in the "Actual Deferral Percentage" tests.
1.37 "Non-Highly Compensated Participant" means any Participant who is
not a Highly Compensated Employee. However, for the Plan Year prior to the first
Plan Year of this amendment and restatement, for the purposes of Section 4.5(a)
and Section 4.7(a), if the prior year testing method is used, a NonHighly
Compensated Participant shall be determined using the definition of highly
compensated employee in effect for the preceding Plan Year.
1.38 "Non-Key Employee" means any Employee or former Employee (and his
Beneficiaries) who is not a Key Employee.
1.39 "Normal Retirement Age" means the Participant's 65th birthday.
1.39a "Normal Retirement Date" means the date a Participant attains his
Normal Retirement Age.
1.40 "1-Year Break in Service" means the applicable computation period
during which an Employee has not completed more than 500 Hours of Service with
the Employer. Further, solely for the purpose of determining whether a
Participant has incurred a 1-Year Break in Service, Hours of Service shall be
recognized for "authorized leaves of absence" and "maternity and paternity
leaves of absence." Years of Service and 1-Year Breaks in Service shall be
measured on the same computation period.
"Authorized leave of absence" means an unpaid, temporary
cessation from active employment with the Employer pursuant to an established
nondiscriminatory policy, whether occasioned by illness, military service, or
any other reason.
A "maternity or paternity leave of absence" means, for Plan Years
beginning after December 31, 1984, an absence from work for any period by reason
of the Employee's pregnancy, birth of the Employee's child, placement of a child
with the Employee in connection
11
with the adoption of such child, or any absence for the purpose
of caring for such child for a period immediately following such
birth or placement. For this purpose, Hours of Service shall be credited for the
computation period in which the absence from work begins, only if credit
therefore is necessary to prevent the Employee from incurring a 1-Year Break in
Service, or, in any other case, in the immediately following computation period.
The Hours of Service credited for a "maternity or paternity leave of absence"
shall be those which would normally have been credited but for such absence, or,
in any case in which the Administrator is unable to determine such hours
normally credited, eight (8) Hours of Service per day. The total Hours of
Service required to be credited for a "maternity or paternity leave of absence"
shall not exceed 501.
1.41 "Participant" means any Eligible Employee who participates in the
Plan and has not for any reason become ineligible to participate further in the
Plan.
1.42 "Participant Direction Procedures" means such instructions,
guidelines or policies, the terms of which are incorporated herein, as shall be
established pursuant to Section 4.12 and observed by the Administrator and
applied and provided to Participants who have Participant Directed Accounts.
1.43 "Participant's Account" means the account established and
maintained by the Administrator for each Participant with respect to his total
interest in the Plan and Trust resulting from the Employer Non-Elective
Contributions.
A separate accounting shall be maintained with respect to that
portion of the Participant's Account attributable to Employer matching
contributions made pursuant to Section 4.1(b), Employer discretionary
contributions made pursuant to Section 4.1(d) and any Employer Qualified
Non-Elective Contributions.
1.44 "Participant's Combined Account" means the total aggregate amount
of each Participant's Elective Account and Participant's Account.
1.45 "Participant's Directed Account" means that portion of a
Participant's interest in the Plan with respect to which the Participant has
directed the investment in accordance with the Participant Direction Procedure.
1.46 "Participant's Elective Account" means the account established and
maintained by the Administrator for each Participant with respect to his total
interest in the Plan and Trust resulting from the Employer Elective
Contributions used to satisfy the "Actual Deferral Percentage" tests. A separate
accounting shall be maintained with respect to that portion of the Participant's
Elective Account attributable to such Elective Contributions pursuant to Section
4.2 and any Employer Qualified Non-Elective Contributions.
1.47 "Plan" means this instrument, including all amendments thereto.
1.48 "Plan Year" means the Plan's accounting year of twelve (12) months
commencing on January 1st of each year and ending the following December 31st.
12
1.49 "Qualified Non-Elective Contribution" means any Employer
contributions made pursuant to Section 4.1(c) and Section 4.6(b) and Section
4.8(h). Such contributions shall be considered an Elective Contribution for the
purposes of the Plan and may be used to satisfy the "Actual Deferral Percentage"
tests or the "Actual Contribution Percentage" tests.
1.50 "Regulation" means the Income Tax Regulations as promulgated by the
Secretary of the Treasury or his delegate, and as amended from time to time.
1.51 "Retired Participant" means a person who has been a Participant,
but who has become entitled to retirement benefits under the Plan.
1.52 "Retirement Date" means the date as of which a Participant retires
for reasons other than Total and Permanent Disability, whether such retirement
occurs on a Participant's Normal Retirement Date or Late Retirement Date (see
Section 6.1).
1.53 "Super Top Heavy Plan" means a plan described in Section 8.2(b).
1.54 "Terminated Participant" means a person who has been a Participant,
but whose employment has been terminated other than by death, Total and
Permanent Disability or retirement.
1.55 "Top Heavy Plan" means a plan described in Section 8.2(a).
1.56 "Top Heavy Plan Year" means a Plan Year during which the Plan is
a Top Heavy Plan.
1.57 "Top Paid Group" means the top 20 percent of Employees who
performed services for the Employer during the applicable year, ranked according
to the amount of "415 Compensation" (determined for this purpose in accordance
with Section 1.28) received from the Employer during such year. All Affiliated
Employers shall be taken into account as a single employer, and Leased Employees
within the meaning of Code Sections 414(n)(2) and 414(o)(2) shall be considered
Employees unless such Leased Employees are covered by a plan described in Code
Section 414(n)(5) and are not covered in any qualified plan maintained by the
Employer. Employees who are non-resident aliens and who received no earned
income (within the meaning of Code Section 91l(d)(2)) from the Employer
constituting United States source income within the meaning of Code Section
861(a)(3) shall not be treated as Employees. Additionally, for the purpose of
determining the number of active Employees in any year, the following additional
Employees shall also be excluded; however, such Employees shall still be
considered for the purpose of identifying the particular Employees in the Top
Paid Group:
(p) Employees with less than six (6) months of service;
(q) Employees who normally work less than 17 1/2 hours per
week;
(r) Employees who normally work less than six (6) months
during a year; and
(s) Employees who have not yet attained age 21.
13
In addition, if 90 percent or more of the Employees of the
Employer are covered under agreements the Secretary of Labor finds to be
collective bargaining agreements between Employee representatives and the
Employer, and the Plan covers only Employees who are not covered under such
agreements, then Employees covered by such agreements shall be excluded from
both the total number of active Employees as well as from the identification of
particular Employees in the Top Paid Group.
The foregoing exclusions set forth in this Section shall be
applied on a uniform and consistent basis for all purposes for which the Code
Section 414(q) definition is applicable.
1.58 "Total and Permanent Disability" means a physical or mental
condition of a Participant resulting from bodily injury, disease, or mental
disorder which renders him incapable of continuing any gainful occupation and
which condition constitutes total disability under the federal Social Security
Acts.
1.59 "Trustee" means the person or entity named as trustee herein or in
any separate trust forming a part of this Plan, and any successors.
1.60 "Trust Fund" means the assets of the Plan and Trust as the same
shall exist from time to time.
1.61 "USERRA" means the Uniformed Services Employment and Reemployment
Rights Act of 1994. Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to qualified military
service will be provided in accordance with Code Section 414(u).
1.62 "Valuation Date" means the Anniversary Date and such other date or
dates deemed necessary by the Administrator. The Valuation Date may include any
day during the Plan Year that the Trustee, any transfer agent appointed by the
Trustee or the Employer and any stock exchange used by such agent are open for
business.
1.63 "Vested" means the non-forfeitable portion of any account
maintained on behalf of a Participant. Except as otherwise specifically
provided, all accounts under the Plan are at all times fully (100%) vested and
non-forfeitable.
1.64 "Year of Service" means the computation period of twelve (12)
consecutive months, herein set forth, during which an Employee has at least 1000
Hours of Service.
The computation period shall be the Plan Year if not otherwise
set forth herein.
Notwithstanding the foregoing, for any short Plan Year, the
determination of whether an Employee has completed a Year of Service shall be
made in accordance with Department of Labor regulation 2530.203-2(c).
Years of Service with any Affiliated Employer shall be
recognized.
14
ARTICLE II
ADMINISTRATION
2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER
(t) In addition to the general powers and responsibilities
otherwise provided for in this Plan, the Employer shall
be empowered to appoint and remove the Trustee and
the Administrator from time to time as it deems necessary
for the proper administration of the Plan to ensure that
the Plan is being operated for the exclusive benefit
of the Participants and their Beneficiaries in accordance
with the terms of the Plan, the Code, and the Act. The
Employer may appoint counsel, specialists, advisers,
agents (including any nonfiduciary agent) and other
persons as the Employer deems necessary or desirable in
connection with the exercise of its fiduciary duties
under this Plan. The Employer may compensate such
agents or advisers from the assets of the Plan as
fiduciary expenses (but not including any business
(settlor) expenses of the Employer), to the extent not
paid by the Employer.
(u) The Employer may, by written agreement or designation,
appoint at its option an Investment Manager (qualified
under the Investment Company Act of 1940 as amended),
investment adviser, or other agent to provide direction to
the Trustee with respect to any or all of the Plan assets.
Such appointment shall be given by the Employer in writing
in a form acceptable to the Trustee and shall specifically
identify the Plan assets with respect to which the
Investment Manager or other agent shall have authority to
direct the investment.
(v) The Employer shall establish a "funding policy and
method," i.e., it shall determine whether the Plan has
a short run need for liquidity (e.g., to pay benefits)
or whether liquidity is a long run goal and investment
growth (and stability of same) is a more current need,
or shall appoint a qualified person to do so. The
Employer or its delegate shall communicate such needs
and goals to the Trustee, who shall coordinate such Plan
needs with its investment policy. The communication
of such a "funding policy and method" shall not, however,
constitute a directive to the Trustee as to investment
of the Trust Funds. Such "funding policy and method"
shall be consistent with the objectives of this Plan and
with the requirements of Title I of the Act.
(w) The Employer shall periodically review the performance of
any Fiduciary or other person to whom duties have been
delegated or allocated by it under the provisions of this
Plan or pursuant to procedures established hereunder. This
requirement may be satisfied by formal periodic review by
the Employer or by a qualified person specifically
designated by the
15
Employer, through day-to-day conduct and evaluation, or
through other appropriate ways.
2.2 DESIGNATION OF ADMINISTRATIVE AUTHORITY
The Employer shall be the Administrator. The Employer may appoint
any person, including, but not limited to, the Employees of the Employer, to
perform the duties of the Administrator. Any person so appointed shall signify
his acceptance by filing written acceptance with the Employer. Upon the
resignation or removal of any individual performing the duties of the
Administrator, the Employer may designate a successor.
2.3 POWERS AND DUTIES OF THE ADMINISTRATOR
The primary responsibility of the Administrator is to administer
the Plan for the exclusive benefit of the Participants and their Beneficiaries,
subject to the specific terms of the Plan. The Administrator shall administer
the Plan in accordance with its terms and shall have the power and discretion to
construe the terms of the Plan and to determine all questions arising in
connection with the administration, interpretation, and application of the Plan.
Any such determination by the Administrator shall be conclusive and binding upon
all persons. The Administrator may establish procedures, correct any defect,
supply any information, or reconcile any inconsistency in such manner and to
such extent as shall be deemed necessary or advisable to carry out the purpose
of the Plan; provided, however, that any procedure, discretionary act,
interpretation or construction shall be done in a nondiscriminatory manner based
upon uniform principles consistently applied and shall be consistent with the
intent that the Plan shall continue to be deemed a qualified plan under the
terms of Code Section 401(a), and shall comply with the terms of the Act and all
regulations issued pursuant thereto. The Administrator shall have all powers
necessary or appropriate to accomplish his duties under this Plan.
The Administrator shall be charged with the duties of the general
administration of the Plan, including, but not limited to, the following:
(a) the discretion to determine all questions relating to the
eligibility of Employees to participate or remain a
Participant hereunder and to receive benefits under the
Plan;
(b) to compute, certify, and direct the Trustee with respect
to the amount and the kind of benefits to which any
Participant shall be entitled hereunder;
(c) to authorize and direct the Trustee with respect to all
nondiscretionary or otherwise directed disbursements from
the Trust;
(d) to maintain all necessary records for the administration
of the Plan;
(e) to interpret the provisions of the Plan and to make
and publish such rules for regulation of the Plan as
are consistent with the terms hereof;
16
(f) to determine the size and type of any Contract to be
purchased from any insurer, and to designate the insurer
from which such Contract shall be purchased;
(g) to compute and certify to the Employer and to the Trustee
from time to time the sums of money necessary or desirable
to be contributed to the Plan;
(h) to consult with the Employer and the Trustee regarding the
short and long-term liquidity needs of the Plan in order
that the Trustee can exercise any investment discretion in
a manner designed to accomplish specific objectives;
(i) to prepare and implement a procedure to notify Eligible
Employees that they may elect to have a portion of their
Compensation deferred or paid to them in cash;
(j) to act as the named Fiduciary responsible for
communications with Participants as needed to maintain
Plan compliance with ERISA Section 404(c), including but
not limited to the receipt and transmitting of
Participant's directions as to the investment of their
account(s) under the Plan and the formulation of policies,
rules, and procedures pursuant to which Participants may
give investment instructions with respect to the
investment of their accounts;
(k) to assist any Participant regarding his rights, benefits,
or elections available under the Plan.
2.4 RECORDS AND REPORTS
The Administrator shall keep a record of all actions taken and
shall keep all other books of account, records, policies, and other data that
may be necessary for proper administration of the Plan and shall be responsible
for supplying all information and reports to the Internal Revenue Service,
Department of Labor, Participants, Beneficiaries and others as required by law.
2.5 APPOINTMENT OF ADVISERS
The Administrator, or the Trustee with the consent of the
Administrator, may appoint counsel, specialists, advisers, agents (including
nonfiduciary agents) and other persons as the Administrator or the Trustee deems
necessary or desirable in connection with the administration of this Plan,
including but not limited to agents and advisers to assist with the
administration and management of the Plan, and thereby to provide, among such
other duties as the Administrator may appoint, assistance with maintaining Plan
records and the providing of investment information to the Plan's investment
fiduciaries and to Plan Participants.
17
2.6 PAYMENT OF EXPENSES
All expenses of administration may be paid out of the Trust Fund
unless paid by the Employer. Such expenses shall include any expenses incident
to the functioning of the Administrator, or any person or persons retained or
appointed by any Named Fiduciary incident to the exercise of their duties under
the Plan, including, but not limited to, fees of accountants, counsel,
Investment Managers, agents (including nonfiduciary agents) appointed for the
purpose of assisting the Administrator or the Trustee in carrying out the
instructions of Participants as to the directed investment of their accounts and
other specialists and their agents, and other costs of administering the Plan.
Until paid, the expenses shall constitute a liability of the Trust Fund.
2.7 CLAIMS PROCEDURE
Any Participant or Beneficiary believing himself or herself to be
entitled to benefits under this Plan shall be entitled to file a written claim
for benefits with the Administrator, setting forth the benefits to which he or
she believes he or she is entitled and the reasons therefor. Within ninety (90)
days after receipt of such claim for benefits, the Administrator shall determine
the claimant's right to the benefits claimed and shall give said claimant
written notice of the Administrator's decision, and, if the claim is denied in
whole or in part, said written notice shall set forth in a manner calculated to
be understood by the claimant: (a) the specific reason or reasons for the
denial; (b) specific references to pertinent Plan provisions on which the denial
is based; (c) a description of any additional material or information necessary
for the claimant to perfect the claim and an explanation of why such materials
or information is necessary; and (d) an explanation of the Plan's appeals
procedure. Such notice shall be sent by certified mail, return receipt
requested, to the address of the claimant filing the claim as it appears in the
books and records of the Employer, or to such other address as the claimant may
direct. To the extent permitted by regulation, under special circumstances, the
Administrator is allowed an additional period of not more than ninety (90) days
(one hundred eighty (180) days in total) within which to notify the claimant of
the decision. If such an extension is required, the claimant will receive a
written notice from the Administrator indicating the reason for the delay and
the date the claimant may expect a final decision.
2.8 CLAIMS REVIEW PROCEDURE
Within sixty (60) days after receipt of a denial of a claim for
benefits, the claimant or his duly authorized representative, may file a written
appeal with the Plan Administrator or the Plan committee appointed for this
purpose, including any comments, statements or documents that the claimant may
wish to provide. The claimant may review pertinent Plan documents. Appeals shall
be considered by the Plan Administrator or the committee appointed for such
purpose. A decision shall be made within sixty (60) days, or within one hundred
twenty (120) days if, as provided by regulations, special circumstances require
an extension of time for processing, after receipt of a written appeal by the
claimant. If the claim is denied on appeal, the Plan Administrator or the
committee shall set forth the reasons for denial and the pertinent Plan
provisions in a written decision which shall be sent to the claimant.
18
ARTICLE III
ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY
Any Eligible Employee who has completed 30 days of service and
has attained age 18 shall be eligible to participate hereunder as of the date he
has satisfied such requirements. However, any Employee who was a Participant in
the Plan prior to the effective date of this amendment and restatement shall
continue to participate in the Plan.
Notwithstanding the preceding paragraph, in all events an
Eligible Employee who has not already become a Participant in accordance with
the previous paragraph and Section 3.2, shall be eligible to participate in the
Plan following his or her attainment of age eighteen (18) and the completion of
a Year of Service measured from the date he or she completes his or her first
Hour of Service for which he or she is compensated for the performance of
services or a subsequent Plan Year beginning with the Plan Year commencing
within such initial twelve (12) month period of service if he or she fails to
complete a Year of Service during his or her initial twelve (12) months of
employment.
3.2 EFFECTIVE DATE OF PARTICIPATION
An Eligible Employee shall become a Participant effective as of
the first day following the date on which he satisfies the eligibility
requirements of Section 3.1.
3.3 DETERMINATION OF ELIGIBILITY
The Administrator shall determine the eligibility of each
Employee for participation in the Plan based upon information furnished by the
Employer. Such determination shall be conclusive and binding upon all persons,
as long as the same is made pursuant to the Plan and the Act. Such determination
shall be subject to review per Section 2.8.
3.4 TERMINATION OF ELIGIBILITY
(a) In the event a Participant goes from a classification as
an Eligible Employee to that of an ineligible Employee,
his or her accounts in the Plan shall continue to share in
the earnings of the Trust Fund (or, if applicable, his or
her self-directed accounts) until distributed pursuant to
the terms of the Plan.
(b) In the event a Participant is no longer a member of an
eligible class of Employees and becomes ineligible to
participate, such Employee will participate immediately
upon returning to an eligible class of Employees.
3.5 OMISSION OF ELIGIBLE EMPLOYEE
If, in any Plan Year, any Employee who should be included as a
Participant in the Plan is erroneously omitted and discovery of such omission is
not made until after a contribution
19
by his Employer for
the year has been made, the Employer shall make a subsequent contribution with
respect to the omitted Employee in the amount which the said Employer would have
contributed with respect to him had he not been omitted.
3.6 INCLUSION OF INELIGIBLE EMPLOYEE
If, in any Plan Year, any person who should not have been
included as a Participant in the Plan is erroneously included and discovery of
such incorrect inclusion is not made until after a contribution for the year has
been made, the Employer shall not be entitled to recover the contribution made
with respect to the ineligible person regardless of whether or not a deduction
is allowable with respect to such contribution. In such event, the amount
contributed with respect to the ineligible person shall constitute a Forfeiture
(except for Deferred Compensation which shall be distributed to the ineligible
person) for the Plan Year in which the discovery is made.
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1 FORMULA FOR DETERMINING EMPLOYER CONTRIBUTION
For each Plan Year, the Employer shall contribute to the Plan:
(a) The amount of the total salary reduction elections of all
Participants made pursuant to Section 4.2(a), which amount
shall be deemed an Employer Elective Contribution.
(b) On behalf of each Participant who is eligible to share in
matching contributions for the Plan Year, a matching
contribution determined under i), ii) or iii), as
applicable:
CATEGORY MATCH FOR THE PLAN YEAR
i) For those Employees 50 cent per each dollar deferred--deferrals
who defer at least 2% of over 2% of pay not to be matched.
Compensation to the Plan:
ii) For those Employees 50 cents per each dollar deferred plus an
who defer less than 2% of additional cents per hour contribution
Compensation to the Plan: which when added to the 50 cents per each
dollar deferred match equals 1% of the
Employee's Compensation.
iii) For those Employees An amount equal to 7.5 cents per Hour
who do not defer Accumulated.
