<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION On May 20, 1996
REGISTRATION No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------
THE DEXTER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CONNECTICUT 06-0321410
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
ONE ELM STREET, WINDSOR LOCKS, CT 06096
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES (ZIP CODE)
----------------------------------
THE DEXTER 401(k) SAVINGS PLAN
AND
THE DEXTER ESPRIT PLAN
(FULL TITLE OF THE PLAN)
BRUCE H. BEATT
THE DEXTER CORPORATION
ONE ELM STREET, WINDSOR LOCKS, CT 06096
(NAME AND ADDRESS OF AGENT FOR SERVICE)
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE: (860) 292-7675
----------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM PROPOSED
OFFERING MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE
------------------- ------------ ------------ ----------------- ------------
<S> <C> <C> <C> <C>
Plan Interests in The Dexter
401(K) Savings' Plan........... 450,000 shares $27.0625(2) $12,178,125 -- (3)
Plan Interests in The Dexter
ESPRIT Plan.................... 450,000 shares $27.0625(2) $12,178,125 -- (3)
Common Stock, having a par
value of $1.00
per share.................... 900,000 shares $27.0625(2) $24,356,250 $8,398.03
</TABLE>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee.
(2) Determined pursuant to Rule 457(h) based on the average of the high and low
prices of the Registrant's Common Stock on the New York Stock Exchange
consolidated tape on May 15, 1996.
(3) Pursuant to Rule 457(h)(2) no separate fee is required for registration of
plan interests.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by The Dexter Corporation with
the Securities and Exchange Commission are incorporated by reference in this
Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
1996; and
(c) the description of common stock of The Dexter Corporation
contained in its Registration Statement on Form 10 filed on January 12,
1968 and all amendments and reports thereafter filed for the purpose of
updating such description.
In addition, all documents filed by The Dexter Corporation pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934
subsequent to the date of the filing of this Registration Statement and prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part thereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The financial statements incorporated herein by reference to The Dexter
Corporation Annual Report on Form 10-K for the year ended December 31, 1995
have been so incorporated in reliance upon the report of Coopers & Lybrand
L.L.P., independent accountants, given on the authority of said firm as experts
in auditing and accounting. With respect to the unaudited interim financial
information for the periods ended March 31, 1996 and 1995, incorporated by
reference in this Registration Statement, the independent accountants have
reported that they have applied limited procedures in accordance with
professional standards for a review of such information. However, their
separate report included in the Registrant's quarterly report on Form 10-Q for
the quarter ended March 31, 1996, and incorporated by reference herein, states
that they did not audit and they do not express an opinion on that interim
financial information. Accordingly, the degree of reliance on their report on
such information should be restricted in light of the limited nature of the
review procedures applied. The accountants are not subject to the liability
provisions of Section 11 of the Securities Act of 1933 (the "Act") for their
report on the unaudited interim financial information because that report is not
a "report" or a "part" of the registration statement, prepared or certified by
the accountants within the meaning of Sections 7 and 11 of the Act.
The financial statements similarly incorporated herein by reference to
all documents subsequently filed by The Dexter Corporation pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, are or
will be so incorporated in reliance upon the reports of Coopers & Lybrand
L.L.P., or other independent accountants, relating to such financial statements
and upon the authority of such independent accountants as experts in auditing
and accounting in giving such reports to the extent that such firms have
examined such financial statements and consented to the use of their reports
thereon.
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Dexter Corporation has no provision for indemnification of
directors or officers in its Restated Certificate of Incorporation. Article III,
Section 6 of the By-Laws of The Dexter Corporation provides that it shall
indemnify to the full extent permitted and in the manner prescribed by law any
director or officer made a party to any action, suit or proceeding by reason of
the fact that such person is or was a director, officer or employee of The
Dexter Corporation, or served at its request as director, officer or employee of
another corporation, against expenses, judgments, fines, penalties and amounts
paid in settlement. The Connecticut Corporation Act provides for the
indemnification of directors and officers under certain conditions. In addition,
The Dexter Corporation maintains insurance that indemnifies directors and
officers against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
(a) See Index to Exhibits.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to
this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement; provided, however, that the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this Registration Statement;
(2) that for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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.
<PAGE> 4
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted against the Registrant 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 of 1933 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that 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 Town of Windsor Locks, Connecticut, on the 20th day of May,
1996.
THE DEXTER CORPORATION
By: /s/ Bruce H. Beatt
-------------------------------
Bruce H. Beatt
Vice President, General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date(s) indicated.
SIGNATURE TITLE DATE
--------- ----- ----
K. Grahame Walker* Chairman, President, May 20, 1996
------------------------ Chief Executive Officer
K. Grahame Walker and Director (principal
executive officer)
Kathleen Burdett* Vice President and May 20, 1996
------------------------ Chief Financial Officer
Kathleen Burdett (principal financial officer)
George Collin* Controller (principal May 20, 1996
------------------------ accounting officer)
George Collin
Charles H. Curl* Director May 20, 1996
------------------------
Charles H. Curl
Henrietta Holsman Fore* Director May 20, 1996
-----------------------
Henrietta Holsman Fore
<PAGE> 5
SIGNATURE TITLE DATE
--------- ----- ----
Bernard M. Fox* Director May 20, 1996
------------------------
Bernard M. Fox
Robert M. Furek* Director May 20, 1996
------------------------
Robert M. Furek
Martha Clark Goss* Director May 20, 1996
------------------------
Martha Clark Goss
Edgar G. Hotard* Director May 20, 1996
------------------------
Edgar G. Hotard
*The undersigned by signing his name hereto does sign and execute this
Registration Statement pursuant to the Power of Attorney on behalf of the
above-named officers and directors and filed contemporaneously herewith with the
Commission.
By: /s/ Bruce H. Beatt
----------------------------------
Bruce H. Beatt
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, the undersigned, the
duly authorized administrator of The Dexter 401(k) Savings Plan, has duly caused
this registration statement to be signed on behalf of said plan, in the town of
Windsor Locks, Connecticut, as of the 20th day of May, 1996.
The Dexter 401(K) Savings Plan
By: /s/ K. Grahame Walker
----------------------------------
K. Grahame Walker
Administrator
Pursuant to the requirements of the Securities Act of 1933, the undersigned, the
duly authorized administrator of The Dexter ESPRIT Plan, has duly caused this
registration statement to be signed on behalf of said plan, in the town of
Windsor Locks, Connecticut, as of the 20th day of May, 1996.
The Dexter ESPRIT Plan
By: /s/ K. Grahame Walker
-----------------------------------
K. Grahame Walker
Administrator
<PAGE> 6
INDEX TO EXHIBITS
EXHIBIT NO.
-----------
4.1(a) The Dexter 401(k) Savings Plan ("401-k Plan")
4.1(b) The Dexter ESPRIT Plan ("ESPRIT Plan")
4.2(a) Restated Certificate of Incorporation of The Dexter
Corporation, filed as Exhibit 3A-2 with the Registrant's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1990 and incorporated herein by reference.
4.2(b) Bylaws of The Dexter Corporation, as amended April 25, 1991,
filed as Exhibit 3B with the Registrant's report on Form
10-Q for the quarter ended March 31, 1991 and incorporated
herein by reference.
8 Opinion re tax matters--not required. Registrant will
submit the 401(k) Plan and the ESPRIT Plan and any
amendment thereto to the Internal Revenue Service ("IRS")
in a timely manner and will make all changes required by
the IRS in order to qualify the Plans.
15 Letter of awareness of Independent Accountants regarding
unaudited interim financial information.
23 Consent of Independent Accountants
24 Power of attorney authorizing
representatives to sign this Registration
Statement and any and all amendments
(including post-effective amendments) to
this Registration Statement on behalf of The
Dexter Corporation and certain directors and
officers thereof.
<PAGE> 1
Exhibit 4.1(a)
THE DEXTER 401(k)
SAVINGS PLAN
Amended and Restated as of July 1, 1996
Exh. 4.1(a)
<PAGE> 2
Contents
Page
SECTION 1 Definitions....................................... 1
SECTION 2 Eligibility and Participation..................... 8
SECTION 3 Contributions..................................... 9
SECTION 4 Investment of Contributions....................... 19
SECTION 5 Vesting........................................... 21
SECTION 6 Accounts.......................................... 24
SECTION 7 Withdrawals During Employment..................... 25
SECTION 8 Distributions on Termination of Employment........ 28
SECTION 9 Payment of Benefits............................... 29
SECTION 10 Administration of the Plan........................ 33
SECTION 11 Management of the Trust Fund...................... 36
SECTION 12 Adoption and Amendment of the Plan................ 38
SECTION 13 Discontinuance of the Plan........................ 39
SECTION 14 Loans............................................. 41
SECTION 15 Construction of the Plan.......................... 44
SECTION 16 Top-Heavy Provisions.............................. 44
<PAGE> 3
FOREWORD
Effective July 1, 1996, The Dexter Corporation, in accordance with the
provisions of The Dexter Aerospace Materials Division Security Plus Savings
Plan, The Dexter Electronic Materials Division Security Plus Savings Plan and
The Dexter Packaging Products Division Security Plus Savings Plan pertaining to
amendments and mergers thereof, hereby merges said plans, which merged plan, as
amended and restated, shall be known as The Dexter 401(k) Savings Plan (the
"Plan"). Also effective July 1, 1996, the Plan shall accept the transfer of the
accounts of Employees of The Dexter Corporation assigned to the Distributor
Programs segment of the division formerly known as The Dexter Automotive
Materials Division who are participants in The Dexter Automotive Materials
Division Security Plus Savings Plan as of June 30, 1996, as listed in Appendix A
to this Plan.
The terms and provisions of the Plan as hereinafter set forth and as it
hereinafter may be amended from time to time, establish the rights and
obligations with respect to Participants (as hereinafter defined) employed on
and after July 1, 1996. The Plan and its related Trust (as hereinafter defined)
are intended to comply with the applicable provisions of the Employee Retirement
Income Security act of 1974, as amended, and Sections 401(a), 401(k) and 501(a)
of the Internal Revenue Code of 1986 as amended.
-i-
<PAGE> 4
SECTION 1
Definitions
As used herein, the following terms shall have the following respective
meanings, unless a different meaning is required by the context:
1.1 "Account" or "Accounts" means a Participant's Pre-Tax Contributions
Account, Qualified Non-Elective Contributions Account, Company Matching
Contributions Account, Voluntary Contributions Account, Rollover
Account and/or Transfer Account as the context requires.
1.2 "Administrator" means the committee appointed by the Company to manage
and administer the Plan as provided in Section 10.2.
1.3 "Affiliated Company" means the Company and any other company which is
related to the Company as a member of a controlled group of
corporations in accordance with Code Section 414(b), under an
affiliated service group, in accordance with Section 414(m) or as a
trade or business under common control in accordance with Code Section
414(c) and any other entity required to be aggregated with the Company
pursuant to Code Section 414(o) and the regulations thereunder. Hours
of Service shall also be credited for any individual considered an
Employee for purposes of this Plan under Code Sections 414(n) or (o)
and the regulations thereunder.
For the purposes of determining whether a person is an Employee and the
period of employment of such person, each such other company shall be
included as an Affiliated Company only for such period or periods
during which such other company is also a member of a controlled group
or under common control. The term Affiliated Company shall also
include any other company which the Administrator deems to be an
Affiliated Company.
1.4 "Beneficiary" means the beneficiary or beneficiaries designated
pursuant to Section 9.4.
1.5 "Board of Directors" means the Board of Directors of the Company.
1.6 "Code" means the Internal Revenue Code of 1986 as amended from time to
time. Reference to a specific provision of the Code shall include such
provision, any valid regulation or ruling promulgated thereunder and
any comparable provision of future law that amends, supplements or
supersedes such provision.
1.7 "Company" means The Dexter Corporation and any successor to such
corporation by merger, purchase, reorganization or otherwise.
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<PAGE> 5
1.8 "Company Matching Contributions" means those contributions made by the
Company pursuant to Section 3.4 of the Plan.
1.9 "Company Matching Contributions Account" means the separate account for
each Participant which shall reflect his or her share of the Trust Fund
attributable to Company Matching Contributions made on his or her
behalf.
1.10 "Company Securities" means the common stock, $1 par value, of The
Dexter Corporation.
1.11 "Compensation" means an Employee's annual base pay (including Code
Sections 401(k) and 125 salary reductions), cash bonuses, profit-
sharing payments, executive incentive payments, overtime payments,
payments in lieu of vacation, sales incentive payments, and payments
of previously deferred compensation. Compensation shall not include
income imputed by reason of use of company owned or furnished property,
moving expenses and reimbursements, imputed income from life insurance
in excess of $50,000, income from the exercise of stock options, income
from the expiration of restrictions on restricted stock, any amounts
deferred by the employee during the Plan Year under arrangements other
than Code Sections 401(k) and 125 arrangements, and overseas cost of
living adjustments.
Compensation in excess of $200,000 (or such higher dollar limit as
shall be in effect for such Plan Year in accordance with the adjustment
factor prescribed under Section 415(d) of the Code) shall not be
recognized for any Plan purposes. The $200,000 limitation also applies
to the combined Compensation of a Participant who is a 5% owner or one
of the ten highest paid Employees of the Company as defined in Code
Section 414(q)(6) and any other Participant who is such Participant's
Spouse or lineal descendent under the age of 19 at the end of the Plan
Year.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary for
Plan Years beginning on or after January 1, 1994, the annual
Compensation of each Participant taken into account under the Plan
shall not exceed the OBRA '93 annual compensation limit. The OBRA '93
annual compensation limit is $150,000, as adjusted by the Commissioner
of Internal Revenue for increases in the cost of living in accordance
with Code Section 401(a)(17)(B). The cost-of-living adjustment in
effect for a calendar year applies to any period, not exceeding 12
months, over which Compensation is determined ("determination period")
beginning in such calendar year. If a determination period consists of
fewer than 12 months, the OBRA '93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number of
months in the determination period and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under Code Section 401(a)(17) shall mean
the OBRA '93 annual compensation limit set forth in this provision.
-2-
<PAGE> 6
If Compensation for any prior determination period is taken into
account in determining a Participant's benefits accruing in the current
Plan Year, the Compensation for that prior determination period is
subject to the OBRA '93 annual compensation limit in effect for that
prior determination period. For this purpose, for determination
periods beginning before the first day of the first Plan Year beginning
on or after January 1, 1994, the OBRA '93 annual compensation limit is
$150,000.
1.12 "Division" means each of The Dexter Aerospace Materials Division, The
Dexter Electronic Materials Division, The Dexter Packaging Products
Division and the Distributor Programs segment of the division formerly
known as The Dexter Automotive Materials Division of the Company.
1.13 "Effective Date" means July 1, 1996.
1.14 "Eligible Employee" means an Employee of a Division, other than: (a) an
Employee who is represented by any collective bargaining agent, or
included in any collective bargaining unit, recognized by the Company
unless and until such Company and the collective bargaining agent agree
that the Plan shall apply to such unit (provided that employee benefits
have been the subject of good faith bargaining); or (b) a leased
employee as defined in Code Section 414(n)(2).
1.15 "Employee" means a person employed as an Employee by the Company, but
excludes a person who is a non-resident alien who does not receive
Compensation from any Affiliated Company which constitutes income from
sources within the United States.
The term "Employee" shall include "leased employees" within the meaning
of Code Section 414(n)(2) and, for purposes of determining the number
or identity of Highly Compensated Employees or for purposes of the
pension requirements of Code Section 414(n)(3), the employees of the
Company shall include the individuals defined as Employees in this
Section. Notwithstanding the previous sentence, if such leased
employees constitute less than 20 percent of the non-highly compensated
workforce [within the meaning of Code Section 414(n)(5)(C)(ii)] of the
Affiliated Company the term "Employee" shall not include those leased
employees covered by a plan described in Code Section 414(n)(5).
1.16 "Entry Date" means the first day of any month, and such other days as
the Administrator may prescribe.
1.17 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to a specific provision of ERISA
shall include such provision, any valid regulation or ruling
promulgated thereunder and any comparable provision of future law that
amends, supplements or supersedes such provision.
-3-
<PAGE> 7
1.18 "Highly Compensated Employee" means an Employee who performs service
during the determination year (the Plan Year for which such
determination is being made) or during the 12-month period immediately
preceding the determination year (the look-back year) and is described
in one or more of the following groups:
(a) An Employee who is a 5% owner, as defined in Code Section
414(q)(3).
(b) An Employee who receives compensation in excess of $75,000
(indexed in accordance with Code Section 415(d)).
(c) An Employee who receives compensation in excess of $50,000
(indexed in accordance with Code Section 415(d)) and is member
of the "top-paid group".
For purposes of (c), the "top-paid group" means the highest
paid 20% of Employees, excluding Employees described in Code
Section 414(q)(8) and Q&A9(b) of 1.414(q)-1T, ranked on the
basis of compensation received during the relevant computation
period.
(d) An Employee who is an officer, within the meaning of Code
Section 416(i), and who receives compensation greater than 50%
of the dollar limitation in effect under Code Section
415(b)(1)(A).
For purposes of this (d), the number of officers is limited to
50 (or, if lesser, the greater of 3 Employees or 10% of the
Employees without regard to any exclusions). If no officer has
compensation in excess of 50% of the limit under Code Section
415(b)(1)(A), the highest paid officer is treated as a Highly
Compensated Employee.
For purposes of this Section 1.18, compensation means compensation as
defined in Code Section 415(c)(3), plus elective or salary reduction
contributions to a cafeteria plan, cash or deferred arrangement or
tax-sheltered annuity.
For purposes of this Section 1.18, the term Employee means any Employee
of the Company or Affiliated Company which is aggregated with the
Company under the provisions of Code Section 414(b), (c), (m), and (o).
If the Employee meets the definition in clause (b), (c), or (d) in the
Plan Year but not the look-back year, the Employee is a Highly
Compensated Employee only if he is one of the highest paid 100
Employees for the Plan Year. An Employee who meets the definition of
clause (a) in either the Plan Year or look-back year, is a Highly
Compensated Employee for the Plan Year.
Any spouse, lineal descendant or ascendant or spouse of a lineal
descendant or ascendant of a Highly Compensated Employee who is a 5%
owner or one of the ten Highly Compensated
-4-
<PAGE> 8
Employees with the greatest compensation for the Plan Year shall be
combined with such Highly Compensated Employee and treated as a single
Highly Compensated Employee for any nondiscrimination testing.
The term Highly Compensated Employee also includes a former Employee
who separated employment prior to the Plan Year, performs no service
during the Plan Year and was a Highly Compensated Employee for the Plan
Year in which he separates or any Plan Year which ends after he attains
his 55th birthday.
1.19 "Hours of Service" means:
(a) Each hour for which an Employee is directly or indirectly
paid, or entitled to payment, for the performance of duties as
an employee by the Company or an Affiliated Company.
(b) Each hour for which an Employee is directly or indirectly paid
or entitled to payment by the Company or an Affiliated Company
for reasons (such as vacation, sickness or disability) other
than for the performance of duties, but counting as Hours of
Service no more than 501 of such hours during any single
continuous period during which no duties are performed.
(c) Each hour for which back pay, irrespective of mitigation of
damages, has been awarded or agreed to by the Company or an
Affiliated Company.
In the event that an Employee is compensated on other than an hourly
basis the Employee shall be deemed to have completed 45 Hours of
Service for each full week of employment for which such Employee would
be credited with at least one (1) Hour of Service. A Participant shall
be deemed to have completed 40 Hours of Service for each full week of
leave of absence approved by the Company for military service or other
purposes.
The same hours of service shall not be credited both under paragraph
(a) or (b) as the case may be, and paragraph (c), and each hour
credited to an Employee under paragraphs (a), (b), or (c) above shall
be so credited in accordance with Section 2530.200b-2(b) and (c) of the
U.S. Department of Labor's Regulations, which hereby are incorporated
by reference.
Solely for purposes of determining whether an Employee has incurred a
One Year Break in Service, an Employee who is absent from work for
maternity or paternity reasons (as defined herein) shall receive credit
for the Hours of Service which otherwise would have been credited to
such Employee but for such absence, or in any case in which such hours
cannot be determined, eight Hours of Service for each day of such
absence. For purposes of this Section, an absence from work for
maternity or paternity reasons means an absence: (a) by reason of the
pregnancy of the Employee; (b) by reason of the birth of the child of
the Employee; (c) by reason of the placement of a child with the
Employee in connection with
-5-
<PAGE> 9
the adoption of such child by the Employee; or (d) for purposes of
caring for such child for a period beginning immediately following such
birth or placement. The total number of hours treated as Hours of
Service under this Section by reason of any one such pregnancy or
placement shall not exceed 501 Hours. Hours of Service under this
Section shall be credited in the first Plan Year in which such
crediting is necessary to prevent a One Year Break in Service.
For purposes of this Section 1.19, in the case of an individual who is
absent from work for maternity or paternity reasons, the 12 consecutive
month period of severance beginning on the first anniversary of the
first date of such absence shall not constitute a break in service.
1.20 "Investment Committee" means the Investment Committee appointed by the
Chief Executive Officer of the Company, as provided in Section 10.5.
1.21 "One Year Break in Service" means a Plan Year in which an Employee has
not been credited with more than 500 Hours of Service.
1.22 "Participant" means an Employee who is included in the Plan as provided
in Section 2 hereof or a former Employee whose Accounts have not been
fully distributed.
1.23 "Plan" means The Dexter Corporation 401(k) Savings Plan as herein set
forth, or as it may be amended from time to time.
1.24 "Plan Year" means the calendar year.
1.25 "Pre-Tax Contributions" means those contributions to the Plan made by
the Company on a Participant's behalf pursuant to an election by the
Participant to reduce his or her otherwise payable Compensation, in
accordance with the provisions of Section 3.1.
1.26 "Pre-Tax Contributions Account" means the separate account for each
Participant which shall reflect his or her share of the Trust Fund
attributable to Pre-Tax Contributions made on his or her behalf.
1.27 "Qualified Non-Elective Contributions" means those contributions made
by the Company on a Participant's behalf pursuant to Section
3.6(d)(vi).
1.28 "Qualified Non-Elective Contributions Account" means the separate
account for each Participant which shall reflect his or her share of
the Trust Fund attributable to Qualified Non-Elective Contributions
made on his or her behalf.
1.29 "Rollover Account" means the separate account for each Participant
which shall reflect his or her share of the Trust Fund attributable to
amounts rolled over from another Plan.
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1.30 "Spousal Consent" means written consent by the Participant's Spouse to
an election, designation of Beneficiary, or similar action by the
Participant, which consent acknowledges the effect of such election,
designation or action and is witnessed by a notary public or a Plan
representative; or "deemed consent" in which the Administrator or its
delegate is satisfied that such consent cannot be obtained because
there is no Spouse, because the Spouse cannot be located, or because of
other circumstances which may be provided by applicable law.
Any consent or deemed consent with respect to a Spouse which satisfies
these requirements shall be effective only with respect to such Spouse
and may not be revoked by such Spouse with respect to the election,
designation or other action to which such consent pertains.
1.31 "Spouse" or "Surviving Spouse" means the spouse or surviving spouse of
a Participant. To the extent provided under a qualified domestic
relations order as defined in Section 414(p) of the Code, the term
shall include a former spouse.
1.32 "Transfer Account" means the separate account for each Participant
which shall reflect his or her share of the Trust Fund attributable to
amounts transferred from another plan of an Affiliated Company.
1.33 "Transaction Date" means the first day of any month (or such other date
as the Administrator may prescribe).
1.34 "Trust Agreement" means the agreement entered into between the Company
and the Trustee, as provided for in a separate Trust Agreement, as the
same may be amended from time to time.
1.35 "Trust Fund" means all the assets at any time held under the Plan by
the Trustee as provided for in Section 11.
1.36 "Trustee" means the trustee or trustees selected by the Investment
Committee which may at any time be acting as Trustee under the Trust
Agreement entered into in connection with the Plan.
1.37 "Valuation Date" means the last day of each calendar month in each Plan
Year, and/or such other date(s) as may be prescribed by the
Administrator.
1.38 "Voluntary Contributions Account" means the separate account for each
Participant which shall reflect his or her share of the Trust Fund
attributable to Employee after-tax contributions made under The Dexter
Corporation Security Plus Savings Plan or the Hysol Division Security
Plus Savings Plan ("Voluntary Contributions") which were subsequently
transferred to this Plan.
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1.39 "Year of Vesting Service" means a Plan Year during which an Employee is
credited with 1,000 or more Hours of Service. Unless specifically
provided in an appendix to this Plan, Year(s) of Vesting Service shall
include Hours of Service with a predecessor Employer prior to its
acquisition by the Company.
SECTION 2
Eligibility and Participation
2.1 Eligibility for Participation
If an Eligible Employee was a Participant in The Dexter Aerospace
Materials Division Security Plus Savings Plan, The Dexter Electronic
Materials Division Security Plus Savings Plan or The Dexter Packaging
Products Division Security Plus Savings Plan as of June 30, 1996, he
or she shall continue to participate in the Plan as of July 1, 1996. In
addition, Eligible Employees who were participants in The Dexter
Automotive Materials Division Security Plus Savings Plan as of June 30,
1996, shall participate in the Plan as of July 1, 1996.
Each other Eligible Employee shall become a Participant on the Entry
Date following the date he first performs an Hour of Service for the
Company. Each person becoming an Eligible Employee who immediately
prior thereto was an Employee of an Affiliated Company and a
participant in any pension or profit-sharing plan maintained by an
Affiliated Company shall be eligible to become a Participant
immediately upon becoming an Eligible Employee. Unless specifically
provided in an Appendix to this Plan, a period of service shall include
employment with a predecessor employer prior to its acquisition by the
Company.
2.2 Enrollment in the Plan
In order to have Pre-Tax Contributions made on his or her behalf under
the Plan, a Participant must enroll in the Plan, in accordance with
rules determined by the Administrator.
2.3 Effect of Enrollment
The Participant, by enrolling in the Plan:
(a) shall agree to the terms of the Plan;
(b) may elect to have the cash compensation otherwise payable to
him or her by the Company reduced by the amount of the Pre-Tax
Contributions designated to be made on his or her behalf to
the Plan;
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(c) shall direct how contributions made on his or her behalf shall
be invested pursuant to Section 4.3; and,
(d) pursuant to Section 9.4, designate a Beneficiary or
Beneficiaries to receive any benefits payable under the Plan
subsequent to his or her death. Any such election and/or
authorization shall be deemed to be a continuing authorization
as to current and succeeding years until changed in accordance
with rules determined by the Administrator.
2.4 Termination and Suspension of Participation
(a) If a Participant who ceases to be an Eligible Employee of the
Company continues in the employ of the Affiliated Company his
or her participation in the Plan shall be suspended until the
resumption of his or her status as an Eligible Employee of the
Company but shall not be terminated as long as he or she
remains in the employ of the Affiliated Company.
(b) During the period of such suspension, the period of the
Participant's employment referred to in (a) above shall be
included in his or her employment with the Affiliated Company
for purposes of vesting as set forth in Section 5, but the
Participant shall not be entitled to share in any allocation
of Company Matching Contributions and shall not be permitted
to have Pre-Tax Contributions made on his or her behalf. If
during the period of such suspension the Participant's
employment with the Affiliated Company terminates, there shall
be a distribution of such Participant's Account in accordance
with the provisions of Sections 8 and 9.
2.5 Reemployment
If a Participant ceases to be an Eligible Employee and subsequently
becomes such again, he shall be eligible to participate in the Plan as
of the date on which he again becomes an Eligible Employee.
SECTION 3
Contributions
3.1 Pre-Tax Contributions
Subject to any limitations prescribed herein and in Section 3.6, a
Participant may elect to have the cash compensation otherwise payable
to the Participant by the Company after the effective date of such
Participant's election reduced and have the Company, in lieu of paying
the full amount of otherwise payable cash compensation, deposit with
the Trustee as soon as
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practicable an amount equal to such reduction for credit to such
Participant's Pre-Tax Contributions Account. Such reduction will be
referred to as the Participant's Pre-Tax Contributions.