Compensation to the Plan.
20
For purposes of this section, "Hour(s) Accumulated" shall have the same
meaning as that in Section 4.1(d), Employer Discretionary ("Additional")
Contributions.
(c) On behalf of each Non-Highly Compensated Participant who
is eligible to share in the Qualified Non-Elective
Contribution for the Plan Year, a discretionary Qualified
Non-Elective Contribution equal to a uniform percentage of
each eligible individual's Compensation, the exact
percentage, if any, to be determined each year by the
Employer. Any Employer Qualified Non-Elective Contribution
shall be deemed an Employer Elective Contribution.
(d) An amount which shall be deemed an Employer Non-Elective
Contribution, determined as follows:
(1) For all Eligible Employees, the Employer shall
make a contribution of 15 cents per all Hours
Accumulated during the Plan Year.
(2) For purposes of this Section and Section 4.1(b)
regarding Employer match, "Hour(s) Accumulated"
shall mean regular, over-time, vacation, holiday,
birthday, jury duty and funeral leave hours, only.
(e) Additionally, to the extent necessary, the Employer shall
contribute to the Plan the amount necessary to provide the
top heavy minimum contribution. All contributions by the
Employer shall be made in cash.
4.2 PARTICIPANT'S SALARY REDUCTION ELECTION
(f) Each Participant may elect to defer from 1% to 15% of his
Compensation which would have been received in the Plan
Year, but for the deferral election. A deferral election
(or modification of an earlier election) may not be made
with respect to Compensation which is currently available
on or before the date the Participant executed such
election. For purposes of this Section, Compensation shall
be determined prior to any reductions made pursuant to
Code Sections 125, 402(e)(3), 402(h)(1)(B), 403(b) or
457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer
contributions.
The amount by which Compensation is reduced shall be that
Participant's Deferred Compensation and be treated as an
Employer Elective Contribution and allocated to that
Participant's Elective Account.
(g) The balance in each Participant's Elective Account shall
be fully Vested at all times and shall not be subject to
Forfeiture for any reason.
21
(h) Notwithstanding anything in the Plan to the contrary,
amounts held in the Participant's Elective Account may not
be distributable earlier than:
(1) a Participant's separation from service, Total
and Permanent Disability, or death;
(2) a Participant's attainment of age 59 1/2;
(3) the termination of the Plan without the
establishment or existence of a "successor plan,"
as that term is described in Regulation 1.401(k)-l
(d)(3);
(4) the date of disposition by the Employer to an
entity that is not an Affiliated Employer of
substantially all of the assets (within the meaning
of Code Section 409(d)(2)) used in a trade or
business of such corporation if such corporation
continues to maintain this Plan after the
disposition with respect to a Participant who
continues employment with the corporation acquiring
such assets;
(5) the date of disposition by the Employer or an
Affiliated Employer who maintains the Plan of its
interest in a subsidiary (within the meaning of
Code Section 409(d)(3)) to an entity which is not
an Affiliated Employer but only with respect to a
Participant who continues employment with such
subsidiary; or
(6) the proven financial hardship of a Participant,
subject to the limitations of Section 6.11.
(i) For each Plan Year, a Participant's Deferred
Compensation made under this Plan and all other plans,
contracts or arrangements of the Employer maintaining
this Plan shall not exceed, during any taxable year of
the Participant, the limitation imposed by Code Section
402(g), as in effect at the beginning of such taxable
year. If such dollar limitation is exceeded, a Participant
will be deemed to have notified the Administrator of such
excess amount which shall be distributed in a manner
consistent with Section 4.2(f). The dollar limitation
shall be adjusted annually pursuant to the method
provided in Code Section 415(d) in accordance with
Regulations.
(j) In the event a Participant has received a hardship
distribution from his Participant's Elective Account
pursuant to Section 6.11(b) or pursuant to Regulation
1.401(k)-l(d)(2)(iv)(B) from any other plan maintained by
the Employer, then such Participant shall not be permitted
to elect to have Deferred Compensation contributed to the
Plan on his behalf for a period of twelve (12) months
following the receipt of the distribution. Furthermore,
the dollar limitation under Code Section 402(g) shall be
22
reduced, with respect to the Participant's taxable year
following the taxable year in which the hardship
distribution was made, by the amount of such Participant's
Deferred Compensation, if any, pursuant to this Plan (and
any other plan maintained by the Employer) for the taxable
year of the hardship distribution.
(k) If a Participant's Deferred Compensation under this
Plan together with any elective deferrals (as defined
in Regulation 1.402(g)-1(b)) under another qualified
cash or deferred arrangement (as defined in Code Section
401(k)), a simplified employee pension (as defined in Code
Section 408(k)), a salary reduction arrangement (within
the meaning of Code Section 3121(a)(5)(D)), a deferred
compensation plan under Code Section 457(b), or a trust
described in Code Section 501(c)(18) cumulatively
exceed the limitation imposed by Code Section 402(g)
(as adjusted annually in accordance with the method
provided in Code Section 415(d) pursuant to Regulations)
for such Participant's taxable year, the Participant
may, not later than March 1 following the close of
the Participant's taxable year, notify the Administrator
in writing of such excess and request that his Deferred
Compensation under this Plan be reduced by an amount
specified by the Participant. In such event, the
Administrator may direct the Trustee to distribute such
excess amount (and any Income allocable to such excess
amount) to the Participant not later than the first
April 15th following the close of the Participant's
taxable year. Any distribution of less than the entire
amount of Excess Deferred Compensation and Income shall
be treated as a pro rata distribution of Excess Deferred
Compensation and Income. The amount distributed shall
not exceed the Participant's Deferred Compensation
under the Plan for the taxable year (and any Income
allocable to such excess amount). Any distribution on
or before the last day of the Participant's taxable year
must satisfy each of the following conditions:
(1) the distribution must be made after the date on
which the Plan received the Excess Deferred
Compensation;
(2) the Participant shall designate the
distribution as Excess Deferred Compensation;
and
(3) the Plan must designate the distribution as a
distribution of Excess Deferred Compensation.
Matching contributions which relate to Excess
Deferred Compensation which is distributed pursuant
to this Section 4.2(f) shall be forfeited.
(l) Notwithstanding Section 4.2(f) above, a Participant's
Excess Deferred Compensation shall be reduced, but not
below zero, by any distribution of
23
Excess Contributions pursuant to Section 4.6(a) for
the Plan Year beginning with or within the taxable year
of the Participant.
(m) At Normal Retirement Date, or such other date when the
Participant shall be entitled to receive benefits, the
fair market value of the Participant's Elective Account
shall be used to provide additional benefits to the
Participant or his Beneficiary.
(n) Employer Elective Contributions made pursuant to this
Section may be segregated into a separate account for each
Participant in a federally insured savings account,
certificate of deposit in a bank or savings and loan
association, money market certificate, or other short-term
debt security acceptable to the Trustee until such time as
the allocations pursuant to Section 4.4 have been made.
(o) The Employer and the Administrator shall implement the
salary reduction elections provided for herein in
accordance with the following:
(1) A Participant must make his initial salary deferral
election within a reasonable time, not to exceed
thirty (30) days, after entering the Plan pursuant
to Section 3.2. If the Participant fails to make an
initial salary deferral election within such time,
then such Participant may thereafter make an
election in accordance with the rules governing
modifications. The Participant shall make such an
election by entering into a written salary
reduction agreement with the Employer and filing
such agreement with the Administrator. Such
election shall initially be effective beginning
with the pay period following the acceptance of the
salary reduction agreement by the Administrator,
shall not have retroactive effect and shall remain
in force until revoked.
(2) A Participant may modify a prior election at any
time during the Plan Year and concurrently make a
new election by filing a written notice with the
Administrator within a reasonable time before the
pay period for which such modification is to be
effective. Any modification shall not have
retroactive effect and shall remain in force until
revoked.
(3) A Participant may elect to prospectively revoke his
salary reduction agreement in its entirety at any
time during the Plan Year by providing the
Administrator with thirty (30) days written notice
of such revocation (or upon such shorter notice
period as may be acceptable to the Administrator).
Such revocation shall become effective as of the
beginning of the first pay period coincident with
or next following the expiration of the notice
period. Furthermore, the termination of the
Participant's employment, or the cessation of
24
participation for any reason, shall be deemed to
revoke any salary reduction agreement then
in effect, effective immediately following the
close of the pay period within which such
termination or cessation occurs.
4.3 TIME OF PAYMENT OF EMPLOYER CONTRIBUTION
The Employer shall generally pay to the Trustee its contribution
to the Plan for each Plan Year within the time prescribed by law, including
extensions of time, for the filing of the Employer federal income tax return for
the Fiscal Year.
However, Employer Elective Contributions accumulated through
payroll deductions shall be paid to the Trustee as of the earliest date on which
such contributions can reasonably be segregated from the Employer general
assets, but in any event within ninety (90) days from the date on which such
amounts would otherwise have been payable to the Participant in cash. The
provisions of Department of Labor regulations 2510.3-102 are incorporated herein
by reference. Furthermore, any additional Employer contributions which are
allocable to the Participant's Elective Account for a Plan Year shall be paid to
the Plan no later than the twelve-month period immediately following the close
of such Plan Year.
4.4 ALLOCATION OF CONTRIBUTION AND EARNINGS
(p) The Administrator shall establish and maintain an account
in the name of each Participant to which the Administrator
shall credit as of each Anniversary Date all amounts
allocated to each such Participant as set forth herein.
(q) The Employer shall provide the Administrator with all
information required by the Administrator to make a proper
allocation of the Employer contributions for each Plan
Year. Within a reasonable period of time after the date of
receipt by the Administrator of such information, the
Administrator shall allocate such contribution as follows:
(1) With respect to the Employer Elective Contribution
made pursuant to Section 4.1(a), to each
Participant's Elective Account in an amount equal
to each such Participant's Deferred Compensation
for the year.
(2) With respect to the Employer Non-Elective
Contribution made pursuant to Section 4.1(b), to
each Participant's Account in accordance with
Section 4.1(b).
Any Participant actively employed during the Plan
Year shall be eligible to share in the matching
contribution for the Plan Year.
25
(3) With respect to the Employer Qualified Non-Elective
Contribution made pursuant to Section 4.1(c), to
each Participant's Elective Account when used to
satisfy the "Actual Deferral Percentage" tests or
Participant's Account in accordance with Section
4.l(c).
Any Non-Highly Compensated Participant actively
employed during the Plan Year shall be eligible to
share in the Qualified Non-Elective Contribution
for the Plan Year.
(4) With respect to the Employer Non-Elective
Contribution made pursuant to Section 4.1(d), to
each Participant's Account pursuant to Section
4.1(d).
Any Participant actively employed during the Plan
Year shall be eligible to share in the
discretionary contribution for the year.
(r) For any Top Heavy Plan Year, Non-Key Employees not
otherwise eligible to share in the allocation of
contributions as provided above, shall receive the minimum
allocation provided for in Section 4.4(f) if eligible
pursuant to the provisions of Section 4.4(h).
(s) Notwithstanding the foregoing, Participants who are not
actively employed on the last day of the Plan Year due to
Retirement (Normal or Late), Total and Permanent
Disability or death shall share in the allocation of
contributions for that Plan Year.
(t) As of each Valuation Date, before the current valuation
period allocation of Employer contributions, any earnings
or losses (net appreciation or net depreciation) of the
Trust Fund shall be allocated in the same proportion that
each Participant's and Former Participant's nonsegregated
accounts bear to the total of all Participants' and Former
Participants' nonsegregated accounts as of such date.
Earnings or losses with respect to a Participant's
Directed Account shall be allocated in accordance with
Section 4.12.
Participants' transfers from other qualified plans
deposited in the general Trust Fund shall share in any
earnings and losses (net appreciation or net depreciation)
of the Trust Fund in the same manner provided above. Each
segregated account maintained on behalf of a Participant
shall be credited or charged with its separate earnings
and losses.
(u) Minimum Allocations Required for Top Heavy Plan Years:
Notwithstanding the foregoing, for any Top Heavy Plan
Year, the sum of the Employer contributions allocated to
the Participant's Combined Account of each Non-Key
Employee shall be equal to at least three percent (3%) of
such Non-Key Employee's "415 Compensation" (reduced
26
by
contributions and forfeitures, if any, allocated to each
Non-Key Employee in any defined contribution plan included
with this plan in a Required Aggregation Group). However,
if (1) the sum of the Employer contributions allocated to
the Participant's Combined Account of each Key Employee
for such Top Heavy Plan Year is less than three percent
(3%) of each Key Employee's "415 Compensation" and (2)
this Plan is not required to be included in an Aggregation
Group to enable a defined benefit plan to meet the
requirements of Code Section 401(a)(4) or 410, the sum of
the Employer contributions allocated to the Participant's
Combined Account of each Non-Key Employee shall be equal
to the largest percentage allocated to the Participant's
Combined Account of any Key Employee. However, in
determining whether a Non-Key Employee has received the
required minimum allocation, such Non-Key Employee's
Deferred Compensation and matching contributions needed to
satisfy the "Actual Contribution Percentage" tests
pursuant to Section 4.7(a) shall not be taken into
account.
However, no such minimum allocation shall be required in
this Plan for any Non-Key Employee who participates in
another defined contribution plan subject to Code Section
412 included with this Plan in a Required Aggregation
Group.
(v) For purposes of the minimum allocations set forth above,
the percentage allocated to the Participant's Combined
Account of any Key Employee shall be equal to the ratio of
the sum of the Employer contributions allocated on behalf
of such Key Employee divided by the "415 Compensation" for
such Key Employee.
(w) For any Top Heavy Plan Year, the minimum allocations set
forth above shall be allocated to the Participant's
Combined Account of all Non-Key Employees who are
Participants and who are employed by the Employer on the
last day of the Plan Year, including Non-Key Employees who
have (1) failed to complete a Year of Service; and (2)
declined to make mandatory contributions (if required) or,
in the case of a cash or deferred arrangement, elective
contributions to the Plan.
(x) In lieu of the above, in any Plan Year in which a Non-Key
Employee is a Participant in both this Plan and a defined
benefit pension plan included in a Required Aggregation
Group which is top heavy, the Employer shall not be
required to provide such Non-Key Employee with both the
full separate defined benefit plan minimum benefit and the
full separate defined contribution plan minimum
allocation.
Therefore, for any Plan Year when the Plan is a Top Heavy
Plan, a Non-Key Employee who is participating in this Plan
and a defined benefit plan
27
maintained by the Employer
shall receive a minimum monthly accrued benefit in the
defined benefit plan equal to the product of (1)
one-twelfth (1/12th) of "415 Compensation" averaged over
the five (5) consecutive "limitation years" (or actual
"limitation years," if less) which produce the highest
average and (2) the lesser of (i) two percent (2%)
multiplied by years of service when the plan is top heavy
or (ii) twenty percent (20%).
(y) For the purposes of this Section, "415 Compensation"
shall be limited to $150,000. Such amount shall be
adjusted for increases in the cost of living in
accordance with Code Section 401(a)(17), except that the
dollar increase in effect on January 1 of any calendar
year shall be effective for the Plan Year beginning
with or within such calendar year. For any short Plan
Year the "415 Compensation" limit shall be an amount
equal to the "415 Compensation" limit for the calendar
year in which the Plan Year begins multiplied by the
ratio obtained by dividing the number of full months in
the short Plan Year by twelve (12).
(z) Notwithstanding anything herein to the contrary,
Participants who terminated employment for any reason
during the Plan Year shall share in the salary reduction
contributions made by the Employer for the year of
termination without regard to the Hours of Service
credited.
(aa) If a Former Participant is reemployed after five (5)
consecutive 1-Year Breaks in Service, then separate
accounts shall be maintained as follows:
(1) one account for nonforfeitable benefits
attributable to pre-break service; and
(2) one account representing his status in the Plan
attributable to post-break service.
4.5 ACTUAL DEFERRAL PERCENTAGE TESTS
(bb) Maximum Annual Allocation: For each Plan Year beginning
after December 31, 1996, the annual allocation derived
from Employer Elective Contributions to a Highly
Compensated Participant's Elective Account shall satisfy
one of the following tests:
(1) The "Actual Deferral Percentage" for the Highly
Compensated Participant group shall not be more
than the "Actual Deferral Percentage" of the
Non-Highly Compensated Participant group (for the
preceding Plan Year if the prior year testing
method is used to calculate the "Actual Deferral
Percentage" for the Non-Highly Compensated
Participant group) multiplied by 1.25, or
28
(2) The excess of the "Actual Deferral Percentage" for
the Highly Compensated Participant group over the
"Actual Deferral Percentage" for the Non-Highly
Compensated Participant group (for the preceding
Plan Year if the prior year testing method is used
to calculate the "Actual Deferral Percentage" for
the Non-Highly Compensated Participant group) shall
not be more than two percentage points.
Additionally, the "Actual Deferral Percentage" for
the Highly Compensated Participant group shall not
exceed the "Actual Deferral Percentage" for the
Non-Highly Compensated Participant group (for the
preceding Plan Year if the prior year testing
method is used to calculate the "Actual Deferral
Percentage" for the Non-Highly Compensated
Participant group) multiplied by 2. The provisions
of Code Section 401(k)(3) and Regulation
1.401(k)-1(b) are incorporated herein by reference.
However, in order to prevent the multiple use of
the alternative method described in (2) above and
in Code Section 401(m)(9)(A), any Highly
Compensated Participant eligible to make elective
deferrals pursuant to Section 4.2 and to make
Employee contributions or to receive matching
contributions under this Plan or under any other
plan maintained by the Employer or an Affiliated
Employer shall have a continuation of his Elective
Contributions and Employer matching contributions
and his Employee contributions reduced pursuant to
Section 4.6(a) and Regulation 1.401(m)-2, the
provisions of which are incorporated herein by
reference.
(cc) For the purposes of this Section "Actual Deferral
Percentage" means, with respect to the Highly Compensated
Participant group and Non-Highly Compensated Participant
group for a Plan Year, the average of the ratios,
calculated separately for each Participant in such
group, of the amount of Employer Elective
Contributions allocated to each Participant's Elective
Account for such Plan Year, to such Participant's
"414(s) Compensation" for such Plan Year. The actual
deferral ratio for each Participant and the "Actual
Deferral Percentage" for each group shall be calculated
to the nearest one-hundredth of one percent. Employer
Elective Contributions allocated to each Non-Highly
Compensated Participant's Elective Account shall be
reduced by Excess Deferred Compensation to the extent
such excess amounts are made under this Plan or any other
plan maintained by the Employer.
Notwithstanding the above, if the prior year testing
method is used to calculate the "Actual Deferral
Percentage" for the Non-Highly Compensated Participant
group for the first Plan Year of this amendment and
restatement, the "Actual Deferral Percentage" for the
Non-Highly
29
Compensated Participant group for the preceding Plan Year
shall be calculated pursuant to the provisions of the Plan
then in effect.
(dd) For the purposes of Sections 4.5(a) and 4.6, a Highly
Compensated Participant and a Non-Highly Compensated
Participant shall include any Employee eligible to make a
deferral election pursuant to Section 4.2, whether or not
such deferral election was made or suspended pursuant to
Section 4.2.
Notwithstanding the above, if the prior year testing
method is used to calculate the "Actual Deferral
Percentage" for the Non-Highly Compensated Participant
group for the first Plan Year of this amendment and
restatement, for purposes of Section 4.5(a), a Non-Highly
Compensated Participant shall include any such Employee
eligible to make a deferral election, whether or not such
deferral election was made or suspended, pursuant to the
provisions of the Plan in effect for the preceding Plan
Year.
(ee) If the Plan uses the prior year testing method, the
"Actual Deferral Percentage" for the Non-Highly
Compensated Participant group is determined without
regard to changes in the group of Non-Highly Compensated
Participants who are eligible under the Plan in the
testing year. However, if the Plan results from, or is
otherwise affected by, a "Plan Coverage Change" that
becomes effective during the testing year, then the
"Actual Deferral Percentage" for the Non-Highly
Compensated Participant group for the prior year is the
"Weighted Average of the Actual Deferral Percentages
For The Prior Year Subgroups." Notwithstanding the
above, if ninety (90) percent or more of the total
number of Non-Highly Compensated Participants from all
"Prior Year Subgroups" are from a single "Prior Year
Subgroup," then in determining the "Actual Deferral
Percentage" for the Non-Highly Compensated Participants
for the prior year, the Employer may elect to use the
"Actual Deferral Percentage" for Non-Highly Compensated
Participants for the prior year under which that single
"Prior Year Subgroup" was eligible, in lieu of using
the weighted averages. For purposes of this Section the
following definitions shall apply:
(1) "Plan Coverage Change" means a change in the group
or groups of eligible Participants on account of
(i) the establishment or amendment of a plan, (ii)
a plan merger, consolidation, or spinoff under Code
Section 414(1), (iii) a change in the way plans
within the meaning of Code Section 414(1) are
combined or separated for purposes of Regulation
1.401(k)-1 (g)(11), or (iv) a combination of any of
the foregoing.
30
(2) "Prior Year Subgroup" means all Non-Highly
Compensated Participants for the prior year who, in
the prior year, were eligible Participants under a
specific Code Section 401(k) plan maintained by the
Employer and who would have been eligible
Participants in the prior year under the plan
tested if the plan coverage change had first been
effective as of the first day of the prior year
instead of first being effective during the testing
year.
(3) "Weighted Average of the Actual Deferral
Percentages For The Prior Year Subgroups" means the
sum, for all prior year subgroups, of the "Adjusted
Actual Deferral Percentages."
(4) "Adjusted Actual Deferral Percentage" with respect
to a prior year subgroup means the Actual Deferral
Percentage for Non-Highly Compensated Participants
for the prior year of the specific plan under which
the members of the prior year subgroup were
eligible Participants, multiplied by a fraction,
the numerator of which is the number of Non-Highly
Compensated Participants in the prior year subgroup
and the denominator of which is the total number of
Non-Highly Compensated Participants in all prior
year subgroups.
(ff) For the purposes of this Section and Code Sections 401(a)
(4), 410(b) and 401(k), if two or more plans which include
cash or deferred arrangements are considered one plan
for the purposes of Code Section 401(a)(4) or
410(b) (other than Code Section 410(b)(2)(A)(ii)),
the cash or deferred arrangements included in such
plans shall be treated as one arrangement. In addition,
two or more cash or deferred arrangements may be
considered as a single arrangement for purposes of
determining whether or not such arrangements satisfy
Code Sections 401(a)(4), 410(b) and 401(k). In such a
case, the cash or deferred arrangements included in
such plans and the plans including such arrangements
shall be treated as one arrangement and as one plan for
purposes of this Section and Code Sections 401(a)(4),
410(b) and 401(k). Plans may be aggregated under this
paragraph (e) only if they have the same plan year.
Notwithstanding the above, for Plan Years beginning after
December 31, 1996, if two or more plans are permissively
aggregated under Regulation 1.410(b)-7(d), all plans
permissively aggregated must use either the current year
testing method or the prior year testing method for the
testing year.
Notwithstanding the above, an employee stock ownership
plan described in Code Section 4975(e)(7) or 409 may not
be combined with this Plan for purposes of determining
whether the employee stock ownership plan or this Plan
satisfies this Section and Code Sections 401(a)(4), 410(b)
and 401(k).
31
(gg) For the purposes of this Section, if a Highly Compensated
Participant is a Participant under two or more cash or
deferred arrangements (other than a cash or deferred
arrangement which is part of an employee stock
ownership plan as defined in Code Section 4975(e)(7)
or 409) of the Employer or an Affiliated Employer, all
such cash or deferred arrangements shall be treated as
one cash or deferred arrangement for the purpose of
determining the actual deferral ratio with respect
to such Highly Compensated Participant. However, if
the cash or deferred arrangements have different plan
years, this paragraph shall be applied by treating
all cash or deferred arrangements ending with or within
the same calendar year as a single arrangement.
(hh) For purposes of this Section, when calculating the "Actual
Deferral Percentage" for the Non-Highly Compensated
Participant group, the prior year testing method shall be
used. Any change from the current year testing method to
the prior year testing method shall be made pursuant to
Internal Revenue Service Notice 98-1, Section VII, the
provisions of which are incorporated herein by reference.
4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS
In the event (or if it is anticipated) that the initial
allocations of the Employer Elective Contributions made pursuant to Section 4.4
do (or might) not satisfy one of the tests set forth in Section 4.5(a) for Plan
Years beginning after December 31, 1996, the Administrator shall adjust Excess
Contributions pursuant to the options set forth below:
(ii) On or before the fifteenth day of the third month
following the end of each Plan Year, the Highly
Compensated Participant having the largest amount of
Elective Contributions shall have a portion of his
Excess Contributions distributed to him until the total
amount of Excess Contributions has been distributed,
or until the amount of his Elective Contributions
equals the Elective Contributions of the Highly
Compensated Participant having the second largest amount
of Elective Contributions. This process shall continue
until the total amount of Excess Contributions has been
distributed. In determining the amount of Excess
Contributions to be distributed with respect to an
affected Highly Compensated Participant as determined
herein, such amount shall be reduced pursuant to
Section 4.2(f) by any Excess Deferred Compensation
previously distributed to such affected Highly
Compensated Participant for his taxable year ending
with or within such Plan Year.
(1) With respect to the distribution of Excess
Contributions pursuant to (a) above, such
distribution:
(i) may be postponed but not later than the
close of the Plan Year following the Plan
Year to which they are allocable;
32
(ii) shall be adjusted for Income; and
(iii) shall be designated by the Employer as a
distribution of Excess Contributions (and
Income).
(2) Any distribution of less than the entire amount of
Excess Contributions shall be treated as a pro rata
distribution of Excess Contributions and Income.
(3) Matching contributions which relate to Excess
Contributions shall be forfeited unless the related
matching contribution is distributed as an Excess
Aggregate Contribution pursuant to Section 4.8.
(jj) Within twelve (12) months after the end of the Plan Year,
the Employer may make a special Qualified Non-Elective
Contribution on behalf of Non-Highly Compensated
Participants electing salary reductions pursuant to
Section 4.2 in an amount sufficient to satisfy (or to
prevent an anticipated failure of) one of the tests set
forth in Section 4.5(a). Such contribution shall be
allocated to the Participant's Elective Account of each
Non-Highly Compensated Participant electing salary
reductions pursuant to Section 4.2 per capita.
However, if the prior year testing method is used, the
special Qualified Non-Elective Contribution shall be
allocated in the prior Plan Year to the Participant's
Elective Account on behalf of each Non-Highly Compensated
Participant who was employed by the Employer on the last
day of the prior Plan Year per capita. Such contribution
shall be made by the Employer prior to the end of the
current Plan Year.
(kk) If during a Plan Year the projected aggregate amount of
Elective Contributions to be allocated to all Highly
Compensated Participants under this Plan would, by virtue
of the tests set forth in Section 4.5(a), cause the Plan
to fail such tests, then the Administrator may
automatically reduce proportionately or in the order
provided in Section 4.6(a) each affected Highly
Compensated Participant's deferral election made pursuant
to Section 4.2 by an amount necessary to satisfy one of
the tests set forth in Section 4.5(a).
4.7 ACTUAL CONTRIBUTION PERCENTAGE TESTS
(ll) The "Actual Contribution Percentage" for Plan Years
beginning after December 31, 1996 for the Highly
Compensated Participant group shall not exceed the greater
of:
(1) 125 percent of such percentage for the Non-Highly
Compensated Participant group (for the preceding
Plan Year if the prior year
33
testing method is used to calculate the "Actual
Contribution Percentage" for the Non-Highly
Compensated Participant group); or
(2) the lesser of 200 percent of such percentage for
the Non-Highly Compensated Participant group (for
the preceding Plan Year if the prior year testing
method is used to calculate the "Actual
Contribution Percentage" for the Non-Highly
Compensated Participant group), or such percentage
for the Non-Highly Compensated Participant group
(for the preceding Plan Year if the prior year
testing method is used to calculate the "Actual
Contribution Percentage" for the Non-Highly
Compensated Participant group) plus 2 percentage
points. However, to prevent the multiple use of the
alternative method described in this paragraph and
Code Section 401 (m)(9)(A), any Highly Compensated
Participant eligible to make elective deferrals
pursuant to Section 4.2 or any other cash or
deferred arrangement maintained by the Employer or
an Affiliated Employer and to make Employee
contributions or to receive matching contributions
under this Plan or under any plan maintained by the
Employer or an Affiliated Employer shall have a
combination of his Elective Contributions and
Employer matching contributions and his Employee
contributions reduced pursuant to Regulation
1.401(m)-2 and Section 4.8(a). The provisions of
Code Section 401(m) and Regulations 1.401(m)-l(b)
and 1.401(m)-2 are incorporated herein by
reference.
(mm) For the purposes of this Section and Section 4.8, "Actual
Contribution Percentage" for a Plan Year means, with
respect to the Highly Compensated Participant group and
Non-Highly Compensated Participant group (for the
preceding Plan Year if the prior year testing method is
used to calculate the "Actual Contribution Percentage" for
the Non-Highly Compensated Participant group), the average
of the ratios (calculated separately for each Participant
in each group rounded to the nearest one-hundredth of one
percent) of:
(1) the sum of Employer matching contributions made
pursuant to Section 4.1 (b) on behalf of each such
Participant for such Plan Year; to
(2) the Participant's "414(s) Compensation" for such
Plan Year.
Notwithstanding the above, if the prior year
testing method is used to calculate the "Actual
Contribution Percentage" for the Non-Highly
Compensated Participant group for the first Plan
Year of
34
this amendment and restatement, for purposes of
Section 4.7(a), the "Actual Contribution
Percentage" for the Non-Highly Compensated
Participant group for the preceding Plan Year shall
be determined pursuant to the provisions of the
Plan then in effect.
(nn) For purposes of determining the "Actual Contribution
Percentage" and the amount of Excess Aggregate
Contributions pursuant to Section 4.8(d), only
Employer matching contributions contributed to the Plan
prior to the end of the succeeding Plan Year shall be
considered. In addition, the Administrator may elect
to take into account, with respect to Employees eligible
to have Employer matching contributions pursuant to
Section 4.1(b) allocated to their accounts, elective
deferrals (as defined in Regulation 1.402(g)-1(b)) and
qualified non-elective contributions (as defined in Code
Section 401(m)(4)(C)) contributed to any plan
maintained by the Employer. Such elective deferrals
and qualified non-elective contributions shall be
treated as Employer matching contributions subject
to Regulation 1.401(m)-1(b)(5) which is incorporated
herein by reference. However, the Plan Year must be the
same as the plan year of the plan to which the
elective deferrals and the qualified non-elective
contributions are made.
(oo) For purposes of this Section and Code Sections 401(a)(4),
410(b) and 401(m), if two or more plans of the Employer
to which matching contributions, Employee contributions,
or both, are made and treated as one plan for purposes
of Code Sections 401(a)(4) or 410(b) (other than the
average benefits test under Code Section 410(b)(2)(A)
(ii)), such plans shall be treated as one plan. In
addition, two or more plans of the Employer to which
matching contributions, Employee contributions, or
both, are made may be considered as a single plan
for purposes of determining whether or not such plans
satisfy Code Sections 401(a)(4), 410(b) and 401(m).
In such a case, the aggregated plans must satisfy this
Section and Code Sections 401(a)(4), 410(b) and 401(m)
as though such aggregated plans were a single plan.
Plans may be aggregated under this paragraph (e) only
if they have the same plan year. Notwithstanding the
above, for Plan Years beginning after December 31, 1996,
if two or more plans are permissively aggregated under
Regulation 1.410(b)-7(d), all plans permissively
aggregated must use either the current year testing method
or the prior year testing method for the testing year.
Notwithstanding the above, an employee stock ownership
plan described in Code Section 4975(e)(7) or 409 may not
be aggregated with this Plan for purposes of determining
whether the employee stock ownership plan or this Plan
satisfies this Section and Code Sections 401(a)(4), 410(b)
and 401(m).
35
(pp) If a Highly Compensated Participant is a Participant
under two or more plans (other than an employee stock
ownership plan as defined in Code Section 4975(e)(7)
or 409) which are maintained by the Employer or an
Affiliated Employer to which matching contributions,
Employee contributions, or both, are made, all such
contributions on behalf of such Highly Compensated
Participant shall be aggregated for purposes of
determining such Highly Compensated Participant's actual
contribution ratio. However, if the plans have different
plan years, this paragraph shall be applied by treating
all plans ending with or within the same calendar year as
a single plan.
(qq) For purposes of Sections 4.7(a) and 4.8, a Highly
Compensated Participant and Non-Highly Compensated
Participant shall include any Employee eligible to have
Employer matching contributions pursuant to Section 4.1(b)
(whether or not a deferral election was made or suspended
pursuant to Section 4.2(e)) allocated to his account for
the Plan Year.
Notwithstanding the above, if the prior year testing
method is used to calculate the "Actual Contribution
Percentage" for the Non-Highly Compensated Participant
group for the first Plan Year of this amendment and
restatement, for the purposes of Section 4.7(a), a
Non-Highly Compensated Participant shall include any such
Employee eligible to have matching contributions (whether
or not a deferral election was made or suspended) or
voluntary employee contributions (whether or not voluntary
employee contributions are made) allocated to his account
for the preceding Plan Year pursuant to the provisions of
the Plan then in effect.
(rr) If the Plan uses the prior year testing method, the
"Actual Contribution Percentage" for the Non-Highly
Compensated Participant group is determined without
regard to changes in the group of Non-Highly Compensated
Participants who are eligible under the Plan in the
testing year. However, if the Plan results from, or is
otherwise affected by, a "Plan Coverage Change" that
becomes effective during the testing year, then the
"Actual Contribution Percentage" for the Non-Highly
Compensated Participant group for the prior year is the
"Weighted Average of the Actual Contribution Percentages
For The Prior Year Subgroups." Notwithstanding the above,
if ninety (90) percent or more of the total number of Non-
Highly Compensated Participants from all "Prior Year
Subgroups" are from a single "Prior Year Subgroup,"
then in determining the "Actual Contribution Percentage"
for the Non-Highly Compensated Participants for the
prior year, the Employer may elect to use the "Actual
Contribution Percentage" for Non-Highly Compensated
Participants for the prior year under which that
single "Prior Year Subgroup" was eligible, in lieu of
using the weighted averages. For purposes of this
Section the following definitions shall apply:
36
(1) "Plan Coverage Change" means a change in the group
or groups of eligible Participants on account of
(i) the establishment or amendment of a plan, (ii)
a plan merger, consolidation, or spinoff under Code
Section 414(1), (iii) a change in the way plans
within the meaning of Code Section 414(1) are
combined or separated for purposes of Regulation
1.401(k)-l(g)(11), or (iv) a combination of any of
the foregoing.
(2) "Prior Year Subgroup" means all Non-Highly
Compensated Participants for the prior year who, in
the prior year, were eligible Participants under a
specific Code Section 401(m) plan maintained by the
Employer and who would have been eligible
Participants in the prior year under the plan
tested if the plan coverage change had first been
effective as of the first day of the prior year
instead of first being effective during the testing
year.
(3) "Weighted Average of the Actual Contribution
Percentages For The Prior Year Subgroups" means the
sum, for all prior year subgroups, of the "Adjusted
Actual Contribution Percentages."
(4) "Adjusted Actual Contribution Percentage" with
respect to a prior year subgroup means the Actual
Contribution Percentage for Non-Highly Compensated
Participants for the prior year of the specific
plan under which the members of the prior year
subgroup were eligible Participants, multiplied by
a fraction, the numerator of which is the number of
Non-Highly Compensated Participants in the prior
year subgroup and the denominator of which is the
total number of Non-Highly Compensated Participants
in all prior year subgroups.
(ss) For purposes of this Section, when calculating the "Actual
Contribution Percentage" for the Non-Highly Compensated
Participant group, the prior year testing method shall be
used. Any change from the current year testing method to
the prior year testing method shall be made pursuant to
Internal Revenue Service Notice 98-1, Section VII, the
provisions of which are incorporated herein by reference.
4.8 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS
(tt) In the event (or if it is anticipated) that, for Plan
Years beginning after December 31, 1996, the "Actual
Contribution Percentage" for the Highly Compensated
Participant group exceeds (or might exceed) the "Actual
Contribution Percentage" for the Non-Highly Compensated
Participant group pursuant to Section 4.7(a), the
Administrator (on or before the fifteenth day of the third
month following the end of the Plan Year, but in no event
later than the close of the following Plan Year) shall
direct the
37
Trustee to
distribute to the Highly Compensated Participant having
the largest amount of contributions determined pursuant to
Section 4.7(b)(1), his Vested portion of such
contributions (and Income allocable to such contributions)
and, if forfeitable, forfeit such non-Vested Excess
Aggregate Contributions attributable to Employer matching
contributions (and Income allocable to such forfeitures)
until the total amount of Excess Aggregate Contributions
has been distributed, or until his remaining amount equals
the amount of contributions determined pursuant to Section
4.7(b)(1) of the Highly Compensated Participant having the
second largest amount of contributions. This process shall
continue until the total amount of Excess Aggregate
Contributions has been distributed.
(uu) Any distribution and/or forfeiture of less than the entire
amount of Excess Aggregate Contributions (and Income)
shall be treated as a pro rata distribution and/or
forfeiture of Excess Aggregate Contributions and Income.
Distribution of Excess Aggregate Contributions shall be
designated by the Employer as a distribution of Excess
Aggregate Contributions (and Income). Forfeitures of
Excess Aggregate Contributions shall be treated in
accordance with Section 4.4.
(vv) Excess Aggregate Contributions, including forfeited
matching contributions, shall be treated as Employer
contributions for purposes of Code Sections 404 and 415
even if distributed from the Plan.
Forfeited matching contributions that are reallocated to
Participants' Accounts for the Plan Year in which the
forfeiture occurs shall be treated as an "annual addition"
pursuant to Section 4.9(b) for the Participants to whose
Accounts they are reallocated and for the Participants
from whose Accounts they are forfeited.
(ww) For each Highly Compensated Participant, the amount of
Excess Aggregate Contributions is equal to the Employer
matching contributions made pursuant to Section 4.1 (b)
and any qualified non-elective contributions or
elective deferrals taken into account pursuant to
Section 4.7(c) on behalf of the Highly Compensated
Participant (determined prior to the application of this
paragraph) minus the amount determined by multiplying
the Highly Compensated Participant's actual
contribution ratio (determined after application of
this paragraph) by his "414(s) Compensation." The actual
contribution ratio must be rounded to the nearest one-
hundredth of one percent. In no case shall the amount
of Excess Aggregate Contribution with respect to any
Highly Compensated Participant exceed the amount of
Employer matching contributions made pursuant to
Section 4.1 (b) and any qualified non-elective
contributions or elective deferrals taken into account
pursuant to Section 4.7(c) on behalf of such Highly
Compensated Participant for such Plan Year.
38
(xx) The determination of the amount of Excess Aggregate
Contributions with respect to any Plan Year shall be made
after first determining the Excess Contributions, if any,
to be treated as voluntary Employee contributions due to
recharacterization for the plan year of any other
qualified cash or deferred arrangement (as defined in Code
Section 401(k)) maintained by the Employer that ends with
or within the Plan Year.
(yy) If during a Plan Year the projected aggregate amount of
Employer matching contributions to be allocated to all
Highly Compensated Participants under this Plan would, by
virtue of the tests set forth in Section 4.7(a), cause the
Plan to fail such tests, then the Administrator may
automatically reduce proportionately or in the order
provided in Section 4.8(a) each affected Highly
Compensated Participant's projected share of such
contributions by an amount necessary to satisfy one of the
tests set forth in Section 4.7(a).
(zz) Notwithstanding the above, within twelve (12) months after
the end of the Plan Year, the Employer may make a special
Qualified Non-Elective Contribution on behalf of
Non-Highly Compensated Participants in an amount
sufficient to satisfy (or to prevent an anticipated
failure of) one of the tests set forth in Section 4.7(a).
Such contribution shall be allocated to the Participant's
Account of each Non-Highly Compensated Participant per
capita. A separate accounting of any special Qualified
Non-Elective Contribution shall be maintained in the
Participant's Account.
However, if the prior year testing method is used, the
special Qualified Non-Elective Contribution shall be
allocated in the prior Plan Year to the Participant's
Account on behalf of each Non-Highly Compensated
Participant who was employed by the Employer on the last
day of the prior Plan Year per capita. Such contribution
shall be made by the Employer prior to the end of the
current Plan Year. A separate accounting of any special
Qualified Non-Elective Contributions shall be maintained
in the Participant's Account.