Such election shall be made in accordance with rules determined by the
Administrator pursuant to which the Participant's compensation shall be
reduced by the amount of Pre-Tax Contributions.
The Pre-Tax Contributions deposit amounts shall be equal to between 1%
- 12% in 1% increments (or such other percentage as may be prescribed
by the Administrator) of the Participant's Compensation, as shall be
agreed upon between the Participant and the Company subject to the
limitations in this Section 3.
The Pre-Tax Contributions amount for a calendar year for a Participant
shall not exceed the dollar limitation set forth in Section 402(g) of
the Code (or such higher dollar limit as shall be in effect for such
year in accordance with the adjustment factor prescribed under Section
415(d) of the Code).
3.2 Election to Change Rate of Pre-Tax Contributions
Effective as of any Transaction Date, a Participant may elect to change
the rate of his or her contributions pursuant to Section 3.1 to any
other rate permitted under Section 3.1 (subject to the limitations in
Section 3.6). Such election shall be made in accordance with rules
determined by the Administrator. The restriction on the frequency of
change shall not be applicable if the change is required by the dollar
limitation of Section 3.1 or the limitations of Section 3.6 or 3.7.
3.3 Election to Suspend or Resume Contributions
A Participant may, at any time, elect to suspend all Pre-Tax
Contributions made on his or her behalf pursuant to Section 3.1 in
accordance with rules determined by the Administrator.
Contributions pursuant to Section 3.1 may be resumed as of any
Transaction Date in accordance with rules determined by the
Administrator.
3.4 Company Matching Contributions
The Company will contribute to the Plan an amount equal to 50% of the
actual total Pre-Tax Contributions directed to be made by Participants
in the Plan Year, but only to the extent that those Pre-Tax
Contributions do not exceed 6% of a Participant's Compensation. Such
Company Matching Contributions may be made quarterly or more often
during or following a Plan Year, but in all events within such period
thereafter as shall be permitted to make such contributions deductible
for federal income tax purposes. The Company may make additional
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Company Matching Contributions following a Plan Year, such
contributions to match pro rata the Pre-Tax Contributions (which do not
exceed 6% of a Participant's Compensation) of Participants who either
(i) were Eligible Employees on the last day of such Plan Year and had
elected to make Pre-Tax Contributions for the payroll period in which
such last day was included or (ii) had been Eligible Employees and
Participants during some earlier portion of the Plan Year, had elected
to make Pre-Tax Contributions during such earlier portion and, during
the payroll period in which the last day of a Plan Year was included,
were employed by an Affiliated Company and participants in any pension
or profit-sharing plan maintained by such Affiliated Company.
3.5 Form of Contribution; Restoration of Forfeitures
Any Company Matching Contributions made by the Company hereunder shall
be paid (a) in cash, (b) in Company Securities valued at fair market
value at the time the contribution is made, or (c) partly in each as
the Company may from time to time determine.
In addition to any Company contributions under Section 3.4, the Company
also shall make such other contributions as may be required to restore
amounts pursuant to Section 5.5 which have been forfeited under the
circumstances described in Section 5.4(b).
3.6 Pre-Tax Contributions Limitations - Highly Compensated Participants
Any other provisions of the Plan to the contrary notwithstanding, the
Administrator shall take such action as it deems appropriate to limit
the amount of Pre-Tax Contributions made on behalf of each Highly
Compensated Employee each Plan Year to the extent necessary to ensure
that either (a) or (b) is satisfied:
(a) The "Average Actual Deferral Percentage" (as hereinafter
defined) for the group of Highly Compensated Employees is not
more than the Average Actual Deferral Percentage for the group
consisting of all other Eligible Employees multiplied by 1.25.
(b) The excess of the Average Actual Deferral Percentage for the
group of Highly Compensated Employees over the Average Actual
Deferral Percentage for the group consisting of all other
Eligible Employees is not more than two percentage points, and
the Average Actual Deferral Percentage for the group of Highly
Compensated Employees is not more than the Average Actual
Deferral Percentage for the group consisting of all other
Eligible Employees multiplied by 2.0.
(c) Such Pre-Tax Contributions shall be taken into account for a
Plan Year only if such contributions are attributable to
Compensation received by the Participant during the Plan Year
or earned during the Plan Year and received within 2 1/2
months of the close of the Plan Year.
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<PAGE> 15
(d) For purposes of this Section:
(i) The term "Actual Deferral Percentage" means the ratio
(expressed as a percentage) of the Pre-Tax
Contributions on behalf of a Participant for the Plan
Year to the Participant's Compensation as a
Participant for the Plan Year. The Actual Deferral
Percentage for a Plan Year for an Employee who is
eligible to, but does not have Pre-Tax Contributions
made on his or her behalf for the Plan Year, is zero.
(ii) The term "Average Actual Deferral Percentage" means
the arithmetic average (expressed as a percentage) of
the Actual Deferral Percentages of all the
Participants in the specified groups. The specified
groups are the group consisting of all Participants
who are Highly Compensated Employees and the group
consisting of all other Eligible Employees.
(iii) The Actual Deferral Percentage for any Participant
who is a Highly Compensated Employee for the Plan
Year and who is eligible to have tax deferred
contributions made on his behalf under two or more
arrangements described in Section 401(k) of the Code
that are maintained by the Company or any other
Affiliated Company shall be determined as if such tax
deferred contributions were made under a single
arrangement.
(iv) In determining the Actual Deferral Percentage for a
Plan Year for a Participant who is a Highly
Compensated Employee, by virtue of being a 5% owner
or one of the ten (10) most highly-paid Highly
Compensated Employees (as defined in Section 1.18),
the Pre-Tax Contributions and Compensation of such
Participant shall include the Pre-Tax Contributions
and Compensation of any individual who is a "Family
Member" (as hereinafter defined) and such Family
Members shall be disregarded as separate employees in
determining the Actual Deferral Percentage both for
Participants who are Highly Compensated Employees and
for all other Eligible Employees. A Family Member
for this purpose means, with respect to any Employee
described in Section 414(q)(6)(A) of the Code, an
individual described in Section 414(q)(6)(B) of the
Code.
(v) If the aggregate amount of the Pre-Tax Contributions
actually paid over to the Trustee on behalf of
Participants who are Highly Compensated Employees
exceeds the maximum amount permitted under the limits
described in this Section 3.6 for such Plan Year
(determined by reducing the Pre-Tax Contributions on
behalf of Highly Compensated Employees in order of
the Actual Deferral Percentages beginning with the
highest of such percentages to the next highest level
of Actual Deferral Percentages, and, if necessary
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<PAGE> 16
continuing this process until the limits of this
Section 3.6 are met), then the amount of such excess
(hereinafter referred to as "Excess Contributions"),
plus any income and minus any loss allocable thereto,
shall be distributed no later than the last day of
the succeeding Plan Year, but when possible before
the fifteenth (15th) day of the third (3rd) month of
that Plan Year to Participants to whose Pre-Tax
Contributions Accounts Excess Contributions were
allocated for such Plan Year, on the basis of the
respective portions of the Excess Contributions
attributable to each of such Participants. Any
Excess Contributions to be distributed shall be
reduced by the Excess Deferrals previously
distributed for the applicable year.
Allocable income or loss for the Plan Year is
determined by multiplying the income or loss for the
Plan Year allocable to elective deferrals by a
fraction, the numerator of which is the Excess
Contributions for the Plan Year and the denominator
of which is the account balance attributable to
elective deferrals as of the end of the Plan Year,
minus the income or plus the loss allocable to such
account balance for the year.
The allocable income or loss for the period from the
last day of the Plan Year to the date of distribution
("gap period") is equal to 10% of the income or loss
for the Plan Year times the number of months in the
"gap period", counting whole months only and treating
distributions made after the first 15 days of the
month as occurring on the first day of the next
month. Gap period income shall not be allocated to
Excess Contributions.
(vi) In lieu of distributing Excess Contributions as
described in the preceding paragraph, the Company, in
its discretion, may make an additional Qualified
Non-Elective Contribution, as defined in Section
1.401(k)-1(g)(13) of the Income Tax Regulations to
the Account of each Participant who is not a Highly
Compensated Employee, in such amount as is necessary
to satisfy the Average Actual Deferral Percentage
tests described in paragraphs (a) and (b) above.
A Qualified Non-Elective Contribution may be treated
as a Pre-Tax Contribution provided that such
contribution is fully vested when made and subject to
the same distribution restrictions that apply to
Pre-Tax Contributions under the Plan without regard
to whether such contribution is actually taken into
account as a Pre-Tax Contribution. In addition, such
Qualified Non-Elective Contribution must also meet
the conditions described in Section 1.401(k)-1(b)(5)
of the Income Tax Regulations.
(e) In determining whether a plan satisfies Section 3.6(a) or
3.6(b), all Pre-Tax Contributions that are made under two or
more plans that are required to be aggregated for purposes of
Code Section 401(a)(4) or 410(b) (other than Code
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<PAGE> 17
Section 410(b)(2)(A)(ii)) are to be treated as made under a
single plan, and if two or more plans are permissively
aggregated for purposes of Code Section 401(k), such
aggregated plans must satisfy Code Sections 401(a)(4) and 410
as though they were a single plan.
3.7 Additional Limitations
The following provisions shall apply to Company Matching Contributions
and Voluntary Contributions, hereinafter referred to as 401(m)
Contributions.
Any other provision of the Plan to the contrary notwithstanding, the
Administrator shall take such action as it deems appropriate to limit
the amount of 401(m) Contributions made on behalf of each Highly
Compensated Employee each Plan Year to the extent necessary to insure
that either (a) or (b) is satisfied:
(a) The "Average Contribution Percentage" (as hereinafter defined)
for the group of Highly Compensated Employees is not more than
the Average Contribution Percentage of all other Eligible
Employees multiplied by 1.25.
(b) The excess of the Average Contribution Percentage for the
group of Highly Compensated Employees over that of all other
Eligible Employees is not more than two percentage points, and
the Average Contribution Percentage for the group of Highly
Compensated Employees is not more than the Average
Contribution Percentage of all other Eligible Employees
multiplied by 2.0.
(c) In addition, for each Plan Year the Plan must also meet the
test for the multiple use of the alternative limitation as set
forth in Section 1.401(m)-2(b) of the Income Tax Regulations.
In the event the multiple use test is not met, the Company
shall return Company Matching Contributions to all Highly
Compensated Employees.
(d) For purposes of this Section:
(i) The term "Contribution Percentage" means the ratio
(expressed as a percentage) of the 401(m)
contributions (plus any Pre-Tax Contributions that
were not required to be taken into account for
purposes of passing the tests set forth in Section
3.6) made on behalf of the Participant for the Plan
Year to the Participant's Compensation as a
Participant for the Plan Year.
(ii) The term "Average Contribution Percentage" means the
arithmetic average (expressed as a percentage) of the
Contribution Percentages for all the Participants in
the specified groups.
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<PAGE> 18
The specified groups are the group consisting of all
Participants who are Highly Compensated Employees and
the group consisting of all other Eligible Employees.
(iii) The Contribution Percentage for a Participant who is
a Highly Compensated Employee for the Plan Year and
who is eligible to make Participant contributions, or
to have matching employer contributions (within the
meaning of Section 401(m)(4)(A) of the Code) made on
his behalf under two or more plans described in
Section 401(a) of the Code, or arrangements described
in Section 401(m) of the Code, that are maintained by
the Employer or the Affiliated Company shall be
determined as if the total of such Participant
contributions and matching contributions were made
under this Plan.
(iv) In determining the Contribution Percentage of a
Participant who is a Highly Compensated Employee, the
401(m) Contributions and Compensation of such
Participant shall include 401(m) Contributions made
on behalf of, and the Compensation of, any individual
who is a Family Member (as that term is defined in
Section 3.6 of the Plan) and Family Members shall be
disregarded as separate employees in determining the
Contribution Percentage both for Participants who are
Highly Compensated Employees and for all other
Eligible Employees.
(v) If for any Plan Year the amount of 401(m)
Contributions for the Plan Year made on behalf of
Participants who are Highly Compensated Employees
exceeds the maximum amount permitted under the limits
of this Section 3.7 (determined by reducing
contributions on behalf of Highly Compensated
Employees in order of Contribution Percentages
beginning with the highest of such percentages to the
next level of Contribution Percentages and, if
necessary continuing this process until the limits of
this Section 3.7 are met), then the amount of such
excess (hereinafter referred to as "Excess Aggregate
Contributions"), plus any income or minus any loss
allocable thereto, shall be forfeited to the extent
not vested or, if vested, distributed no later than
the last day of the succeeding Plan Year, but when
possible before the fifteenth (15th) day of the third
(3rd) month of that Plan Year, to the Participants on
whose behalf such Excess Aggregate Contributions were
made.
The amount of Excess Aggregate Contributions to be
distributed to each such Participant (or forfeited by
the Participant to the extent the portion of Excess
Aggregate Contributions represents 401(m)
Contributions which are not vested) shall be
determined on the basis of the portion, if any, of
the Excess Aggregate Contributions attributable to
each of such Participants. Distribution (or
forfeiture) of the portion of Excess Aggregate
Contributions
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<PAGE> 19
allocable to a Participant shall be made from the
Participant's Company Matching Contributions Account
and the Participant's Voluntary Contributions Account
as appropriate.
Allocable income or loss for the Plan Year is
determined by multiplying the income or loss for the
Plan Year allocable to Company Matching Contributions
by a fraction, the numerator of which is the Excess
Aggregate Contributions for the Plan Year and the
denominator of which is the account balance
attributable to Company Matching Contributions as of
the end of the Plan Year, minus the income or plus
the loss allocable to such account.
The allocable income or loss for the period from the
last day of the Plan Year to the date of distribution
("gap period") is equal to 10% of the income or loss
for the Plan Year times the number of months in the
"gap period", counting whole months only and treating
distributions made after the first 15 days of the
month as occurring on the first day of the next
month. Gap period income shall not be allocated to
Excess Aggregate Contributions.
(vi) Notwithstanding any distributions or forfeitures
pursuant to the foregoing provisions, Excess
Aggregate Contribution shall be treated as Annual
Additions for purposes of Section 3.9. Determination
of Excess Aggregate Contributions pursuant to this
Section 3.7 shall be made only after first
determining any excess elective deferrals pursuant to
Section 3.8 and then determining any Excess
Contributions pursuant to Section 3.6. Distributions
pursuant to this Section 3.7 shall be made
proportionately from the investment funds with
respect to the Participant's Account or Accounts from
which distribution is made.
(e) In determining whether a plan satisfies Sections 3.7(a) or
3.7(b) or 3.7(c), all 401(m) Contributions that are made under
two or more plans that are required to be aggregated for
purposes of Code Sections 401(a)(4) or 410(b) (other than Code
Section 410(b)(2)(A)(ii)) are to be treated as made under a
single plan, and if two or more plans are permissively
aggregated for purposes of Code Section 401(m), such
aggregated plans must satisfy Code Sections 401(a)(4) and
410(b) as though they were a single plan.
3.8 Excess Elective Deferrals
If a Participant who had Pre-Tax Contributions made on his or her
behalf for a calendar year notifies the Administrator, in accordance
with rules determined by the Administrator, that he or she has elective
deferrals within the meaning of Section 402(g) of the Code for the
calendar year in excess of the dollar limitation on elective deferrals
in effect for such calendar year, and specifying the amount of such
excess the Participant claims as allocable to this Plan, the
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<PAGE> 20
amount of such excess, adjusted for income or loss attributable to such
excess elective deferral, shall be distributed to the Participant by
April 15 of the year following the year of the excess elective
deferral.
Allocable income or loss for the taxable year is determined by
multiplying the income or loss for the taxable year allocable to
elective deferrals by a fraction, the numerator of which is the excess
elective deferral for the taxable year and the denominator of which is
the account balance attributable to elective deferrals as of the end of
the taxable year, minus the income or plus the loss allocable to such
account balance for the year.
The allocable income or loss for the period from the last day of the
taxable year to the date of distribution ("gap period") is equal to ten
percent (10%) of the income or loss for the taxable year times the
number of months in the "gap period" counting whole months only and
treating distributions made after the first 15 days of the month as
occurring on the first day of the next month. Gap period income shall
not be allocated to Excess Elective Deferrals.
3.9 Contribution Limitations - Code Section 415
(a) Notwithstanding any provision of the Plan to the contrary, in
no event in any Limitation Year which is the Plan Year shall
the "Annual Addition" (as hereinafter defined) on behalf of
any Participant exceed the lesser of:
(i) 25% of the Participant's compensation for the Plan
Year. Compensation shall mean wages as defined in
Code Section 3401(a) for purposes of income tax
withholding at the source but determined without
regard to any rules that limit remuneration included
in wages based on the nature, or location of the
employment or the service performed; or
(ii) The greater of $30,000 or one-fourth of the defined
benefit dollar limitation set forth in Code Section
415(b)(1)(A) as in effect for that Plan Year.
(b) "Annual Addition" means the sum for any calendar year of (i)
Company contributions (including Pre-Tax Contributions and
Company Matching Contributions under this Plan) to defined
contribution plans (combining, for this purpose, all defined
contribution plans of the Affiliated Company (as modified by
Section 415(h) of the Code)), (ii) forfeitures under all such
plans, (iii) the amount of a participant's employee
contributions under such plans, (iv) amounts allocated after
March 31, 1984 to an individual medical account as defined by
Code Section 415(l)(2) and (v) post-1985 contributions
attributable to post-retirement medical benefits allocated to
Key Employees under a welfare plan as defined by Code Section
419(e). However, annual additions under (iv) and (v) are only
taken into account for purposes of the dollar limitation
described in Section 3.9(a)(ii).
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<PAGE> 21
The employee contributions described in clause (iii) of the
preceding sentence shall be determined without regard to the
repayment of any prior distributions made upon the exercise of
any buy-back rights.
(c) If the limitations applicable to any Participant in accordance
with this Section 3.9 are exceeded, the following steps will
be taken to dispose of the excess amounts:
(i) Any nondeductible voluntary contributions and pre-tax
elective deferrals under Code Section 401(k), in that
order, for such Limitation Year shall be returned to
the Participant.
(ii) If after the application of (i) an excess amount
still exists and the Plan covers the Participant at
the end of the Limitation Year, the excess amount
will be used to reduce future Company contributions
(including any allocation of forfeitures) under the
Plan for the next Limitation Year and for each
succeeding Limitation Year as necessary, for the
Participant.
(iii) If after the application of (i), an excess amount
still exists and the Plan does not cover the
Participant at the end of the Limitation Year, the
excess amount will be held unallocated in a suspense
account which will be applied to reduce Company
contributions (including allocation of forfeitures)
for all remaining Participants in the next Limitation
Year, and in each succeeding Limitation Year, if
necessary.
(d) If a Participant in this Plan is a Participant in any
tax-qualified defined benefit plan maintained by the Company
or an Affiliated Company, the sum of the Participant's defined
benefit plan fraction and defined contribution plan fraction
as described in Code Section 415(e) may not exceed 1.0 in any
limitation year.
This limitation shall be complied with by limiting the amount
of pension payable to such Participant under such defined
benefit plan without adjustment to the limitation applicable
to such Participant under this Plan.
3.10 Participants' Voluntary Contributions
No additional Voluntary Contributions may be made under the Plan. All
such Voluntary Contributions will remain in the Plan and continue to
share in investment gains and losses.
3.11 Return of Contributions
Notwithstanding any provision of the Plan to the contrary, a
contribution made to the Plan by the Company shall be returned to it
if:
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<PAGE> 22
(a) the contribution is made by reason of mistake of fact (for
example, incorrect information as to eligibility or
Compensation of an Employee, or a mathematical error);
(b) the contribution is not deductible under Section 404 of the
Code; or
(c) the Plan is not initially qualified under Section 401(a) of
the Code;
provided such return of contribution is made within one year of the
mistaken payment of the contribution or the disallowance of the
deduction, or the failure of the Plan to qualify, as the case may be.
In any event, the amount which may be returned shall never be greater
than an amount equal to the excess of (i) the amount contributed over
(ii) the amount that would have been contributed had there not occurred
a mistake of fact or a mistake in determining the deduction. Earnings
attributable to the excess contribution may not be returned to the
Company, but losses attributable thereto shall reduce the amount to be
returned. If the withdrawal of the amount attributable to the mistaken
contribution would cause the balance of the individual account of any
Participant to be reduced to less than the balance which would have
been in the account had the mistaken amount not been contributed, then
the amount to be returned to the Company shall be limited so as to
avoid such reduction.
SECTION 4
Investment of Contributions
4.1 Investment Options
Each Participant may choose to invest amounts credited to his
Account(s), in such funds that the Administrator may establish from
time to time.
Any portion of an investment fund may, pending its permanent investment
or distribution, be invested in short term securities issued or
guaranteed by the United States of America or any agency or
instrumentality thereof or any other investments of a short term
nature, including, but not limited to, corporate obligations or
participations therein, even though the same may not be legal
investments for Trustees under the laws applicable hereto. Any portion
of an investment fund may be maintained in cash.
4.2 Allocation of Contributions Among Investment Options
Contributions and rollover and/or transfer amounts made on a
Participant's behalf shall be invested as elected by the Participant
pursuant to this Section 4.2, or as subsequently changed
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in accordance with Section 4.3, in one or more of the investment funds
established by the Administrator, in multiples of 1%. Such elections
will be made in accordance with rules determined by the Administrator.
In the event a Participant election is not made or is incomplete,
unclear or inconsistent, the Administrator shall invest such
Participant's Accounts in the fund that the Administrator determines
best protects principal.
Accounts shall be established for each Participant under each fund to
which such contributions have been allocated and each such Account will
bear the expenses attributable to the investment thereof.
4.3 Changing Investment Elections; Reallocation Among Investment Funds
Effective as of the first day of any month, a Participant may change
his or her investment options, subject to the limitations set forth in
Section 4.2, with respect to the value of his or her existing accounts,
in accordance with rules determined by the Administrator.
Effective as of the first day of any month, a Participant may change
his or her investment options with respect to future contributions in
accordance with rules determined by the Administrator.
4.4 Investment of Fund Earnings
Dividends, interest and other distributions received by the Trustee in
respect of any investment fund shall be reinvested in the same
investment fund.
4.5 Investment of Contributions in Company Securities
Notwithstanding the other provisions of this Section 4, a Participant
may direct at the times permitted by Sections 4.1, 4.2 and 4.3 that all
or a portion of the contributions and rollover and/or transfer amounts
on a Participant's behalf shall be invested in Company Securities.
Purchases of Company Securities may be made from shareholders or
directly from the issuer of such Company Securities. Investment in
Company Securities may result from Company Matching Contributions being
made in the form of Company Securities. To the extent that Company
Matching Contributions are not invested in Company Securities, they
shall be invested as directed by the Participant pursuant to the
provisions of this Section 4. All purchases of Company Securities
shall be made at prices which do not exceed the fair market value of
such Company Securities as of the date of the purchase, or, if
applicable, such other date as may be required by law.
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SECTION 5
Vesting
5.1 Vesting in Participant Contributions
A Participant shall always be 100% vested in the value of his or her
Pre-Tax Contributions Account, Qualified Non-Elective Contributions
Account, Voluntary Contributions Account, Rollover Account and Transfer
Account.
5.2 Vesting in Company Matching Contributions Account
(a) The interest of the Participant in his or her Company Matching
Contributions Account shall become vested on the basis of such
Participant's Years of Participation according to the
following schedule:
<TABLE>
<CAPTION>
<S> <C> <C>
Years of Participation Vested Percentage
---------------------- -----------------
1 25%
2 50%
3 100%
</TABLE>
A Year of Participation equals four quarters (4/4) of a
Participation Year. One-quarter (1/4) of a Participation Year
is a calendar quarter of the Plan Year with respect to which
the Company shall have made a Pre-Tax Contribution for such
Participant. A Participant who is precluded from making
Pre-Tax Contributions for the remainder of the Plan Year
because of the limitation on elective deferrals under Code
Section 402(g) nevertheless shall be credited with quarters of
a Participation Year for the remaining portion of the Plan
Year during which such Participant was precluded from making
such Pre-Tax Contributions.
(b) If the interest of the Participant in the Company Matching
Contributions Account has not become fully vested under
Section 5.2(a), the Account will become fully vested upon the
first to occur of the following events:
(i) The Participant attaining age sixty-five (65) while
employed by the Company or an Affiliated Company;
(ii) Death of a Participant while employed by the Company
or an Affiliated Company;
(iii) Termination of a Participant's employment due to
Disability, as defined in Section 7.7, while employed
by the Company or an Affiliated Company;
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(iv) Completion of five (5) Years of Vesting Service; or
(v) Discontinuance of contributions by the Company or the
termination of the Plan as provided in Section 13
hereof.
5.3 Years of Vesting Service - Computation
In computing Years of Vesting Service for purposes of determining
vesting under Section 5.2(b)(iv), Years of Vesting Service shall
include all Years of Vesting Service as an Employee of an Affiliated
Company whether or not as an Eligible Employee, as defined herein,
other than Years of Vesting Service accruing before January 1, 1986.
Unless specifically provided in an Appendix to this Plan, Years of
Vesting Service shall be credited for employment with a predecessor
employer prior to its acquisition by the Company, but not earlier than
January 1, 1986.
If a Participant shall have a One Year Break in Service, Years of
Vesting Service prior to the One Year Break in Service shall not be
taken into account until the Participant has completed one (1) Year of
Vesting Service after the One Year Break in Service, subject, however,
to the further limitations of this Section. If a Participant shall
incur five (5) or more consecutive One Year Breaks in Service, Years of
Vesting Service prior thereto shall be taken into account upon
returning to service only if the Participant was at least partially
vested in his or her Company Matching Contributions Account at the time
of separation from service.
If a Participant shall incur five (5) or more consecutive One Year
Breaks in Service, Years of Vesting Service thereafter shall be
disregarded in computing the percentage of the Account vested prior
thereto.
Separate Accounts will be maintained for the Participant's pre-break
and post-break portions, both of which will share in the earnings and
losses of the relevant investment funds.
5.4 Occurrence of Forfeiture
A Participant who is not 100% vested in his or her Account shall incur
a forfeiture upon the earlier of:
(a) the last day of the Plan Year in which the Participant first
incurs five (5) consecutive One Year Breaks in Service; or
(b) the date the Participant receives a cash-out distribution of
his or her vested interest in the Account on account of
separation from service. A Participant who is zero percent
(0%) vested in his or her Company Matching Contributions
Account is deemed to receive a cash-out distribution upon
separation from service.
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5.5 Buy Back Provision
If a Participant who incurs a forfeiture pursuant to 5.4(b) is
reemployed as an Eligible Employee and Participant before incurring
five (5) consecutive One Year Breaks in Service, such Participant's
Account will be restored to the full amount on the date of the
distribution if the Participant repays to the Plan the full amount of
the distribution before the earlier of (1) the 5th anniversary of the
Participant's reemployment date or (2) the incurrence of five (5)
consecutive One Year Breaks in Service. A Participant's Account will
be restored from (1) forfeitures, (2) Fund income and (3) Company
contributions, in that order.
5.6 Application of Forfeitures
To the extent that the Plan's administrative expenses are not paid by
the Company, forfeitures shall be used first to pay for the cost of
such administrative expenses and second to reduce Company contributions
for the Plan Year in which such forfeiture occurs.
5.7 Special Rule Where Distribution Made Before Occurrence of Forfeiture
In the event that a Participant receives a distribution prior to the
occurrence of a forfeiture pursuant to Section 5.4 at a time when he or
she is partially but not fully vested and circumstances may permit a
Participant to increase the vested portion of the Account, the portion
of the Participant's Account which is not distributed, including any
part which is not then vested, shall be maintained in a separate
suspense account and the Participant's interest in such separate
suspense account shall at any relevant time be determined in accordance
with the following formula:
X = P (AB + (R x D)) - (R x D) where
X is vested interest at relevant time
P is vested percentage at relevant time
AB is account balance at relevant time
D is amount of the distribution
R is the ratio of the account balance at relevant time over
account balance at distribution
The unvested part of such separate suspense account shall nevertheless
be forfeited in accordance with Section 5.4.