4.9 MAXIMUM ANNUAL ADDITIONS
(aaa) Notwithstanding the foregoing, the maximum "annual
additions" credited to a Participant's accounts for any
"limitation year" shall equal the lesser of: (1) $30,000
adjusted annually as provided in Code Section 415(d)
pursuant to the Regulations, or (2) twenty-five percent
(25%) of the Participant's "415 Compensation" for such
"limitation year." For any short "limitation year," the
dollar limitation in (1) above shall be reduced by a
fraction, the numerator of which is the number of full
months in the short "limitation year" and the denominator
of which is twelve (12).
39
(bbb) For purposes of applying the limitations of Code Section
415, "annual additions" means the sum credited to a
Participant's accounts for any "limitation year" of (1)
Employer contributions, (2) Employee contributions, (3)
forfeitures, (4) amounts allocated, after March 31, 1984,
to an individual medical account, as defined in Code
Section 415(1)(2) which is part of a pension or annuity
plan maintained by the Employer and (5) amounts derived
from contributions paid or accrued after December 31,
1985, in taxable years ending after such date, which are
attributable to post-retirement medical benefits allocated
to the separate account of a key employee (as defined in
Code Section 419A(d)(3)) under a welfare benefit plan (as
defined in Code Section 419(e)) maintained by the
Employer. Except, however, the "415 Compensation"
percentage limitation referred to in paragraph (a)(2)
above shall not apply to: (1) any contribution for medical
benefits (within the meaning of Code Section 419A(f)(2))
after separation from service which is otherwise treated
as an "annual addition," or (2) any amount otherwise
treated as an "annual addition" under Code Section
415(1)(1).
(ccc) For purposes of applying the limitations of Code Section
415, the transfer of funds from one qualified plan to
another is not an "annual addition." In addition, the
following are not Employee contributions for the purposes
of Section 4.9(b)(2): (1) rollover contributions (as
defined in Code Sections 402(e)(6), 403(a)(4), 403(b)(8)
and 408(d)(3)); (2) repayments of loans made to a
Participant from the Plan; (3) repayments of distributions
received by an Employee pursuant to Code Section
41l(a)(7)(B) (cash-outs); (4) repayments of distributions
received by an Employee pursuant to Code Section
411(a)(3)(D) (mandatory contributions); and (5) Employee
contributions to a simplified employee pension excludable
from gross income under Code Section 408(k)(6).
(ddd) For purposes of applying the limitations of Code Section
415, the "limitation year" shall be the Plan Year.
(eee) For the purpose of this Section, all qualified defined
benefit plans (whether terminated or not) ever maintained
by the Employer shall be treated as one defined benefit
plan, and all qualified defined contribution plans
(whether terminated or not) ever maintained by the
Employer shall be treated as one defined contribution
plan.
(fff) For the purpose of this Section, if the Employer is a
member of a controlled group of corporations, trades or
businesses under common control (as defined by Code
Section 1563(a) or Code Section 414(b) and (c) as modified
by Code Section 415(h)), is a member of an affiliated
service group (as defined by Code Section 414(m)), or is a
member of a group of entities required to be aggregated
pursuant to Regulations under
40
Code Section
414(o), all Employees of such Employers shall be
considered to be employed by a single Employer.
(ggg) For the purpose of this Section, if this Plan is a Code
Section 413(c) plan, each Employer who maintains this Plan
will be considered to be a separate Employer.
(hhh) (1) If a Participant participates in more than one
defined contribution plan maintained by the
Employer which have different Anniversary Dates,
the maximum "annual additions" under this Plan
shall equal the maximum "annual additions" for the
"limitation year" minus any "annual additions"
previously credited to such Participant's accounts
during the "limitation year."
(2) If a Participant participates in both a defined
contribution plan subject to Code Section 412 and a
defined contribution plan not subject to Code
Section 412 maintained by the Employer which have
the same Anniversary Date, "annual additions" will
be credited to the Participant's accounts under the
defined contribution plan subject to Code Section
412 prior to crediting "annual additions" to the
Participant's accounts under the defined
contribution plan not subject to Code Section 412.
(3) If a Participant participates in more than one
defined contribution plan not subject to Code
Section 412 maintained by the Employer which have
the same Anniversary Date, the maximum "annual
additions" under this Plan shall equal the product
of (A) the maximum "annual additions" for the
"limitation year" minus any "annual additions"
previously credited under subparagraphs (1) or (2)
above, multiplied by (B) a fraction (i) the
numerator of which is the "annual additions" which
would be credited to such Participant's accounts
under this Plan without regard to the limitations
of Code Section 415 and (ii) the denominator of
which is such "annual additions" for all plans
described in this subparagraph.
(iii) If an Employee is (or has been) a Participant in one or
more defined benefit plans and one or more defined
contribution plans maintained by the Employer, the sum of
the defined benefit plan fraction and the defined
contribution plan fraction for any "limitation year" may
not exceed 1.0.
(jjj) The defined benefit plan fraction for any "limitation
year" is a fraction, the numerator of which is the sum of
the Participant's projected annual benefits under all the
defined benefit plans (whether or not terminated)
maintained by the Employer, and the denominator of which
is the lesser of 125 percent of the dollar limitation
determined for the "limitation year"
41
under Code Sections 415(b) and (d) or 140 percent
of the highest average compensation, including any
adjustments under Code Section 415(b).
Notwithstanding the above, if the Participant was a
Participant as of the first day of the first "limitation
year" beginning after December 31, 1986, in one or more
defined benefit plans maintained by the Employer which
were in existence on May 6, 1986, the denominator of this
fraction will not be less than 125 percent of the sum of
the annual benefits under such plans which the Participant
had accrued as of the close of the last "limitation year"
beginning before January 1, 1987, disregarding any changes
in the terms and conditions of the plan after May 5, 1986.
The preceding sentence applies only if the defined benefit
plans individually and in the aggregate satisfied the
requirements of Code Section 415 for all "limitation
years" beginning before January 1, 1987.
(kkk) The defined contribution plan fraction for any "limitation
year" is a fraction, the numerator of which is the sum of
the annual additions to the Participant's Account under
all the defined contribution plans (whether or not
terminated) maintained by the Employer for the current and
all prior "limitation years" (including the annual
additions attributable to the Participant's nondeductible
Employee contributions to all defined benefit plans,
whether or not terminated, maintained by the Employer, and
the annual additions attributable to all welfare benefit
funds, as defined in Code Section 419(e), and individual
medical accounts, as defined in Code Section 415(1)(2),
maintained by the Employer), and the denominator of which
is the sum of the maximum aggregate amounts for the
current and all prior "limitation years" of service with
the Employer (regardless of whether a defined contribution
plan was maintained by the Employer). The maximum
aggregate amount in any "limitation year" is the lesser of
125 percent of the dollar limitation determined under Code
Sections 415(b) and (d) in effect under Code Section
415(c)(1)(A) or 35 percent of the Participant's
Compensation for such year.
If the Employee was a Participant 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 this 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 (1) the excess of the sum of the
fractions over 1.0 times (2) the denominator of this
fraction, will be permanently subtracted from the
numerator of this 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
42
Code Section 415
limitation applicable to the first "limitation year"
beginning on or after January 1, 1987. The annual addition
for any "limitation year" beginning before January 1, 1987
shall not be recomputed to treat all Employee
contributions as annual additions.
(lll) Notwithstanding the foregoing, for any "limitation year"
in which the Plan is a Top Heavy Plan, 100 percent shall
be substituted for 125 percent in Sections 4.9(j) and
4.9(k).
(mmm) If the sum of the defined benefit plan fraction and the
defined contribution plan fraction shall exceed 1.0 in any
"limitation year" for any Participant in this Plan, the
Administrator shall limit, to the extent necessary, the
"annual additions" to such Participant's accounts for such
"limitation year." If, after limiting the "annual
additions" to such Participant's accounts for the
"limitation year," the sum of the defined benefit plan
fraction and the defined contribution plan fraction still
exceed 1.0, the Administrator shall then adjust the
numerator of the defined contribution plan fraction so
that the sum of both fractions shall not exceed 1.0 in any
"limitation year" for such Participant.
(nnn) Notwithstanding anything contained in this Section to the
contrary, the limitations, adjustments and other
requirements prescribed in this Section shall at all times
comply with the provisions of Code Section 415 and the
Regulations thereunder, the terms of which are
specifically incorporated herein by reference.
4.10 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS
(ooo) If, as a result of a reasonable error in estimating a
Participant's Compensation, a reasonable error in
determining the amount of elective deferrals (within the
meaning of Code Section 402(g)(3)) that may be made with
respect to any Participant under the limits of Section 4.9
or other facts and circumstances to which Regulation
1.415-6(b)(6) shall be applicable, the "annual additions"
under this Plan would cause the maximum "annual additions"
to be exceeded for any Participant, the Administrator
shall (1) distribute any elective deferrals (within the
meaning of Code Section 402(g)(3)) or return any Employee
contributions (whether voluntary or mandatory), and for
the distribution of gains attributable to those elective
deferrals and Employee contributions, to the extent that
the distribution or return would reduce the "excess
amount" in the Participant's accounts (2) hold any "excess
amount" remaining after the return of any elective
deferrals or voluntary Employee contributions in a
"Section 415 suspense account" (3) use the "Section 415
suspense account" in the next "limitation year" (and
succeeding "limitation years" if necessary) to reduce
Employer contributions for that Participant if that
43
Participant is covered by the Plan as of the end of the
"limitation year," or if the Participant is not so
covered, allocate and reallocate the "Section 415 suspense
account" in the next "limitation year" (and succeeding
"limitation years" if necessary) to all Participants in
the Plan before any Employer or Employee contributions
which would constitute "annual additions" are made to the
Plan for such "limitation year" (4) reduce Employer
contributions to the Plan for such "limitation year" by
the amount of the "Section 415 suspense account" allocated
and reallocated during such "limitation year."
(ppp) For purposes of this Article, "excess amount" for any
Participant for a "limitation year" shall mean the excess,
if any, of (1) the "annual additions" which would be
credited to his account under the terms of the Plan
without regard to the limitations of Code Section 415 over
(2) the maximum "annual additions" determined pursuant to
Section 4.9.
(qqq) For purposes of this Section, "Section 415 suspense
account" shall mean an unallocated account equal to the
sum of "excess amounts" for all Participants in the Plan
during the "limitation year." The "Section 415 suspense
account" shall not share in any earnings or losses of the
Trust Fund.
4.11 TRANSFERS FROM QUALIFIED PLANS
(rrr) With the consent of the Administrator, amounts may be
transferred from other qualified plans by Eligible
Employees, provided that the trust from which such funds
are transferred permits the transfer to be made and the
transfer will not jeopardize the tax exempt status of the
Plan or Trust or create adverse tax consequences for the
Employer. The amounts transferred shall be set up in a
separate account herein referred to as a "Participant's
Rollover Account." Such account shall be fully Vested at
all times and shall not be subject to Forfeiture for any
reason.
(sss) Amounts in a Participant's Rollover Account shall be held
by the Trustee pursuant to the provisions of this Plan and
may not be withdrawn by, or distributed to the
Participant, in whole or in part, except as provided in
Section 6.10 and paragraphs (c) and (d) of this Section.
(ttt) Except as permitted by Regulations (including Regulation
1.411(d)-4), amounts attributable to elective
contributions (as defined in Regulation 1.401(k)1-(g)(3)),
including amounts treated as elective contributions, which
are transferred from another qualified plan in a
plan-to-plan transfer shall be subject to the distribution
limitations provided for in Regulation 1.401(k)-1(d).
44
(uuu) At Normal Retirement Date, or such other date when the
Participant or his Beneficiary shall be entitled to
receive benefits, the fair market value of the
Participant's Rollover Account shall be used to provide
additional benefits to the Participant or his Beneficiary.
Any distributions of amounts held in a Participant's
Rollover Account shall be made in a manner which is
consistent with and satisfies the provisions of Section
6.5, including, but not limited to, all notice and consent
requirements of Code Section 41l(a)(11) and the
Regulations thereunder. Furthermore, such amounts shall be
considered as part of a Participant's benefit in
determining whether an involuntary cash-out of benefits
without Participant consent may be made.
(vvv) The Administrator may direct that employee transfers made
after a valuation date be segregated into a separate
account for each Participant in a federally insured
savings account, certificate of deposit in a bank or
savings and loan association, money market certificate, or
other short term debt security acceptable to the Trustee
until such time as the allocations pursuant to this Plan
have been made, at which time they may remain segregated
or be invested as part of the general Trust Fund, to be
determined by the Administrator.
(www) For purposes of this Section, the term "qualified plan"
shall mean any tax qualified plan under Code Section
401(a). The term "amounts transferred from other qualified
plans" shall mean: (i)amounts transferred to this Plan
directly from another qualified plan; (ii) distributions
from another qualified plan which are eligible rollover
distributions and which are either transferred by the
Employee to this Plan within sixty (60) days following his
receipt thereof or are transferred pursuant to a direct
rollover; (iii) amounts transferred to this Plan from a
conduit individual retirement account provided that the
conduit individual retirement account has no assets other
than assets which (A) were previously distributed to the
Employee by another qualified plan as a lump-sum
distribution (B) were eligible for tax-free rollover to a
qualified plan and (C) were deposited in such conduit
individual retirement account within sixty (60) days of
receipt thereof and other than earnings on said assets;
and (iv) amounts distributed to the Employee from a
conduit individual retirement account meeting the
requirements of clause (iii) above, and transferred by the
Employee to this Plan within sixty (60) days of his
receipt thereof from such conduit individual retirement
account.
(xxx) Prior to accepting any transfers to which this Section
applies, the Administrator may require the Employee to
establish that the amounts to be transferred to this Plan
meet the requirements of this Section and may also require
the Employee to provide an opinion of counsel satisfactory
to
45
the Employer that the amounts to be transferred meet
the requirements of this Section.
(yyy) This Plan shall not accept any direct or indirect
transfers (as that term is defined and interpreted under
Code Section 401(a)(ll) and the Regulations thereunder)
from a defined benefit plan, money purchase plan
(including a target benefit plan), stock bonus or profit
sharing plan which would otherwise have provided for a
life annuity form of payment to the Participant.
(zzz) Notwithstanding anything herein to the contrary, a
transfer directly to this Plan from another qualified plan
(or a transaction having the effect of such a transfer)
shall only be permitted if it will not result in the
elimination or reduction of any "Section 411(d)(6)
protected benefit" as described in Section 7.1.
4.12 DIRECTED INVESTMENT ACCOUNT
(a) Participants may, subject to a procedure established by
the Administrator (the Participant Direction Procedures)
and applied in a uniform nondiscriminatory manner, direct
the Trustee to invest all of their accounts in specific
assets, specific funds or other investments permitted
under the Plan and the Participant Direction Procedures.
That portion of the interest of any Participant so
directing will thereupon be considered a Participant's
Directed Account.
(b) As of each Valuation Date, all Participant Directed
Accounts shall be charged or credited with the net
earnings, gains, losses and expenses as well as any
appreciation or depreciation in the market value using
publicly listed fair market values when available or
appropriate.
(1) To the extent that the assets in a Participant's
Directed Account are accounted for as pooled assets
or investments, the allocation of earnings, gains
and losses of each Participant's Directed Account
shall be based upon the total amount of funds so
invested, in a manner proportionate to the
Participant's share of such pooled investment.
(2) To the extent that the assets in the Participant's
Directed Account are accounted for as segregated
assets, the allocation of earnings, gains and
losses from such assets shall be made on a separate
and distinct basis.
(c) The Participant Direction Procedures shall provide an
explanation of the circumstances under which Participants
and their Beneficiaries may give
46
investment instructions,
including, but need not be limited to, the following:
(1) the conveyance of instructions by the Participants
and their Beneficiaries to invest Participant
Directed Accounts in Directed Investments;
(2) the name, address and phone number of the Fiduciary
(and, if applicable, the person or persons
designated by the Fiduciary to act on its behalf)
responsible for providing information to the
Participant or a Beneficiary upon request relating
to the investments in Directed Investments;
(3) applicable restrictions on transfers to and
from any Designated Investment Alternative.
The Plan allows a Participant to trade and/or
purchase Employer Securities in the Plan only once
a month;
(4) any restrictions on the exercise of voting, tender
and similar rights related to a Directed Investment
by the Participants or their Beneficiaries;
(5) a description of any transaction fees and expenses
which affect the balances in Participant Directed
Accounts in connection with the purchase or sale of
Directed Investments; and
(6) general procedures for the dissemination of
investment and other information relating to the
Designated Investment Alternatives as deemed
necessary or appropriate, including but not limited
to a description of the following:
(i) the investment vehicles available under
the Plan, including specific information
regarding any Designated Investment
Alternative;
(ii) any designated Investment Managers; and
(iii) a description of the additional information
which may be obtained upon request from the
Fiduciary designated to provide such
information.
(d) Any information regarding investments available under the
Plan, to the extent not required to be described in the
Participant Direction Procedures, may be provided to the
Participant in one or more written documents which are
separate from the Participant Direction Procedures and are
not thereby incorporated by reference into this Plan.
47
(e) The Administrator may, at its discretion, include in or
exclude by amendment or other action from the Participant
Direction Procedures such instructions, guidelines or
policies as it deems necessary or appropriate to ensure
proper administration of the Plan, and may interpret the
same accordingly.
ARTICLE V
VALUATIONS
5.1 VALUATION OF THE TRUST FUND
The Administrator shall direct the Trustee, as of each Valuation
Date, to determine the net worth of the assets comprising the Trust Fund as it
exists on the Valuation Date. In determining such net worth, the Trustee shall
value the assets comprising the Trust Fund at their fair market value as of the
Valuation Date and shall deduct all expenses for which the Trustee has not yet
obtained reimbursement from the Employer or the Trust Fund. The Trustee may
update the value of any shares held in the Participant Directed Account by
reference to the number of shares held by that Participant, priced at the market
value as of the Valuation Date.
5.2 METHOD OF VALUATION
In determining the fair market value of securities held in the
Trust Fund which are listed on a registered stock exchange, the Administrator
shall direct the Trustee to value the same at the prices they were last traded
on such exchange preceding the close of business on the Valuation Date. If such
securities were not traded on the Valuation Date, or if the exchange on which
they are traded was not open for business on the Valuation Date, then the
securities shall be valued at the prices at which they were last traded prior to
the Valuation Date. Any unlisted security held in the Trust Fund shall be valued
at its bid price next preceding the close of business on the Valuation Date,
which bid price shall be obtained from a registered broker or an investment
banker. In determining the fair market value of assets other than securities for
which trading or bid prices can be obtained, the Trustee may appraise such
assets itself, or in its discretion, employ one or more appraisers for that
purpose and rely on the values established by such appraiser or appraisers.
ARTICLE VI
DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT
Every Participant may terminate his employment with the Employer
and retire for the purposes hereof on his Normal Retirement Date. However, a
Participant may postpone the termination of his employment with the Employer to
a later date, in which event the participation of such Participant in the Plan,
including the right to receive allocations pursuant to Section 4.4, shall
continue until his Late Retirement Date. Upon a Participant's Retirement Date or
attainment of his Normal Retirement Date without termination of employment with
the
48
Employer, or as soon thereafter as is practicable, the Trustee shall
distribute, at the election of the Participant, all amounts credited to such
Participant's Combined Account in accordance with Section 6.5
6.2 DETERMINATION OF BENEFITS UPON DEATH
(f) Upon the death of a Participant before his Retirement Date
or other termination of his employment, all amounts
credited to such Participant's Combined Account shall
become fully Vested. The Administrator shall direct the
Trustee, in accordance with the provisions of Sections 6.6
and 6.7, to distribute the value of the deceased
Participant's accounts to the Participant's Beneficiary.
(g) Upon the death of a Former Participant, the Administrator
shall direct the Trustee, in accordance with the
provisions of Sections 6.6 and 6.7, to distribute any
remaining Vested amounts credited to the accounts of a
deceased Former Participant to such Former Participant's
Beneficiary.
(h) The Administrator may require such proper proof of death
and such evidence of the right of any person to receive
payment of the value of the account of a deceased
Participant or Former Participant as the Administrator may
deem desirable. The Administrator's determination of death
and of the right of any person to receive payment shall be
conclusive.