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SECTION 6
Accounts
6.1 Separate Accounts to Reflect Contributions
The Administrator shall maintain a separate Pre-Tax Contributions
Account, Qualified Non-Elective Contributions Account, Company Matching
Contributions Account, Voluntary Contributions Account, Rollover
Account and Transfer Account (if required) if applicable, for each
Participant which shall reflect the portion of the Participant's
interest in the Trust Fund which is attributable to his or her Pre-Tax
Contributions, Qualified Non-Elective Contributions, Company Matching
Contributions, Voluntary Contributions, Rollover Contributions and
amounts transferred from another plan to the Trust Fund on his or her
behalf.
6.2 Separate Accounts in Investment Funds
The Administrator shall maintain Accounts for each Participant in each
investment fund in which such Participant has had contributions made on
his or her behalf. Such Accounts shall reflect the portion of the
Participant's interest in the Trust Fund which is attributable to such
contributions.
6.3 Valuation of Accounts
As of each Valuation Date, the Administrator shall value Trust Fund
assets at their fair market value and shall adjust the Accounts of each
Participant to reflect contributions, withdrawals, distributions,
income earned or accrued, expenses payable from the Trust Fund not
otherwise paid by the Company and any increase or decrease in the value
of Trust Fund assets since the preceding Valuation Date. Income earned
or accrued, expenses payable from the Trust Fund and any increase or
decrease in the value of Trust Fund assets since the preceding
Valuation Date shall be proportionately credited based on the balances
as of the preceding Valuation Date of each Participant's Account.
6.4 Statements to Participants
At least once each Plan Year, the Administrator shall furnish each
Participant with a written statement of his or her Account.
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6.5 Participant Transfer Account
(a) A fully vested Participant who transfers from a Division to
another entity (which is not another Division) within an
Affiliated Company may elect to transfer his or her accounts
from the Plan to the extent that such other entity maintains a
defined contribution plan that accepts such transfers.
(b) With the consent of the Company, a fully vested Participant
who transfers to the Division from another entity (which is
not another Division) may elect to transfer his or her
accounts from a defined contribution plan that has been
maintained or contributed to by the other entity. A separate
account will be established to accept such transfers.
(c) Any transfer made pursuant to this Section must satisfy the
requirements of the "elective transfer" provisions of Q&A 3
(b) of Section 1.411(d)(4) of the Income Tax Regulations
concerning Code Section 411(d)(6) protected benefits.
6.6 Rollover Account
An individual who becomes an Eligible Employee may elect to rollover a
distribution of his vested account balance from another qualified plan
into the Plan, provided however, such distribution constitutes an
eligible rollover distribution as described under Code Section
402(f)(2)(A). A separate Rollover Account will be established in the
Plan to accept such rollovers.
SECTION 7
Withdrawals During Employment
7.1 Hardship Withdrawals
(a) A Participant who has not attained 59-1/2 may, by reason of
Hardship but only with the approval of the Administrator,
withdraw part or all of the value of his Pre-Tax Contributions
Account as of December 31, 1988, plus any Pre-Tax
Contributions made after that date. Any income credited to
the Participant's Pre-Tax Contribution Account after December
31, 1988, is not available for a Hardship withdrawal. Requests
for withdrawals shall be made in accordance with rules
determined by the Administrator. The request shall specify
the amount of withdrawal requested and shall include evidence
documenting the Hardship, if applicable.
For purposes of this Section 7.1, "Hardship" means a
circumstance resulting from an immediate and heavy financial
need of a Participant attributable to the following:
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<PAGE> 29
(i) Expenses for medical care described in Code Section
213(d) previously incurred by the Participant, his or
her spouse or dependents as defined in Code Section
152 or expenses necessary for these persons to obtain
medical care.
(ii) Costs directly related to the purchase of a
Participant's principal residence, excluding mortgage
payments.
(iii) Payments necessary to prevent eviction of the
Participant from his or her principal residence or
foreclosure on the mortgage on that residence.
(iv) Payments of tuition and related educational fees for
the next 12-months of post-secondary education of the
Participant, his or her spouse or dependents as
defined in Code Section 152.
(v) Funeral expenses for a member of the Participant's
family.
In addition to the above "safe harbors," the Administrator may
determine other circumstances to be a "Hardship" provided such
determination is performed on a reasonable and
nondiscriminatory basis.
(b) No distribution shall be made on account of hardship unless
the Administrator, based upon the Participant's written
representation and such other facts as are known to the
Administrator, determines that such amount is not reasonably
available to the Participant from any other resources of the
Participant. Such written representation shall indicate that
the need for the hardship withdrawal cannot be relieved by any
of the following:
(i) reimbursement or compensation by insurance or
otherwise;
(ii) reasonable liquidation of assets (including, for this
purpose, assets of the Participant's spouse and minor
children that are reasonably available to the
Participant) to the extent such liquidation would not
itself cause an immediate and heavy financial need;
(iii) cessation of Pre-Tax Contributions under the Plan; or
(iv) other withdrawals or nontaxable (at the time of the
loan) loans from this Plan or from other plans
maintained by an Affiliated Company or by any other
employer, or by borrowing from commercial sources on
reasonable commercial terms.
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(c) Upon approval by the Administrator of a Hardship withdrawal,
(i) a Participant will be suspended from making Pre-Tax
Contributions to this Plan and pre-tax contributions to any
other plan of an Affiliated Company (collectively, "Affiliated
Pre-Tax Contributions") until the first day of the month
following twelve (12) months from the withdrawal date, and
(ii) the Participant's Affiliated Pre-Tax Contributions for
the next taxable year of the Participant shall be limited to
the applicable limit under Section 402(g) of the Code for such
taxable year minus Affiliated Pre-Tax Contributions for the
year of the Hardship withdrawal.
(d) A Participant may not replace any amounts voluntarily
withdrawn hereunder.
7.2 Source of Withdrawal
Any withdrawals pursuant to this Section 7 shall be taken
proportionately from each investment fund in which the Participant's
Pre-Tax Contributions Accounts are invested. However, in no event may a
"Hardship" withdrawal be made from earnings on post-1988 Pre-Tax
Contributions or from any other contributions used to meet the
discrimination test as set forth in Section 3.6.
7.3 Payment of Withdrawn Amounts
Amounts withdrawn pursuant to Section 7 shall be paid to a Participant
in a lump sum in cash as soon as practicable after the Administrator
makes its determination based on the Participant's Account balance as
of the valuation date coincident with or immediately preceding the date
of payment.
7.4 Qualified Domestic Relations Withdrawals and Distributions
Notwithstanding any limitations and restrictions on withdrawals and
distributions under this Plan with respect to Participants, payment may
be made to an "alternate payee" prior to the Participant's separation
from service or attainment of "earliest retirement age," but only if
such payment is directed by the terms of a "qualified domestic
relations order," as those terms are defined in Section 414(p) of the
Code. The respective Accounts of any Participant subject to such an
order shall be adjusted in accordance with procedures established by
the Administrator in accordance with applicable law, regulations and
rules to reflect payments made pursuant to the qualified domestic
relations order.
7.5 Withdrawal Upon Attainment of Age 59 1/2
A Participant upon the attainment of age 59 1/2 may request to withdraw
all or a portion of his or her Pre-Tax Contributions Account in
accordance with rules determined by the Administrator. Distributions
will be made as soon as administratively possible following receipt of
such request.
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7.6 Withdrawal of Participant's Voluntary Contributions
A Participant may apply to the Administrator for permission to withdraw
part or all of the Participant's Voluntary Contributions as of the
Valuation Date next following such application. Such application shall
be made in accordance with rules determined by the Administrator, and
if such application is granted, distribution shall be made as soon
thereafter as practicable. If the application is limited to the
Participant's Voluntary Contributions, the application shall be granted
as a matter of right.
7.7 Withdrawal as a Result of a Disability
A Participant may elect to withdraw all or any portion of the balance
in his Pre-Tax Contributions Account, provided the Company has made a
determination that such Participant is Disabled. A Participant will be
deemed to be Disabled when he has incurred a condition which the
Company in its sole discretion determines has incapacitated the
Participant from satisfactorily performing his usual services for the
Company during the foreseeable future. Such determination shall be
made by the Company as soon as practicable. After receipt of the
application, the Company shall have the right to change the Valuation
Date chosen where it is impracticable to make such determination in
time to complete distribution by such Valuation Date.
SECTION 8
Distributions on Termination of Employment
8.1 General
When a Participant ceases to be employed by the Company or any
Affiliated Company for any reason, the total value of such
Participant's vested Account shall be distributed to him or her or, if
distribution is being made by reason of death, to his or her
Beneficiary. Such distribution shall be made in accordance with the
provisions of Section 9. Any portion of a Participant's Company
Matching Contributions Account in which he or she does not have a
vested interest in accordance with Section 5 at the time of such
payment shall be forfeited, and shall be applied as provided in Section
5.6.
8.2 Valuation
The value of a Participant's vested Account for purposes of Section 8.1
shall be based on the value as of the Valuation Date coincident with or
next following the date of such termination of employment or such other
Valuation Date as may be required by law. Notwithstanding the
preceding sentence, if the Participant (or in the case of the
Participant's death, his or her Beneficiary) fails to make a claim for
benefits in accordance with rules determined by the
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Administrator prior to such Valuation Date, the Administrator, in its
sole discretion, may value Accounts for purposes of Section 8.1 as of
any subsequent Valuation Date, provided that such Valuation Date is not
later than the earlier of (a) the Valuation Date coincident with or
next following its receipt from the Participant (or in the case of the
Participant's death, his or her Beneficiary) of such claim for
benefits, or (b) the Valuation Date coincident with or next following
the Participant's 65th birthday.
In the event that a portion of a Participant's Account is invested in
Company Securities and the Participant elects a cash distribution, the
date that the Company Securities are liquidated will be used to
determine the cash value of the Securities.
8.3 Continued Investment of Participant's Account
When a person ceases to be a Participant, his or her Account shall not
be immediately segregated, but shall continue to be fully invested
until such time the Account is distributed.
SECTION 9
Payment of Benefits
9.1 Application of Section
All amounts distributed pursuant to Section 8 shall be paid to the
Participant or his or her Beneficiary, as the case may be in accordance
with the provisions of this Section 9.
9.2 Form of Payment
A Participant's vested interest in his Account shall be distributed as
herein provided if he ceases to be employed by the Company or any
Affiliated Company other than by reason of his death. To the extent
that the Participant's Account is invested in Company Securities at
such time, the Participant may request that the lump sum payment be
made as follows:
(a) in whole units of Company Securities eligible for distribution
pursuant to applicable law, with the value of any fractional
units to be in cash,
(b) in cash, or
(c) in some combination of Company Securities and cash.
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Notwithstanding the foregoing, if the vested value of the Participant's
Account exceeds $3,500, payment shall be made as prescribed in this
Section 9.2 prior to the Participant's 65th birthday only if the
Participant so elects. If the Participant does not complete or sign
the election form within 3 months of his or her date of termination (or
within such other period as the Administrator may prescribe), the
Participant's Accounts shall be retained and administered under the
Plan until the Valuation Date coincident with or next following the
Participant's 65th birthday (or earlier death or disability), and
distributed as soon thereafter as practicable.
For so long as such Accounts continue to be maintained under the Plan,
and except as otherwise may be prescribed by the Administrator, the
Participant will not be permitted any withdrawals under Section 7. The
Administrator may establish and change from time to time rules and
restrictions applicable to the administration of any Accounts held in
respect of a Participant who has not consented to distribution prior to
his or her 65th birthday.
If the vested value of the Participant's Account is not greater than
$3,500, the Participant will receive a distribution of the value of the
vested portion of his or her accounts in accordance with this Section
9.2.
9.3 Commencement of Payments
All distributions pursuant to Section 8 to or on behalf of a
Participant shall be made no later than 60 days after the end of the
latest of the Plan Years in which occurs: (a) the Participant's
attainment of age 65, or (b) the Participant's termination of
employment.
9.4 Designation of Beneficiary
(a) Subject to paragraph (b) below, a Participant may file with
the Company a written designation of Beneficiary or
Beneficiaries with respect to all or part of the assets in the
Accounts of the Participant. Upon the death of a Participant,
the assets in his or her Accounts with respect to which such a
designation is valid and enforceable shall be distributed in
accordance with the Plan to the Beneficiary or Beneficiaries
designated and in any event not later than the last day of the
calendar year of the fifth anniversary of the Participant's
death. Assets in the accounts of the Participant not affected
by such written designation shall be distributed in accordance
with the Plan to the Participant's Spouse or if unmarried to
such Participant's estate.
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(b) The Participant's Surviving Spouse shall be the Beneficiary
entitled to receive all benefits payable on the death of the
Participant unless the Participant, with Spousal Consent,
designates another Beneficiary. A Participant may change his
or her Beneficiary or Beneficiaries from time to time in
accordance with rules determined by the Administrator without
the consent of any previously designated Beneficiary or
Beneficiaries, and Spousal Consent shall be required for any
such change unless the original Spousal Consent with respect
to the designation of a Beneficiary expressly permitted
designation by the Participant without any further requirement
of Spousal Consent.
9.5 Restriction Against Assignment
It is a condition of the Plan, and all rights of each Participant and
Beneficiary shall be subject thereto, that, with the exception of
payments pursuant to a qualified domestic relations order within the
meaning of Section 414(p) of the Code, no right or interest of any
Participant or Beneficiary in the Plan and no benefit payable under the
Plan shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, or charge, and any action by
way of anticipating, alienating, selling, transferring, assigning,
pledging, encumbering, or charging the same shall be void and of no
effect; nor shall any such right, interest or benefit be in any manner
liable for or subject to the debts, contracts, liabilities,
engagements, or torts of the person entitled to such right, interest or
benefit, except as specifically provided in this Plan.
9.6 No Employment Rights
The establishment of the Plan shall not be construed as conferring any
rights upon any person or Employee for employment or a continuation of
employment, nor shall it be construed as limiting in any way the right
of the Company to discharge any Employee or to treat him or her without
regard to the effect which such treatment might have upon him or her as
a Participant under the Plan.
9.7 Payments in the Event of Incompetence
If any person entitled to receive any benefits hereunder is, in the
judgment of the Administrator, legally, physically, or mentally
incapable of personally receiving and receipting for any distribution,
the Administrator may direct that any distribution due such person,
unless a claim has been made therefor by a duly appointed legal
representative, be made to his or her Spouse, children or other
dependents, or to a person with whom he or she resides, and any other
distribution so made shall be a complete discharge of the liabilities
of the Plan.
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9.8 Discharge of Plan Obligations
The determination of the Administrator as to the identity of the proper
payee of any benefit payment from the Trust Fund and the amount
properly payable shall be conclusive, and payments in accordance with
such determination shall constitute a complete discharge of all
obligations on account thereof.
9.9 Distributions No Later Than Age 70-1/2
Notwithstanding the foregoing provisions of this Section 9,
distribution of a Participant's entire interest in the Plan shall be
made no later than the April 1 of the calendar year following the
calendar year in which the Participant attains age 70-1/2 in accordance
with applicable rules and regulations. If the Participant continues in
employment after age 70-1/2, distributions of amounts credited to the
Participant after the initial distribution shall be made in accordance
with applicable rules and regulations. This Section 9.9 shall not be
applicable to any Participant who attains age 70-1/2 before January 1,
1988 other than a Participant who is a 5-percent owner (as defined in
Section 416(i) of the Code) at any time during the calendar year in
which such Participant attains age 66-1/2 and any subsequent calendar
year. A Participant who is not a 5% owner, attains age 70 1/2 during
1988 and continues to be employed by the Company on January 1, 1989,
shall be required to begin receiving distributions by April 1, 1990.
9.10 Failure to Locate Payee
If any amount is payable from the Trust Fund to any person and, after
written notice from the Trustee mailed to such person's last known
address as certified to the Trustee by the Administrator, and such
person shall not have presented himself or herself to the Trustee
within one year after the mailing of such notice, such amount shall be
forfeited and shall be applied as provided in Section 5.6; provided
however, that the forfeited amount shall be restored and paid to the
proper payee upon any ultimate claim for benefits by such proper payee.
9.11 Direct Rollover
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
paid directly to an eligible retirement plan specified by the
distributee in a direct rollover. For purposes of the above, the
following definitions shall apply:
(a) "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
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made (not less frequently than annually) for the life (or life
expectancy) of the distributee or the joint lives (or joint
life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten years
or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and the portion
of any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(b) "Eligible retirement plan" is an individual retirement account
described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of the Code, that
accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to
the surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement
annuity.
(c) "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 alternative payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, are
distributees with regard to the interest of the spouse or
former spouse.
(d) "Direct rollover" is a payment by the Plan to the eligible
retirement plan specified by the distributee.
SECTION 10
Administration of the Plan
10.1 Plan Administration
The Administrator and the Investment Committee shall be the Plan's
"named fiduciaries" for the purposes of Section 402(a) of ERISA.
Administration of the Plan shall be the responsibility of the Company
except to the extent that:
(a) authority to construe, administer and interpret the Plan is
delegated to the Administrator in accordance with this Section
10;
(b) authority to hold the Trust Fund of the Plan has been
delegated to the Trustee and authority to direct the Trustee
has been delegated to the Administrator in accordance with
Section 11;
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(c) authority to act for the Company has otherwise been reserved
to the Board of Directors; and
(d) authority to appoint an investment manager within the meaning
of ERISA Section 3(38) is delegated to the Investment
Committee in accordance with this Section 10.
10.2 Appointment of the Administrator
The Company, acting through its Chief Executive Officer, shall appoint
an "Administrator," which shall be an individual or group of
individuals acting as an Administrative Committee (the "Committee") to
perform the duties of the Company as "plan administrator." Any
individual, including but not limited to Employees and Participants,
may be appointed as a member of the Committee. Such appointed
individual shall file a written consent to serve as a member of the
Committee with the records of the Plan. Each member of the Committee
shall serve until his or her resignation or dismissal by the Company.
Vacancies shall be filled in the same manner as the original
appointment. To resign, a member shall give written notice which shall
be effective on the earlier of the appointment of his successor or the
passing of 60 days after such notice is mailed or personally delivered
to the Company. The members of the Committee shall serve as such
without compensation and without bond or other security at the pleasure
of the Company.
10.3 Responsibilities of Administrator
Subject to Section 10.1, the Administrator shall be responsible for the
administration, operation and interpretation of the Plan. The
Administrator shall establish rules from time to time for the
transaction of its business. It shall have the exclusive right to
interpret the Plan and to decide any and all matters arising thereunder
or in connection with the administration of the Plan, and it shall
endeavor to act, whether by general rules or by particular decisions,
so as not to discriminate in favor of any person or class of person.
Such decisions, actions and records of the Administrator shall be
conclusive and binding upon the Company and all persons having or
claiming to have any right or interest in or under the Plan. The
Administrator may retain counsel, employ agents and obtain clerical,
consulting and accounting services as the Administrator may require or
deem advisable from time to time.
The Administrator shall maintain accounts to the extent it deems
necessary or appropriate showing the fiscal transactions of the Plan.
10.4 Appointment of the Investment Committee
The Company, acting through its Chief Executive Officer, shall appoint
members of a committee to be known as the Investment Committee. Any
individual, including but not limited to Employees and Participants,
may be appointed as a member of the Investment
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<PAGE> 38
Committee. Such appointed individual shall file a written consent to
serve as a member of the Investment Committee with the records of the
Plan. Each member of the Investment Committee shall serve until his or
her resignation or dismissal by the Company. Vacancies shall be filled
in the same manner as the original appointment. To resign, a member
shall give written notice which shall be effective on the earlier of
the appointment of his successor or the passing of 60 days after such
notice is mailed or personally delivered to the Company. The members of
the Investment Committee shall serve as such without compensation and
without bond or other security at the pleasure of the Company.
10.5 Responsibilities of Investment Committee
The Investment Committee shall be responsible for all matters relating
to the funding of the Plan and the overseeing of the investment of Plan
assets. The Investment Committee may delegate authority and
responsibility to one or more persons, including without limitation any
investment manager within the meaning of ERISA Section 3(38), pursuant
to Section 11.5. The Investment Committee may retain counsel, employ
agents and obtain clerical, consulting and accounting services as the
Investment Committee may require or deem advisable from time to time.
10.6 Claims Procedure
In the event that any Participant or other payee claims to be entitled
to a benefit under the Plan, and the Administrator determines that such
claim should be denied in whole or in part, the Administrator shall, in
writing, notify such claimant within 90 days of receipt of such claim
that his or her claim has been denied, setting forth the specific
reasons for such denial. Such notification shall be written in a manner
reasonably expected to be understood by such Participant or other payee
and shall set forth the pertinent sections of the Plan relied on and,
where appropriate, an explanation of how the claimant can obtain review
of such denial. Within 60 days after receipt of such notice, such
claimant may request, by mailing or delivery of written notice to the
Administrator, a review by the Administrator of the decision denying
the claim. If the claimant fails to request such a review within such
60 day period, it shall be conclusively determined for all purposes of
this Plan that the denial of such claim by the Administrator is
correct. If such claimant requests a review within such 60 day period,
the Participant or other payee shall have 30 days after filing a
request for review to submit additional written material in support of
the claim. The Administrator shall decide whether or not to grant the
claim within 60 days after receipt of the request for review, but this
period may be extended by the Administrator for up to an additional 60
days in special circumstances. After such review, the Administrator
shall determine whether such denial of the claim was correct and shall
notify such claimant in writing of its determination. Decisions of the
Administrator are final and binding on all persons.
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<PAGE> 39
10.7 Engagement of Accountant
The Company shall engage a "qualified public accountant" to prepare
such audited financial statements of the operation of the Plan as shall
be required by ERISA.
10.8 Limitation on Liability
The Administrator and the Investment Committee shall not be liable for
any act or omission on their part, excepting only their own willful
misconduct or gross negligence or except as otherwise expressly
provided by ERISA. To the extent permitted by applicable law, the
Company shall indemnify and save harmless the Administrator and the
Investment Committee against any and all claims, demands, suits or
proceedings in connection with the Plan and Trust Fund that may be
brought by Participants or their Beneficiaries, Employees of
participating Companies, or by any other person, corporation, entity,
government or agency thereof; provided, however that such
indemnification shall not apply with respect to acts or omissions of
willful misconduct or gross negligence. The Board of Directors, at the
Company's expense, may settle such claim or demand asserted, or suit or
proceedings brought, against of the Administrator or the Investment
Committee when such settlement appears to be in the best interest of
the Company.
10.9 Agent for Service of Process
The Administrator or such other person as may from time to time be
designated by the Administrator shall be the agent for service of
process under the Plan.
10.10 Delivery of Elections to Administrator
All elections, designations, requests, notices, instructions and other
communications required or permitted under the Plan from the Company, a
Participant, Beneficiary or other person to the Administrator or the
Investment Committee shall be made in accordance with rules determined
by the Administrator and the Investment Committee, respectively.
SECTION 11
Management of the Trust Fund
11.1 Trust Agreement
All assets of the Plan shall be held as a Trust Fund under a Trust
Agreement with the Trustee for the exclusive benefit of Participants
and their Beneficiaries under the Plan, and paying the expenses of the
Plan not paid directly by the Company, and prior to the satisfaction of
all liabilities with respect to such persons, no part of the corpus or
income of the Trust Fund shall
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<PAGE> 40
be used for or diverted to purposes other than for the exclusive
benefit of such persons. No such person, nor any other person, shall
have any interest in or right to any part of the earnings of the Trust
Fund, or any rights in, to, or under the Trust Fund or any part of its
assets, except to the extent expressly provided in the Plan.
11.2 Appointment of the Trustee
The Trustee shall be appointed by the Investment Committee, with such
powers in the Trustee as to investment, reinvestment, control and
disbursement of the Trust Fund as shall be in accordance with the Plan
and Trust Agreement. The Investment Committee may remove the Trustee
at any time and upon such removal or upon the resignation of the
Trustee, the Investment Committee shall designate a successor Trustee.
Removal or resignation of the Trustee must be in writing and requires
at least 60 days notice.
11.3 Form of Disbursements
The Administrator shall determine the manner in which the Trust Fund
shall be disbursed in accordance with the Plan and the provisions of
the Trust Agreement, including the form of voucher or warrant to be
used in authorizing disbursements and the qualifications of persons
authorized to approve and sign the same and any other matters incident
to the disbursement of the Trust Fund.
11.4 Expenses of the Plan
The expenses of the administration of the Plan shall be deemed to be
expenses of the Trust Fund.
11.5 Authority and Responsibility of Investment Manager
The Company, acting through its Investment Committee, may appoint one
or more Investment Managers with full authority and responsibility with
respect to the investment and management of all or a portion of the
trust assets. In such case, the Trustee shall not be liable nor
responsible in any way for any losses or other unfavorable results
arising from the Trustee's compliance with investment or management
directions received by the Trustee from the Investment Manager except
as otherwise provided under ERISA.
All directions concerning investments made by the Investment Manager
shall be signed by such person or persons, acting on behalf of the
Investment Manager, as may be duly authorized in writing; provided,
however, that the transmission to the Trustee of such directions by
photostatic teletransmission with duplicate or facsimile signature or
signatures shall be considered a delivery in writing of the aforesaid
directions until the Trustee is notified in writing by the Investment
Manager that the use of such devices with duplicate or facsimile
signatures is no longer authorized. The Trustee shall be entitled to
rely upon directions which
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<PAGE> 41
it receives by such means if so authorized by the Investment Manager
and shall in no way be responsible for the consequences of any
unauthorized use of such device which use was not, in fact, known by
the Trustee at the time to be unauthorized.
The Trustee shall be under no duty to question any directions of the
Investment Manager nor to review any securities or other property of
the Trust constituting assets thereof with respect to which an
Investment Manager has investment responsibility, nor to make any
suggestions to such Investment Manager in connection therewith. The
Trustee shall, as promptly as possible, comply with any written
directions given by the Investment Manager hereunder and, where such
directions are given by photostatic teletransmission with facsimile
signature or signatures, the Trustee shall be entitled to presume that
any directions so given are fully authorized.
The Trustee shall not be liable, in any manner nor for any reason, for
the making or retention of any investment pursuant to such directions
of the Investment Manager, nor shall the Trustee be liable for the
Trustee's failure to invest any or all of the Trust Fund in the absence
of such directions. In any event the Investment Manager referred to
above shall not direct the purchase, sale or disposition of any assets
of the Trust Fund if such directions are not in compliance with the
applicable provisions of ERISA and any regulations or rulings issued
thereunder.
If the Investment Manager is authorized to direct the investment and
management of the trust assets, the Trustee shall have no obligation to
determine the existence of any conversion, redemption, exchange,
subscription or other right relating to any of said securities
purchased of which notice was given prior to the purchase of such
securities, and shall have no obligation to exercise any such right.
The term "Investment Manager" as used herein shall be construed as
meaning a fiduciary as defined in Section 3(38) of ERISA, which
fiduciary has fully complied with the provisions of said Section 3(38)
of ERISA and has provided the Administrator and the Trustee with
written acknowledgment that the fiduciary has done so and is a
fiduciary with respect to the Plan.
SECTION 12
Adoption and Amendment of the Plan
12.1 Plan Amendments
This Plan may be wholly or partially amended or otherwise modified at
any time by the Company, provided, however, that:
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<PAGE> 42
(a) No amendment or modification can be made, which would permit
any part of the corpus or income of the Trust Fund to be used
for or diverted to purposes other than for the exclusive
benefit of such Participants and their Beneficiaries under the
Plan and for the payment of the expenses of the Plan.