(i) The Beneficiary of the death benefit payable pursuant to
this Section shall be the Participant's spouse. Except,
however, the Participant may designate a Beneficiary other
than his spouse if:
(1) the spouse has waived the right to be the
Participant's Beneficiary, or
(2) the Participant is legally separated or has been
abandoned (within the meaning of local law) and the
Participant has a court order to such effect (and
there is no "qualified domestic relations order" as
defined in Code Section 414(p) which provides
otherwise), or
(3) the Participant has no spouse, or
(4) the spouse cannot be located.
In such event, the designation of a Beneficiary shall be
made on a form satisfactory to the Administrator. A
Participant may at any time revoke his designation of a
Beneficiary or change his Beneficiary by filing written
notice of such revocation or change with the
Administrator. However, the Participant's spouse must
again consent in writing to any change in
49
Beneficiary unless the original consent acknowledged
that the spouse had the right to limit consent only to a
specific Beneficiary and that the spouse voluntarily
elected to relinquish such right. In the event no valid
designation of Beneficiary exists at the time of the
Participant's death, the death benefit shall be payable to
his estate.
(j) Any consent by the Participant's spouse to waive any
rights to the death benefit must be in writing, must
acknowledge the effect of such waiver, and be witnessed by
a Plan representative or a notary public. Further, the
spouse's consent must be irrevocable and must acknowledge
the specific nonspouse Beneficiary.
6.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY
In the event of a Participant's Total and Permanent Disability
prior to his Retirement Date or other termination of his employment, all amounts
credited to such Participant's Combined Account shall become fully Vested. In
the event of a Participant's Total and Permanent Disability, the Trustee, in
accordance with the provisions of Sections 6.5 and 6.7, shall distribute to such
Participant all amounts credited to such Participant's Combined Account as
though he had retired.
6.4 DETERMINATION OF BENEFITS UPON TERMINATION
(k) If a Participant's employment with the Employer is
terminated for any reason other than death, Total and
Permanent Disability or retirement, such Participant shall
be entitled to such benefits as are provided hereinafter
pursuant to this Section 6.4.
Distribution of the funds due to a Terminated Participant
shall be made on the occurrence of an event which would
result in the distribution had the Terminated Participant
remained in the employ of the Employer (upon the
Participant's death, Total and Permanent Disability or
Normal Retirement). However, at the election of the
Participant, the Administrator shall direct the Trustee to
cause the entire Vested portion of the Terminated
Participant's Combined Account to be payable to such
Terminated Participant. Any distribution under this
paragraph shall be made in a manner which is consistent
with and satisfies the provisions of Section 6.5,
including, but not limited to, all notice and consent
requirements of Code Section 41l(a)(11) and the
Regulations thereunder.
If the value of a Terminated Participant's Vested benefit
derived from Employer and Employee contributions does not
exceed $3,500 ($5,000 for Plan Years beginning after
August 5, 1997) and has never exceeded $3,500 or $5,000,
whichever is applicable, at the time of any prior
distribution, the Administrator shall direct the Trustee
to cause the entire Vested benefit to be paid to such
Participant in a single lump sum.
50
(l) A Participant shall become fully Vested in his
Participant's Account immediately upon entry into the
Plan.
(m) If the Plan's vesting scheduled is amended, or the Plan is
amended in any way that directly or indirectly affects the
computation of a Participant's vested percentage in his or
her account balance or if the Plan is deemed amended by an
automatic change to or from a top-heavy vesting schedule,
each Participant with at least three years of Service with
the Employer or an Affiliated Employer as of the latest of
the date the amendment is adopted or becomes effective
will be deemed to have elected the vesting schedule most
favorable to him.
Pre-Amendment Vesting Schedule
Years of Service Percentage
1 0%
2 0%
3 20%
4 40%
5 60%
6 80%
7 100%
(n) The computation of a Participant's nonforfeitable
percentage of his interest in the Plan shall not be reduced as
the result of any direct or indirect amendment to this Plan.
6.5 DISTRIBUTION OF BENEFITS
(a) The Administrator, pursuant to the election of the
Participant, shall direct the Trustee to distribute to a
Participant or his Beneficiary any amount to which he is
entitled under the Plan in one or more of the following
methods:
(1) One lump-sum payment in cash or in property.
(2) Payments over a period certain in monthly,
quarterly, semiannual, or annual cash installments.
In order to provide such installment payments, the
Administrator may (A) segregate the aggregate
amount thereof in a separate, federally insured
savings account, certificate of deposit in a bank
or savings and loan association, money market
certificate or other liquid short-term security or
(B) purchase a nontransferable annuity contract for
a term certain (with no life contingencies)
providing for such payment. The period over which
such payment is to be made shall not extend beyond
51
the Participant's life expectancy (or the life
expectancy of the Participant and his designated
Beneficiary).
(b) Any distribution to a Participant who has a benefit which
exceeds, or has ever exceeded, $3,500 ($5,000 for Plan
Years beginning after August 5, 1997) at the time of any
prior distribution shall require such Participant's
consent if such distribution commences prior to the later
of his Normal Retirement Age or age 62. With regard to
this required consent:
(1) The Participant must be informed of his right to
defer receipt of the distribution. If a Participant
fails to consent, it shall be deemed an election to
defer the commencement of payment of any benefit.
However, any election to defer the receipt of
benefits shall not apply with respect to
distributions which are required under Section
6.5(c).
(2) Notice of the rights specified under this paragraph
shall be provided no less than 30 days and no more
than 90 days before the date the distribution
commences.
(3) Written consent of the Participant to the
distribution must not be made before the
Participant receives the notice and must not be
made more than 90 days before the date the
distribution commences.
(4) No consent shall be valid if a significant
detriment is imposed under the Plan on any
Participant who does not consent to the
distribution.
Any such distribution may commence less than 30 days after
the notice required under Regulation 1.411(a)-11(c) is
given, provided that: (1) 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 (2) the Participant, after
receiving the notice, affirmatively elects a distribution.
(c) Notwithstanding any provision in the Plan to the contrary,
the distribution of a Participant's benefits shall be made
in accordance with the following requirements and shall
otherwise comply with Code Section 401(a)(9) and the
Regulations thereunder (including Regulation
1.401(a)(9)-2), the provisions of which are incorporated
herein by reference:
(1) A Participant's benefits shall be distributed or
must begin to be distributed to him not later than
April 1st of the calendar year following the later
of (i) the calendar year in which the Participant
52
attains age 70 1/2 or (ii) the calendar
year in which the Participant retires, provided,
however, that this clause (ii) shall not apply in
the case of a Participant who is a "five (5)
percent owner" at any time during the five (5) Plan
Year period ending in the calendar year in which he
attains age 70 1/2 or, in the case of a Participant
who becomes a "five (5) percent owner" during any
subsequent Plan Year, clause (ii) shall no longer
apply and the required beginning date shall be the
April 1st of the calendar year following the
calendar year in which such subsequent Plan Year
ends. Such distributions shall be equal to or
greater than any required distribution.
Alternatively, distributions to a Participant must
begin no later than the applicable April 1st as
determined under the preceding paragraph and must
be made over a period certain measured by the life
expectancy of the Participant (or the life
expectancies of the Participant and his designated
Beneficiary) in accordance with Regulations.
(2) Distributions to a Participant and his
Beneficiaries shall only be made in accordance with
the incidental death benefit requirements of Code
Section 401(a)(9)(G) and the Regulations
thereunder.
(d) For purposes of this Section, the life expectancy of a
Participant and a Participant's spouse may, at the
election of the Participant or the Participant's spouse,
be redetermined in accordance with Regulations. The
election, once made, shall be irrevocable. If no election
is made by the time distributions must commence, then the
life expectancy of the Participant and the Participant's
spouse shall not be subject to recalculation. Life
expectancy and joint and last survivor expectancy shall be
computed using the return multiples in Tables V and VI of
Regulation 1.72-9.
(e) All annuity Contracts under this Plan shall be
non-transferable when distributed. Furthermore, the terms
of any annuity Contract purchased and distributed to a
Participant or spouse shall comply with all of the
requirements of the Plan.
6.6 DISTRIBUTION OF BENEFITS UPON DEATH
(f) (1) The death benefit payable pursuant to Section
6.2 shall be paid to the Participant's Beneficiary
within a reasonable time after the Participant's
death by either of the following methods, as
elected by the Participant (or if no election has
been made prior to the Participant's death, by his
Beneficiary) subject, however, to the rules
specified in Section 6.6(b):
53
(i) One lump-sum payment in cash or in property.
(ii) Payment in monthly, quarterly, semi-annual,
or annual cash installments over a period to
be determined by the Participant or his
Beneficiary. After periodic installments
commence, the Beneficiary shall have the
right to direct the Trustee to reduce the
period over which such periodic installments
shall be made, and the Trustee shall adjust
the cash amount of such periodic
installments accordingly.
(2) In the event the death benefit payable pursuant to
Section 6.2 is payable in installments, then, upon
the death of the Participant, the Administrator may
direct the Trustee to segregate the death benefit
into a separate account, and the Trustee shall
invest such segregated account separately, and the
funds accumulated in such account shall be used for
the payment of the installments.
(g) Notwithstanding any provision in the Plan to the contrary,
distributions upon the death of a Participant shall be
made in accordance with the following requirements and
shall otherwise comply with Code Section 401(a)(9) and
the Regulations thereunder. If it is determined pursuant
to Regulations that the distribution of a Participant's
interest has begun and the Participant dies before his
entire interest has been distributed to him, the
remaining portion of such interest shall be distributed
at least as rapidly as under the method of distribution
selected pursuant to Section 6.5 as of his date of
death. If a Participant dies before he has begun to
receive any distributions of his interest under the Plan
or before distributions are deemed to have begun
pursuant to Regulations, then his death benefit shall
be distributed to his Beneficiaries by December 31st
of the calendar year in which the fifth anniversary of
his date of death occurs.
However, the 5-year distribution requirement of the
preceding paragraph shall not apply to any portion of the
deceased Participant's interest which is payable to or for
the benefit of a designated Beneficiary. In such event,
such portion may, at the election of the Participant (or
the Participant's designated Beneficiary), be distributed
over a period not extending beyond the life expectancy of
such designated Beneficiary provided such distribution
begins not later than December 31st of the calendar year
immediately following the calendar year in which the
Participant died. However, in the event the Participant's
spouse (determined as of the date of the Participant's
death) is his Beneficiary, the requirement that
distributions commence within one year of a Participant's
death shall not apply. In lieu thereof, distributions must
commence on or before the later of: (1) December 31st of
the calendar year immediately following the calendar year
in which the Participant died; or (2) December 31st of the
54
calendar
year in which the Participant would have attained age 70
1/2. If the surviving spouse dies before distributions to
such spouse begin, then the 5-year distribution
requirement of this Section shall apply as if the spouse
was the Participant.
(h) For purposes of Section 6.6(b), the election by a
designated Beneficiary to be excepted from the 5-year
distribution requirement must be made no later than
December 31st of the calendar year following the
calendar year of the Participant's death. Except,
however, with respect to a designated Beneficiary who
is the Participant's surviving spouse, the election
must be made by the earlier of: (1) December 31st of the
calendar year immediately following the calendar year
in which the Participant died or, if later, the calendar
year in which the Participant would have attained age
70 1/2; or (2) December 31st of the calendar year which
contains the fifth anniversary of the date of the
Participant's death. An election by a designated
Beneficiary must be in writing and shall be irrevocable
as of the last day of the election period stated herein.
In the absence of an election by the Participant or a
designated Beneficiary, the 5-year distribution
requirement shall apply.
(i) For purposes of this Section, the life expectancy of a
Participant and a Participant's spouse may, at the
election of the Participant or the Participant's spouse,
be redetermined in accordance with Regulations. The
election, once made, shall be irrevocable. If no election
is made by the time distributions must commence, then the
life expectancy of the Participant and the Participant's
spouse shall not be subject to recalculation. Life
expectancy and joint and last survivor expectancy shall be
computed using the return multiples in Tables V and VI of
Regulation 1.72-9.
6.7 TIME OF SEGREGATION OR DISTRIBUTION
Except as limited by Sections 6.5 and 6.6, whenever the Trustee
is to make a distribution or to commence a series of payments the distribution
or series of payments may be made or begun as soon as is practicable. However,
unless a Former Participant elects in writing to defer the receipt of benefits
(such election may not result in a death benefit that is more than incidental),
the payment of benefits shall begin not later than the 60th day after the close
of the Plan Year in which the latest of the following events occurs: (a) the
date on which the Participant attains the earlier of age 65 or the Normal
Retirement Age specified herein; (b) the 10th anniversary of the year in which
the Participant commenced participation in the Plan; or (c) the date the
Participant terminates his service with the Employer.
6.8 DISTRIBUTION FOR MINOR BENEFICIARY
In the event a distribution is to be made to a minor, then the
Administrator may direct that such distribution be paid to the legal guardian,
or if none, to a parent of such
55
Beneficiary or a responsible
adult with whom the Beneficiary maintains his residence, or to the custodian for
such Beneficiary under the Uniform Gift to Minors Act or Gift to Minors Act, if
such is permitted by the laws of the state in which said Beneficiary resides.
Such a payment to the legal guardian, custodian or parent of a minor Beneficiary
shall fully discharge the Trustee, Employer, and Plan from further liability on
account thereof.
6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN
In the event that all, or any portion, of the distribution
payable to a Participant or his Beneficiary hereunder shall, at the later of the
Participant's attainment of age 62 or his Normal Retirement Age, remain unpaid
solely by reason of the inability of the Administrator, after sending a
registered letter, return receipt requested, to the last known address, and
after further diligent effort, to ascertain the whereabouts of such Participant
or his Beneficiary, the amount so distributable shall be treated as a Forfeiture
pursuant to the Plan. In the event a Participant or Beneficiary is located
subsequent to his benefit being reallocated, such benefit shall be restored
unadjusted for earnings or losses.
6.10 PRE-RETIREMENT DISTRIBUTION
At such time as a Participant shall have attained the age of 59
1/2 years, the Administrator, at the election of the Participant, shall direct
the Trustee to distribute all or a portion of the amount then credited to the
accounts maintained on behalf of the Participant. In the event that the
Administrator makes such a distribution, the Participant shall continue to be
eligible to participate in the Plan on the same basis as any other Employee. Any
distribution made pursuant to this Section shall be made in a manner consistent
with Section 6.5, including, but not limited to, all notice and consent
requirements of Code Section 411(a)(11) and the Regulations thereunder.
Notwithstanding the above, pre-retirement distributions from a
Participant's Elective Account shall not be permitted prior to the Participant
attaining age 59 1/2 except as otherwise permitted under the terms of the Plan.
6.11 ADVANCE DISTRIBUTION FOR HARDSHIP
(j) The Administrator, at the election of the Participant,
shall direct the Trustee to distribute to any
Participant in any one Plan Year up to the lesser of
100% of his Participant's Elective Account and
Participant's Rollover Account valued as of the last
Valuation Date or the amount necessary to satisfy the
immediate and heavy financial need of the Participant.
Any distribution made pursuant to this Section shall be
deemed to be made as of the first day of the Plan Year or,
if later, the Valuation Date immediately preceding the
date of distribution, and the Participant's Elective
Account and Participant's Rollover Account shall be
reduced accordingly. Any withdrawal made pursuant to
this Section shall be made in accordance with 6.11(b)
or 6.11(c) below. Withdrawal under this Section shall be
authorized if the distribution is on account of:
56
(1) Expenses for medical care described in Code Section
213(d) previously incurred by the Participant, his
spouse, or any of his dependents (as defined in
Code Section 152) or necessary for these persons to
obtain medical care;
(2) The costs directly related to the purchase of a
principal residence for the Participant (excluding
mortgage payments);
(3) Payment of tuition, related educational fees, and
room and board expenses for the next twelve (12)
months of post-secondary education for the
Participant, his spouse, children, or dependents;
or
(4) Payments necessary to prevent the eviction of the
Participant from his principal residence or
foreclosure on the mortgage of the Participant's
principal residence.
(k) No distribution shall be made pursuant to this Section
unless the Administrator, based upon the Participant's
representation and such other facts as are known to the
Administrator, determines that all of the following
conditions are satisfied:
(1) The distribution is not in excess of the amount of
the immediate and heavy financial need of the
Participant. The amount of the immediate and heavy
financial need may include any amounts necessary to
pay any federal, state, or local income taxes or
penalties reasonably anticipated to result from the
distribution;
(2) The Participant has obtained all distributions,
other than hardship distributions, and all
nontaxable (at the time of the loan) loans
currently available under all plans maintained by
the Employer;
(3) The Plan, and all other plans maintained by the
Employer, provide that the Participant's elective
deferrals and voluntary Employee contributions will
be suspended for at least twelve (12) months after
receipt of the hardship distribution or, the
Participant, pursuant to a legally enforceable
agreement, will suspend his elective deferrals and
voluntary Employee contributions to the Plan and
all other plans maintained by the Employer for at
least twelve (12) months after receipt of the
hardship distribution; and
(4) The Plan, and all other plans maintained by the
Employer, provide that the Participant may not make
elective deferrals for the Participant's taxable
year immediately following the taxable year of the
hardship distribution in excess of the applicable
limit under Code Section 402(g) for such next
taxable year less the amount of
57
such Participant's elective deferrals for the
taxable year of the hardship distribution.
(l) No distribution shall be made pursuant to this
Section unless the Administrator determines, based
upon all relevant facts and circumstances, but not
limited to, funeral expenses for a member of the
Participant' s family and any amounts necessary to pay
any federal, state, or local income taxes or penalties
reasonably anticipated to result from the distribution,
that the amount to be distributed is not in excess of the
amount required to relieve the financial need and that
such need cannot be satisfied from other resources
reasonably available to the Participant. For this
purpose, the Participant's resources shall be deemed to
include those assets of his spouse and minor children
that are reasonably available to the Participant. A
distribution may be treated as necessary to satisfy a
financial need if the Administrator relies upon the
Participant's representation that the need cannot be
relieved:
(1) Through reimbursement or compensation by insurance
or otherwise;
(2) By reasonable liquidation of the Participant's
assets, to the extent such liquidation would not
itself increase the amount of the need;
(3) By cessation of elective deferrals under the Plan;
or
(4) By other distributions or loans from the Plan or
any other qualified retirement plan, or by
borrowing from commercial sources on reasonable
commercial terms, to the extent such amounts would
not themselves increase the amount of the need.
(m) Notwithstanding the above, distributions from the
Participant's Elective Account pursuant to this Section
shall be limited, as of the date of distribution, to the
Participant's Elective Account as of the end of the last
Plan Year ending before July 1, 1989, plus the total
Participant's Deferred Compensation after such date,
reduced by the amount of any previous distributions
pursuant to this Section and Section 6.10.
(n) Any distribution made pursuant to this Section shall be
made in a manner which is consistent with and satisfies
the provisions of Section 6.5, including, but not limited
to, all notice and consent requirements of Code Section
41l(a)(11) and the Regulations thereunder.
6.12 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION
All rights and benefits, including elections, provided to a
Participant in this Plan shall be subject to the rights afforded to any
"alternate payee" under a "qualified domestic
58
relations order."
Furthermore, a distribution to an "alternate payee" shall be permitted if such
distribution is authorized by a "qualified domestic relations order," even if
the affected Participant has not separated from service and has not reached the
"earliest retirement age" under the Plan. For the purposes of this Section,
"alternate payee," "qualified domestic relations order" and "earliest retirement
age" shall have the meaning set forth under Code Section 414(p).
6.13 DIRECT ROLLOVER
(o) Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under
this Section, a distributee may elect, at the time and in
the manner prescribed by the Administrator, to have any
portion of an eligible rollover distribution that is equal
to at least $500 paid directly to an eligible retirement
plan specified by the distributee in a direct rollover.
(p) For purposes of this Section the following definitions
shall apply:
(1) An eligible rollover distribution is any
distribution of all or any portion of the balance
to the credit of the distributee, except that an
eligible rollover distribution does not include:
any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or
life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten years
or more; any distribution to the extent such
distribution is required under Code Section
401(a)(9); the portion of any other distribution
that is not includible in gross income (determined
without regard to the exclusion for net unrealized
appreciation with respect to employer securities);
and any other distribution that is reasonably
expected to total less than $200 during a year.
(2) An eligible retirement plan is an individual
retirement account described in Code Section
408(a), an individual retirement annuity described
in Code Section 408(b), an annuity plan described
in Code Section 403(a), or a qualified trust
described in Code Section 401(a), that accepts the
distributee's eligible rollover distribution.
However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account
or individual retirement annuity.