(b) No amendment or modification shall have any retroactive effect
so as to deprive any person of any benefit already accrued,
including the elimination or reduction of an early retirement
benefit, or a retirement-type subsidy or the elimination of an
optional form of payment except as may be permitted in
regulations under Code Section 411(d)(6). However, any
amendment may be made retroactive that is necessary to bring
the Plan into conformity with governmental regulations in
order to qualify the Plan for tax purposes and meet the
requirements of ERISA.
(c) No amendment or modification may be made which shall increase
the duties or liabilities of the Trustee, the Administrator or
of the Company without the written consent of the party so
affected.
(d) In the event the vesting schedule set forth in Section 5 is
amended, such amendment may not reduce the vesting percentage
of any Participant in his then account balance. In addition,
any Participant who has completed 3 Years of Service at the
time of such amendment may elect to continue under the vesting
schedule in effect prior to such amendment.
SECTION 13
Discontinuance of the Plan
13.1 Termination of Plan
The Plan may be terminated at any time by the Company by written notice
to the Administrator, the Investment Committee and the Trustee at the
time acting hereunder, but only upon condition that such action is
taken as shall render it impossible for any part of the corpus or
income of the Trust Fund to be used for or diverted to purposes other
than for the exclusive benefit of the Participants and their
Beneficiaries under the Plan and for the payment of the administrative
costs of the Plan not otherwise paid by the Company. In the event of
any termination, or partial termination of the Plan, or complete
discontinuance of contributions thereunder, all affected Participants'
Accounts shall become fully vested and nonforfeitable. For purposes of
the preceding sentence, portions of Accounts that have been forfeited
on account of a deemed distribution pursuant to Section 5.4(b) shall
not become vested.
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<PAGE> 43
13.2 Revaluation on Termination
If the Plan is terminated pursuant to Section 13.1 and the Board of
Directors determines that the Trust Fund shall be terminated, of which
determination written notice shall be given to the Administrator and to
the Trustee at the time acting hereunder, the Trust Fund shall be
revalued as if the termination date were the Valuation Date, and the
current value of all Accounts shall be distributed in accordance with
Section 9.
However, in no event may the Plan be terminated and amounts in Pre-Tax
Contributions Account or Qualified Non-Elective Contributions Account
be distributed while the Company or Affiliated Company maintains
another defined contribution plan other than an ESOP or SEP.
However, distribution may be made in a lump sum to Participants in the
event of a sale or other disposition of substantially all of the assets
used in a trade or business but only with respect to Participants who
continue employment with the acquiring entity and provided such entity
does not maintain this Plan. Distribution may also be made in a lump
sum in the event of a sale or other disposition of a subsidiary to an
unrelated entity but only with respect to employees who continue
employment with the subsidiary and provided the acquiring entity does
not maintain the Plan after disposition. In both instances, such
distributions are contingent on the Plan continuing to be maintained by
the Company.
13.3 Continuance of Trust
If the Plan is amended by the Company to cease benefit accruals but the
Company determines that the Trust Fund shall be continued pursuant to
its terms and the provisions of this Section, no further contributions
shall be made by the Company, but the Trust Fund shall be administered
as though the Plan otherwise were in full force and effect. If the
Trust Fund subsequently is terminated, the provisions of Section 13.2
hereof shall then apply.
13.4 Discontinuance of Company Matching Contributions
In addition to the right to amend or terminate the Plan the Company may
at any time, by resolution of its Board of Directors, permanently and
completely discontinue Company Matching Contributions to the Plan.
13.5 Limitation on Merger - Transfer of Assets
No merger or consolidation with, or transfer of assets or liabilities
to, any other pension or retirement plan shall be made unless the
benefit each Participant in this Plan would receive if the Plan were
terminated immediately after such merger or consolidation, or transfer
of assets and liabilities, would be at least as great as the benefit he
would have received had the Plan terminated immediately before such
merger, consolidation or transfer.
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<PAGE> 44
SECTION 14
Loans
14.1 Administrator Discretion
Subject to such uniform and non-discriminatory rules as the
Administrator establishes in accordance with the Loan Policy as
attached hereto, the Administrator may direct the Trustee to lend money
from the Trust Fund to any Participant under the following
circumstances: (1) loans shall be made available to all Participants on
a reasonably equivalent basis; (2) loans shall not be made available to
Highly Compensated Employees in an amount greater than the amount made
available to other Participants; (3) loans shall bear a reasonable rate
of interest; (4) loans shall be adequately secured; and (5) shall
provide for repayment over a reasonable period of time. Such loans
shall also be subject to the additional terms and conditions which
follow.
14.2 Terms of Loan
In addition to the provisions of the Loan Policy as attached hereto,
loans made pursuant to this Section 14 shall be granted subject to the
following rules and restrictions:
(a) Interest on such loans shall be determined and redetermined
from time to time pursuant to such uniform and
non-discriminatory rules as the Administrator shall prescribe
pursuant to the attached Loan Policy.
(b) The note executed with respect to the loan shall be secured by
a security interest granted by the Participant of no more than
one-half of a Participant's vested account balance.
(c) The note executed with respect to the loan shall mature not
later than 5 years from the date of execution or upon earlier
termination of employment by reason of retirement, death,
disability or otherwise, except that loans used to purchase
the principal residence of a Participant may have a longer
repayment period of up to fifteen (15) years. During the
Participant's employment, the loan shall be repaid pursuant to
a level repayment schedule by means of payroll deduction.
Payments will commence approximately one full pay period after
the check for the loan proceeds has been provided to the
Participant.
If a Participant's pay period frequency changes, it will be
necessary to reamortize the loan based upon the Participant's
new pay period frequency. The original interest rate and loan
term will continue to remain in effect; however, the
Participant must execute a new promissory note. If a
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<PAGE> 45
Participant does not agree to reamortize his or her loan, the
loan will become due and payable at such time.
(d) The amount of the loan from this Plan, when added to the
outstanding balance of all other loans from all qualified
plans of any Affiliated Company, shall under no circumstances
exceed the lesser of:
(i) $50,000, reduced by the excess of the highest
outstanding balance of loans from such plans during
the 1-year period ending on the day before the date
the loan is made over the outstanding balance of
loans on the date the loan is made, or
(ii) one-half of the present value of such Participant's
nonforfeitable accrued benefit under all such
qualified plans of any Affiliated Company.
(e) The Participant's Account shall be reduced by the amount of
the loan, and such Account shall be increased to reflect loan
payments for purposes of revaluing such Account balance
pursuant to Section 6.
(f) Any amounts loaned pursuant to this Section 14 shall be taken
from the following Accounts in the following order:
(i) Vested Company Matching Contributions Account;
(ii) Pre-Tax Contributions Account;
(iii) Transfer Account;
(iv) Rollover Account;
(v) Voluntary Contributions Account; and
(vi) Qualified Non-Elective Contributions Account.
(g) Payments of principal and interest shall be invested in
accordance with the Participant's investment election pursuant
to Section 4, as such election is in effect at the time of
each such payment.
(h) The loan will be treated as in default if any of the following
occurs:
(i) Any scheduled payment remains unpaid for more than 90
days;
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<PAGE> 46
(ii) The making or furnishing of any representation or
statement to the Plan by or on behalf of the
Participant which proves to be false in any material
respect when made or furnished;
(iii) Loss, destruction, sale or encumbrance to or of any
of the collateral, or the making of any levy seizure
or attachment thereof or thereon;
(iv) Death, dissolution, insolvency, business failure,
appointment of receiver of any part of the property
of assignment for the benefit of creditors by, or the
commencement of any proceeding under any bankruptcy
or insolvency laws of, by or against the Participant;
and
(v) Termination of employment for any reason.
The Participant will have the opportunity to repay the loan.
The Participant may resume current status of the loan by
paying any missed payment plus interest or, if distribution is
available under the Plan, request distribution of the note.
If the loan remains in default, the Trustee has the option of
foreclosing on any other security it holds or, to the extent a
distribution to the Participant is permissible under the Plan,
offsetting the Participant's vested account balance by the
outstanding balance of the loan. The Trustee will treat the
note as repaid to the extent of any permissible offset.
Pending final disposition of the note, the Participant remains
obligated for any unpaid principal and accrued interest.
(i) Loan Policy. Any loans granted or renewed shall be made
pursuant to a Participant loan policy. Such loan policy shall
be established in writing and must include, but need not be
limited to, the following:
(i) the identity of the person or positions authorized to
administer the Participant loan policy;
(ii) a procedure for applying for loans;
(iii) the basis on which loans will be approved or denied;
(iv) limitations, if any, on the types and amounts of
loans offered;
(v) the procedure under the program for determining a
reasonable rate of interest;
(vi) the types of collateral which may secure a
Participant loan; and
(vii) the events constituting default and the steps that
will be taken to preserve Plan assets.
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<PAGE> 47
Such Participant loan policy shall be contained in a separate
written document which, when properly executed, is hereby
incorporated by reference and made a part of the Plan.
Furthermore, such Participant loan policy may be modified or
amended by the Company in writing from time to time without
the necessity of amending this Section.
SECTION 15
Construction of the Plan
15.1 Construction of the Plan
The validity of the Plan or of any of the provisions thereof shall be
determined under and shall be construed according to the laws of the
State of Connecticut.
15.2 Headings
Headings or titles to sections or paragraphs in this document are for
convenience of reference only and are not part of the Plan for any
other purposes.
SECTION 16
Top-Heavy Provisions
16.1 Special Top-Heavy Definitions
For purposes of this Section 16, the following terms shall have the
following meanings:
(a) "Determination Date" means, with respect to any Plan Year, the
last Valuation Date of the preceding Plan Year.
(b) "Key Employee" means a Participant or former Participant who
is a "key employee" as defined in Section 416(i) of the Code.
(c) "Permissive Aggregation Group" means, with respect to a given
Plan Year, this Plan and all other plans of the Company and
any Affiliated Company (other than those included in the
Required Aggregation Group) which, when aggregated with the
plans in the Required Aggregation Group, continue to meet the
requirement of Sections 401(a)(4) and 410 of the Code.
(d) "Present Value of Accounts" means, as of a given Determination
Date, the sum of the Participants' Accounts under the Plan as
of such Valuation Date. The determination
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<PAGE> 48
of the Present Value of Accounts shall take into consideration
distributions made to or on behalf of the Participant in the
Plan Year ending on the Determination Date and the four
preceding Plan Years, but shall not take into consideration
the Accounts of any Participant who has not performed service
for the Company during the five year period ending on the
Determination Date.
(e) "Required Aggregation Group" means with respect to a given
Plan Year, (i) this Plan, (ii) each other plan of the Company
and any Affiliated Company (including terminated plans) in
which a Key Employee is a participant, and (iii) each other
plan of the Company and Affiliated Company which enables a
plan described in (i) or (ii) to meet the requirements of
Sections 401(a)(4) or 410 of the Code.
(f) "Top-Heavy" means, with respect to the Plan for a Plan Year:
(i) that the Present Value of Accounts of Key Employees
exceeds 60% of the Present Value of Accounts of all
Participants, or
(ii) the Plan is part of a Required Aggregation Group and
such Required Aggregation Group is a Top-Heavy Group,
unless the Plan or such Top-Heavy Group is itself
part of a Permissive Aggregation Group which is not a
Top-Heavy Group.
(g) "Top-Heavy Group" means, with respect to a given Plan Year, a
group of Plans of the Company which, in the aggregate, meet
the requirements of the definition contained in Section
416(g)(2)(B) of the Code.
16.2 Special Top-Heavy Provisions
Notwithstanding any other provision of the Plan to the contrary, the
following provisions of this Section 16.2 shall automatically become
operative and shall supersede any conflicting provisions of the Plan
if, in any Plan Year, the Plan is Top-Heavy.
(a) The minimum Company contribution during the Plan Year on
behalf of a Participant who is not a Key Employee shall be
equal to the lesser of (i) 3% of such Participant's
Compensation (within the meaning of Section 416 of the Code);
or (ii) the percentage of Compensation as defined in Section
1.11 at which Company Contributions are made (or required to
be made) under the Plan on behalf of the Key Employee for whom
such percentage is the greatest. Such contribution shall be
made for each Participant who has not separated from service
at the end of the Plan Year regardless of whether such non-key
employee performed 1,000 Hours of Service, or earned a
specified level of compensation, or elected not to make
Pre-Tax Contributions during the Plan Year. If a Participant
who is not a Key Employee also participates in a defined
benefit plan sponsored by the Company, the Top-Heavy defined
benefit
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<PAGE> 49
minimum benefit will be provided to such Participant offset by
the benefit attributable to contributions under this Plan.
(b) For any Plan Year in which the Plan is Top-Heavy, Compensation
shall in no event exceed the limitation in effect for such
year in accordance with Section 401(a)(17) of the Code.
(c) For any Plan Year in which the Plan is Top-Heavy, a
Participant who is credited with Service in such year shall be
100% vested in his Company Matching Contributions Account
upon the completion of three Years of Vesting Service.
(d) In order to comply with the requirements of Section 416(h) of
the Code, in the case of a Participant who is or has also
participated in a defined benefit plan of the Company (or the
Affiliated Company that is required to be aggregated with the
Company in accordance with Section 415(h) of the Code) in any
Plan Year in which the Plan is Top-Heavy, there shall be
imposed under such defined benefit plan the following
limitation in addition to any limitation which may be imposed
as described in Section 3.6. In any such year, for purposes
of satisfying the aggregate limit on contributions and
benefits imposed by Section 415(e) of the Code, benefits
payable from the defined benefit plan shall, except as
hereinafter described, be reduced so as to comply with a limit
determined in accordance with Section 415(e) of the Code, but
with the number "1.0" substituted for the number "1.25" in the
"defined benefit plan fraction" (as defined in Section
415(e)(2) of the Code) and in the "defined contribution plan
fraction" (as defined in Section 415(e)(3) of the Code).
Notwithstanding the foregoing, if the application of the
additional limitation set forth in this paragraph (d) would
result in the reduction of accrued benefits of any Participant
under the defined benefit plan, such additional limitation
shall not become operative, so long as (i) no additional
employer contributions, forfeitures or voluntary nondeductible
contributions are allocated to such Participant's accounts
under any defined contribution plan maintained by the Company
including this Plan and (ii) no additional benefits accrue to
such Participant under any defined benefit plan maintained by
the Company.
Accordingly, in any Plan Year that the Plan is Top-Heavy, no
additional benefits shall accrue under the defined benefit
plan on behalf of any Participant whose overall benefits under
the defined benefit plan otherwise would be reduced in
accordance with the limitation described in this paragraph
(d).
(e) In the event that Congress should provide by statute, or the
Treasury Department should provide by regulation or ruling,
that the limitations provided in this Section 16 are no longer
necessary for the Plan to meet the requirements of Section 401
or other applicable law then in effect, such limitations shall
become void and shall no longer apply, without the necessity
of further amendment to the Plan.
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<PAGE> 50
IN WITNESS WHEREOF, the Company has executed this Plan, as of the 16th
day of May, 1996.
THE DEXTER CORPORATION
ATTEST: /s/ Bruce H. Beatt By: /s/ K. Grahame Walker
------------------------- ------------------------
Title: Chairman and Chief
Executive Officer
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<PAGE> 51
Appendix A
1 of 3
PARTICIPANTS OF THE DISTRIBUTOR PROGRAMS SEGMENT OF THE DIVISION FORMERLY KNOWN
AS THE DEXTER AUTOMOTIVE MATERIALS DIVISION
<TABLE>
<CAPTION>
SOC. SEC # NAME
---------- ----
<S> <C>
###-##-#### ALLEN, WINIFRED L.
###-##-#### ANDERSON, LISA M.
###-##-#### ASCANIO, PATRICIA K.
###-##-#### BAKUTIS, MATTHEW J.
###-##-#### BARTSCH, TERRI L.
###-##-#### BERARD, ROBERT M.
###-##-#### BIERMAN, JAMES A.
###-##-#### BURKE, KEVIN F.
###-##-#### CALL, CHARLES F.
###-##-#### CAMPBELL, TAMARA L.
###-##-#### CAREY, CHARLES W.
###-##-#### CAWLEY, PATRICK F.
###-##-#### CHODOR, MARY E.
###-##-#### CRONIN, JOHN
###-##-#### DEAN, WILLIAM LYMAN
###-##-#### DEBOISBRIAND, TIMOTHY
###-##-#### DECOSTA, KENNETH
###-##-#### DEGRECHIE, JEFFREY J.
###-##-#### DEMARS, JIMMY A.
###-##-#### DOUCETTE, FRANCES M.
###-##-#### DOWEIDT, LARRY
###-##-#### DRONSFIELD, ROBERT G.
###-##-#### DURGIN, DONALD FREDRICK
###-##-#### ELCEWICZ, MARJORIE L.
###-##-#### ELLIS, ROBERT L.
###-##-#### ERICKSON II, DAVID J.
###-##-#### FENSTERMAKER, CHARLES A.
###-##-#### FENSTERMAKER, PAMELA JEAN
###-##-#### FERRIS, PETER V.
###-##-#### FOLLANSBEE, CATHY L.
###-##-#### FOLLANSBEE, DAVID B.
###-##-#### FORKER, JOEL
###-##-#### FROST, DOUGLAS E.
###-##-#### FURBUSH, LINDA M.
###-##-#### GADE, HENRIK B.
###-##-#### GIRARD, JO E.
###-##-#### GOODWIN, ALAN ALBERT
###-##-#### HALL, KAREN L.
###-##-#### HARRIS, JOHN K.
###-##-#### HERRINGTON, ROLAND L.
###-##-#### HERZOG, DANIEL J.
</TABLE>
<PAGE> 52
SOC SEC # NAME
--------- ----
###-##-#### HILLMAN, STEPHEN J.
###-##-#### HOUBEN, LARRY E.
###-##-#### HOUBEN, LORI A.
###-##-#### HOUSTON, ROGER E.
###-##-#### KARAKANTAS, GEORGE
###-##-#### KNOWLES, AMY E.
###-##-#### LACOUNT, CHERYL M.
###-##-#### LOTTER, LISA A.
###-##-#### LOWERLL, BARBARA A.
###-##-#### MARTIN, DAVID L.
###-##-#### MCALLEN, TIMOTHY J.
###-##-#### MCLENNAN, DONALD R.
###-##-#### MENARD, BRENT PHILLIP
###-##-#### MENSCH, DAVID M.
###-##-#### MILLER, EARL E.
###-##-#### MOORE, JON S.
###-##-#### MOORE, MARK E.
###-##-#### MORGANBELLI, PAUL L.
###-##-#### NOBLE, DEREK
###-##-#### NOVELL, HERBERT G.
###-##-#### ORSULA, LYNDA J.
###-##-#### PALAZZO, DORENE L.
###-##-#### PAYNE, JEFFREY S.
###-##-#### PAYNE, PAUL A.
###-##-#### PEPIN,NORMAND T.
###-##-#### PETERSON, DAVID A.
###-##-#### PHIPPS, JOHN W.
###-##-#### PICKERING, ALAN
###-##-#### PICKERING, JACKIE
###-##-#### POWERS, CHARLES RUSS
###-##-#### PRITCHARD, ALICIA A.
###-##-#### PUDA, HARRY R.
###-##-#### RICHARDSON, MARILYN A.
###-##-#### RIGBY, MICHAEL
###-##-#### ROGERS, MONICA M.
###-##-#### ROULO, GAIL A.
###-##-#### RUSSELL, DAVID B.
###-##-#### SAMUELSON, STEPHEN R.
###-##-#### SCHINTZIUS, BRADLEY
###-##-#### SHAW, STEVEN R.
###-##-#### SOUTHER, FRANK R.
<PAGE> 53
SOC SEC # NAME
=========== =====================
###-##-#### TAYLOR, KIMBERLY F.
###-##-#### TAYLOR, MARANDA F.
###-##-#### WADE, JOSEPH G.
###-##-#### WARCEWICZ, LORI J.
###-##-#### WELSH, L. RENEE
###-##-#### WHEELER, ELSIE M.
###-##-#### WHITE, ANNE M.
###-##-#### WIDELL, WILLIAM D.
###-##-#### WOODBURY, DELORES L.
###-##-#### WOODBURY, RANDALL G.
TOTAL 92
<PAGE> 54
THE DEXTER 401(K) SAVINGS PLAN
PARTICIPANT LOAN POLICY
The Plan permits loans to be made to Participants. However, before any
loan is made, the Plan requires that a written loan policy be established which
sets forth the rules and guidelines for making Participant loans. This document
shall serve as the required written loan policy. In addition, the Administrator
may use this document to serve as, or supplement, any required notice of the
loan policy to Participants. All references to Participants in this loan policy
shall include (i) Participants and (ii) Beneficiaries and Former Participants
who are "parties in interest" as defined by the Employee Retirement Income
Security Act of 1974 ("ERISA") Section 3(14).
1. The Administrator of the Plan is authorized to administer the
Participant loan policy. All applications for loans shall be made by a
Participant in accordance with rules determined by the Administrator.
2. All loan applications shall be considered by the Administrator
within a reasonable time after the Participant makes formal application. The
Participant shall also be required to provide such supporting information deemed
necessary by the Administrator. This may include a financial statement, tax
returns and such other financial information as the Administrator may consider
necessary and appropriate to determine whether a loan should be granted.
Furthermore, the Participant may be requested to authorize the Administrator to
obtain a credit report on the Participant.
3. The Administrator shall determine whether a Participant qualifies
for a loan, applying such criteria as a commercial lender of funds would apply
in like circumstances with respect to the Participant. Such criteria shall
include, but need not be limited to, the creditworthiness of the Participant and
his or her general ability to repay the loan, the period of time such
Participant has been employed by the Employer, whether adequate security has
been provided for the loan, and whether the Participant agrees, as a condition
for receiving the loan, to make repayments through direct, after-tax payroll
deduction.
4. With regard to any loan made pursuant to this policy, the following
rules and limitations shall apply, in addition to such other requirements set
forth in the Plan:
(i) All loans made pursuant to this policy shall be considered
a directed investment from the account(s) of the Participant maintained
under the Plan. As such, all payments of principal and interest made by
the Participant shall be credited only to the account(s) of such
Participant.
<PAGE> 55
-2-
(ii) A Participant may have no more than one (1) loan
outstanding from the Plan at any time.
(iii) Prepayment of all or a portion of the principal
amount of the loan may be made at any time.
(iv) An origination fee will be deducted from the face
amount of any loan granted to a Participant.
5. Any loan granted or renewed under this policy shall bear a
reasonable rate of interest. In determining such rate of interest, the Plan
shall require a rate of return commensurate with the prevailing interest rate
charged on similar commercial loans under like circumstances by persons in the
business of lending money. Such prevailing interest rate standard shall permit
the Administrator to consider factors pertaining to the opportunity for gain and
risk of loss that a professional lender would consider on a similar arms'-length
transaction, such as the creditworthiness of the Participant and the security
given for the loan. Therefore, in establishing the rate of interest, the
Administrator shall conduct a reasonable and prudent inquiry with professional
lenders in the same geographic locale where the Participant and Employer reside
to determine such prevailing interest rate for loans under like circumstances.
The current interest rate is equal to the prime rate published in the Wall
Street Journal on the last business day of the month preceding the month in
which the loan is requested, plus one percent (1%).
6. The Plan shall require that adequate security be provided by the
Participant before a loan is granted. For this purpose, the Plan shall consider
a Participant's interest under the Plan to be adequate security. However, in no
event shall more than 50% of a Participant's vested interest in the Plan
(determined immediately after origination of the loan) be used as security for
the loan. Generally, it shall be the policy of the Plan not to make loans which
require security other than the Participant's vested interest in the Plan.
However, if additional security is necessary to adequately secure the loan, then
the Administrator shall require that such security be provided before the loan
will be granted. For this purpose, the Participant's principal residence may
serve as additional security.
7. Generally, a default shall occur upon the failure of a Participant
to timely remit payments under the loan within ninety (90) days of when due. In
such event, the Trustee shall take such reasonable actions which a prudent
fiduciary in like circumstances would take to protect and preserve Plan assets,
including foreclosing on any collateral and commencing such other legal action
for collection which the Trustee deems necessary and advisable. However, the
Trustee shall not be required to commence such actions immediately upon a
default. Instead, the Trustee may grant the Participant reasonable rights to
cure any default, provided such actions would constitute a prudent and
reasonable course of conduct for a professional lender in like
circumstances. In
<PAGE> 56
-3-
addition, if no risk of loss of principal or income would result to the Plan,
the Trustee may choose, in its discretion, to defer enforcement proceedings. If
the qualified status of the Plan is not jeopardized, the Trustee and the
Administrator may treat a loan that has been defaulted upon, and such default
not cured within a reasonable period of time, as a deemed distribution from the
Plan.
8. Upon satisfaction of the criteria established for granting a loan,
the Administrator shall inform the Trustee that the Participant has qualified to
receive a loan under the Plan's policy. The Trustee shall review the
determination made by the Administrator (including the prevailing interest rate
which has been set for the loan) and, if it determines that such loan would be a
prudent investment for the Plan, applying such fiduciary standards required by
ERISA, the Trustee may grant the loan request. In making such determination, the
Trustee may consider the liquidity of the Plan assets available for loans. The
Trustee shall then require that the Participant execute all documents necessary
to establish the loan, including a promissory note and such other documents
which will provide the Plan with adequate security.
9. This loan policy may be amended from time to time.
Adopted this day of , 19 .
-------- -------------- --
THE DEXTER CORPORATION
By:
-----------------------
Title:
<PAGE> 1
Exhibit 4.1(b)
THE DEXTER ESPRIT
PLAN
Amended and Restated
as of July 1, 1996
Exh. 4.1(b)
<PAGE> 2
TABLE OF CONTENTS
PAGE
----
FOREWORD................................................................ ii
SECTION 1 Definitions............................................... 1
SECTION 2 Eligibility and Participation............................. 10
SECTION 3 Contributions............................................. 12
SECTION 4 Investment of Contributions............................... 25
SECTION 5 Vesting................................................... 27
SECTION 6 Accounts; Valuation and Allocation........................ 28
SECTION 7 Withdrawals During Employment............................. 30
SECTION 8 Distributions on Termination of Employment................ 34
SECTION 9 Payment of Benefits....................................... 36
SECTION 10 Administration of the Plan................................ 40
SECTION 11 Management of the Trust Fund.............................. 43
SECTION 12 Adoption and Amendment of the Plan........................ 45
SECTION 13 Discontinuance of the Plan................................ 46
SECTION 14 Participation in the Plan by Subsidiaries or Affiliates... 48
SECTION 15 Construction of the Plan.................................. 49
SECTION 16 Top-Heavy Provisions...................................... 49
SECTION 17 Loans..................................................... 52
i
<PAGE> 3
FOREWORD
Effective as of May 1, 1952, the C. H. Dexter Division (now Dexter Nonwovens
Division) of The Dexter Corporation adopted The Dexter ESPRIT Plan (the "Plan")
for the benefit of its eligible employees. The Plan has been amended and
restated effective as of July 1, 1996.
The terms and provisions of the Plan, as hereinafter set forth and as it
hereinafter may be amended from time to time, establish the rights and
obligations with respect to Participants (as hereinafter defined) employed on
and after July 1, 1996. The Plan and its related Trust (as hereinafter defined)
are intended to comply with the applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, and Sections 401(a), 401(k) and 501(a)
of the Internal Revenue Code of 1986, as amended.
ii
<PAGE> 4
SECTION 1
DEFINITIONS
As used herein, the following terms shall have the following respective
meanings, unless a different meaning is required by the context:
1.1 "Account" or "Accounts" means the separate accounts maintained for each
Participant to which contributions shall be credited and from which
distributions shall be made. A Participant's Account may be divided into
a Participant's Pre-Tax Contributions Account, Company Contributions
Account, Qualified Non-Elective Contributions Account, Rollover
Contributions Account, Transfer Contributions Account and/or Voluntary
After-Tax Contributions Account, as the context requires.
1.2 "Administrator" means the committee appointed by the Company to manage
and administer the Plan as provided in Section 10.2.
1.3 "Affiliated Company" means the Company and any other company which is
related to the Company as a member of a controlled group of corporations
in accordance with Code Section 414(b), as a member of an affiliated
service group in accordance with Code Section 414(m), or as a trade or
business under common control in accordance with Code Section 414(c), and
any other entity required to be aggregated with the Company pursuant to
Code Section 414(o) and the regulations thereunder.
For the purposes of determining whether a person is an Employee and the
period of employment of such person, each such other company shall be
included as an Affiliated Company only for such period or periods during
which such other company is related to the Company as described above.
The term Affiliated Company shall also include any other company which
the Administrator deems to be an Affiliated Company, as listed in
Appendix C.
1.4 "Beneficiary" means the beneficiary or beneficiaries designated pursuant
to Section 9.4.
1.5 "Board of Directors" means the Board of Directors of the Company.
1.6 "Code" means the Internal Revenue Code of 1986, as amended from time to
time. Reference to a specific provision of the Code shall include such
provision, any valid regulation or ruling promulgated thereunder and any
comparable provision of future law that amends, supplements or supersedes
such provision.
1.7 "Company" means The Dexter Corporation and any successor to such
corporation by merger, purchase, reorganization or otherwise. If a
subsidiary or affiliate of the Company
1
<PAGE> 5
adopts the Plan pursuant to Section 14.1, it shall be deemed the Company
with respect to its employees.
1.8 "Company Contributions" means those contributions to the Plan made by the
Company on behalf of a Participant in accordance with the provisions of
Section 3.4(a) and allocated to the Company Contributions Account. The
Company may designate a portion of the Company Contributions as a
Qualified Non-Elective Contribution in accordance with the provisions of
Section 3.4(b).
1.9 "Company Contributions Account" means the separate Account for each
Participant which shall reflect his or her share of the Trust Fund
attributable to Company Contributions made on his or her behalf and any
earnings thereon.
1.10 "Compensation" means a Participant's annual base pay
(including Code Sections 401(k)and 125 salary reductions), cash
bonuses, profit-sharing payments, executive incentive payments,
overtime payments, payments in lieu of vacation, sales incentive
payments, and payments of previously deferred compensation.
Compensation shall not include income computed by reason of use of
Company owned or furnished property, moving expenses and
reimbursements, imputed income from life insurance in excess of
$50,000, overseas cost of living adjustments, income from the
exercise of stock options, income from the expiration of
restrictions on restricted stock and any amounts deferred by the
employee during the Plan Year under arrangements other than Code
Sections 401(k) and 125 arrangements.
The annual Compensation of each Participant taken into account under the
Plan Year shall not exceed $200,000 as set forth in Code Section
401(a)(17) (as adjusted for cost of living increases as determined under
Code Section 401(a)(17)(B)). The limitation under Code section 401(a)(17)
also applies to the combined Compensation of a Participant who is a 5%
owner or one of the ten (10) highest paid Employees of the Company as
defined in Code Section 414(q)(6), and any other Participant who is such
Participant's spouse or lineal descendant under the age of 19.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary from Plan
Years beginning on or after January 1, 1994, the annual Compensation of
each Participant taken into account under the Plan shall not exceed the
OBRA '93 annual compensation limit. The OBRA '93 annual compensation
limit is $150,000 as adjusted by the Commissioner for increases in the
cost of living in accordance with Code Section 401(a)(17)(B). The
cost-of-living adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which Compensation is determined
("determination period") beginning in such calendar year. If a
determination period consists of fewer than 12 months, the OBRA '93
annual compensation limit will be multiplied by a
2
<PAGE> 6
fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under section 401(a)(17) of the Code shall
mean the OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into account
in determining a Participant's benefits accruing in the current Plan
Year, the Compensation for that prior determination period is subject to
the OBRA '93 annual compensation limit in effect for that prior
determination period. For this purpose, for determination periods
beginning before the first day of the first Plan Year beginning on or
after January 1, 1994, the OBRA '93 annual compensation limit is
$150,000.
1.11 "Effective Date" means May 1, 1952. The effective date of this
restatement is July 1, 1996.
1.12 "Eligible Employee" means an Employee who is either employed by the
Dexter Nonwovens Division or is not employed by any other division of
the Company or by another Affiliated Company and whose Compensation is
paid by the Company's corporate office, other than:
(a) An Employee who is represented by any collective bargaining
agent, or included in any collective bargaining unit,
recognized by the Company unless and until such Company and
the collective bargaining agent agree that the Plan shall
apply to such unit (provided that employee benefits have been
the subject of good faith bargaining);
(b) A leased employee as defined in Code Section 414(n)(2); or
(c) An Employee who is a non-resident alien who does not receive
Compensation from any Affiliated Company which constitutes
income from sources within the United States.
1.13 "Employee" means a person employed as an employee by the Company or any
employee of the Affiliated Company.
The term "Employee" shall include "leased employees" within the meaning
of Code Section 414(n)(2) and, for purposes of determining the number
or identity of Highly Compensated Employees or for purposes of the
pension requirements of Code Section 414(n)(3), the employees of the
Company shall include the individuals defined as Employees in this
Section. Notwithstanding the previous sentence, if such leased
employees constitute less than 20 percent of the non-highly compensated
workforce (within the meaning of Code Section 414(n)(5)(C)(ii)) of the
Affiliated Company, the term
3
<PAGE> 7
"Employee" shall not include those leased employees covered by a plan
described in Code Section 414(n)(5).
1.14 "Entry Date" means the first day of each calendar month.
1.15 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to a specific provision of ERISA
shall include such provision, any valid regulation or ruling
promulgated thereunder and any comparable provision of future law that
amends, supplements or supersedes such provision.
1.16 "Highly Compensated Employee" means an Employee who performs service
during the determination year (the Plan Year for which such
determination is being made) or during the 12-month period immediately
preceding the determination year (the look-back year) and is described
in one or more of the following groups:
(a) An Employee who is a 5% owner, as defined in Code Section
414(q)(3).
(b) An Employee who receives compensation in excess of $75,000
(indexed in accordance with Code Section 415(d)).
(c) An Employee who receives compensation in excess of $50,000
(indexed in accordance with Code Section 415(d)) and is a
member of the "top-paid group."
For purposes of (c), the "top-paid group" means the highest
paid 20% of Employees, excluding Employees described in Code
Section 414(q)(8) and Q&A9(b) of 1.414(q)-1T, ranked on the
basis of compensation received during the relevant
computation period.
(d) An Employee who is an officer, within the meaning of Code
Section 416(i), and who receives compensation greater than
50% of the dollar limitation in effect under Code Section
415(b)(1)(A).
For purposes of this (d), the number of officers is limited
to 50 (or, if lesser, the greater of 3 Employees or 10% of
the Employees without regard to any exclusions). If no
officer has compensation in excess of 50% of the limit under
Code Section 415(b)(1)(A), the highest paid officer is
treated as a Highly Compensated Employee.
For purposes of this Section 1.16, compensation means compensation as
defined in Code Section 415(c)(3), plus elective or salary reduction
contributions to a cafeteria plan, cash or deferred arrangement or
tax-sheltered annuity.
4
<PAGE> 8
For purposes of this Section 1.16, the term Employee means any
Employee of the Company or Affiliated Company which is aggregated with
the Company under the provisions of Code Section 414(b), (m), or (o).
If the Employee meets the definition in clause (b),(c), or (d) above
in the Plan Year but not the look-back year, the Employee is a Highly
Compensated employee only if he or she is one of the highest paid 100
Employees for the Plan year. An Employee who meets the definition of
clause (a) in either the Plan Year or look-back year is a Highly
Compensated Employee for the Plan Year.
Any spouse, lineal descendant or ascendant or spouse of a lineal
descendant or descendant of a Highly Compensated Employee who is a 5%
owner or one of the ten Highly Compensated Employees with the greatest
compensation for the Plan Year shall be combined with such Highly
Compensated Employee and treated as a single Highly Compensated
Employee for any nondiscrimination testing.
The term Highly Compensated Employee also includes a former Employee
who separated employment prior to the Plan Year, performs no service
during the Plan Year and was Highly Compensated Employee for the Plan
Year in which he or she separates or any Plan Year which ends after he
or she attains his or her 55th birthday.
1.17 "Hours of Service" means:
(a) Each hour for which an Employee is directly or indirectly
paid, or entitled to payment, for the performance of duties
as an employee by an Affiliated Company.
(b) Each hour for which an Employee is directly or indirectly
paid or entitled to payment by an Affiliated Company for
reasons (such as vacation, sickness or disability) other
than for the performance of duties, but counting as Hours of
Service no more than 501 of such hours during any single
continuous period during which no duties are performed.
(c) Each hour for which back pay, irrespective of mitigation of
damages, has been awarded or agreed to by an Affiliated
Company.
In the event that an Employee is compensated on other than an hourly
basis the Employee shall be deemed to have completed 45 Hours of
Service for each full week of employment for which such Employee would
be credited with at least one (1) Hour of Service. A Participant shall
be deemed to have completed 40 Hours of Service for each full week of
leave of absence approved by the Affiliated Company for military
service or other purposes.
5
<PAGE> 9
Hours of Service shall also be credited for any individual considered
an Employee for purposes of this Plan under Code Section 414(n) and
the regulations thereunder.
The same hours of service shall not be credited both under paragraph
(a) or (b) as the case may be, and paragraph (c), and each hour
credited to an Employee under paragraphs (a), (b), or (c) above shall
be so credited in accordance with Section 2530.200b-2(b) and (c) of
the U.S. Department of Labor's Regulations, which hereby are
incorporated by reference.
Solely for purposes of determining whether an Employee has incurred a
One-Year Break in Service, an Employee who is absent from work for
maternity or paternity reasons (as defined herein) shall receive
credit for the Hours of Service which otherwise would have been
credited to such Employee but for such absence, or in any case in
which such hours cannot be determined, eight Hours of Service for each
day of such absence. For purposes of this Section, an absence from
work for maternity or paternity reasons means an absence:
(a) By reason of the pregnancy of the Employee;
(b) By reason of the birth of the child of the Employee;
(c) By reason of the placement of a child with the Employee in
connection with the adoption of such child by the Employee;
or
(d) For purposes of caring for such child for a period beginning
immediately following such birth or placement.
The total number of hours treated as Hours of Service under this
Section by reason of any one such pregnancy or placement shall not
exceed 501 Hours. Hours of Service under this Section shall be
credited in the first Plan Year in which such crediting is necessary
to prevent a One-Year Break in Service.
1.18 "Leave" means any period during which a Participant is absent for one
or more of the following reasons:
(a) Military Service. Because of service in the Uniformed
Services as required under applicable State or Federal Law,
or in the Merchant Marine of the United States during a
national emergency or pursuant to any law of the United
States making such service compulsory, including a period of
ninety (90) days following his or her eligibility for
discharge or separation therefrom.
(b) Layoff Due to Lack of Work. Because of involuntary
separation due to lack of work to the extent that such
involuntary separation does not exceed one (1) year.
6
<PAGE> 10
(c) Employment by an Affiliated Company. Because of full-time
employment by an Affiliated Company other than as an
Eligible Employee.
(d) Leave of Absence. Pursuant to a leave of absence granted by
the Affiliated Company (for reasons of sickness, disability
or otherwise) under rules uniformly applicable to all
persons similarly situated, to the extent that such leave of
absence does not exceed two (2) years.
(e) Less than 1,000 Hours, But No Break in Service. Because a
Participant has less than 1,000 Hours of Service during any
Plan Year but does not incur a One-Year Break in Service.
A person who is on Leave shall not participate in the allocation of
the contributions and forfeitures provided in Section 3.6 hereof,
except to the extent of his or her Compensation during any Plan Year
during part of which he or she is a Participant not on Leave. A person
who is on Leave shall not incur a One-Year Break in Service.
1.19 "Non-Highly Compensated Employee" means any Employee who is not a
Highly Compensated Employee.
1.20 "One-Year Break in Service" means a Plan Year in which an Employee has
not been credited with more than 500 Hours of Service for vesting. A
break in service for eligibility purposes means an annual period
beginning on the date an Employee first performs an Hour of Service,
or any anniversary thereof, during which an Employee has not been
credited with more than 500 Hours of Service.
1.21 "Participant" means an Eligible Employee who is included in the Plan
as provided in Section 2 hereof or a former Eligible Employee whose
Accounts have not been fully distributed.
1.22 "Permanent Disability" means a physical or mental disability which a
physician, acceptable to the Company, has certified to the Company:
(i) prevents the person so disabled from performing his or her duties
as an Employee; and (ii) is likely to be permanent.
1.23 "Plan" means The Dexter ESPRIT Plan as herein set forth, or as it may
be amended from time to time.
1.24 "Plan Year" means the calendar year.
7
<PAGE> 11
1.25 "Pre-Tax Contributions" means those contributions to the Plan made by
the Company on a Participant's behalf pursuant to an election by the
Participant to reduce his or her otherwise payable Compensation, in
accordance with the provisions of Section 3.1.
1.26 "Pre-Tax Contributions Account" means the separate Account for each
Participant which shall reflect his or her share of the Trust Fund
attributable to Pre-Tax (ESPRIT-Plus) Contributions made on his or her
behalf, and any earnings thereon.
1.27 "Qualified Non-Elective Contributions" means contributions made by the
Company and allocated to a Participant's Qualified Non-Elective
Contributions Account that the Participant cannot elect to receive in
cash until distributed from the Plan; that are nonforfeitable when
made; that are subject to the withdrawal restrictions in Section 7;
and are subject to the other requirements set forth in Section
1.401(k)-1(b)(5) of the Regulations.
1.28 "Qualified Non-Elective Contributions Account" means the separate
Account for each Participant which shall reflect his or her share of
the Trust Fund attributable to Qualified Non-Elective Contributions.
1.29 "Rollover Contributions" means those contributions made by the
Participant pursuant to Section 3.11.
1.30 "Rollover Contributions Account" means the Account to which the
Trustee shall allocate Rollover Contributions, and any earnings
thereon.
1.31 "Social Security Wage Base" means the contribution and benefit base
with respect to a particular year as determined under Section 230 of
the Social Security Act, or the corresponding provision of any future
law.
1.32 "Spousal Consent" means written consent by the Participant's Spouse to
an election, designation of Beneficiary, or similar action by the
Participant, which consent acknowledges the effect of such election,
designation or action and is witnessed by a notary public or a Plan
representative; or "deemed consent" in which the Administrator or its
delegate is satisfied that such consent cannot be obtained because
there is no Spouse, because the Spouse cannot be located, or because
of other circumstances which may be provided by applicable law.
Any consent or deemed consent with respect to a Spouse which satisfies
these requirements shall be effective only with respect to such Spouse
and may not be revoked by such Spouse with respect to the election,
designation or other action to which such consent pertains.
8
<PAGE> 12
1.33 "Spouse" or "Surviving Spouse" means the spouse or surviving spouse of
a Participant. To the extent provided under a qualified domestic
relations order as defined in Section 414(p) of the Code, the term
shall include a former spouse.
1.34 "Transfer" means those transfers made directly from one plan of the
Company to this Plan as provided in Section 6.5.
1.35 "Transfer Account" means the Account to which the Trustee shall
allocate transferred amounts, and any earnings thereon.
1.36 "Trust Agreement" means the agreement entered into between the Company
and the Trustee, as described in Section 11, as the same may be
amended from time to time.
1.37 "Trust Fund" means all the assets at any time held under the Plan by
the Trustee as provided for in Section 11.
1.38 "Trustee" means the trustee or trustees selected by the Investment
Committee which may at any time be acting as Trustee under the Trust
Agreement entered into in connection with the Plan.
1.39 "Valuation Date" means the last day of each calendar month, and/or
such other date(s) as may be prescribed by the Administrator.
1.40 "Voluntary After-Tax Contributions" means those contributions to the
Plan which the Participant elects to make through payroll deduction or
by Participant's check, in accordance with the terms of Section 3.3.
1.41 "Voluntary After-Tax Contributions Account" means the separate account
for each Participant which shall reflect his or her share of the Trust
Fund attributable to Employee Voluntary After-Tax Contributions made
on his or her behalf, and any earnings thereon.
1.42 "Year of Eligibility Service" means an annual period beginning on the
date an Employee first performs an Hour of Service, or any anniversary
thereof, during which an Employee has 1,000 or more Hours of Service.
When an Employee shall have a One-Year Break in Service, any
subsequent Year of Eligibility Service shall be computed from the
first date on which he or she performed an Hour of Service following
the last such annual period in which a One-Year Break in Service
occurred, or any anniversary thereof. Years of Eligibility Service
shall include all years of continuous service as defined in this Plan
as amended to December 31, 1975.
1.43 "Year of Vesting Service" means a Plan Year during which an Employee
has 1,000 or more Hours of Service with an Affiliated Company.
9
<PAGE> 13
SECTION 2
ELIGIBILITY AND PARTICIPATION
2.1 ELIGIBILITY FOR PARTICIPATION
Each Eligible Employee who was a Participant prior to the Effective
Date of this restated Plan and who continues to be employed by the
Company on the Effective Date of this restated Plan shall continue as
a Participant in the Plan.
Each other Eligible Employee shall become a Participant on the Entry
Date coinciding with or next following the date on which he or she
has:
(a) Completed one (1) Year of Eligibility Service, and
(b) Attained age 21.
Unless otherwise specifically provided in an Appendix to this Plan, a
Year of Eligibility Service shall be credited for employment with a
predecessor employer prior to its acquisition by the Company.
2.2 ELIGIBILITY TO MAKE PRE-TAX CONTRIBUTIONS
In order to have Pre-Tax Contributions made on his or her behalf under
the Plan, a Participant (or prospective Participant) must enroll in
the Plan, in accordance with rules determined by the Administrator.
2.3 EFFECT OF ENROLLMENT
The Participant, by enrolling in the Plan:
(a) Shall agree to the terms of the Plan;
(b) May elect to have the cash compensation otherwise payable to
him or her by the Company reduced by the amount of the
Pre-Tax Contributions designated to be made on his or her
behalf to the Plan;
(c) Shall direct how contributions made on his or her behalf
shall be invested pursuant to Section 4.3;
(d) Pursuant to Section 9.4, shall designate a Beneficiary or
Beneficiaries to receive any benefits payable under the Plan
subsequent to his or her death. Any such election and/or
authorization shall be deemed to be a continuing
authorization as
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<PAGE> 14
to current and succeeding years until changed in accordance
with rules determined by the Administrator; and
(e) Shall furnish the Company with proof of his or her age
satisfactory to the Company.
2.4 SUSPENSION OF PARTICIPATION
(a) If a Participant who ceases to be an Eligible Employee of
the Company continues in the employ of an Affiliated
Company, his or her participation in the Plan shall be
suspended until the resumption of his or her status as an
Eligible Employee of the Company but shall not be terminated
as long as he or she remains in the employ of an Affiliated
Company. However, such a Participant shall be eligible to
share in any allocation of Company Contributions and
forfeitures based upon his or her Pre-Tax Contributions and
Compensation up until the time such participation is
suspended.
(b) During the period of such suspension, the period of the
Participant's employment referred to in (a) above shall be
included in his or her employment with the Affiliated
Company for purposes of vesting as set forth in Section 5.
The Participant shall not be entitled to share in any
allocation of Company Contributions or forfeitures and shall
not be permitted to have Pre-Tax Contributions made on his
or her behalf. If during the period of such suspension the
Participant's employment with the Affiliated Company
terminates, there shall be a distribution of such
Participant's Account in accordance with the provisions of
Sections 8 and 9.
2.5 REEMPLOYMENT
If an Eligible Employee who has satisfied the eligibility conditions
of Section 2.1 but terminates employment prior to becoming a
Participant, he or she shall become a Participant in the Plan on the
date of his or her reemployment as an Eligible Employee. Any other
Eligible Employee, whose employment terminates and is subsequently
reemployed, shall become a Participant in accordance with the
provisions of Sections 2.1 and 2.2.
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SECTION 3
CONTRIBUTIONS
3.1 PRE-TAX CONTRIBUTIONS
Subject to any limitations prescribed herein and in Section 3.7, a
Participant, other than a Participant on Leave, may elect to have the
cash Compensation otherwise payable to the Participant by the Company
after the effective date of such Participant's election reduced (in
whole dollars). The Company, in lieu of paying the full amount of
otherwise payable cash Compensation during any month, shall deposit
with the Trustee as soon as practicable an amount equal to such
reduction for credit to such Participant's Pre-Tax Contributions
Account. Such deferrals shall be allocated to the Participant's
Pre-Tax Contribution Account. Such reduction will be referred to as
the Participant's Pre-Tax Contributions (sometimes referred to as the
ESPRIT-Plus Contributions).
Such election shall be made in accordance with rules determined by the
Administrator pursuant to which the Participant's Compensation shall
be reduced by the amount of Pre-Tax Contributions.
A minimum of one percent (1%) (or such other percentage or dollar
amount as may be prescribed by the Administrator) of a Participant's
Compensation paid during each month of the Plan Year in which the
contribution is deducted, and as agreed upon between the Participant
and the Company subject to the limitations in this Section 3, is
required for Pre-Tax Contributions deposit amounts.
The Pre-Tax Contributions amount for a calendar year for a Participant
shall not exceed the amount permitted under Code Section 402(g),
$9,500 (or such higher dollar limit as shall be in effect for such
year in accordance with the adjustment factor prescribed under Code
Section 415(d)).
3.2 ELECTION TO SUSPEND OR CHANGE THE RATE OF PRE-TAX CONTRIBUTIONS
No more than once a month a Participant may amend the amount of his or
her pre-tax deferral. Such amendment shall be made in accordance with
rules determined by the Administrator. Contributions pursuant to
Section 3.1 may be resumed in accordance with rules determined by the
Administrator.
3.3 PARTICIPANT VOLUNTARY AFTER-TAX CONTRIBUTIONS
(a) Amount of Contribution. A Participant, other than a
Participant who is on Leave, may, at his or her option, make
an election in accordance with rules determined by the
Administrator to contribute Voluntary After-Tax
Contributions
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<PAGE> 16
at a uniform rate from one percent (1%) to a maximum of ten
percent (10%) of his or her Compensation each month of the
Plan Year in which the contribution is deducted.
(b) Payroll Deduction. The Company may provide that such
contributions may be made periodically through payroll
deductions at a uniform rate. A Participant (or a
prospective Participant) may authorize the commencement,
change or suspension of the amount of such payroll
deductions in accordance with rules determined by the
Administrator.
Any amount deducted from salary or wages during any month
shall be paid over by the Company to the Trustee as soon as
practicable.
3.4 COMPANY PAID CONTRIBUTIONS
(a) Company Contributions. The Company shall, as promptly as
practicable after the close of the Plan Year, but in no
event later than the time prescribed by law (including
extensions thereof) for filing its Federal corporate income
tax return for such Plan Year, pay over to the Trustee as
the Company Contribution on account of such Plan Year an
amount, to the extent that such amount is deductible in
computing the Company's taxable income on such return, equal
to ten percent (10%) of the aggregate Compensation of all
Participants for such Plan Year (to the extent permitted by
the Company's current or accumulated profits).
The Board of Directors may, during such Plan Year, vote to
increase the Company Contribution in any amount up to the
amount permitted by the percentage of compensation
limitations of Code Section 404 (a) or the corresponding
provisions of any future Internal Revenue law. The Board of
Directors may also, during such Plan Year, vote to
decrease the Company Contribution in any amount; provided
that the Company Contribution shall not be less than seven
percent (7%) of the aggregate Compensation of all
Participants for such Plan Year.
(b) Qualified Non-Elective Contributions. In any year, the
Company may designate a portion of the Company Contribution
as a Qualified Non-Elective Contribution. Upon such
election, such amount shall be added to the Qualified
Non-Elective Contributions Account of each Participant who
is a Non-Highly Compensated Employee, on a per capita basis.
A Qualified Non-Elective Contribution may be treated as a
Pre-Tax Contribution provided that such Contribution is
fully vested when made and subject to the same distribution
restrictions that apply to Pre-Tax Contributions without
regard to whether such Contribution is actually taken into
account as a Pre-Tax Contribution and shall also be subject
to conditions set forth in Section 1.401(k)-1(b)(5) of the
Income Tax Regulations.
Notwithstanding the foregoing, any Participant who was such
on or before July 1, 1987, shall have the right to choose
that such amount shall be allocated instead to the
Participant's Company Contribution Account.
The Company's right of election expressed in this paragraph
is in addition to that expressed in Section 3.7.
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<PAGE> 17
3.5 FORM OF CONTRIBUTION; RESTORATION OF FORFEITURES
Any Company Contributions made by the Company hereunder shall be paid
in cash. In addition to any Company Contributions under Section 3.4,
the Company also shall make such other contributions as may be
required to restore amounts which have been forfeited under the
circumstances described in Section 5.4.
3.6 ALLOCATION OF CONTRIBUTIONS AND FORFEITURES
(a) Employee Contributions. All contributions made by
Participants pursuant to Section 3 of the Plan shall be
allocated to the appropriate Account on the Valuation Date
coinciding with or next following the date such
contributions are withheld from the Participant's
Compensation.
(b) Company Contributions and Forfeitures. The Company
Contributions (net of any amounts designated as Qualified
Non-Elective Contributions) for each Plan Year made pursuant
to Section 3.4, and any forfeitures shall be allocated to
the Company Contribution Account with respect to:
(i) Each Participant who is an Eligible Employee on the
last day of the Plan Year and who has 1,000 or more
Hours of Service in such Plan Year; and
(ii) Each Participant who ceases to be an Eligible
Employee during such Plan Year by reason of his or
her:
(A) Death; or
(B) Attaining age 55 having received credit
for ten (10) Years of Employment; or
(C) Ceasing to be an Eligible Employee but
remaining an Employee of an Affiliated
Company as of the end of the Plan Year.
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<PAGE> 18
(c) The amount of Company Contributions determined under Section
3.4(a) and any forfeitures shall be allocated in the following
steps:
(i) Step 1. The amount of Company Contributions and
forfeitures to be allocated to all such
Participants shall first be determined equal to an
amount that would result in a simultaneous equal
allocation percentage of:
(A) Each such Participant's Compensation paid
or payable as a Participant during the
Plan Year; and
(B) Each such Participant's Compensation paid
or payable as a Participant during the
Plan Year that exceeds the Social
Security Taxable Wage Base in effect at
the beginning of the Plan Year.
However, in no event shall the equal allocation
percentage determined above exceed the greater of
five and seven tenths percent (5.7%) or the
percentage rate of tax under Code Section 3111(a),
in effect as of the beginning of the Plan Year,
that is attributable to the old age insurance
portion of the Old Age, Survivors and Disability
Insurance provisions of the Social Security Act.
The amount determined under (i)(A) shall be
allocated in accordance with subsection (iii) and
the amount determined under (i)(B) shall be
allocated in accordance with subsection (iv).
(ii) Step 2. Any remaining Company Contributions and
forfeitures shall be allocated to all such
Participants in accordance with subsection (iii)
below.
(iii) Step 3. The amount of Company Contributions and
forfeitures described in (i)(A) and (ii) above
shall be allocated by allowing:
(A) One (1) unit for each one hundred dollars
($100) of each eligible Participant's
Compensation as a Participant during such
Plan Year; and
(B) One (1) unit for each Year of Vesting
Service (disregarding fractional parts
thereof) from January 1, 1967, through
the end of such Plan Year; and
(C) One (1) unit for each complete six (6)
months of continuous service through
December 31, 1966 (as provided in the
Plan as amended to December 31, 1975);
then
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<PAGE> 19
Adding all units so allocated to all such
Participants; then
(D) Dividing the sum of the Company
Contributions and forfeitures by the
total number of units allocated to all
such Participant's; and
(E) Multiplying the amount resulting from
such division by the number of units
allocated to the Participant in question.
(iv) Step 4. Any amount determined under (i)(B) above
shall be allocated to each eligible Participant
based upon the product of the equal allocation
percentage determined under (i) and each such
eligible Participant's Compensation as a
Participant that is in excess of the Social
Security Taxable Wage Base in effect at the
beginning of the Plan Year.