(3) A distributee includes an Employee or former
Employee. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or
former Employee's spouse or former spouse who is
the alternate payee under a qualified domestic
relations
59
order, as defined in Code Section 414(p), are
distributees with regard to the interest of the
spouse or former spouse.
(4) A direct rollover is a payment by the Plan to the
eligible retirement plan specified by the
distributee.
ARTICLE VII
AMENDMENT, TERMINATION AND MERGERS
7.1 AMENDMENT
(q) CSX Hotels, Inc. shall by action of its board of
directors have the right at any time to amend the Plan,
subject to the limitations of this Section. However,
any amendment which affects the rights, duties or
responsibilities of the Trustee and Administrator, other
than an amendment to remove the Trustee or Administrator,
may only be made with the Trustee's and Administrator's
written consent. Any such amendment shall become
effective as provided therein upon its execution. The
Trustee shall not be required to execute any such
amendment unless the Trust provisions contained herein
are a part of the Plan and the amendment affects the
duties of the Trustee hereunder.
(r) No amendment to the Plan shall be effective if it
authorizes or permits any part of the Trust Fund (other
than such part as is required to pay taxes and
administration expenses) to be used for or diverted to any
purpose other than for the exclusive benefit of the
Participants or their Beneficiaries or estates; or causes
any reduction in the amount credited to the account of any
Participant; or causes or permits any portion of the Trust
Fund to revert to or become property of the Employer.
(s) Except as permitted by Regulations, no Plan amendment or
transaction having the effect of a Plan amendment (such
as a merger, plan transfer or similar transaction) shall
be effective to the extent it eliminates or reduces
any "Section 41l(d)(6) protected benefit" or adds or
modifies conditions relating to "Section 411(d)(6)
protected benefits" the result of which is a further
restriction on such benefit unless such protected
benefits are preserved with respect to benefits accrued
as of the later of the adoption date or effective date
of the amendment. "Section 41l(d)(6) protected
benefits" are benefits described in Code Section
411(d)(6)(A), early retirement benefits and retirement-
type subsidies, and optional forms of benefit.
7.20 TERMINATION
(t) The Employer shall have the right at any time to terminate
the Plan by delivering to the Trustee and Administrator
written notice of such
60
termination. Upon any full or
partial termination, all amounts credited to the affected
Participants' Combined Accounts shall become 100% Vested
as provided in Section 6.4 and shall not thereafter be
subject to forfeiture, and all unallocated amounts shall
be allocated to the accounts of all Participants in
accordance with the provisions hereof.
(u) Upon the full termination of the Plan, the Employer shall
direct the distribution of the assets of the Trust Fund to
Participants in a manner which is consistent with and
satisfies the provisions of Section 6.5. Distributions to
a Participant shall be made in cash or in property or
through the purchase of irrevocable nontransferable
deferred commitments from an insurer. Except as permitted
by Regulations, the termination of the Plan shall not
result in the reduction of "Section 41l(d)(6) protected
benefits" in accordance with Section 7.1(c).
7.3 MERGER OR CONSOLIDATION
This Plan may be merged or consolidated with, or its assets
and/or liabilities may be transferred to any other plan and trust only if the
benefits which would be received by a Participant of this Plan, in the event of
a termination of the plan immediately after such transfer, merger or
consolidation, are at least equal to the benefits the Participant would have
received if the Plan had terminated immediately before the transfer, merger or
consolidation, and such transfer, merger or consolidation does not otherwise
result in the elimination or reduction of any "Section 411(d)(6) protected
benefits" in accordance with Section 7.1(c).
ARTICLE VIII
TOP HEAVY
8.1 TOP HEAVY PLAN REQUIREMENTS
For any Top Heavy Plan Year, the Plan shall provide the special
vesting requirements of Code Section 416(b) pursuant to Section 6.4 of the Plan
and the special minimum allocation requirements of Code Section 416(c) pursuant
to Section 4.4 of the Plan.
8.2 DETERMINATION OF TOP HEAVY STATUS
(v) This Plan shall be a Top Heavy Plan for any Plan Year in
which, as of the Determination Date, (1) the Present Value
of Accrued Benefits of Key Employees and (2) the sum of
the Aggregate Accounts of Key Employees under this Plan
and all plans of an Aggregation Group, exceeds sixty
percent (60%) of the Present Value of Accrued Benefits and
the Aggregate Accounts of all Key and Non-Key Employees
under this Plan and all plans of an Aggregation Group.
If any Participant is a Non-Key Employee for any Plan
Year, but such Participant was a Key Employee for any
prior Plan Year, such
61
Participant's Present Value of Accrued
Benefit and/or Aggregate Account balance shall not be
taken into account for purposes of determining whether
this Plan is a Top Heavy or Super Top Heavy Plan (or
whether any Aggregation Group which includes this Plan is
a Top Heavy Group). In addition, if a Participant or
Former Participant has not performed any services for any
Employer maintaining the Plan at any time during the five
year period ending on the Determination Date, any accrued
benefit for such Participant or Former Participant shall
not be taken into account for the purposes of determining
whether this Plan is a Top Heavy or Super Top Heavy Plan.
(w) This Plan shall be a Super Top Heavy Plan for any Plan
Year in which, as of the Determination Date, (1) the
Present Value of Accrued Benefits of Key Employees and (2)
the sum of the Aggregate Accounts of Key Employees under
this Plan and all plans of an Aggregation Group, exceeds
ninety percent (90%) of the Present Value of Accrued
Benefits and the Aggregate Accounts of all Key and Non-Key
Employees under this Plan and all plans of an Aggregation
Group.
(x) Aggregate Account: A Participant's Aggregate Account as
of the Determination Date is the sum of:
(1) his Participant's Combined Account balance as of
the most recent valuation occurring within a twelve
(12) month period ending on the Determination Date;
(2) an adjustment for any contributions due as of the
Determination Date. Such adjustment shall be the
amount of any contributions actually made after the
Valuation Date but due on or before the
Determination Date, except for the first Plan Year
when such adjustment shall also reflect the amount
of any contributions made after the Determination
Date that are allocated as of a date in that first
Plan Year.
(3) any Plan distributions made within the Plan Year
that includes the Determination Date or within the
four (4) preceding Plan Years. However, in the case
of distributions made after the Valuation Date and
prior to the Determination Date, such distributions
are not included as distributions for top heavy
purposes to the extent that such distributions are
already included in the Participant's Aggregate
Account balance as of the Valuation Date.
Notwithstanding anything herein to the contrary,
all distributions, including distributions under a
terminated plan which if it had not been terminated
would have been required to be included in an
Aggregation Group, will be counted. Further,
distributions from
62
the Plan (including the cash value of life
insurance policies) of a Participant's account
balance because of death shall be treated as a
distribution for the purposes of this paragraph.
(4) any Employee contributions, whether voluntary or
mandatory. However, amounts attributable to tax
deductible qualified voluntary employee
contributions shall not be considered to be a part
of the Participant's Aggregate Account balance.
(5) with respect to unrelated rollovers and
plan-to-plan transfers (ones which are both
initiated by the Employee and made from a plan
maintained by one employer to a plan maintained by
another employer), if this Plan provides the
rollovers or plan-to-plan transfers, it shall
always consider such rollovers or plan-to-plan
transfers as a distribution for the purposes of
this Section. If this Plan is the plan accepting
such rollovers or plan-to-plan transfers, it shall
not consider such rollovers or plan-to-plan
transfers as part of the Participant's Aggregate
Account balance.
(6) with respect to related rollovers and plan-to-plan
transfers (ones either not initiated by the
Employee or made to a plan maintained by the same
employer), if this Plan provides the rollover or
plan-to-plan transfer, it shall not be counted as a
distribution for purposes of this Section. If this
Plan is the plan accepting such rollover or
plan-to-plan transfer, it shall consider such
rollover or plan-to-plan transfer as part of the
Participant's Aggregate Account balance,
irrespective of the date on which such rollover or
plan-to-plan transfer is accepted.
(7) For the purposes of determining whether two
employers are to be treated as the same employer in
(5) and (6) above, all employers aggregated under
Code Section 414(b), (c), (m) and (o) are treated
as the same employer.
(y) "Aggregation Group" means either a Required Aggregation
Group or a Permissive Aggregation Group as hereinafter
determined.
(1) Required Aggregation Group: In determining a
Required Aggregation Group hereunder, each plan of
the Employer in which a Key Employee is a
participant in the Plan Year containing the
Determination Date or any of the four preceding
Plan Years, and each other plan of the Employer
which enables any plan in which a Key Employee
participates to meet the requirements of Code
Sections 401(a)(4) or 410, will be required to be
aggregated. Such group shall be known as a Required
Aggregation Group.
63
In the case of a Required Aggregation Group, each
plan in the group will be considered a Top Heavy
Plan if the Required Aggregation Group is a Top
Heavy Group. No plan in the Required Aggregation
Group will be considered a Top Heavy Plan if the
Required Aggregation Group is not a Top Heavy
Group.
(2) Permissive Aggregation Group: The Employer may also
include any other plan not required to be included
in the Required Aggregation Group, provided the
resulting group, taken as a whole, would continue
to satisfy the provisions of Code Sections
401(a)(4) and 410. Such group shall be known as a
Permissive Aggregation Group.
In the case of a Permissive Aggregation Group, only
a plan that is part of the Required Aggregation
Group will be considered a Top Heavy Plan if the
Permissive Aggregation Group is a Top Heavy Group.
No plan in the Permissive Aggregation Group will be
considered a Top Heavy Plan if the Permissive
Aggregation Group is not a Top Heavy Group.
(3) Only those plans of the Employer in which the
Determination Dates fall within the same calendar
year shall be aggregated in order to determine
whether such plans are Top Heavy Plans.
(4) An Aggregation Group shall include any terminated
plan of the Employer if it was maintained within
the last five (5) years ending on the Determination
Date.
(z) "Determination Date" means (a) the last day of the
preceding Plan Year, or (b) in the case of the first Plan
Year, the last day of such Plan Year.
(aa) Present Value of Accrued Benefit: In the case of a
defined benefit plan, the Present Value of Accrued
Benefit for a Participant other than a Key Employee,
shall be as determined using the single accrual method
used for all plans of the Employer and Affiliated
Employers, or if no such single method exists, using a
method which results in benefits accruing not more rapidly
than the slowest accrual rate permitted under Code
Section 411(b)(1)(C). The determination of the Present
Value of Accrued Benefit shall be determined as of the
most recent Valuation Date that falls within or ends with
the 12-month period ending on the Determination Date
except as provided in Code Section 416 and the Regulations
thereunder for the first and second plan years of a
defined benefit plan.
(bb) "Top Heavy Group" means an Aggregation Group in which, as
of the Determination Date, the sum of:
64
(1) the Present Value of Accrued Benefits of Key
Employees under all defined benefit plans included
in the group, and
(2) the Aggregate Accounts of Key Employees under
all defined contribution plans included in the
group,
exceeds sixty percent (60%) of a similar sum determined
for all Participants.
ARTICLE IX
MISCELLANEOUS
9.1 PARTICIPANT'S RIGHTS
This Plan shall not be deemed to constitute a contract between
the Employer and any Participant or to be a consideration or an inducement for
the employment of any Participant or Employee. Nothing contained in this Plan
shall be deemed to give any Participant or Employee the fight to be retained in
the service of the Employer or to interfere with the right of the Employer to
discharge any Participant or Employee at any time regardless of the effect which
such discharge shall have upon him as a Participant of this Plan.
9.2 ALIENATION
(cc) Subject to the exceptions provided below, no benefit
which shall be payable out of the Trust Fund to any person
(including a Participant or his Beneficiary) shall be
subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, or
charge, and any attempt to anticipate, alienate, sell,
transfer, assign, pledge, encumber, or charge the same
shall be void; and no such benefit shall in any manner
be liable for, or subject to, the debts, contracts,
liabilities, engagements, or torts of any such person,
nor shall it be subject to attachment or legal process
for or against such person, and the same shall not be
recognized by the Trustee, except to such extent as may
be required by law.
(dd) This provision shall not apply to a "qualified domestic
relations order" defined in Code Section 414(p), and
those other domestic relations orders permitted to be
so treated by the Administrator under the provisions
of the Retirement Equity Act of 1984. The Administrator
shall establish a written procedure to determine the
qualified status of domestic relations orders and to
administer distributions under such qualified orders.
Further, to the extent provided under a "qualified
domestic relations order," a former spouse of a
Participant shall be treated as the spouse or surviving
spouse for all purposes under the Plan.
Notwithstanding any provision of this Section to the
contrary, an offset to a Participant's accrued benefit
against an amount that the Participant is ordered or
required to pay the Plan with respect to a judgment,
order, or
65
decree issued, or a
settlement entered into, on or after August 5, 1997, shall
be permitted in accordance with Code Sections
401(a)(13)(C) and (D).
9.3 CONSTRUCTION OF PLAN
This Plan shall be construed and enforced according to the Act
and the laws of the State of West Virginia, other than its laws respecting
choice of law, to the extent not preempted by the Act.
9.4 GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine or
neuter gender, they shall be construed as though they were also used in another
gender in all cases where they would so apply, and whenever any words are used
herein in the singular or plural form, they shall be construed as though they
were also used in the other form in all cases where they would so apply.
9.5 LEGAL ACTION
In the event any claim, suit, or proceeding is brought regarding
the Trust and/or Plan established hereunder to which the Trustee, the Employer
or the Administrator may be a party, and such claim, suit, or proceeding is
resolved in favor of the Trustee, the Employer or the Administrator, they shall
be entitled to be reimbursed from the Trust Fund for any and all costs,
attorney's fees, and other expenses pertaining thereto incurred by them for
which they shall have become liable.
9.6 PROHIBITION AGAINST DIVERSION OF FUNDS
(ee) Except as provided below and otherwise specifically
permitted by law, it shall be impossible by operation of
the Plan or of the Trust, by termination of either, by
power of revocation or amendment, by the happening of any
contingency, by collateral arrangement or by any other
means, for any part of the corpus or income of any trust
fund maintained pursuant to the Plan or any funds
contributed thereto to be used for, or diverted to,
purposes other than the exclusive benefit of Participants,
Retired Participants, or their Beneficiaries.
(ff) In the event the Employer shall make an excessive
contribution under a mistake of fact pursuant to Act
Section 403(c)(2)(A), the Employer may demand repayment of
such excessive contribution at any time within one (1)
year following the time of payment and the Trustees shall
return such amount to the Employer within the one (1) year
period. Earnings of the Plan attributable to the excess
contributions may not be returned to the Employer but any
losses attributable thereto must reduce the amount so
returned.
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9.7 BONDING
Every Fiduciary, except a bank or an insurance company, unless
exempted by the Act and regulations thereunder, shall be bonded in an amount not
less than 10% of the amount of the funds such Fiduciary handles; provided,
however, that the minimum bond shall be $1,000 and the maximum bond, $500,000.
The amount of funds handled shall be determined at the beginning of each Plan
Year by the amount of funds handled by such person, group, or class to be
covered and their predecessors, if any, during the preceding Plan Year, or if
there is no preceding Plan Year, then by the amount of the funds to be handled
during the then current year. The bond shall provide protection to the Plan
against any loss by reason of acts of fraud or dishonesty by the Fiduciary alone
or in connivance with others. The surety shall be a corporate surety company (as
such term is used in Act Section 412(a)(2)), and the bond shall be in a form
approved by the Secretary of Labor. Notwithstanding anything in the Plan to the
contrary, the cost of such bonds shall be an expense of and may, at the election
of the Administrator, be paid from the Trust Fund or by the Employer.
9.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE
Neither the Employer, the Administrator, nor the Trustee, nor
their successors shall be responsible for the validity of any Contract issued
hereunder or for the failure on the part of the insurer to make payments
provided by any such Contract, or for the action of any person which may delay
payment or render a Contract null and void or unenforceable in whole or in part.
9.9 INSURER'S PROTECTIVE CLAUSE
Any insurer who shall issue Contracts hereunder shall not have
any responsibility for the validity of this Plan or for the tax or legal aspects
of this Plan. The insurer shall be protected and held harmless in acting in
accordance with any written direction of the Trustee, and shall have no duty to
see to the application of any funds paid to the Trustee, nor be required to
question any actions directed by the Trustee. Regardless of any provision of
this Plan, the insurer shall not be required to take or permit any action or
allow any benefit or privilege contrary to the terms of any Contract which it
issues hereunder, or the rules of the insurer.
9.10 RECEIPT AND RELEASE FOR PAYMENTS
Any payment to any Participant, his legal representative,
Beneficiary, or to any guardian or committee appointed for such Participant or
Beneficiary in accordance with the provisions of the Plan, shall, to the extent
thereof, be in full satisfaction of all claims hereunder against the Trustee and
the Employer, either of whom may require such Participant, legal representative,
Beneficiary, guardian or committee, as a condition precedent to such payment, to
execute a receipt and release thereof in such form as shall be determined by the
Trustee or Employer.
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9.11 ACTION BY THE EMPLOYER
Whenever the Employer under the terms of the Plan is permitted or
required to do or perform any act or matter or thing, it shall be done and
performed by a person duly authorized by its legally constituted authority.
9.12 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY
The "named Fiduciaries" of this Plan are (1) the Employer, (2)
the Administrator and (3) the Trustee. The named Fiduciaries shall have only
those specific powers, duties, responsibilities, and obligations as are
specifically given them under the Plan or as accepted by or assigned to them
pursuant to any procedure provided under the Plan, including but not limited to
any agreement allocating or delegating their responsibilities, the terms of
which are incorporated herein by reference. In general, unless otherwise
indicated herein or pursuant to such agreements, the Employer shall have the
duties specified in Article II hereof, as the same may be allocated or delegated
thereunder, including but not limited to the responsibility for making the
contributions provided for under Section 4.1; and shall have the authority to
appoint and remove the Trustee and the Administrator; to formulate the Plan's
"funding policy and method"; and to amend or terminate, in whole or in part, the
Plan. The Administrator shall have the responsibility for the administration of
the Plan, including but not limited to the items specified in Article II of the
Plan, as the same may be allocated or delegated thereunder. The Administrator
shall act as the named Fiduciary responsible for communicating with the
Participant according to the Participant Direction Procedures. The Trustee shall
have the responsibility of management and control of the assets held under the
Trust, except to the extent directed pursuant to Article II or with respect to
those assets, the management of which has been assigned to an Investment
Manager, who shall be solely responsible for the management of the assets
assigned to it, all as specifically provided in the Plan and any agreement with
the Trustee. Each named Fiduciary warrants that any directions given,
information furnished, or action taken by it shall be in accordance with the
provisions of the Plan, authorizing or providing for such direction, information
or action. Furthermore, each named Fiduciary may rely upon any such direction,
information or action of another named Fiduciary as being proper under the Plan,
and is not required under the Plan to inquire into the propriety of any such
direction, information or action. It is intended under the Plan that each named
Fiduciary shall be responsible for the proper exercise of its own powers,
duties, responsibilities and obligations under the Plan as specified or
allocated herein. No named Fiduciary shall guarantee the Trust Fund in any
manner against investment loss or depreciation in asset value. Any person or
group may serve in more than one Fiduciary capacity. In the furtherance of their
responsibilities hereunder, the "named Fiduciaries" shall be empowered to
interpret the Plan and Trust and to resolve ambiguities, inconsistencies and
omissions, which findings shall be binding, final and conclusive.
9.13 HEADINGS
The headings and subheadings of this Plan have been inserted for
convenience of reference and are to be ignored in any construction of the
provisions hereof.
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9.14 APPROVAL BY INTERNAL REVENUE SERVICE
(gg) Notwithstanding anything herein to the contrary,
contributions to this Plan are conditioned upon the
initial qualification of the Plan under Code Section 401.
If the Plan receives an adverse determination with respect
to its initial qualification, then the Plan may return
such contributions to the Employer within one year after
such determination, provided the application for the
determination is made by the time prescribed by law for
filing the Employer's return for the taxable year in which
the Plan was adopted, or such later date as the Secretary
of the Treasury may prescribe.
(hh) Notwithstanding any provisions to the contrary, except
Sections 3.5, 3.6, and 4.1(e), any contribution by the
Employer to the Trust Fund is conditioned upon the
deductibility of the contribution by the Employer under
the Code and, to the extent any such deduction is
disallowed, the Employer may, within one (1) year
following the disallowance of the deduction, demand
repayment of such disallowed contribution and the Trustee
shall return such contribution within one (1) year
following the disallowance. Earnings of the Plan
attributable to the excess contribution may not be
returned to the Employer, but any losses attributable
thereto must reduce the amount so returned.