3.7 LIMITATIONS ON PRE-TAX AND QUALIFIED NON-ELECTIVE CONTRIBUTIONS -
HIGHLY COMPENSATED PARTICIPANTS
Any other provisions of the Plan to the contrary notwithstanding, the
Administrator shall take such action as it deems appropriate to limit
the amount of Pre-Tax Contributions and Qualified Non-Elective
Contributions, if any, made on behalf of each eligible Highly
Compensated Employee Participant each Plan Year to the extent necessary
to ensure that either of the following tests in (a) or (b) is
satisfied:
(a) The "Average Actual Deferral Percentage" (as hereinafter
defined) for the group of eligible Highly Compensated Employee
Participants is not more than the Average Actual Deferral
Percentage for the group consisting of all eligible Non-Highly
Compensated Employee Participants multiplied by 1.25.
(b) The excess of the Average Actual Deferral Percentage for the
group of eligible Highly Compensated Employee Participants
over the Average Actual Deferral Percentage for the group
consisting of all eligible Non-Highly Compensated Employee
Participants is not more than two percentage points, and the
Average Actual Deferral Percentage for the group of eligible
Highly Compensated Employee Participants is not more than the
Average Actual Deferral Percentage for the group consisting of
all eligible Non-Highly Compensated Employee Participants
multiplied by 2.0.
(c) Such Pre-Tax Contributions shall be taken into account for a
Plan Year only if such contributions are attributable to
Compensation received by the Participant during the Plan Year
or earned during the Plan Year and received within 2 1/2
months after the end of the Plan Year. The Pre-Tax
Contributions must be allocated to the Participant's Pre-Tax
Contribution Account within such Plan.
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<PAGE> 20
(d) For purposes of this Section 3.7:
(i) The term "Actual Deferral Percentage" means the
ratio (expressed as a percentage) of the Pre-Tax
Contributions plus any Qualified Non-Elective
Contributions, if applicable, on behalf of a
Participant for the Plan Year to the
Participant's Compensation for the Plan Year.
The Actual Deferral Percentage for a Plan Year
for an Employee who is eligible to have Pre-Tax
Contributions made on his or her behalf for a
Plan Year but does not is zero.
(ii) The term "Average Actual Deferral Percentage"
means the arithmetic average (expressed as a
percentage) of the Actual Deferral Percentages
of all the Participants in the specified groups.
The specified groups are the group consisting of
all Participants who are eligible Highly
Compensated Employees and those Participants who
are eligible Non-Highly Compensated Employees.
(iii) The Actual Deferral Percentage for any
Participant who is a eligible Highly Compensated
Employee for the Plan Year and who is eligible
to have tax deferred contributions made on his
or her behalf under two or more arrangements
described in Section 401(k) of the Code that are
maintained by the Company or the Affiliated
Company shall be determined as if such tax
deferred contributions were made under a single
arrangement.
(iv) In determining the Actual Deferral Percentage
for a Plan Year for a Participant who is an
eligible Highly Compensated Employee by virtue
of being a five percent (5%) owner or one of the
ten (10) most eligible Highly Compensated
Employees (as defined in Section 1.16), the
Pre-Tax Contributions, Qualified Non-Elective
Contributions and Compensation of such
Participant shall include the Pre-Tax
Contributions, Qualified Non-Elective
Contributions and Compensation of any individual
who is a "Family Member" (as hereinafter
defined) and such Family Members shall be
disregarded as separate employees in determining
the Actual Deferral Percentage both for
Participants who are eligible Highly Compensated
Employees and for all other eligible Non-Highly
Compensated Employee Participants; provided,
however, that if the Family Member is the
Participant's spouse or lineal descendent who
has not yet attained age 19, then the sum of the
Compensation of such Participant and Family
Member shall not exceed the limitation in Code
Section 401(a)(17) for the Plan Year. A Family
Member for this purpose means, with respect to
any Employee described in Section 414(q)(6)(A)
of the Code, an individual described in Section
414(q)(6)(B) of the Code.
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<PAGE> 21
(v) If the aggregate amount of the Pre-Tax
Contributions actually paid over to the Trustee
on behalf of Participants who are eligible
Highly Compensated Employees exceeds the maximum
amount permitted under the limits described in
this Section 3.7 for such Plan Year, then the
amount of such excess (hereinafter referred to
as "Excess Contributions"), plus any income and
minus any loss allocable thereto, shall be
distributed no later than the last day of the
succeeding Plan Year, but when possible before
the fifteenth (15th) day of the third (3rd)
month of that Plan Year, to Participants to
whose Pre-Tax Contributions Accounts Excess
Contributions were allocated for such Plan
Year (determined by reducing the Pre-Tax
Contributions on behalf of eligible Highly
Compensated Employees in order of the Actual
Deferral Percentages beginning with the highest
of such percentages). Any Excess Contribution
to be distributed shall be reduced by the Excess
Deferrals previously distributed.
Allocable income or loss for the Plan Year is
determined by multiplying the income or loss for
the Plan Year allocable to elective deferrals by
a fraction, the numerator of which is the Excess
Contributions for the Plan Year and the
denominator of which is the Account balance
attributable to elective deferrals as of the end
of the Plan Year, minus the income or plus the
loss allocable to such Account balance for the
year.
The allocable income or loss for the period from
the last day of the Plan Year to the date of
distribution ("gap period") is equal to 10% of
the income or loss for the Plan Year times the
number of months in the "gap period," counting
whole months only and treating distributions
made after the fifteenth (15th) of the month as
occurring on the first day of the next month.
Gap period income shall not be allocated to
Excess Contributions.
(vi) In lieu of distributing Excess Contributions as
described in the preceding paragraph, the
Company, in its discretion, may make an
additional Qualified Non-Elective Contribution
for each Participant who is an eligible
Non-Highly Compensated Employee, on a per capita
basis, in such amount as is necessary to satisfy
the Average Actual Deferral Percentage tests
described in paragraphs (a) and (b) above.
(vii) Notwithstanding any distributions pursuant to
the foregoing provisions, Excess Contributions
shall be treated as Annual Additions for
purposes of Section 3.10. Distribution pursuant
to this Section 3.7 shall be made
proportionately from the investment funds in
which the balance in the Participant's Pre-Tax
Contributions Account is invested.
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<PAGE> 22
(e) In determining whether a plan satisfies Sections 3.8(a) or
3.8(b), all Pre-Tax Contributions that are made under two or
more plans that are required to be aggregated for purposes of
Code Sections 401(a)(4) or 410(b) (other than Code Section
410(b)(2)(A)(ii)) are to be treated as made under a single
plan, and if two or more plans are permissively aggregated
for purposes of Code Section 401(k), such aggregated plans
must satisfy Code Sections 401(a)(4) and 410 as though they
were a single plan.
3.8 ADDITIONAL LIMITATIONS
The following provisions shall apply to Voluntary After-Tax
Contributions, hereinafter referred to as 401(m) Contributions.
Any other provision of the Plan to the contrary notwithstanding, the
Administrator shall take such action as it deems appropriate to limit
the amount of 401(m) Contributions made on behalf of each eligible
Highly Compensated Employee each Plan Year to the extent necessary to
insure that either (a) or (b) is satisfied:
(a) The "Average Contribution Percentage" (as hereinafter
defined) for the group of eligible Highly Compensated
Employee Participants is not more than the Average
Contribution Percentage of all eligible Non-Highly
Compensated Employee Participants multiplied by 1.25.
(b) The excess of the Average Contribution Percentage for the
group of eligible Highly Compensated Employee Participants
over that of all eligible Non-Highly Compensated Employee
Participants is not more than two percentage points, and the
Average Contribution Percentage for the group of eligible
Highly Compensated Employee Participants is not more than the
Average Contribution Percentage of all eligible Non-Highly
Compensated Employee Participants multiplied by 2.0.
(c) In addition, for each Plan Year the Plan must also meet the
test for the multiple use of the alternative limitation as
set forth in Section 1.401(m)-2(b) of the Income Tax
Regulations. In the event the multiple use test is not met,
the Company shall return After-Tax Contributions to all
eligible Highly Compensated Employees as provided in Section
1.401(m)-2(c).
(d) For purposes of this Section:
(i) The term "Contribution Percentage" means the
ratio (expressed as a percentage) of the 401(m)
Contributions (plus any Pre-Tax Contributions
that were not required to be taken into account
for purposes of passing the tests set forth in
Section 3.7) made on behalf of the Participant
for the Plan Year to the Participant's
Compensation as a Participant for the Plan Year.
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<PAGE> 23
(ii) The term "Average Contribution Percentage" means
the arithmetic average (expressed as a
percentage) of the Contribution Percentages for
all the Participants in the specified groups. The
specified groups are the group consisting of all
Participants who are eligible Highly Compensated
Employees and the group consisting of all
eligible Non-Highly Compensated Employee
Participants.
(iii) The Contribution Percentage for a Participant who
is an eligible Highly Compensated Employee for
the Plan Year and who is eligible to make
Participant contributions, or to have matching
employer contributions (within the meaning of
Section 401(m)(4)(A) of the Code) made on his or
her behalf under two or more plans described in
Section 401(a) of the Code, or arrangements
described in Section 401(m) of the Code, that are
maintained by an Affiliated Company, shall be
determined as if the total of such Participant
contributions and matching contributions were
made under this Plan.
(iv) In determining the Contribution Percentage of a
Participant who is an eligible Highly Compensated
Employee, the 401(m) Contributions and
Compensation of such Participant shall include
401(m) Contributions made on behalf of, and the
Compensation of, any individual who is a Family
Member (as that term is defined in Section 3.7 of
the Plan) and Family Members shall be disregarded
as separate employees in determining the
Contribution Percentage both for Participants who
are eligible Highly Compensated Employees and for
all eligible Non-Highly Compensated Employee
Participants; provided, however, that if the
Family Member is the Participant's spouse or
lineal descendent who has not yet attained age
19, then the sum of the Compensation of such
Participant and Family Member shall not exceed
the limitation in Code Section 401(a)(17) for the
Plan Year.
(v) If for any Plan Year the amount of 401(m)
Contributions for the Plan Year made on behalf of
Participants who are eligible Highly Compensated
Employees exceeds the maximum amount permitted
under the limits of this Section 3.8, then the
amount of such excess (hereinafter referred to as
"Excess Aggregate Contributions"), plus any
income or minus any loss allocable thereto, shall
be forfeited to the extent not vested or, if
vested, distributed no later than the last day of
the succeeding Plan Year, but when possible
before the fifteenth (15th) day of the third
(3rd) month of that Plan Year, to the
Participants on whose behalf such Excess
Aggregate Contributions were made (determined by
reducing contributions on behalf of eligible
Highly Compensated Employees in order of
Contribution Percentages beginning with the
highest of such percentages to the next
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<PAGE> 24
highest level of Contribution Percentages and, if
necessary, continuing this process until the
limits of this Section 3.8 are met).
The amount of Excess Aggregate Contributions to
be distributed to each such Participant (or
forfeited by the Participant to the extent the
portion of Excess Aggregate Contributions
represents 401(m) Contributions which are not
vested) shall be determined on the basis of the
portion, if any, of the Excess Aggregate
Contributions attributable to each of such
Participants. Distribution (or forfeiture) of the
portion of Excess Aggregate Contributions
allocable to a Participant shall be made from the
Participant's Voluntary After-Tax Contributions
Account as appropriate.
Allocable income or loss for the Plan Year is
determined by multiplying the income or loss for
the Plan Year allocable to Voluntary After-Tax
Contributions by a fraction, the numerator of
which is the Excess Aggregate Contributions for
the Plan Year and the denominator of which is the
account balance attributable to Voluntary
After-Tax Contributions as of the end of the Plan
Year, minus the income or plus the loss allocable
to such account.
The allocable income or loss for the period from
the last day of the Plan Year to the date of
distribution ("gap period") is equal to 10% of
the income or loss for the Plan Year times the
number of months in the "gap period," counting
whole months only and treating distributions made
after the first 15 days of the month as occurring
on the first day of the next month. Gap period
income will not be allocated to Excess Aggregate
Contributions.
(vi) Notwithstanding any distributions or forfeitures
pursuant to the foregoing provisions, Excess
Aggregate Contribution shall be treated as Annual
Additions for purposes of Section 3.10.
Determination of Excess Aggregate Contributions
pursuant to this Section 3.8 shall be made only
after first determining any excess elective
deferrals pursuant to Section 3.9 and then
determining any Excess Contributions pursuant to
Section 3.7. Distributions pursuant to this
Section 3.8 shall be made proportionately from
the investment funds with respect to the
Participant's Account or Accounts from which
distribution is made.
(vii) The term "eligible employee" means an employee
who is directly or indirectly eligible to make
Participant contributions under the Plan for a
Plan Year. An employee who would be eligible to
make Participant contributions but for a
suspension due to a distribution, a loan, or an
election not to participate in the Plan, is an
eligible employee for purposes
21
<PAGE> 25
of Code Section 401(m) even though the
employee may not make such Participant
contributions.
(viii) Elective contributions and Qualified
Non-Elective contributions can be treated as
Code Section 401(m) contributions for
purposes of Average Contribution Percentage
testing only if Section 1.401(m)-1(b)(5) of
the Income Tax Regulations is satisfied.
(e) In determining whether a plan satisfies Section 3.8(a),
3.8(b) or 3.8(c), all 401(m) contributions (including, for
this purpose, matching contributions) that are made under
two or more plans that are required to be aggregated for
purposes of Code Sections 401(a)(4) or 410(b) (other than
Code Section 410(b)(3)(A)(ii)) are to be treated as made
under a single plan, and if two or more plans are
permissively aggregated for purposes of Code Section
401(m), such aggregated plans must satisfy Code Sections
401(a)(4) and 410(b) as though they were a single plan.
3.9 EXCESS ELECTIVE DEFERRALS
If a Participant who had Pre-Tax Contributions made on his or her
behalf for a calendar year makes a statement, in accordance with
rules determined by the Administrator, that he or she has elective
deferrals within the meaning of Section 402(g) of the Code for the
calendar year in excess of the dollar limitation on elective
deferrals in effect for such calendar year, and specifying the
amount of such excess the Participant claims as allocable to this
Plan, the amount of such excess, adjusted for income or loss
attributable to such excess elective deferral, shall be distributed
to the Participant by April 15 of the year following the year of
the excess elective deferral.
Allocable income or loss for the taxable year is determined by
multiplying the income or loss for the taxable year allocable to
elective deferrals by a fraction, the numerator of which is the
excess elective deferral for the taxable year and the denominator
of which is the account balance attributable to elective deferrals
as of the end of the taxable year, minus the income or plus the
loss allocable to such account balance for the year.
The allocable income or loss for the period from the last day of
the taxable year and the date of distribution ("gap period") is
equal to ten percent (10%) of the income or loss for the taxable
year times the number of months in the "gap period," counting whole
months only and treating distributions made after the first 15 days
of the month as occurring on the first day of the next month. Gap
period income shall not be allocated to excess elective deferrals.
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3.10 CONTRIBUTION LIMITATIONS - CODE SECTION 415
(a) Notwithstanding any provision of the Plan to the contrary,
in no event in any Limitation Year, which is the Plan
Year, shall the "Annual Addition" (as hereinafter defined)
on behalf of any Participant exceed the lesser of:
(i) 25% of the Participant's compensation for the
Plan Year. Compensation shall mean wages as
defined in Code Section 3401(a) for purposes of
income tax withholding at the source but
determined without regard to any rules that
limit remuneration included as wages based on
the nature or location of the employment or the
service performed; or
(ii) $30,000 for the Plan Year beginning in 1988 and
thereafter the greater of $30,000 or one-fourth
of the defined benefit dollar limitation set
forth in Code Section 415(b)(1)(A) as in effect
for the Plan Year;
(b) "Annual Addition" means the sum for any Limitation Year of
(i) Company contributions (including Pre-Tax Contributions
under this Plan) to defined contribution plans (combining,
for this purpose, all defined contribution plans of any
Affiliated Company (as such term would be modified by
Section 415(h) of the Code)), (ii) forfeitures under all
such plans, (iii) the amount of a participant's employee
contributions under such plans, (iv) amounts allocated
after March 31, 1984 to an individual medical account as
defined by Code Section 415(l)(2) and (v) post-1985
contributions attributable to post-retirement medical
benefits allocated to Key Employees (as defined in Section
16.1(b)) under a welfare plan as defined by Code Section
419(e). However, annual additions under (iv) and (v) are
only taken into account for purposes of the dollar
limitation described in Section 3.10(a)(ii).
The employee contributions described in clause (iii) of
the preceding sentence shall be determined without regard
to the repayment of any prior distributions made upon the
exercise of any buy-back rights.
(c) If the limitations applicable to any Participant in
accordance with this Section 3.10 are exceeded, the
following steps will be taken to dispose of the excess
amounts:
(i) First, any Voluntary After-Tax Contributions, and
applicable earnings thereon, for the Limitation
Year will be returned to the Participant, and
second, any Pre-Tax Contributions, and applicable
earnings, allocated to the Participant's Account
for the Limitation Year will be distributed to the
Participant.
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(ii) If after the application of (i) an excess amount
still exists and the Plan covers the Participant at
the end of the Limitation Year, the excess amount
will be used to reduce future Company contributions
(including any allocation of forfeitures) under the
Plan for the next Limitation Year and for each
succeeding Limitation Year as necessary, for the
Participant.
(iii) If, after the application of (i) and (ii), an
excess amount still exists and the Plan does
not cover the Participant at the end of the
Limitation Year, the excess amount will be
held unallocated in a suspense account which
will be applied to reduce Company
contributions (including allocation of
forfeitures) for all remaining Participants
in the next Limitation Year, and in each
succeeding Limitation Year, if necessary.
(d) If a Participant in this Plan is a Participant in any
tax-qualified defined benefit plan maintained by the Company
or an Affiliated Company, the sum of the Participant's
defined benefit plan fraction and defined contribution plan
fraction as described in Code Section 415(e) may not exceed
1.0 in any limitation year. This limitation shall be
complied with by limiting the amount of retirement benefit
payable to such Participant under such defined benefit plan
without adjustment to the limitation applicable to such
Participant under this Plan.
3.11 ROLLOVER CONTRIBUTIONS
With the permission of the Company, an Eligible Employee or inactive
Participant may make a Rollover Contribution to the Trustee. Such
Rollover Contribution shall not be subject to the limitations of
Section 3.7. The term "Rollover Contribution" means an amount
distributed from:
(a) A qualified employee's trust described in Section 401(a);
(b) An employee annuity described in Code Section 403(a); or
(c) A conduit individual retirement account or annuity described
in Code Section 408, which is eligible for rollover
treatment under Code Section 402(c).
Rollover Contributions shall be allocated to the Participant's
Rollover Contribution Account.
3.12 RETURN OF CONTRIBUTIONS
Notwithstanding any provision of the Plan to the contrary, a
contribution made to the Plan by the Company shall be returned to it
if:
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(a) The contribution is made by reason of mistake of fact (for
example, incorrect information as to eligibility or
Compensation of an Employee, or a mathematical error); or
(b) The contribution is not deductible under Section 404 of the
Code;
provided such return of contribution is made within one year of the
mistaken payment of the contribution or the disallowance of the
deduction, as the case may be.
In any event, the amount which may be returned shall never be greater
than an amount equal to the excess of (i) the amount contributed over
(ii) the amount that would have been contributed had there not
occurred a mistake of fact or a mistake in determining the deduction.
Earnings attributable to the excess contribution may not be returned
to the Company, but losses attributable thereto shall reduce the
amount to be returned. If the withdrawal of the amount attributable
to the mistaken contribution would cause the balance of the
individual account of any Participant to be reduced to less than the
balance which would have been in the account had the mistaken amount
not been contributed, then the amount to be returned to the Company
shall be limited so as to avoid such reduction.
SECTION 4
INVESTMENT OF CONTRIBUTIONS
4.1 INVESTMENT OPTIONS
Each Participant may choose to invest amounts credited to his or her
Account(s) in such funds that the Administrator may establish from
time to time.
Any portion of an investment fund may, pending its permanent
investment or distribution, be invested in short term securities
issued or guaranteed by the United States of America or any agency or
instrumentality thereof or any other investments of a short term
nature, including but not limited to corporate obligations or
participations therein. Any portion of an investment fund may be
maintained in cash.
4.2 INVESTMENT IN LIFE INSURANCE
Upon the Participant's election, the Company shall direct the Trustee
to purchase ordinary life insurance on the life of such Participant
with a portion of the Company's contribution for any Plan Year. Such
direction shall set forth the particulars of the life insurance
purchase which shall be subject to the limitation that the aggregate
of ordinary life insurance premiums paid for the benefit of a
Participant, at all times may not exceed 49.999% of the aggregate of
the Company's Contributions allocated to any Participant's
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Account. The Trustees shall convert the entire value of life
insurance into cash to provide periodic income or distribute the
contract to the Participant at or before retirement in order that no
portion of its value may be used to continue life insurance
protection beyond retirement. Effective as of July 1, 1991,
investment in life insurance was no longer permitted for Company
contributions, although then existing policies were permitted to be
retained.
4.3 ALLOCATION OF CONTRIBUTIONS AMONG INVESTMENT OPTIONS
Contributions and rollover and/or transfer amounts made on a
Participant's behalf shall be invested as elected by the Participant
pursuant to this Section 4.3, or as subsequently changed in
accordance with Section 4.4, in one or more of the investment funds
established by the Administrator. Such elections will be made in
accordance with procedures determined by the Administrator. The
investment of such contributions shall be made as of the first day of
the month following an election that conforms to the procedure
established by the Administrator. Until the Administrator is notified
in accordance with procedures established by the Administrator, all
future contributions shall be invested in the percentages so
specified.
Accounts shall be established for each Participant under each fund to
which such contributions have been allocated and each such Account
will bear the expenses attributable to the investment thereof.
4.4 CHANGING INVESTMENT ELECTIONS; REALLOCATION AMONG INVESTMENT FUNDS
Effective as of the first day of any month, a Participant may change
his or her investment options, subject to the limitations set forth
in Section 4.3, with respect to the value of his or her existing
accounts and to contributions to be made thereafter, in accordance
with rules established by the Administrator.
4.5 INVESTMENT OF FUND EARNINGS
Dividends, interest and other distributions received by the Trustee
in respect of any investment fund shall be reinvested in the same
investment fund.
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SECTION 5
VESTING
5.1 VESTING IN PARTICIPANT AND QUALIFIED NON-ELECTIVE CONTRIBUTIONS
A Participant shall always be 100% vested in the value of his or her
Pre-Tax Contributions Account, Rollover Contributions Account,
Voluntary After-Tax Contributions Account, Qualified Non- Elective
Contributions Account and Transfer Account.
5.2 VESTING IN COMPANY CONTRIBUTIONS ACCOUNT
The interest of a Participant in the Company Contributions Account
shall become fully vested upon the occurrence of one of the following
events:
(i) The Participant attaining age 62 while employed by an
Affiliated Company. This provision does not apply to
Eligible Employees who become Participants after January
1, 1991;
(ii) The Participant attaining age 65 while employed by an
Affiliated Company;
(iii) The Participant's death while employed by an Affiliated
Company;
(iv) Termination of the Participant's employment by an
Affiliate Company due to Permanent Disability;
(v) Completion of five (5) Years of Vesting Service; or
(vi) Discontinuance of contributions by the Company or partial
or complete termination of the Plan as provided in
Section 13.
5.3 YEARS OF VESTING SERVICE - COMPUTATION
(a) Years of Vesting Service. In computing Years of Vesting
Service for purposes of determining vesting under Section 5.2,
Years of Vesting Service shall include all Years of Vesting
Service as an Employee of an Affiliated Company, whether or
not as an Eligible Employee, as defined herein, other than:
(i) Years of Vesting Service before the year in
which the Participant attained age eighteen (18)
(unless the Employee was a Participant prior to
attaining that age); and
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(ii) Years of Vesting Service prior to January 1,
1976, other than while the Participant was an
Employee, as defined in the Plan applicable to
those years.
Effective January 1, 1990, unless otherwise specifically
provided in an Appendix to this Plan, Years of Vesting
Service shall be credited for employment with a
predecessor employer prior to its acquisition by the
Company.
(b) One-Year Break in Service. If a Participant shall incur a
One-Year Break in Service, Years of Vesting Service prior to
the One-Year Break in Service shall not be taken into
account until the Participant has completed one (1) Year of
Vesting Service after the One-Year Break in Service,
subject, however, to the further limitations of the
following sentence. If a Participant who is not vested in
his or her Company Contributions Account shall incur five
(5) or more consecutive One-Year Breaks in Service, Years of
Vesting Service prior thereto shall not be taken into
account upon returning to service.
5.4 OCCURRENCE OF FORFEITURE
The forfeiture of a Participant's non-vested interest in his or her
Account shall occur at the end of a Plan Year following which a
Participant shall have incurred five (5) consecutive One-Year Breaks in
Service. Notwithstanding the foregoing, a forfeiture shall occur at the
end of the Plan Year during which a Participant incurs a One-Year Break
in Service following a deemed distribution; provided, however, that
such forfeiture shall be restored if the Participant returns to
employment by an Affiliated Company prior to incurring five (5)
consecutive One-Year Breaks in Service. A deemed distribution occurs
when a Participant who is zero percent (0%) vested in his or her
Company Contributions Account terminates employment and is no longer
employed by any Affiliated Company.
5.5 APPLICATION OF FORFEITURES
Forfeitures shall be allocated pursuant to the provisions of Section
3.6.
SECTION 6
ACCOUNTS;
VALUATION AND ALLOCATION
6.1 SEPARATE ACCOUNTS TO REFLECT CONTRIBUTIONS
The Administrator shall maintain a separate Pre-Tax Contributions
Account, Voluntary After-Tax Contributions Account, Rollover
Contributions Account, Qualified Non-Elective
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Contributions Account, Transfer Account and Company Contributions
Account for each Participant which shall reflect the portion of the
Participant's interest in the Trust Fund which is attributable to his
or her Pre-Tax, After-Tax, Rollover, Qualified Non-Elective and Company
Contributions and Transfers to the Trust Fund on his or her behalf.
6.2 SEPARATE ACCOUNTS IN INVESTMENT FUNDS
The Administrator shall maintain Accounts for each Participant in each
investment fund in which such Participant has had contributions made on
his or her behalf. Such Accounts shall reflect the portion of the
Participant's interest in the Trust Fund which is attributable to such
contributions.
6.3 VALUATION OF ACCOUNTS
As of each Valuation Date, the Administrator shall value Trust Fund
assets at their fair market value and shall adjust the Accounts of each
Participant to reflect contributions, withdrawals, distributions,
income earned or accrued, expenses payable from the Trust Fund not
otherwise paid by the Company and any increase or decrease in the value
of Trust Fund assets since the preceding Valuation Date. Income earned
or accrued, expenses payable from the Trust Fund and any increase or
decrease in the value of Trust Fund assets since the preceding
Valuation Date shall be proportionately credited based on the balances
as of the preceding Valuation Date of each Participant's Account.
6.4 STATEMENTS TO PARTICIPANTS
At least once each Plan Year, the Administrator shall furnish each
Participant with a written statement of his or her Account.
6.5 PARTICIPANT TRANSFER ACCOUNT
(a) A fully vested Participant who ceases to be an Eligible
Employee because of a transfer to another entity within an
Affiliated Company may elect to transfer his or her Accounts
from the Plan to the extent that such other entity maintains a
defined contribution plan that accepts such transfers.
(b) With the consent of the Company, a fully vested Participant
who becomes an Eligible Employee because of a transfer from
another entity within an Affiliated Company may elect to
transfer his or her accounts from a defined contribution plan
that has been maintained or contributed to by the other
entity. A separate Account will be established to accept such
transfers.
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(c) Any transfer made pursuant to this Section, must satisfy the
requirements of the "elective transfer" provisions of Q&A 3(b)
of Section 1.411(d)(4) of the Income Tax Regulations
concerning Code Section 411(d)(6) protected benefits.
6.6 ROLLOVER CONTRIBUTIONS ACCOUNT
An individual who becomes an Eligible Employee by reason of the
acquisition of such individual's predecessor Employer by the Company
may elect to rollover a distribution of his or her vested account
balance under such predecessor Employer's plan into the Plan, provided
however, such distribution constitutes an eligible rollover
distribution as defined in Code Section 402(c). A separate Rollover
Contributions Account will be established in the Plan to accept such
rollovers. The value of a Participant's Rollover Contributions Account
shall be determined in accordance with Section 8.2.
SECTION 7
WITHDRAWALS DURING EMPLOYMENT
7.1 HARDSHIP WITHDRAWALS FROM PRE-TAX CONTRIBUTIONS
(a) At any time, but not more frequently than once a year, a
Participant may, by reason of hardship, as determined below,
withdraw the total amount of elective deferrals made to the
Plan (exclusive of earnings on Pre-Tax Contributions) up to
the balance then credited to his or her Pre-Tax Contributions
Account.
Such request shall be made in writing in accordance with rules
determined by the Administrator.
(b) For purposes of this Section 7.1, "Hardship" means a
circumstance resulting from an immediate and heavy financial
need of the Participant attributable to:
(i) Expenses for medical care described in Code
Section 213(d) previously incurred by the
Participant, his or her spouse or dependents as
defined in Code Section 152 or expenses necessary
for these persons to obtain medical care.
(ii) Costs directly related to the purchase of a
Participant's principal residence, excluding
mortgage payments.
(iii) Payments necessary to prevent eviction of the
Participant from his or her principal residence or
foreclosure on the mortgage on that residence.
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(iv) Payments of tuition and related educational fees
for the next 12-months of post-secondary education
of the Participant, his or her spouse or
dependents as defined in Code Section 152.
(v) Funeral expenses for a member of the Participant's
family.
(c) No distribution shall be made on account of hardship unless
the Administrator, based upon the Participant's written
representation and such other facts as are known to the
Administrator, determines that such amount is not reasonably
available to the Participant from any other resources of the
Participant. Such written representation shall indicate that
the need for the hardship withdrawal cannot be relieved by any
of the following:
(i) reimbursement or compensation by insurance or
otherwise;
(ii) reasonable liquidation of assets (including, for
this purpose, assets of the Participant's spouse
and minor children that are reasonably available
to the Participant) to the extent such liquidation
would not itself cause an immediate and heavy
financial need;
(iii) cessation of Pre-Tax Contributions under the Plan;
or
(iv) other withdrawals or nontaxable (at the time of
the loan) loans from this Plan or from other plans
maintained by an Affiliated Company (except those
entities listed in Appendix C) or by any other
employer, or by borrowing from commercial sources
on reasonable commercial terms.
(d) Upon approval by the Administrator of a Hardship withdrawal,
(i) a Participant will be suspended from making Pre-Tax
Contributions to this Plan and pre-tax contributions to any
other plan of an Affiliated Company (collectively, "Affiliated
Pre-Tax and After-Tax Contributions") until the first day of
the month following twelve (12) months from the withdrawal
date, and (ii) the Participant's Affiliated Pre-Tax
Contributions for the next taxable year of the Participant
shall be limited to the applicable limit under Section 402(g)
of the Code for such taxable year minus Affiliated Pre-Tax
Contributions for the year of the Hardship withdrawal.
(e) A Participant may not replace any amounts voluntarily
withdrawn hereunder.
7.2 WITHDRAWAL UPON ATTAINMENT OF AGE 59 1/2
A Participant upon the attainment of age 59 1/2 may request to withdraw
all or a portion of his or her Pre-Tax Contributions Account in
accordance with rules determined by the
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Administrator. For purposes of this Section, the value of the Pre-Tax
Contributions Account shall be determined:
(a) As of the most recent Valuation Date before the withdrawal; or
(b) Based on the estimated value of the Account on the date of the
withdrawal.
Distributions will be made as soon as administratively possible
following receipt of such request, taking into consideration, among
other things, the financial integrity of the Trust.
7.3 QUALIFIED DOMESTIC RELATIONS WITHDRAWALS AND DISTRIBUTIONS
Notwithstanding any limitations and restrictions on withdrawals and
distributions under this Plan with respect to Participants, payment may
be made to an "alternate payee" prior to the Participant's separation
from service or attainment of "earliest retirement age," but only if
such payment is directed by the terms of a "qualified domestic
relations order," as those terms are defined in Section 414(p) of the
Code. The respective Accounts of any Participant subject to such an
order shall be adjusted in accordance with procedures established by
the Administrator in accordance with applicable law, regulations and
rules to reflect payments made pursuant to the qualified domestic
relations order.
7.4 WITHDRAWAL UPON CERTAIN CORPORATE TRANSACTIONS
A Participant may elect to receive in a lump sum payment, including his
or her Pre-Tax Contributions Account, the amounts credited to his or
her Vested Accounts upon:
(a) The sale by the Company to an entity that is not an Affiliated
Company of substantially all of the assets (within the meaning
of Code Section 409(d)(2)) used by the Company or an
Affiliated Company in a trade or business with respect to a
Participant who continues employment with the corporation
acquiring such assets, provided such entity does not maintain
this Plan.
(b) The sale by the Company or an Affiliated Company of its
interest in a subsidiary (within the meaning of Code Section
409(d)(3)) to an entity which is not an Affiliated Company
with respect to a Participant who continues employment with
such subsidiary, provided such entity does not maintain this
Plan.
7.5 WITHDRAWAL OF PARTICIPANT'S VOLUNTARY AFTER-TAX CONTRIBUTIONS
A Participant may, in accordance with rules determined by the
Administrator, request the Administrator to distribute any sum up to
the aggregate amount of his or her Voluntary After-Tax Contributions
Account. Computations shall be made as of the Valuation Date coinciding
with or immediately preceding the date of withdrawal.
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7.6 SOURCE OF WITHDRAWAL
Any withdrawals pursuant to this Section 7 shall be taken
proportionately from each investment fund in which the Participant's
Pre-Tax or After-Tax Contributions Accounts are invested. However, in
no event may a "Hardship" withdrawal under Section 7.1 be made from
earnings on Pre-Tax Contributions, from a Participant's Qualified
Non-Elective Contributions Account or from any other contributions used
to meet the discrimination test as set forth in Section 3.7.
7.7 PAYMENT OF WITHDRAWN AMOUNTS
Amounts withdrawn pursuant to this Section 7 shall be paid to a
Participant in a lump sum in cash as soon as practicable after the
Administrator makes its determination taking into consideration, among
other things, the financial integrity of the Trust.
7.8 SPOUSAL CONSENT REQUIREMENT
The provisions of Appendix B shall apply to any withdrawal under this
Section 7 from an Electing Participant's Pre-Tax Contributions Account
or Voluntary After-Tax Contributions Account.
7.9 HARDSHIP WITHDRAWAL FROM COMPANY CONTRIBUTIONS
At any time after being fully vested in his or her Company
Contributions, a Participant may request to withdraw an amount from his
or her Company Contributions Account not to exceed fifty percent (50%)
of such Account on account of hardship. Such a request shall be made in
accordance with rules determined by the Administrator, shall specify
the amount needed and shall be accompanied by evidence documenting the
hardship.
For purposes of this Section 7.9, "hardship" means an unplanned
circumstance or emergency resulting in an immediate and heavy financial
need that cannot be met through either Participant loans as described
in Section 17 or withdrawals from Pre-Tax Contributions as described in
Section 7.1. All such withdrawal requests must be approved by the
Administrator, whose decisions shall be final.
7.10 WITHDRAWAL FROM ROLLOVER CONTRIBUTIONS ACCOUNT
Notwithstanding any other Plan provision to the contrary, a Participant
may request a distribution of all or a part of his or her Rollover
Contributions Account, in accordance with rules determined by the
Administrator.
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SECTION 8
DISTRIBUTIONS ON TERMINATION OF EMPLOYMENT
8.1 GENERAL
When a Participant ceases to be employed by the Company or any
Affiliated Company for any reason, the total value of such
Participant's vested Account shall be distributed to him or her or, if
distribution is being made by reason of death, to his or her
Beneficiary. Such distribution shall be made in accordance with the
provisions of Section 9. However, except as provided in Section 8.6, no
distribution shall commence prior to the first day of the month
following a Participant's attainment of age sixty-five (65) without the
written consent of the Participant.
8.2 VALUATION
The value of a Participant's vested Account for purposes of Section 8.1
shall be based on the value as of the Valuation Date immediately
preceding the date of distribution, provided that such Valuation Date
is not earlier than the Valuation Date coinciding with or next
following the Administrator's receipt from the Participant (or in the
case of the Participant's death, his or her Beneficiary) of a claim for
benefits in accordance with the procedures established by the
Administrator.
8.3 CONTINUED INVESTMENT OF PARTICIPANT'S ACCOUNT
When a Participant ceases to be an Eligible Employee, his or her
Account shall continue to be invested in accordance with Section 4
until such time as it is completely distributed.
8.4 DISTRIBUTION UPON DEATH
Except as provided in Section 8.7 and subject to the provisions of
Appendix B, if applicable, if a Participant ceases to be an Employee by
reason of his death, or if the Trustee holds any unpaid balance of the
amount due to a Participant at the death of such Participant, his
Account shall be distributed as provided in this Section 8.4. Such
distribution shall be made to the Surviving Spouse or Beneficiary
selected by the Participant in one or more of the following ways as the
Surviving Spouse or Beneficiary shall determine:
(a) The payment of such amount to such Surviving Spouse or
Beneficiary in a cash lump sum; or
(b) The payment of such amount to such Surviving Spouse or
Beneficiary in a series of substantially equal cash
installments over a period not to exceed that provided in
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Section 9.2. Until so paid the unpaid balance of such amount
shall continue to be invested as directed by the Surviving
Spouse or Beneficiary.
All such payments shall be at the value of the assets on the Valuation
Date coinciding with or immediately preceding the date of payment.
8.5 DISTRIBUTION OF SMALL AMOUNTS
If a Participant ceases to be an Employee by reason of death, or if the
Trustee holds any unpaid balance of the amount due to a Participant who
is no longer an Employee at the death of such Participant, and the
value of the Participant's Account is not greater than $3,500, the
Surviving Spouse or Beneficiary, as the case may be, will receive a
cash, lump sum distribution of the value of such Account.
8.6 COMMENCEMENT OF DISTRIBUTION AT DEATH
Upon the death of the Participant, the distributions will continue or
commence as follows:
(a) If the Participant dies after distribution of his Account has
commenced, the remaining portion of such Account will continue
to be distributed at least as rapidly as under the method of
distribution being used prior to the Participant's death.
(b) If the Participant dies before distribution of his Account
commences, the Participant's entire Account will be
distributed no later than December 31 of the year of the fifth
(5th) anniversary of the Participant's death, except to the
extent that an election is made to receive distributions in
accordance with (i) and (ii) or (iii) below:
(i) If any portion of the Participant's Account is
payable to a Surviving Spouse or Beneficiary,
distributions may be made in substantially equal
installments over the life or life expectancy of
the Surviving Spouse or Beneficiary;
(ii) If the Participant's Account is payable to his
Surviving Spouse, distributions shall begin no
later than December 31 at the end of the year in
which the Participant would have attained age 70
1/2, and, if the Surviving Spouse dies before
payments begin, subsequent distributions shall be
made as if the Surviving Spouse had been the
Participant; or
(iii) If the Participant's Account is payable to a
Beneficiary other than his Surviving Spouse,
distributions shall begin no later than the
December 31 of the end of the year in which the
first anniversary of the Participant's death
occurred.
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(c) For purposes of subsection (b) above, payments will be
calculated by use of the return multiples specified in Section
1.72-9 of the Income Tax Regulations. Life expectancy of a
Surviving Spouse will be calculated at the time payment first
commences and may be recalculated annually. In the case of any
other Beneficiary, life expectancy will be calculated at the
time payment first commences and payments for any
12-consecutive month period will be based on such life
expectancy minus the number of whole years passed since
distribution first commenced.
(d) For purposes of this Section any amount paid to a child of the
Participant will be treated as if it had been paid to the
Surviving Spouse if the amount becomes payable to the
Surviving Spouse when the child reaches age of majority.
8.7 PARTICIPANTS AS OF DECEMBER 31, 1984
Any Participant who was a Participant on December 31, 1984 shall be
subject to the payment of benefit provisions provided in Appendix B
attached hereto and made part of the Plan.
SECTION 9
PAYMENT OF BENEFITS
9.1 APPLICATION OF SECTION
All amounts distributed pursuant to Section 8 shall be paid to the
Participant or his or her Beneficiary, as the case may be, in
accordance with the provisions of this Section 9.
9.2 FORM OF PAYMENT
Subject to the limitations of Appendix B, a Participant's vested
interest in his or her Account shall be distributed as herein provided
if his or her employment with the Affiliated Company is terminated
other than by reason of his or her death. Such Participant's Account
shall be paid as follows:
(i) In a single lump sum payment; or
(ii) In a series of substantially equal cash
installments over a period not to exceed the
life expectancy of a Participant, or the life
expectancies of a Participant and a designated
Beneficiary; or
(iii) In non-periodic payments or in periodic payments
in amounts as elected by the Participant subject
to the requirements of Section 9.9.
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Notwithstanding the foregoing, if the vested value of the Participant's
Account exceeds $3,500, payment shall be made as prescribed in this
Section 9.2 prior to the Participant's 65th birthday only if the
Participant so elects. If the vested value of the Participant's Account
is not greater than $3,500, the Participant will receive a distribution
of the value of the vested portion of his or her Account in accordance
with Section 5.
To the extent that the Participant's Account is invested in Company
Securities at such time, the Participant may request payment to be made
as follows:
(a) in whole units of Company Securities eligible for distribution
pursuant to applicable law, with the value of any fractional
units in cash,
(b) in cash, or
(c) in some combination of Company Securities and cash
For purposes of the preceding sentence, "Company Securities" means the
common stock, $1 par value, of The Dexter Corporation.
9.3. COMMENCEMENT OF PAYMENTS
All distributions pursuant to Section 8 to or on behalf of a
Participant shall be made or shall commence at such time as the
Participant shall elect, in accordance with rules determined by the
Administration; provided, however, that, unless a Participant elects
otherwise, distributions to such Participant shall be made or shall
commence no later than 60 days after the end of the latest of the Plan
Years in which occurs: (a) the Participant's attainment of age 65, (b)
the tenth anniversary of the year in which the Participant commenced
participation in the Plan, or (c) the Participant's termination of
employment.
9.4 DESIGNATION OF BENEFICIARY
(a) Subject to paragraph (b) below, a Participant may file with
the Company a written designation of Beneficiary or
Beneficiaries with respect to all or part of the assets in the
Accounts of the Participant. Upon the death of a Participant,
the assets in his or her Accounts with respect to which such a
designation is valid and enforceable shall be distributed in
accordance with the Plan to the Beneficiary or Beneficiaries
designated and in any event not later than the last day of the
calendar year of the fifth anniversary of the Participant's
death. Assets in the accounts of the Participant not affected
by such written designation shall be distributed in accordance
with the Plan to the Participant's Spouse or if unmarried to
such Participant's estate.
(b) The Participant's Surviving Spouse shall be the Beneficiary
entitled to receive all benefits payable on the death of the
Participant unless the Participant, with Spousal Consent,
designates another Beneficiary. A Participant may change his
or her Beneficiary or Beneficiaries from time to time in
accordance with rules determined by the Administrator without
the consent of any previously designated Beneficiary or
Beneficiaries, and Spousal Consent shall be required for any
such change unless the original Spousal Consent with respect
to the designation of a Beneficiary expressly permitted
designation by the Participant without any further requirement
of Spousal Consent.
9.5 RESTRICTION AGAINST ASSIGNMENT
It is a condition of the Plan, and all rights of each Participant and
Beneficiary shall be subject thereto, that, with the exception of
payments pursuant to a qualified domestic
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relations order within the meaning of Section 414(p) of the Code, no
right or interest of any Participant or Beneficiary in the Plan and no
benefit payable under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, or charge, and any action by way of anticipating,
alienating, selling, transferring, assigning, pledging, encumbering, or
charging the same shall be void and of no effect; nor shall any such
right, interest or benefit be in any manner liable for or subject to
the debts, contracts, liabilities, engagements, or torts of the person
entitled to such right, interest or benefit, except as specifically
provided in this Plan.
9.6 NO EMPLOYMENT RIGHTS
The establishment of the Plan shall not be construed as conferring any
rights upon any person or Employee for employment or a continuation of
employment, nor shall it be construed as limiting in any way the right
of the Company to discharge any Employee or to treat him or her without
regard to the effect which such treatment might have upon him or her as
a Participant under the Plan.
9.7 PAYMENTS IN THE EVENT OF INCOMPETENCE
If any person entitled to receive any benefits hereunder is, in the
judgment of the Administrator, legally, physically, or mentally
incapable of personally receiving and receipting for any distribution,
the Administrator may direct that any distribution due such person,
unless claim has been made therefor by a duly appointed legal
representative, be made to his or her Spouse, children or other
dependents, or to a person with whom he or she resides, and any other
distribution so made shall be a complete discharge of the liabilities
of the Plan.
9.8 DISCHARGE OF PLAN OBLIGATIONS
The determination of the Administrator as to the identity of the proper
payee of any benefit payment from the Trust Fund and the amount
properly payable shall be conclusive, and payments in accordance with
such determination shall constitute a complete discharge of all
obligations on account thereof.
9.9 DISTRIBUTIONS NO LATER THAN AGE 70-1/2
Notwithstanding the foregoing provisions of this Section 9,
distribution of a Participant's entire interest in the Plan shall be
made no later than the April 1 of the calendar year following the
calendar year in which the Participant attains age 70-1/2 in accordance
with applicable rules and regulations. If the Participant continues in
employment after age 70-1/2, distributions of amounts credited to the
Participant after the initial distribution shall be made in accordance
with applicable rules and regulations. This Section 9.9 shall not be
applicable to any Participant who attains age 70-1/2 before January 1,
1988 other than a
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Participant who is a 5-percent owner (as defined in Section 416(i) of
the Code) at any time during the calendar year in which such
Participant attains age 66-1/2 and any subsequent calendar year. A
Participant who is not a 5% owner, attains age 70 1/2 during 1988 and
continues to be employed by the Company on January 1, 1989, shall be
required to begin receiving distributions by April 1, 1990.
The amount required to be distributed each calendar year must be at
least an amount equal to the quotient obtained by dividing the
Participant's Account balance as of the latest Valuation Date preceding
the current calendar year by the life expectancy of the Participant or
joint and last survivor expectancy of the Participant and his or her
designated Beneficiary, as provided under Code Section 401(a)(9).
Life expectancy and joint and last survivor expectancy are computed by
the use of the return multiples contained in Section 1.72-9 of the
Income Tax Regulations. For purposes of this computation, a
Participant's life expectancy may be recalculated no more frequently
than annually. The life expectancy of a non-spouse Beneficiary,
however, may not be recalculated.
If the Participant's Spouse is not the designated Beneficiary, any
method of distribution must meet the minimum distribution incidental
benefit (MDIB) requirements under Code Section 401(a)(9).
9.10 FAILURE TO LOCATE PAYEE
If any amount is payable from the Trust Fund to any person and, after
written notice from the Trustee mailed to such person's last known
address as certified to the Trustee by the Administrator, and such
person shall not have presented himself or herself to the Trustee
within one year after the mailing of such notice, such amount shall be
forfeited and shall be used to reduce Company contributions; provided
however, that the forfeited amount shall be restored and paid to the
proper payee upon any ultimate claim for benefits by such proper payee.
9.11 DIRECT ROLLOVER
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
paid directly to an eligible retirement plan specified by the
distributee in a direct rollover. For purposes of the above, the
following definitions shall apply:
(a) "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
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payments made (not less frequently than annually) for the life
(or life expectancy) of the distributee or the joint lives (or
joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent
such distribution is required under Section 401(a)(9) of the
Code; and the portion of any distribution that is not
includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
(b) "Eligible retirement plan" is an individual retirement account
described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of the Code, that
accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to
the surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement
annuity.
(c) "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 alternative payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, are
distributees with regard to the interest of the spouse or
former spouse.
(d) "Direct rollover" is a payment by the Plan to the eligible
retirement plan specified by the distributee.
SECTION 10
ADMINISTRATION OF THE PLAN
10.1 PLAN ADMINISTRATION
The Administrator and the Investment Committee shall be the Plan's
"named fiduciaries" for the purposes of Section 402(a) of ERISA.
Administration of the Plan shall be the responsibility of the Company
except to the extent that:
(a) authority to construe, administer and interpret the Plan is
delegated to the Administrator in accordance with this Section
10;
(b) authority to hold the Trust Fund of the Plan has been
delegated to the Trustee and authority to direct the Trustee
has been delegated to the Administrator in accordance with
Section 11;
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<PAGE> 44
(c) authority to act for the Company has otherwise been reserved
to the Board of Directors; and
(d) authority to appoint an investment manager within the meaning
of ERISA Section 3(38) is delegated to the Investment
Committee in accordance with this Section 10.
10.2 APPOINTMENT OF THE ADMINISTRATOR
The Company, acting through its Chief Executive Officer, shall appoint
an "Administrator," which shall be an individual or group of
individuals acting as an Administrative Committee (the "Committee") to
perform the duties of the Company as "plan administrator." Any
individual, including but not limited to Employees and Participants,
may be appointed as a member of the Committee. Such appointed
individual shall file a written consent to serve as a member of the
Committee with the records of the Plan. Each member of the Committee
shall serve until his or her resignation or dismissal by the Company.
Vacancies shall be filled in the same manner as the original
appointment. To resign, a member shall give written notice which shall
be effective on the earlier of the appointment of his successor or the
passing of 60 days after such notice is mailed or personally delivered
to the Company. The members of the Committee shall serve as such
without compensation and without bond or other security at the pleasure
of the Company.
10.3 RESPONSIBILITIES OF ADMINISTRATOR
Subject to Section 10.1, the Administrator shall be responsible for the
administration, operation and interpretation of the Plan. The
Administrator shall establish rules from time to time for the
transaction of its business. It shall have the exclusive right to
interpret the Plan and to decide any and all matters arising thereunder
or in connection with the administration of the Plan, and it shall
endeavor to act, whether by general rules or by particular decisions,
so as not to discriminate in favor of any person or class of person.
Such decisions, actions and records of the Administrator shall be
conclusive and binding upon the Company and all persons having or
claiming to have any right or interest in or under the Plan. The
Administrator may retain counsel, employ agents and obtain clerical,
consulting and accounting services as the Administrator may require or
deem advisable from time to time.
The Administrator shall maintain accounts to the extent it deems
necessary or appropriate showing the fiscal transactions of the Plan.
10.4 APPOINTMENT OF THE INVESTMENT COMMITTEE
The Company, acting through its Chief Executive Officer, shall appoint
members of a committee to be known as the Investment Committee. Any
individual, including but not limited to Employees and Participants,
may be appointed as a member of the Investment
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<PAGE> 45
Committee. Such appointed individual shall file a written consent to
serve as a member of the Investment Committee with the records of the
Plan. Each member of the Investment Committee shall serve until his or
her resignation or dismissal by the Company. Vacancies shall be filled
in the same manner as the original appointment. To resign, a member
shall give written notice which shall be effective on the earlier of
the appointment of his successor or the passing of 60 days after such
notice is mailed or personally delivered to the Company. The members of
the Investment Committee shall serve as such without compensation and
without bond or other security at the pleasure of the Company.
10.5 RESPONSIBILITIES OF INVESTMENT COMMITTEE
The Investment Committee shall be responsible for all matters relating
to the funding of the Plan and the overseeing of the investment of Plan
assets. The Investment Committee may delegate authority and
responsibility to one or more persons, including without limitation any
investment manager within the meaning of ERISA Section 3(38), pursuant
to Section 11.5. The Investment Committee may retain counsel, employ
agents and obtain clerical, consulting and accounting services as the
Investment Committee may require or deem advisable from time to time.
10.6 CLAIMS PROCEDURE
In the event that any Participant or other payee claims to be entitled
to a benefit under the Plan, and the Administrator determines that such
claim should be denied in whole or in part, the Administrator shall, in
writing, notify such claimant within 90 days of receipt of such claim
that his or her claim has been denied, setting forth the specific
reasons for such denial. Such notification shall be written in a manner
reasonably expected to be understood by such Participant or other payee
and shall set forth the pertinent sections of the Plan relied on, and
where appropriate, an explanation of how the claimant can obtain review
of such denial. Within 60 days after receipt of such notice, such
claimant may request, by mailing or delivery of written notice to the
Administrator, a review by the Administrator of the decision denying
the claim. If the claimant fails to request such a review within such
60 day period, it shall be conclusively determined for all purposes of
this Plan that the denial of such claim by the Administrator is
correct. If such claimant requests a review within such 60 day period,
the Participant or other payee shall have 30 days after filing a
request for review to submit additional written material in support of
the claim. The Administrator shall decide whether or not to grant the
claim within 60 days after receipt of the request for review, but this
period may be extended by the Administrator for up to an additional 60
days in special circumstances. After such review, the Administrator
shall determine whether such denial of the claim was correct and shall
notify such claimant in writing of its determination. Decisions of the
Administrator are final and binding on all persons.
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10.7 ENGAGEMENT OF ACCOUNTANT
The Company shall engage a "qualified public accountant" to prepare
such audited financial statements of the operation of the Plan as shall
be required by ERISA.
10.8 LIMITATION ON LIABILITY
The Administrator and the Investment Committee shall not be liable for
any act or omission on their part, excepting only his or her own
willful misconduct or gross negligence or except as otherwise expressly
provided by ERISA. To the extent permitted by applicable law, the
Company shall indemnify and save harmless the Administrator and the
Investment Committee against any and all claims, demands, suits or
proceedings in connection with the Plan and Trust Fund that may be
brought by Participants or their Beneficiaries, Employees of
participating Companies, or by any other person, corporation, entity,
government or agency thereof; provided, however that such
indemnification shall not apply with respect to acts or omissions of
willful misconduct or gross negligence. The Board of Directors, at the
Company's expense, may settle such claim or demand asserted, or suit or
proceedings brought, against of the Administrator or the Investment
Committee when such settlement appears to be in the best interest of
the Company.
10.9 AGENT FOR SERVICE OF PROCESS
The Administrator or such other person as may from time to time be
designated by the Administrator shall be the agent for service of
process under the Plan.
10.10 DELIVERY OF ELECTIONS TO ADMINISTRATOR
All elections, designation, requests, notices, instructions and other
communications required or permitted under the Plan from the Company, a
Participant, Beneficiary or other person to the Administrator or the
Investment Committee shall be made in accordance with rules determined
by the Administrator and the Investment Committee, respectively.
SECTION 11
MANAGEMENT OF THE TRUST FUND
11.1 TRUST AGREEMENT
All assets of the Plan shall be held as a Trust Fund under a Trust
Agreement with the Trustee for the exclusive benefit of Participants
and their Beneficiaries under the Plan, and paying the expenses of the
Plan not paid directly by the Company, and prior to the satisfaction of
all liabilities with respect to such persons, no part of the corpus or
income
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<PAGE> 47
of the Trust Fund shall be used for or diverted to purposes other than
for the exclusive benefit of such persons. No such person, nor any
other person, shall have any interest in or right to any part of the
earnings of the Trust Fund, or any rights in, to, or under the Trust
Fund or any part of its assets, except to the extent expressly provided
in the Plan.
11.2 APPOINTMENT OF THE TRUSTEE
The Trustee shall be appointed by the Investment Committee, with such
powers in the Trustee as to investment, reinvestment, control and
disbursement of the Trust Fund as shall be in accordance with the Plan
and Trust Agreement. The Investment Committee may remove the Trustee at
any time and upon such removal or upon the resignation of the Trustee,
the Investment Committee shall designate a successor Trustee. Removal
or resignation of the Trustee must be in writing and requires at least
60 days notice.