9.15 UNIFORMITY
All provisions of this Plan shall be interpreted and applied in a
uniform, nondiscriminatory manner. In the event of any conflict between the
terms of this Plan and any Contract purchased hereunder, the Plan provisions
shall control.
ARTICLE X
PARTICIPATING EMPLOYERS
10.1 ADOPTION BY OTHER EMPLOYERS
Notwithstanding anything herein to the contrary, with the consent
of the Employer and Trustee, any other corporation or entity, whether an
affiliate or subsidiary or not, may adopt this Plan and all of the provisions
hereof, and participate herein and be known as a Participating Employer, by a
properly executed document evidencing said intent and will of such Participating
Employer.
10.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS
(ii) Each such Participating Employer shall be required to use
the same Trustee as provided in this Plan.
(jj) The Trustee may, but shall not be required to, commingle,
hold and invest as one Trust Fund all contributions made
by Participating Employers, as
69
well as all increments
thereof. However, the assets of the Plan shall, on an
ongoing basis, be available to pay benefits to all
Participants and Beneficiaries under the Plan without
regard to the Employer or Participating Employer who
contributed such assets.
(kk) The transfer of any Participant from or to an Employer
participating in this Plan, whether he be an Employee of
the Employer or a Participating Employer, shall not affect
such Participant's rights under the Plan, and all amounts
credited to such Participant's Combined Account as well as
his accumulated service time with the transferor or
predecessor, and his length of participation in the Plan,
shall continue to his credit.
(ll) All rights and values forfeited by termination of
employment shall inure only to the benefit of the
Participants of the Employer or Participating Employer
by which the forfeiting Participant was employed, except
if the Forfeiture is for an Employee whose Employer is an
Affiliated Employer, then said Forfeiture shall inure
to the benefit of the Participants of those Employers
who are Affiliated Employers. Should an Employee of one
("First") Employer be transferred to an associated
("Second") Employer which is an Affiliated Employer,
such transfer shall not cause his account balance
(generated while an Employee of "First" Employer) in
any manner, or by any amount to be forfeited. Such
Employee's Participant Combined Account balance for
all purposes of the Plan, including length of service,
shall be considered as though he had always been employed
by the "Second" Employer and as such had received
contributions, forfeitures, earnings or losses, and
appreciation or depreciation in value of assets
totaling the amount so transferred.
(mm) Any expenses of the Trust which are to be paid by the
Employer or borne by the Trust Fund shall be paid by each
Participating Employer in the same proportion that the
total amount standing to the credit of all Participants
employed by such Employer bears to the total standing to
the credit of all Participants.
10.3 DESIGNATION OF AGENT
Each Participating Employer shall be deemed to be a party to this
Plan; provided, however, that with respect to all of its relations with the
Trustee and Administrator for the purpose of this Plan, each Participating
Employer shall be deemed to have designated irrevocably the Employer as its
agent. Unless the context of the Plan clearly indicates the contrary, the word
"Employer" shall be deemed to include each Participating Employer as related to
its adoption of the Plan.
70
10.4 EMPLOYEE TRANSFERS
It is anticipated that an Employee may be transferred between
Participating Employers, and in the event of any such transfer, the Employee
involved shall carry with him his accumulated service and eligibility. No such
transfer shall effect a termination of employment hereunder, and the
Participating Employer to which the Employee is transferred shall thereupon
become obligated hereunder with respect to such Employee in the same manner as
was the Participating Employer from whom the Employee was transferred.
10.5 PARTICIPATING EMPLOYER CONTRIBUTION
Any contribution subject to allocation during each Plan Year
shall be allocated only among those Participants of the Employer or
Participating Employer making the contribution, except if the contribution is
made by an Affiliated Employer, in which event such contribution shall be
allocated among all Participants of all Participating Employers who are
Affiliated Employers in accordance with the provisions of this Plan. On the
basis of the information furnished by the Administrator, the Trustee shall keep
separate books and records concerning the affairs of each Participating Employer
hereunder and as to the accounts and credits of the Employees of each
Participating Employer. The Trustee may, but need not, register Contracts so as
to evidence that a particular Participating Employer is the interested Employer
hereunder, but in the event of an Employee transfer from one Participating
Employer to another, the employing Employer shall immediately notify the Trustee
thereof.
10.6 AMENDMENT
Each Participating Employer appoints the board of directors of
CSX Hotels, Inc., its exclusive agent to amend or terminate the Plan.
10.7 DISCONTINUANCE OF PARTICIPATION
Any Participating Employer shall be permitted to discontinue or
revoke its participation in the Plan. At the time of any such discontinuance or
revocation, satisfactory evidence thereof and of any applicable conditions
imposed shall be delivered to the Trustee. The Trustee shall thereafter
transfer, deliver and assign Contracts and other Trust Fund assets allocable to
the Participants of such Participating Employer to such new Trustee as shall
have been designated by such Participating Employer, in the event that it has
established a separate pension plan for its Employees, provided however, that no
such transfer shall be made if the result is the elimination or reduction of any
"Section 411(d)(6) protected benefits" in accordance with Section 7.1(c). If no
successor is designated, the Trustee shall retain such assets for the Employees
of said Participating Employer pursuant to the provisions of the Trust. In no
such event shall any part of the corpus or income of the Trust as it relates to
such Participating Employer be used for or diverted to purposes other than for
the exclusive benefit of the Employees of such Participating Employer.
71
10.8 ADMINISTRATOR'S AUTHORITY
The Administrator shall have authority to make any and all
necessary rules or regulations, binding upon all Participating Employers and all
Participants, to effectuate the purpose of this Article.
IN WITNESS WHEREOF, this Plan has been executed the day and year
first above written.
Signed, sealed, and delivered in the presence of.'
CSX Hotels, Inc. dba The Greenbrier
By /s/Ted J. Kleisner
-----------------------------
EMPLOYER
/s/Deirdre D. Ford
- ------------------------
WITNESSES AS TO EMPLOYER
ATTEST /s/Larry C. Mazey
----------------------------
The Grand Teton Lodge Company
By /s/Ted J. Kleisner
----------------------------
EMPLOYER
/s/Deirdre D. Ford
- ------------------------
WITNESSES AS TO EMPLOYER
ATTEST /s/Larry C. Mazey
---------------------------
72
THE GREENBRIER
SAVINGS AND INVESTMENT PLAN AND TRUST
TRUST AGREEMENT
TABLE OF CONTENTS
PAGE
ARTICLE I TRUSTEES AND TRUST FUND.......................................1
1.1. NAME OF TRUST.....................................................1
ARTICLE II PLAN..........................................................2
2.1. DELIVERY OF PLAN TO TRUSTEE.......................................2
ARTICLE III ADMINISTRATOR.................................................2
3.1. NOTIFICATION OF NAME OF ADMINISTRATOR.............................2
ARTICLE IV CONTRIBUTIONS.................................................3
4.1. RECEIPT OF CONTRIBUTION...........................................3
ARTICLE V TRUSTEE.......................................................3
5.1. BASIC RESPONSIBILITIES OF THE TRUSTEE.............................3
5.2. INVESTMENT POWERS AND DUTIES OF THE TRUSTEE.......................4
5.3. OTHER POWERS OF THE TRUSTEE.......................................5
5.4. DUTIES OF THE TRUSTEE REGARDING PAYMENTS..........................8
5.5. TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES.....................8
5.6. ANNUAL REPORT OF THE TRUSTEE......................................8
5.7. AUDIT.............................................................9
5.8. RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE....................9
5.9. TRANSFER OF INTEREST.............................................10
5.10. DIRECT ROLLOVER.................................................11
5.11. EMPLOYER SECURITIES AND REAL PROPERTY...........................12
ARTICLE VI AMENDMENT, TERMINATION AND MERGERS...........................12
6.1. AMENDMENT........................................................12
6.2. TERMINATION......................................................13
6.3. MERGER OR CONSOLIDATION..........................................13
ARTICLE VII MISCELLANEOUS................................................13
7.1. QUALIFIED TRUST..................................................13
7.2. CONSTRUCTION OF AGREEMENT........................................13
7.3. GENDER AND NUMBER................................................13
7.4. LEGAL ACTION.....................................................14
7.5. BONDING..........................................................14
7.6. HEADINGS.........................................................14
7.7. IRREVOCABILITY OF TRUST..........................................14
<PAGE>
THE GREENBRIER
SAVINGS AND INVESTMENT PLAN AND TRUST
TRUST AGREEMENT
THIS AGREEMENT, hereby made and entered into this 1st day of
June, 1998, by and between CSX Hotels, Inc. dba The Greenbrier (herein referred
to as the "Employer") and Smith Barney Corporate Trust Company (herein referred
to as the "Trustee").
WITNESSETH:
WHEREAS, the Employer has concurrently herewith adopted a Profit
Sharing Plan known as the The Greenbrier Savings and Investment Plan and Trust
(herein referred to as the Plan); and
WHEREAS, under the terms of the Plan, funds will from time to
time be contributed to the Trustees (herein referred to as the "Trustee"), which
funds as and when received by the Trustee, will constitute a trust fund to be
held by said Trustee under the Plan for the benefit of the Participants or their
Beneficiaries; and
WHEREAS, the Employer desires the Trustee to hold and administer
such funds and the Trustee is willing to hold and administer such funds pursuant
to the terms of this Agreement;
NOW, THEREFORE, for and in consideration of the premises and of
the mutual covenants herein contained, the Employer and the Trustee do hereby
covenant and agree as follows:
ARTICLE I
TRUSTEES AND TRUST FUND
1.1. NAME OF TRUST
(a) This Trust shall be entitled the "The Greenbrier Savings
and Investment Plan and Trust, Trust Agreement"
(hereinafter referred to as the "Trust"), and shall carry
into effect the provisions of the Plan created
concurrently herewith and forming a part hereof. All of
the definitions in such Plan are hereby incorporated
herein by reference. The Trustee hereby agrees to act as
Trustee of the Trust, and to take, hold, invest,
administer and distribute in accordance with the following
provisions, any and all contributions and assets paid or
delivered to the Trustee pursuant to the Plan.
(b) All of the assets at any time held hereunder by the
Trustee are hereinafter referred to collectively as the
"Trust Fund." All right, title and interest in and to the
assets of the Trust Fund shall be at all times, vested
exclusively in the Trustee.
1
(c) The Trustee shall receive, take and hold any contributions
paid to the Trustee by the Employer in cash or in other
property acceptable to the Trustee. All contributions so
received together with the income therefrom and any other
increment thereon shall be held managed and administered
by the Trustee pursuant to the terms of this Agreement
without distinction between principal and income and
without liability for the payment of interest thereon. The
Trustee shall not be responsible for the collection of any
contributions to the Plan.
ARTICLE II
PLAN
2.1. DELIVERY OF PLAN TO TRUSTEE
The Employer shall deliver to the Trustee a copy of the Plan and
of any amendment thereto for convenience of reference, but rights, powers,
titles, duties, discretions and immunities of the Trustee shall be governed
solely by this instrument without reference to the Plan.
ARTICLE III
ADMINISTRATOR
3.1. NOTIFICATION OF NAME OF ADMINISTRATOR
(a) The Plan provides for the appointment of an Administrator
or Administrators (herein referred to as the
"Administrator"), to administer the Plan. The Employer
shall notify the Trustee in writing of the name of the
Administrator, and of any change in the identity of such
Administrator. Until notified of the change, the Trustee
shall be fully protected in acting upon the assumption
that the identity of the Administrator has not been
changed.
(b) All directions by the Administrator to the Trustee shall
be in writing signed by such Administrator.
(c) The Employer shall furnish to the Trustee a specimen
signature of the Administrator or Administrators at the
time he or they are appointed.
(d) The Administrator shall have sole responsibility for
determining the existence, non-existence, nature and
amount of the rights and interests of all persons in the
Trust Fund.
2
ARTICLE IV
CONTRIBUTIONS
4.1. RECEIPT OF CONTRIBUTION.
The Trustee shall receive all contributions paid in cash or other
property acceptable to the Trustee, and all contributions so received together
with the income therefrom and any increment thereon shall be held, managed and
administered by the Trustee pursuant to this Agreement without distinction
between principal and income. The Trustee shall have no duty to require any
contributions to be made to the Trustee by the Employer or to determine that the
amounts received comply with the Plan, or to determine that the Trust Fund is
adequate to provide the benefits payable pursuant to the Plan.
ARTICLE V
TRUSTEE
5.1. BASIC RESPONSIBILITIES OF THE TRUSTEE
(a) The Trustee shall have the following categories of
responsibilities:
(1) Consistent with the "funding policy and method"
determined by the Employer, to invest, manage, and
control the Plan assets subject, however, to the
direction of a Participant with respect to his
Participant Directed Accounts, the Employer or an
Investment Manager appointed by the Employer or any
agent of the Employer;
(2) At the direction of the Administrator, to pay
benefits required under the Plan to be paid
to Participants, or, in the event of their death,
to their Beneficiaries; and
(3) To maintain records of receipts and disbursements
and furnish to the Employer and/or Administrator
for each Plan Year a written annual report per
Section 5.6.
(b) In the event that the Trustee shall be directed by a
Participant (pursuant to the Participant Direction
Procedures), or the Employer, or an Investment Manager or
other agent appointed by the Employer with respect to the
investment of any or all Plan assets, the Trustee shall
have no liability with respect to the investment of such
assets, but shall be responsible only to execute such
investment instructions as so directed.
(1) The Trustee shall be entitled to rely fully on the
written instructions of a Participant (pursuant to
the Participant Direction Procedures), or the
Employer, or any Fiduciary or nonfiduciary agent of
the Employer, in the discharge of such duties, and
shall not be liable for any loss or other
liability, resulting from such
3
direction (or lack of direction) of the investment
of any part of the Plan assets.
(2) The Trustee may delegate the duty to execute such
instructions to any nonfiduciary agent, which may
be an affiliate of the Trustee or any Plan
representative.
(3) The Trustee may refuse to comply with any direction
from the Participant in the event the Trustee, in
its sole and absolute discretion, deems such
directions improper by virtue of applicable law.
The Trustee shall not be responsible or liable for
any loss or expense which may result from the
Trustee's refusal or failure to comply with any
directions from the Participant.
(4) Any costs and expenses related to compliance with
the Participant's directions shall be borne by the
Participant's Directed Account, unless paid by the
Employer.
(c) If there shall be more than one Trustee, they shall act by
a majority of their number, but may authorize one or more
of them to sign papers on their behalf.
5.2. INVESTMENT POWERS AND DUTIES OF THE TRUSTEE
(a) The Trustee shall invest and reinvest the Trust
Fund to keep the Trust Fund invested without
distinction between principal and income and in such
securities or property, real or personal, wherever
situated, as the Trustee shall deem advisable, including,
but not limited to, stocks, common or preferred, bonds
and other evidences of indebtedness or ownership, and
real estate or any interest therein. The Trustee shall
at all times in making investments of the Trust Fund
consider, among other factors, the short and long-term
financial needs of the Plan on the basis of information
furnished by the Employer. In making such
investments, the Trustee shall not be restricted to
securities or other property of the character expressly
authorized by the applicable law for trust
investments; however, the Trustee shall give due
regard to any limitations imposed by the Code or the
Act so that at all times the Plan may qualify as
a qualified Profit Sharing Plan and Trust.
(b) The Trustee may employ a bank or trust company pursuant to
the terms of its usual and customary bank agency
agreement, under which the duties of such bank or trust
company shall be of a custodial, clerical and
record-keeping nature.
(c) The Trustee may from time to time transfer to a common,
collective, pooled trust fund or money market fund
maintained by any corporate
4
Trustee or affiliate thereof
hereunder, all or such part of the Trust Fund as the
Trustee may deem advisable, and such part or all of the
Trust Fund so transferred shall be subject to all the
terms and provisions of the common, collective, pooled
trust fund or money market fund which contemplate the
commingling for investment purposes of such trust assets
with trust assets of other trusts. The Trustee may
transfer any part of the Trust Fund intended for
temporary investment of cash balances to a money market
fund maintained by Smith Barney Corporate Trust
Company or its affiliates. The Trustee may, from time
to time, withdraw from such common, collective, pooled
trust fund or money market fund all or such part of the
Trust Fund as the Trustee may deem advisable.
(d) With respect to any Employer stock which is allocated to a
Participant's Directed Investment Account, the Participant
or Beneficiary shall direct the Trustee with regard to any
voting, tender and similar rights associated with the
ownership of Employer stock, (i.e., the "Stock Right(s)")
as follows:
(1) Each Participant or Beneficiary shall direct the
Trustee to vote or otherwise exercise such Stock
Rights in accordance with the provisions,
conditions and terms of any such Stock Right(s).
(2) Such directions shall be provided to the Trustee by
the Participant or Beneficiary in accordance with
the procedure as established by the Administrator.
The Trustee shall vote or otherwise exercise such
Stock Right(s) with respect to which it has
received directions to do so under this Section.
(3) To the extent to which a Participant or Beneficiary
does not instruct the Trustee or does not issue
valid directions to the Trustee to vote or
otherwise exercise such Stock Right(s), such
Participants or Beneficiaries shall be deemed to
have directed the Trustee that such Stock Rights
remain nonvoted and unexercised.
5.3. OTHER POWERS OF THE TRUSTEE
The Trustee, in addition to all powers and authorities under
common law, statutory authority, including the Act, and other provisions of the
Plan, shall have the following powers and authorities, to be exercised in the
Trustee's sole discretion:
(a) To purchase, or subscribe for, any securities or
other property and to retain the same. In
conjunction with the purchase of securities, margin
accounts may be opened and maintained;
(b) To sell, exchange, convey, transfer, grant options to
purchase, or otherwise dispose of any securities or other
property held by the Trustee, by private
5
contract or at
public auction. No person dealing with the Trustee shall
be bound to see to the application of the purchase money
or to inquire into the validity, expediency, or propriety
of any such sale or other disposition, with or without
advertisement;
(c) To vote upon any stocks, bonds, or other securities; to
give general or special proxies or powers of attorney with
or without power of substitution; to exercise any
conversion privileges, subscription rights or other
options, and to make any payments incidental thereto;
to oppose, or to consent to, or otherwise participate
in, corporate reorganizations or other changes
affecting corporate securities, and to delegate
discretionary powers, and to pay any assessments or
charges in connection therewith; and generally to
exercise any of the powers of an owner with respect to
stocks, bonds, securities, or other property. However,
the Trustee shall not vote proxies relating to securities
for which it has not been assigned full investment
management responsibilities. In those cases where
another party has such investment authority or
discretion, the Trustee will deliver all proxies to
said party who will then have full responsibility for
voting those proxies;
(d) To cause any securities or other property to be registered
in the Trustee's own name or in the name of one or more of
the Trustee's nominees, and to hold any investments in
bearer form, but the books and records of the Trustee
shall at all times show that all such investments are part
of the Trust Fund;
(e) To borrow or raise money for the purposes of the Plan in
such amount, and upon such terms and conditions, as the
Trustee shall deem advisable; and for any sum so borrowed,
to issue a promissory note as Trustee, and to secure the
repayment thereof by pledging all, or any part, of the
Trust Fund; and no person lending money to the Trustee
shall be bound to see to the application of the money lent
or to inquire into the validity, expediency, or propriety
of any borrowing;
(f) To keep such portion of the Trust Fund in cash or cash
balances as the Trustee may, from time to time, deem to be
in the best interests of the Plan, without liability for
interest thereon;
(g) To accept and retain for such time as the Trustee may deem
advisable any securities or other property received or
acquired as Trustee hereunder, whether or not such
securities or other property would normally be purchased
as investments hereunder;
(h) To make, execute, acknowledge, and deliver any and all
documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry
out the powers herein granted;
6
(i) To settle, compromise, or submit to arbitration any
claims, debts, or damages due or owing to or from the
Plan, to commence or defend suits or legal or
administrative proceedings, and to represent the Plan in
all suits and legal and administrative proceedings;
(j) To employ suitable agents and counsel and to pay their
reasonable expenses and compensation, and such agent or
counsel may or may not be agent or counsel for the
Employer;
(k) To apply for and procure from responsible insurance
companies, to be selected by the Administrator, as an
investment of the Trust Fund such annuity, or other
Contracts (on the life of any Participant) as the
Administrator shall deem proper; to exercise, at any time
or from time to time, whatever rights and privileges may
be granted under such annuity, or other Contracts; to
collect, receive, and settle for the proceeds of all such
annuity or other Contracts as and when entitled to do so
under the provisions thereof;
(l) To invest funds of the Trust in time deposits or savings
accounts bearing a reasonable rate of interest in the
Trustee's bank;
(m) To invest in Treasury Bills and other forms of United
States government obligations;
(n) To invest in shares of investment companies registered
under the Investment Company Act of 1940, including any
money market fund advised by or offered through Smith
Barney Corporate Trust Company;
(o) To sell, purchase and acquire put or call options if the
options are traded on and purchased through a national
securities exchange registered under the Securities
Exchange Act of 1934, as amended, or, if the options are
not traded on a national securities exchange, are
guaranteed by a member firm of the New York Stock
Exchange;
(p) To deposit monies in federally insured savings accounts
or certificates of deposit in banks or savings and loan
associations;
(q) To pool all or any of the Trust Fund, from time to time,
with assets belonging to any other qualified employee
pension benefit trust created by the Employer or an
affiliated company of the Employer, and to commingle such
assets and make joint or common investments and carry
joint accounts on behalf of this Plan and such other trust
or trusts, allocating undivided shares or interests in
such investments or accounts or any pooled assets of the
two or more trusts in accordance with their respective
interests;
7
(r) To appoint a nonfiduciary agent or agents to assist the
Trustee in carrying out any investment instructions of
Participants and of any Investment Manager or Fiduciary,
and to compensate such agent(s) from the assets of the
Plan, to the extent not paid by the Employer;
(s) To do all such acts and exercise all such rights and
privileges, although not specifically mentioned herein, as
the Trustee may deem necessary to carry out the purposes
of the Plan.
5.4. DUTIES OF THE TRUSTEE REGARDING PAYMENTS
At the direction of the Administrator, the Trustee shall, from
time to time, in accordance with the terms of the Plan, make payments out of the
Trust Fund. The Trustee shall not be responsible in any way for the application
of such payments.
5.5. TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES
The Trustee shall be paid such reasonable compensation as shall
from time to time be agreed upon in writing by the Employer and the Trustee. An
individual serving as Trustee who already receives full-time pay from the
Employer shall not receive compensation from the Plan. In addition, the Trustee
shall be reimbursed for any reasonable expenses, including reasonable counsel
fees incurred by it as Trustee. Such compensation and expenses shall be paid
from the Trust Fund unless paid or advanced by the Employer. All taxes of any
kind and all kinds whatsoever that may be levied or assessed under existing or
future laws upon, or in respect of, the Trust Fund or the income thereof, shall
be paid from the Trust Fund.
5.6. ANNUAL REPORT OF THE TRUSTEE
Within a reasonable period of time after the later of the
Anniversary Date or receipt of the Employer contribution for each Plan Year, the
Trustee shall furnish to the Employer and Administrator a written statement of
account with respect to the Plan Year for which such contribution was made
setting forth:
(a) the net income, or loss, of the Trust Fund;
(b) the gains, or losses, realized by the Trust Fund upon
sales or other disposition of the assets;
(c) the increase, or decrease, in the value of the Trust Fund;
(d) all payments and distributions made from the Trust Fund;
and
(e) such further information as the Trustee and/or
Administrator deems appropriate. The Employer,
forthwith upon its receipt of each such statement of
account, shall acknowledge receipt thereof in writing
and advise the Trustee and/or Administrator of its
approval or disapproval thereof. Failure by the
Employer to disapprove any such statement of
8
account within thirty (30) days after its receipt thereof
shall be deemed an approval thereof. The approval by the
Employer of any statement of account shall be binding as
to all matters embraced therein as between the
Employer and the Trustee to the same extent as if the
account of the Trustee had been settled by judgment or
decree in an action for a judicial settlement of its
account in a court of competent jurisdiction in which the
Trustee, the Employer and all persons having or
claiming an interest in the Plan were parties; provided,
however, that nothing herein contained shall deprive the
Trustee of its right to have its accounts judicially
settled if the Trustee so desires.
5.7. AUDIT
(a) If an audit of the Plan's records shall be required by the
Act and the regulations thereunder for any Plan Year,
the Administrator shall direct the Trustee to engage
on behalf of all Participants an independent qualified
public accountant for that purpose. Such accountant
shall, after an audit of the books and records of the
Plan in accordance with generally accepted auditing
standards, within a reasonable period after the close of
the Plan Year, furnish to the Administrator and the
Trustee a report of his audit setting forth his opinion
as to whether any statements, schedules or lists that
are required by Act Section 103 or the Secretary of
Labor to be filed with the Plan's annual report, are
presented fairly in conformity with generally accepted
accounting principles applied consistently. All
auditing and accounting fees shall be an expense of and
may, at the election of the Administrator, be paid from
the Trust Fund.
(b) If some or all of the information necessary to enable the
Administrator to comply with Act Section 103 is maintained
by a bank, insurance company, or similar institution,
regulated and supervised and subject to periodic
examination by a state or federal agency, it shall
transmit and certify the accuracy of that information to
the Administrator as provided in Act Section 103(b) within
one hundred twenty (120) days after the end of the Plan
Year or by such other date as may be prescribed under
regulations of the Secretary of Labor.
5.8. RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE
(a) The Trustee may resign at any time by delivering to the
Employer, at least thirty (30) days before its effective
date, a written notice of his resignation.
(b) The Employer may remove the Trustee by mailing by
registered or certified mail, addressed to such Trustee at
his last known address, at least thirty (30) days before
its effective date, a written notice of his removal.
9
(c) Upon the death, resignation, incapacity, or removal of any
Trustee, a successor may be appointed by the Employer; and
such successor, upon accepting such appointment in writing
and delivering same to the Employer, shall, without
further act, become vested with all the estate, rights,
powers, discretions, and duties of his predecessor with
like respect as if he were originally named as a Trustee
herein. Until such a successor is appointed, the remaining
Trustee or Trustees shall have full authority to act under
the terms of the Plan.
(d) The Employer may designate one or more successors prior to
the death, resignation, incapacity, or removal of a
Trustee. In the event a successor is so designated by the
Employer and accepts such designation, the successor
shall, without further act, become vested with all the
estate, rights, powers, discretions, and duties of his
predecessor with the like effect as if he were originally
named as Trustee herein immediately upon the death,
resignation, incapacity, or removal of his predecessor.
(e) Whenever any Trustee hereunder ceases to serve as such,
he shall furnish to the Employer and Administrator a
written statement of account with respect to the
portion of the Plan Year during which he served as
Trustee. This statement shall be either (i) included as
part of the annual statement of account for the Plan Year
required under Section 5.6 or (ii) set forth in a special
statement. Any such special statement of account should
be rendered to the Employer no later than the due date of
the annual statement of account for the Plan Year. The
procedures set forth in Section 5.6 for the approval
by the Employer of annual statements of account shall
apply to any special statement of account rendered
hereunder and approval by the Employer of any such special
statement in the manner provided in Section 5.6 shall
have the same effect upon the statement as the Employer's
approval of an annual statement of account. No successor
to the Trustee shall have any duty or responsibility to
investigate the acts or transactions of any predecessor
who has rendered all statements of account required by
Section 5.6 and this subparagraph.
5.9. TRANSFER OF INTEREST
Notwithstanding any other provision contained in this Plan, the
Trustee at the direction of the Administrator shall transfer the Vested
interest, if any, of such Participant in his account to another trust forming
part of a pension, profit sharing or stock bonus plan maintained by such
Participant's new employer and represented by said employer in writing as
meeting the requirements of Code Section 401(a), provided that the trust to
which such transfers are made permits the transfer to be made.
10
5.10. DIRECT ROLLOVER
(a) Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under
this Section, a distributee may elect, at the time and in
the manner prescribed by the Administrator, to have any
portion of an eligible rollover distribution that is equal
to at least $500 paid directly to an eligible retirement
plan specified by the distributee in a direct rollover.
(b) For purposes of this Section the following definitions
shall apply:
(1) An eligible rollover distribution is any
distribution of all or any portion of the balance
to the credit of the distributee, except that an
eligible rollover distribution does not include:
any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or
life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten
years or more; any distribution to the extent
such distribution is required under Code Section
401(a)(9); the portion of any other distribution
that is not includible in gross income (determined
without regard to the exclusion for net unrealized
appreciation with respect to employer
securities); and any other distribution that is
reasonably expected to total less than $200
during a year.
(2) An eligible retirement plan is an individual
retirement account described in Code Section
408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan
described in Code Section 403(a), or a qualified
trust described in Code Section 401(a), that
accepts the distributee's eligible rollover
distribution. However, in the case of an eligible
rollover distribution to the surviving spouse, an
eligible retirement plan is an individual
retirement account or individual retirement
annuity.
(3) A distributee includes an Employee or former
Employee. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or
former Employee's spouse or former spouse who is
the alternate payee under a qualified domestic
relations order, as defined in Code Section 414(p),
are distributees with regard to the interest of the
spouse or former spouse.
(4) A direct rollover is a payment by the Plan
to the eligible retirement plan specified by
the distributee.
11
5.11. EMPLOYER SECURITIES AND REAL PROPERTY
The Trustee shall be empowered to acquire and hold "qualifying
Employer securities" and "qualifying Employer real property," as those terms are
defined in the Act, provided, however, that the Trustee shall not be permitted
to acquire any qualifying Employer securities or qualifying Employer real
property if, immediately after the acquisition of such securities or property,
the fair market value of all qualifying Employer securities and qualifying
Employer real property held by the Trustee hereunder should amount to more than
100% of the fair market value of all the assets in the Trust Fund.
ARTICLE VI
AMENDMENT, TERMINATION AND MERGERS
6.1. AMENDMENT
(a) The Employer shall have the right at any time to amend
this Agreement. However, any amendment which affects the
rights, duties or responsibilities of the Trustee and
Administrator, other than an amendment to remove the
Trustee or Administrator, may only be made with the
Trustee's and Administrator's written consent. Any such
amendment shall become effective as provided therein upon
its execution. The Trustee shall not be required to
execute any such amendment unless the amendment affects
the duties of the Trustee hereunder.
(b) No amendment to this Agreement shall be effective if it
authorizes or permits any part of the Trust Fund (other
than such part as is required to pay taxes and
administration expenses) to be used for or diverted to any
purpose other than for the exclusive benefit of the
Participants or their Beneficiaries or estates; or cause
any reduction in the amount credited to the account of any
Participant; or cause or permit any portion of the Trust
Fund to revert to or become property of the Employer.
(c) Except as permitted by Regulations (including Regulation
1.411(d)-4), no amendment to this Agreement or transaction
having the effect of an amendment to this Agreement
(such as a merger, plan transfer or similar transaction)
shall be effective if it eliminates or reduces any
"Section 411(d)(6) protected benefit" or adds or
modifies conditions relating to "Section 411(d)(6)
protected benefits" the result of which is a further
restriction on such benefit unless such protected
benefits are preserved with respect to benefits accrued
as of the later of the execution date or effective
date of the amendment. "Section 411(d)(6) protected
benefits" are benefits described in Code Section
411(d)(6)(A), early retirement benefits and retirement-
type subsidies, and optional forms of benefit.
12
6.2. TERMINATION
This Agreement and the Trust created hereby will terminate as to
the Employer in the case of complete distribution of the Trust Fund held for the
benefit of the Participants pursuant to the Plan. Such distribution will be at
the time and manner determined by the Administrator pursuant to the requirements
of the Plan with written instructions to the Trustee. Except as permitted by
Regulations, the termination of the Plan shall not result in the reduction of
"Section 41l(d)(6) protected benefits" in accordance with Section 6.l(c).
6.3. MERGER OR CONSOLIDATION
This Trust may be merged or consolidated with, or its assets
and/or liabilities may be transferred to any other trust only if the benefits
which would be received by a Participant of the Employer Plan, in the event of a
termination of the Plan immediately after such transfer, merger or consolidation
are at least equal to the benefits the Participant would have received if the
Plan had terminated immediately before the transfer, merger or consolidation,
and such transfer, merger or consolidation does not otherwise result in the
elimination or reduction of any "Section 411(d)(6) protected benefits" in
accordance with Section 6.1(c).
ARTICLE VII
MISCELLANEOUS
7.1. QUALIFIED TRUST
The Trust is hereby designated as constituting a part of the Plan
which is intended to continue to qualify and to be tax exempt under Section
401(a) and Section 501(a), respectively, of the Code, and of the Act, as amended
from time to time. Until advised otherwise, the Trustee may conclusively presume
that this Trust is qualified under Section 501(a) of the Code as amended from
time to time, and that this Trust is exempt from federal income taxes.
7.2. CONSTRUCTION OF AGREEMENT
This Trust shall be construed and enforced according to the Act
and the laws of the State of West Virginia, other than its laws respecting
choice of law, to the extent not pre-empted by the Act.
7.3. GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine or
neuter gender, they shall be construed as though they were also used in another
gender in all cases where they would so apply, and whenever any words are used
herein in the singular or plural form, they shall be construed as though they
were also used in the other form in all cases where they would so apply.
13
7.4. LEGAL ACTION
In the event any claim, suit, or proceeding is brought regarding
the Trust and/or Plan established hereunder to which the Trustee, the Employer
or the Administrator may be a party, and such claim, suit, or proceeding is
resolved in favor of the Trustee, the Employer or the Administrator, they shall
be entitled to be reimbursed from the Trust Fund for any and all costs,
attorney's fees, and other expenses pertaining thereto incurred by them for
which they shall have become liable.
7.5. BONDING
Every Fiduciary, except a bank or an insurance company, unless
exempted by the Act and regulations thereunder, shall be bonded in an amount not
less than 10% of the amount of the funds such Fiduciary handles; provided,
however, that the minimum bond shall be $1,000 and the maximum bond, $500,000.
The amount of funds handled shall be determined at the beginning of each Plan
Year by the amount of funds handled by such person, group, or class to be
covered and their predecessors, if any, during the preceding Plan Year, or if
there is no preceding Plan Year, then by the amount of the funds to be handled
during the then current year. The bond shall provide protection to the Plan
against any loss by reason of acts of fraud or dishonesty by the Fiduciary alone
or in connivance with others. The surety shall be a corporate surety company (as
such term is used in Act Section 412(a)(2)), and the bond shall be in a form
approved by the Secretary of Labor. Notwithstanding anything in the Plan to the
contrary, the cost of such bonds shall be an expense of and may, at the election
of the Administrator, be paid from the Trust Fund or by the Employer.
7.6. HEADINGS
The headings and subheadings of this Plan have been inserted for
convenience of reference and are to be ignored in any construction of the
provisions hereof.
7.7. IRREVOCABILITY OF TRUST
All contributions made by the Employer shall be irrevocable, and
no part of the corpus of the Trust Fund nor any income therefrom shall revert to
the Employer or be used for or diverted to purposes other than for the exclusive
benefit of the Participants and their Beneficiaries, except as provided by law,
as provided in the Plan.
14
IN WITNESS WHEREOF, this Trust has been executed the day and year
first above written.
Signed, sealed and delivered in the presence of:
CSX Hotels, Inc. dba The Greenbrier
By /s/Ted J. Kleisner
---------------------------
EMPLOYER
/s/Deirdre D .Ford
- ------------------------
WITNESSES AS TO EMPLOYER
The Grand Teton Lodge Company
By /s/Ted J. Kleisner
---------------------------
EMPLOYER
/s/Deirdre D. Ford
- ------------------------
WITNESSES AS TO EMPLOYER
ATTEST /s/Larry C.Mazey
---------------------------
Smith Barney Corporate Trust Company
By /s/David Doyle
---------------------------
TRUSTEE
15
EXHIBIT 5
[CSX LETTERHEAD]
March 7, 2000
CSX Corporation
One James Center
901 E. Cary Street
Richmond, Virginia 23219
Ladies and Gentlemen:
I am General Counsel-Corporate of CSX Corporation (the "Company")
and am providing this opinion in connection with the filing with the Securities
and Exchange Commission of a registration statement on Form S-8 (the
"Registration Statement") relating to the Greenbrier Savings and Investment Plan
and Trust (the "Plan"). The Registration Statement covers 50,000 shares of
Common Stock of the Company (the "Common Stock") which have been reserved for
issuance under the Plan and Rights to purchase Preferred Stock associated with
the Common Stock (the "Rights").
In connection with the foregoing, I have made such legal and
factual examinations and inquiries as I have deemed necessary or advisable for
the purpose of rendering this opinion.
Based upon the foregoing, I am of the opinion that:
1. The 50,000 shares of Common Stock, when issued or sold in
accordance with the terms and provisions of the Plan, will
be duly authorized, validly issued, fully paid and
non-assessable.
2. All corporate action required under the laws of the
Commonwealth of Virginia has been taken for the Rights,
when issued in accordance with the terms and provisions of
the Rights Agreement, dated as of May 29, 1998, between
the Company and Harris Trust Company of New York, as
rights agent, to be validly issued.
I hereby consent to the filing of this opinion as Exhibit 5 to
the Registration Statement. I do not admit by giving this consent that I am in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ ELLEN M. FITZSIMMONS
-------------------------
Ellen M. Fitzsimmons
General Counsel-Corporate
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the Greenbrier Savings and Investment Plan and
Trust of our report dated February 9, 2000, with respect to the consolidated
financial statements of CSX Corporation and subsidiaries incorporated by
reference in its Annual Report (Form 10-K) for the fiscal year ended December
31, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Richmond, Virginia
March 1, 2000
EXHIBIT 23.3
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the Greenbrier Savings and Investment Plan and
Trust of our report dated February 11, 2000, with respect to the consolidated
financial statements of Conrail Inc. and subsidiaries as of December 31, 1999,
which report appears in the December 31, 1999 Annual Report on Form 10-K of CSX
Corporation and subsidiaries, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP /s/ KPMG LLP
Ernst & Young LLP KPMG LLP
Richmond, Virginia Norfolk, Virginia
March 1, 2000 March 1, 2000
EXHIBIT 23.4
CONSENT OF PRICEWATERHOUSECOOPERS LLP,
INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of CSX Corporation of our report dated January 19, 1999
relating to the consolidated financial statements of Conrail Inc. and
subsidiaries for the year ended December 31, 1998, which appears in the Annual
Report on Form 10-K of CSX Corporation for the year ended December 31, 1999.
/s/PRICEWATERHOUSECOOPERS LLP
Philadelphia, PA
March 7, 2000
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the each of the undersigned
officers and directors of CSX CORPORATION, a Virginia corporation (the
"Corporation"), hereby constitutes and appoints Ellen M. Fitzsimmons, Alan A.
Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of them acting
individually, his or her true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign and file a registration
statement with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), registering
securities of the Corporation which may be issued pursuant to The Greenbrier
Savings and Investment Plan and Trust, with power to sign and file any amendment
or amendments, including post-effective amendments thereto, with all exhibits
thereto and any and all other documents in connection with therewith, hereby
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary or desirable to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or
their substitutes or his substitute, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney this 8th day of December, 1999.
<PAGE>
/s/JOHN W. SNOW
- ----------------------------------------
John W. Snow
/s/PAUL R. GOODWIN
- ----------------------------------------
Paul R. Goodwin
/s/JAMES L. ROSS
- ----------------------------------------
James L. Ross
/s/ELIZABETH E. BAILEY
- ----------------------------------------
Elizabeth E. Bailey
/s/H. FURLONG BALDWIN
- ----------------------------------------
H. Furlong Baldwin
/s/CLAUDE S. BRINEGAR
- ----------------------------------------
Claude S. Brinegar
/s/ROBERT L. BURRUS, JR.
- ----------------------------------------
Robert L. Burrus, Jr.
/s/BRUCE C. GOTTWALD
- ----------------------------------------
Bruce C. Gottwald
<PAGE>
/s/JOHN R. HALL
- ----------------------------------------
John R. Hall
/s/E. BRADLEY JONES
- ----------------------------------------
E. Bradley Jones
/s/ROBERT D. KUNISCH
- ----------------------------------------
Robert D. Kunisch
/s/JAMES W. MCGLOTHLIN
- ----------------------------------------
James W. McGlothlin
/s/SOUTHWOOD J. MORCOTT
- ----------------------------------------
Southwood J. Morcott
/s/CHARLES E. RICE
- ----------------------------------------
Charles E. Rice
/s/WILLIAM C. RICHARDSON
- ----------------------------------------
William C. Richardson
/s/FRANK S. ROYAL, M.D.
- ----------------------------------------
Frank S. Royal, M.D.