11.3 FORM OF DISBURSEMENTS
The Administrator shall determine the manner in which the Trust Fund
shall be disbursed in accordance with the Plan and the provisions of
the Trust Agreement, including the form of voucher or warrant to be
used in authorizing disbursements and the qualifications of persons
authorized to approve and sign the same and any other matters incident
to the disbursement of the Trust Fund.
11.4 EXPENSES OF THE PLAN
The expenses of the administration of the Plan shall be deemed to be
expenses of the Trust Fund.
11.5 AUTHORITY AND RESPONSIBILITY OF INVESTMENT MANAGER
The Company, acting through its Investment Committee, may appoint one
or more Investment Managers with full authority and responsibility with
respect to the investment and management of all or a portion of the
trust assets. In such case, the Trustee shall not be liable nor
responsible in any way for any losses or other unfavorable results
arising from the Trustee's compliance with investment or management
directions received by the Trustee from the Investment Manager except
as otherwise provided by ERISA.
All directions concerning investments made by the Investment Manager
shall be signed by such person or persons, acting on behalf of the
Investment Manager, as may be duly authorized in writing; provided,
however, that the transmission to the Trustee of such directions by
photostatic teletransmission with duplicate or facsimile signature or
signatures shall be considered a delivery in writing of the aforesaid
directions until the Trustee is notified in writing by the Investment
Manager that the use of such devices with duplicate or facsimile
signatures is no longer authorized. The Trustee shall be entitled to
rely upon
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<PAGE> 48
directions which it receives by such means if so authorized by the
Investment Manager and shall in no way be responsible for the
consequences of any unauthorized use of such device which use was not,
in fact, known by the Trustee at the time to be unauthorized.
The Trustee shall be under no duty to question any directions of the
Investment Manager nor to review any securities or other property of
the Trust constituting assets thereof with respect to which an
Investment Manager has investment responsibility, nor to make any
suggestions to such Investment Manager in connection therewith. The
Trustee shall, as promptly as possible, comply with any written
directions given by the Investment Manager hereunder and, where such
directions are given by photostatic teletransmission with facsimile
signature or signatures, the Trustee shall be entitled to presume that
any directions so given are fully authorized.
The Trustee shall not be liable, in any manner nor for any reason, for
the making or retention of any investment pursuant to such directions
of the Investment Manager, nor shall the Trustee be liable for the
Trustee's failure to invest any or all of the Trust Fund in the absence
of such directions. In any event the Investment Manager referred to
above shall not direct the purchase, sale or disposition of any assets
of the Trust Fund if such directions are not in compliance with the
applicable provisions of ERISA and any regulations or rulings issued
thereunder.
If the Investment Manager is authorized to direct the investment and
management of the trust assets, the Trustee shall have no obligation to
determine the existence of any conversion, redemption, exchange,
subscription or other right relating to any of said securities
purchased of which notice was given prior to the purchase of such
securities, and shall have no obligation to exercise any such right.
The term "Investment Manager" as used herein shall be construed as
meaning a fiduciary as defined in Section 3(38) of ERISA, which
fiduciary has fully complied with the provisions of said Section 3(38)
of ERISA and has provided the Administrator and the Trustee with
written acknowledgment that the fiduciary has done so and is a
fiduciary with respect to the Plan.
SECTION 12
ADOPTION AND AMENDMENT OF THE PLAN
12.1 PLAN AMENDMENTS
This Plan may be wholly or partially amended or otherwise modified at
any time by the Company, provided, however, that:
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(a) No amendment or modification can be made that would permit any
part of the corpus or income of the Trust Fund to be used for
or diverted to purposes other than for the exclusive benefit
of such Participants and their Beneficiaries under the Plan
and for the payment of the expenses of the Plan.
(b) No amendment or modification shall have any retroactive effect
so as to deprive any person of any benefit already accrued,
including the elimination or reduction of an early retirement
benefit, or a retirement-type subsidy or the elimination of an
optional form of payment except as may be permitted under
regulations under Code Section 411(d)(6). However, any
amendment may be made retroactive that is necessary to bring
the Plan into conformity with governmental regulations in
order to qualify the Plan for tax purposes and meet the
requirements of ERISA.
(c) No amendment or modification may be made which shall increase
the duties or liabilities of the Trustee, the Administrator or
of the Company without the written consent of the party so
affected.
(d) In the event the vesting schedule set forth in Section 5 is
amended, such amendment may not reduce the vesting percentage
of any Participant in his or her then account balance. In
addition, any Participant who has completed three (3) Years of
Service at the time of such amendment may elect to continue
under the vesting schedule in effect prior to such amendment.
SECTION 13
DISCONTINUANCE OF THE PLAN
13.1 TERMINATION OF PLAN
The Plan may be terminated at any time by the Board of Directors by
written notice to the Administrator and to the Trustee at the time
acting hereunder, but only upon condition that such action is taken as
shall render it impossible for any part of the corpus or income of the
Trust Fund to be used for or diverted to purposes other than for the
exclusive benefit of the Participants and their Beneficiaries under the
Plan and for the payment of the administrative costs of the Plan not
otherwise paid by the Company. In the event of any termination, or
partial termination of the Plan, or complete discontinuance of
contributions thereunder, all affected Participants' Accounts shall
become fully vested and nonforfeitable. For purposes of the preceding
sentence, portions of Accounts that have been forfeited on account of a
deemed distribution pursuant to Section 5.4 shall not become vested.
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13.2 REVALUATION ON TERMINATION
If the Plan is terminated pursuant to Section 13.1 and the Board of
Directors determines that the Trust Fund shall be terminated, of which
determination written notice shall be given to the Administrator and to
the Trustee at the time acting hereunder, the Trust Fund shall be
revalued as if the termination date were the Valuation Date, and the
current value of all Accounts shall be distributed in accordance with
Section 9.
However, in no event may the Plan be terminated and in the Pre-Tax
Contributions Account or Qualified Non-Elective Contributions Account
be distributed while the Company or the Affiliated Company maintains
another defined contribution plan other than an ESOP or SEP.
13.3 DISTRIBUTION UPON PLAN TERMINATION
A distribution of the Participant's Account shall be made to the
Participant or his or her Beneficiary as soon as administratively
feasible after the termination of the Plan, provided that neither the
Company nor an Affiliated Company maintains a successor plan.
13.4 DISTRIBUTIONS UPON SALE OF ASSETS
A Participant's Account shall be distributed to the Participant, as
soon as administratively feasible, after the sale to an entity that is
not an Affiliated Company of substantially all of the assets issued by
the Company in the trade or business in which the Participant is
employed.
13.5 DISTRIBUTION UPON SALE OF SUBSIDIARY
A Participant's Account shall be distributed as soon as
administratively feasible to a Participant who continues in employment
with a former subsidiary of the Company after the sale of the Company's
interest in the subsidiary to an entity which is not an Affiliated
Company.
13.6 LIMITATION ON MERGER - TRANSFER OF ASSETS
No merger or consolidation with, or transfer of assets or liabilities
to any other pension or retirement plan, shall be made unless the
benefit each Participant in this Plan would receive if the Plan were
terminated immediately after such merger or consolidation, or transfer
of assets and liabilities, would be at least as great as the benefit he
or she would have received had the Plan terminated immediately before
such merger, consolidation or transfer.
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SECTION 14
PARTICIPATION IN THE PLAN BY SUBSIDIARIES OR AFFILIATES
14.1 PARTICIPATION BY SUBSIDIARIES OR AFFILIATES
Any subsidiary or affiliate of the Company may, with the consent of the
Board of Directors, become a party to this Plan by adopting the Plan
for some or all of its Employees and by executing the Trust Agreement
if required under such Trust Agreement. Upon the filing with the
Trustee of a certified copy of the resolutions or other documents
evidencing the adoption of this Plan and a written instrument showing
the consent of the Board of Directors of the Company to participation
by such subsidiary or affiliate and upon the execution of the Trust
Agreement by such subsidiary or affiliate, if required under such Trust
Agreement, it shall thereupon be included in the Plan as a
participating employer, and shall be bound by all the terms thereof as
they relate to its Employees. Any contributions provided for in the
Plan and made by such participating employer shall become a part of the
Trust Fund and shall be held by the Trustee subject to the terms and
provisions of the Trust Agreement.
With the approval of the Company, a participating employer may elect to
have special provisions apply with respect to its Eligible Employees.
Such special provisions, which may differ from the provisions of the
Plan applicable to Employees of other participating employers, shall be
stated in an Appendix to the Plan which is applicable to such
participating Company.
14.2 WITHDRAWAL OF PARTICIPATING EMPLOYERS
In the event that an organization which has become a participating
employer pursuant to the provisions of Section 14.1, shall cease to be
an Affiliated Company, such organization shall forthwith be deemed to
have withdrawn from the Plan and the Trust Agreement. Any one or more
of the participating employers may voluntarily withdraw from the Plan
by giving six months' notice in writing of such intention to withdraw
to the Board of Directors and to the Administrator (unless a shorter
notice shall be agreed to by the Board of Directors and by the
Administrator).
Upon any such withdrawal by any such participating employer, the
Administrator shall determine that portion of the Trust Fund allocable
to the Participants and their Beneficiaries thereby affected,
consistent with the provisions of ERISA and the regulations thereunder.
Subject to the provisions of ERISA and regulations thereunder, the
Administrator shall then instruct the Trustee to set aside from the
trust assets then held by it, such securities and other property as it
shall, with the approval of the Administrator, deem to be equal in
value to the portion of the Trust Fund so allocable to the withdrawing
Company. The Administrator shall direct the Trustee, in the discretion
of the Administrator and subject to
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the provisions of ERISA and regulations thereunder, either (a) to hold
such assets so set aside and to apply the same for the exclusive
benefit of the Participants and Beneficiaries so affected on the same
basis as if the Trust had been terminated pursuant to Section 13.2 upon
the date of such withdrawal, or (b) to deliver such assets to a Trustee
to be selected by such withdrawing Company.
SECTION 15
CONSTRUCTION OF THE PLAN
15.1 CONSTRUCTION OF THE PLAN
The validity of the Plan or of any of the provisions thereof shall be
determined under and shall be construed according to the laws of the
State of Connecticut, unless pre-empted by applicable federal laws.
15.2 HEADINGS
Headings or titles to sections or paragraphs in this document are for
convenience of reference only and are not part of the Plan for any
other purposes.
SECTION 16
TOP-HEAVY PROVISIONS
16.1 SPECIAL TOP-HEAVY DEFINITIONS
For purposes of this Section 16, the following terms shall have the
following meanings:
(a) "Determination Date" means, with respect to any Plan Year, the
last Valuation Date of the preceding Plan Year.
(b) "Key Employee" means a Participant or former Employee who is a
"key employee" as defined in Section 416(i) of the Code.
(c) "Permissive Aggregation Group" means, with respect to a given
Plan Year, this Plan and all other plans of the Affiliated
Company (other than those included in the Required Aggregation
Group) which, when aggregated with the plans in the Required
Aggregation Group, continue to meet the requirement of
Sections 401(a)(4) and 410 of the Code.
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(d) "Present Value of Accounts" means, as of a given Determination
Date, the sum of the Participants' Accounts under the Plan as
of such Valuation Date. The determination of the Present Value
of Accounts shall take into consideration distributions made
to or on behalf of the Participant in the Plan Year ending on
the Determination Date and the four preceding Plan Years, but
shall not take into consideration the Accounts of any
Participant who has not performed service for the Company
during the five year period ending on the Determination Date.
(e) "Required Aggregation Group" means with respect to a given
Plan Year:
(i) This Plan,
(ii) Each other plan of the Affiliated Company
(including terminated plans) in which a Key
Employee is a participant; and
(iii) Each other plan of the Affiliated Company which
enables a plan described in (i) or (ii) to meet
the requirements of Sections 401(a)(4) or 410 of
the Code.
(f) "Top-Heavy" means, with respect to the Plan for a Plan Year:
(i) That the Present Value of Accounts of Key
Employees exceeds 60% of the Present Value of
Accounts of all Participants; or
(ii) That the Plan is part of a Required Aggregation
Group and such Required Aggregation Group is a
Top-Heavy Group, unless the Plan or such
Top-Heavy Group is itself part of a Permissive
Aggregation Group which is not a Top-Heavy
Group.
(g) "Top-Heavy Group" means, with respect to a given Plan Year, a
group of Plans of the Company which, in the aggregate, meet
the requirements of the definition contained in Section
416(g)(2)(B) of the Code.
16.2 SPECIAL TOP-HEAVY PROVISIONS
Notwithstanding any other provision of the Plan to the contrary, the
following provisions of this Section 16.2 shall automatically become
operative and shall supersede any conflicting provisions of the Plan
if, in any Plan Year, the Plan is Top-Heavy:
(a) The minimum Company contribution during the Plan Year on
behalf of a Participant who is not a Key Employee shall be
equal to the lesser of (i) 3% of such Participant's
Compensation; or (ii) the percentage of Compensation as
defined in Section 1.10 at which Company Contributions are
made (or required to be made)
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under the Plan on behalf of the Key Employee for whom such
percentage is the greatest. Pre-Tax Contributions on behalf of
Key Employees are taken into account in determining the
minimum required contribution in (ii) above but Pre-Tax
Contributions on behalf of Participants who are not Key
Employees may not be treated as Company contributions for
purposes of the minimum contribution or benefit requirement of
this subsection (a). For purposes of this Section 16.2,
compensation is defined as wages within the meaning of Code
Section 3401(a). Such contribution shall be made for each
Participant who has not separated from service at the end of
the Plan Year regardless of whether such non-key employee
performed 1,000 Hours of Service, or earned a specified level
of compensation, or elected not to make Pre-Tax Contributions
during the Plan Year. If a Participant who is not a Key
Employee also participates in a defined benefit plan sponsored
by the Company, the Top-Heavy defined benefit minimum benefit
will be provided to such Participant offset by the benefit
attributable to contributions under this Plan.
(b) For any Plan Year in which the Plan is Top-Heavy, Compensation
shall in no event exceed the limitation in effect for such
year in accordance with Section 401(a)(17) of the Code.
(c) For any Plan Year in which the Plan is Top-Heavy, a
Participant who is credited with Service in such year, shall
be 100% vested in his or her Company Contributions Account
upon the completion of three (3) Years of Vesting Service as
described below:
<TABLE>
<CAPTION>
Years of Vesting Service Percentage Vested
------------------------ -----------------
<S> <C>
Less than 3 0%
3 or more 100%
</TABLE>
(d) In order to comply with the requirements of Section 416(h) of
the Code, in the case of a Participant who is or has also
participated in a defined benefit plan of the Company (or any
Affiliated Company that is required to be aggregated with the
Company in accordance with Section 415(h) of the Code) in any
Plan Year in which the Plan is Top-Heavy, there shall be
imposed under such defined benefit plan the following
limitation in addition to any limitation which may be imposed
as described in Section 3.9. In any such year, for purposes
of satisfying the aggregate limit on contributions and
benefits imposed by Section 415(e) of the Code, benefits
payable from the defined benefit plan shall, except as
hereinafter described, be reduced so as to comply with a limit
determined in accordance with Section 415(e) of the Code, but
with the number "1.0" substituted for the number "1.25" in the
"defined benefit plan fraction" (as defined in Section
415(e)(2) of the Code) and in the "defined contribution plan
fraction" (as defined in Section 415(e)(3) of the Code).
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<PAGE> 55
Notwithstanding the foregoing, if the application of the
additional limitation set forth in this paragraph (d) would
result in the reduction of accrued benefits of any Participant
under the defined benefit plan, such additional limitation
shall not become operative, so long as:
(i) No additional employer contributions,
forfeitures or voluntary nondeductible
contributions are allocated to such
Participant's accounts under any defined
contribution plan maintained by the Company
including this Plan; and
(ii) No additional benefits accrue to such
Participant under any defined benefit plan
maintained by the Company.
Accordingly, in any Plan Year that the Plan is Top-Heavy, no
additional benefits shall accrue under the defined benefit
plan on behalf of any Participant whose overall benefits under
the defined benefit plan otherwise would be reduced in
accordance with the limitation described in this paragraph
(d).
(e) In the event that Congress should provide by statute, or the
Treasury Department should provide by regulation or ruling,
that the limitations provided in this Section 16 are no longer
necessary for the Plan to meet the requirements of Section 401
or other applicable law then in effect, such limitations shall
become void and shall no longer apply, without the necessity
of further amendment to the Plan.
SECTION 17
LOANS
17.1 ADMINISTRATOR DISCRETION
Subject to such uniform and non-discriminatory rules as the
Administrator establishes in accordance with the Loan Policy as
attached hereto as Appendix A, the Administrator may direct the Trustee
to lend money from the Trust Fund to any Participant under the
following circumstances: (1) loans shall be made available to all
Participants on a reasonably equivalent basis; (2) loans shall not be
made available to Highly Compensated Employees in an amount greater
than the amount made available to other Participants; (3) loans shall
bear a reasonable rate of interest; (4) loans shall be adequately
secured; and (5) shall provide for repayment over a reasonable period
of time. Such loans shall also be subject to the additional terms and
conditions which follow.
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17.2 TERMS OF LOAN
In addition to the provisions of the Loan Policy as attached hereto as
Appendix A, loans made pursuant to this Section 17 shall be granted
subject to the following rules and restrictions:
(a) Interest on such loans shall be determined and redetermined
from time to time pursuant to such uniform and
non-discriminatory rules as the Administrator shall prescribe
pursuant to the attached Loan Policy.
(b) No amounts may be borrowed from such Participant's Qualified
Non-Elective Contributions Account.
(c) The note executed with respect to the loan shall be secured by
a security interest granted by the Participant of no more than
one-half of a Participant's vested account balance.
(d) The note executed with respect to the loan shall mature not
later than 5 years from the date of execution or upon earlier
termination of employment by reason of retirement, death,
disability or otherwise, except that loans from a
Participant's Pre- Tax Contributions Account, Voluntary
After-Tax Contributions Account, Rollover Contributions
Account and Transfer Account that are used to purchase the
principal residence of a Participant may have a repayment
period of up to fifteen (15) years. During the Participant's
employment, the loan shall be repaid pursuant to a level
repayment schedule by means of a payroll deduction.
(e) The amount of the loan from this Plan, when added to the
outstanding balance of all other loans from all qualified
plans of any Affiliated Company, shall under no circumstances
exceed the lesser of:
(i) $50,000, reduced by the excess of the highest
outstanding balance of loans from such plans
during the 1-year period ending on the day
before the date the loan is made over the
outstanding balance of loans on the date the
loan is made; or
(ii) One-half of the present value of such
Participant's nonforfeitable accrued benefit
under all such qualified plans of the Affiliated
Company.
Loan amounts will be limited to a maximum of 50% of the
Participant's nonforfeitable Account balances or accrued
benefits under all such qualified plans of any Affiliated
Company.
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(f) The Participant's Account shall be reduced by the amount of
the loan, and such Account shall be increased to reflect loan
payments for purposes of revaluing such Account balance
pursuant to Section 6.
(g) Loans shall be made for the following purposes:
(i) Loans from a Participant's Pre-Tax Contributions
Account, Voluntary After-Tax Contributions
Account, Rollover Contributions Account and
Transfer Account may be made for any purpose.
(ii) Loans from a Participant's Company Contributions
Account may be made on account of "hardship."
Such a request shall be made in accordance with
rules determined by the Administrator, shall
specify the amount needed and shall be
accompanied by evidence documenting the hardship.
For purposes of this Section 17.2(g)(ii),
"hardship" means an unplanned circumstance or
emergency resulting in an immediate and heavy
financial need that cannot be met through
Participant loans described in Section 17(g)(i)
or withdrawals from Pre-Tax Contributions as
described in Section 7.1. All such loan requests
must be approved by the Administrator, whose
decisions shall be final.
(h) Any amounts loaned pursuant to this Section 17 shall be taken
from the following Accounts in the following order:
(i) Pre-Tax Contributions Account;
(ii) Voluntary After-Tax Contributions Account;
(iii) Transfer Account;
(iv) Rollover Contributions Account; and
(v) Vested Company Contributions Account.
(i) Any amounts loaned pursuant to this Section 17 shall be taken
proportionately from the investment funds in which a
Participant's Account is invested.
(j) Payments of principal and interest shall be invested in
accordance with the Participant's investment election pursuant
to Section 4, as such election is in effect at the time of
each such payment.
(k) A Participant must obtain the consent of his or her spouse, if
any, within a 90-day period before such Participant's Account
is used to secure a loan. A new consent
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<PAGE> 58
is required if the Account is used for any increase in the
amount of security. This consent shall comply with the Spousal
Consent provisions of Appendix B.
(l) The loan will be treated as in default if any of the following
occurs:
(i) Any scheduled payment remains unpaid for more
than 90 days;
(ii) The making or furnishing of any representation
or statement to the Plan by or on behalf of the
Participant which proves to be false in any
material respect when made or furnished;
(iii) Loss, destruction, sale or encumbrance to or of
any of the collateral, or the making of any levy
seizure or attachment thereof or thereon;
(iv) Death, dissolution, insolvency, business
failure, appointment of receiver of any part of
the property of assignment for the benefit of
creditors by, or the commencement of any
proceeding under any bankruptcy or insolvency
laws of, by or against the Participant; and
(v) Termination of employment for any reason.
(m) Payments in repayment of a loan pursuant to this Section 17
shall be made only by payroll deduction; provided, however,
that a Participant who has terminated employment or is on an
approved leave of absence may make payments by personal check,
with each check due on the first of the month. If any payment
remains unpaid for a period of 90 days, the loan will be
considered to be in default and the Administrator shall treat
the loan as a distribution for tax purposes. If the
Participant is terminated or otherwise eligible for a
distribution under the Plan, then the Administrator shall
foreclose on the collateral.
(n) Loan Policy. Any loans granted or renewed shall be made
pursuant to a Participant loan policy. Such loan policy shall
be established in writing and must include, but need not be
limited to, the following:
(i) the identity of the person or positions
authorized to administer the Participant loan
policy;
(ii) a procedure for applying for loans;
(iii) the basis on which loans will be approved or
denied;
(iv) limitations, if any, on the types and amounts of
loans offered;
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<PAGE> 59
(v) the procedure under the program for determining a
reasonable rate of interest;
(vi) the types of collateral which may secure a
Participant loan; and
(vii) the events constituting default and the steps
that will be taken to preserve Plan assets.
Such Participant loan policy shall be contained in a separate
written document which, when properly executed, is hereby
incorporated by reference and made a part of the Plan.
Furthermore, such Participant loan policy may be modified or
amended by the Company in writing from time to time without
the necessity of amending this Section 17.
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IN WITNESS WHEREOF, the Company has executed this amended and restated
Plan as of the 16th day of May, 1996.
ATTEST: THE DEXTER CORPORATION
/s/ Bruce H. Beatt By: /s/ K. Grahame Walker
----------------------------- ---------------------------------
Title: Chairman and Chief
Executive Officer
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<PAGE> 61
APPENDIX A
THE DEXTER ESPRIT PLAN
PARTICIPANT LOAN POLICY
The Plan permits loans to be made to Participants. However, before any
loan is made, the Plan requires that a written loan policy be established which
sets forth the rules and guidelines for making Participant loans. This document
shall serve as the required written loan policy. In addition, the Administrator
may use this document to serve as, or supplement, any required notice of the
loan policy to Participants. All references to Participants in this loan policy
shall include (i) Participants and (ii) Beneficiaries and Former Participants
who are "parties in interest" as defined by the Employee Retirement Income
Security Act of 1974 ("ERISA") Section 3(14).
1. The Administrator of the Plan is authorized to administer the
Participant loan policy. All applications for loans shall be made by a
Participant in accordance with rules determined by the Administrator.
2. All loan applications shall be considered by the Administrator
within a reasonable time after the Participant makes formal application. The
Participant shall also be required to provide such supporting information deemed
necessary by the Administrator. This may include a financial statement, tax
returns and such other financial information as the Administrator may consider
necessary and appropriate to determine whether a loan should be granted.
Furthermore, the Participant may be requested to authorize the Administrator to
obtain a credit report on the Participant.
3. The Administrator shall determine whether a Participant qualifies
for a loan, applying such criteria as a commercial lender of funds would apply
in like circumstances with respect to the Participant. Such criteria shall
include, but need not be limited to, the creditworthiness of the Participant and
his or her general ability to repay the loan, the period of time such
Participant has been employed by the Company, whether adequate security has been
provided for the loan, and whether the Participant agrees, as a condition for
receiving the loan, to make repayments through direct, after-tax payroll
deduction.
4. With regard to any loan made pursuant to this policy, the following
rules and limitations shall apply, in addition to such other requirements set
forth in the Plan:
(i) All loans made pursuant to this policy shall be
considered a directed investment from the account(s) of the Participant
maintained under the Plan. As such, all payments of principal and
interest made by the Participant shall be credited only to the
account(s) of such Participant.
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(ii) The minimum loan amount shall be $1,000.
(iii) A Participant may have no more than one (1) loan
outstanding from the Plan at any time.
(iv) Prepayment of all or a portion of the principal
amount of the loan may be made at any time.
(v) An origination fee will be deducted from the face amount
of any loan granted to a Participant.
5. Any loan granted or renewed under this policy shall bear a
reasonable rate of interest. In determining such rate of interest, the Plan
shall require a rate of return commensurate with the prevailing interest rate
charged on similar commercial loans under like circumstances by persons in the
business of lending money. Such prevailing interest rate standard shall permit
the Administrator to consider factors pertaining to the opportunity for gain and
risk of loss that a professional lender would consider on a similar arms'-length
transaction, such as the creditworthiness of the Participant and the security
given for the loan. Therefore, in establishing the rate of interest, the
Administrator shall conduct a reasonable and prudent inquiry with professional
lenders in the same geographic locale where the Participant and Company reside
to determine such prevailing interest rate for loans under like circumstances.
The current interest rate is equal to the prime rate published in the Wall
Street Journal on the last business day of the month preceding the month in
which the loan is requested, plus one percent (1%).
6. The Plan shall require that adequate security be provided by the
Participant before a loan is granted. For this purpose, the Plan shall consider
a Participant's interest under the Plan to be adequate security. However, in no
event shall more than 50% of a Participant's vested interest in the Plan
(determined immediately after origination of the loan) be used as security for
the loan. Generally, it shall be the policy of the Plan not to make loans which
require security other than the Participant's vested interest in the Plan.
However, if additional security is necessary to adequately secure the loan, then
the Administrator shall require that such security be provided before the loan
will be granted. For this purpose, the Participant's principal residence may
serve as additional security.
7. Generally, a default shall occur upon the failure of a Participant
to timely remit payments under the loan within ninety (90) days of when due. In
such event, the Trustee shall take such reasonable actions which a prudent
fiduciary in like circumstances would take to protect and preserve Plan assets,
including foreclosing on any collateral and commencing such other legal action
for collection which the Trustee deems necessary and advisable. However, the
Trustee shall not be required to commence such actions immediately upon a
default. Instead, the Trustee may grant the participant reasonable rights to
cure any default, provided such actions would constitute a prudent and
reasonable course of conduct for a professional lender in like circumstances. In
addition, if no risk of loss of principal or income would result to the Plan,
the Trustee may choose, in its
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discretion, to defer enforcement proceedings. If the qualified status of the
Plan is not jeopardized, the Trustee and the Administrator may treat a loan that
has been defaulted upon, and such default not cured within a reasonable period
of time, as a deemed distribution from the Plan.
8. Upon satisfaction of the criteria established for granting a loan,
the Administrator shall inform the Trustee that the Participant has qualified to
receive a loan under the Plan's policy. The Trustee shall review the
determination made by the Administrator (including the prevailing interest rate
which has been set for the loan) and, if it determines that such loan would be a
prudent investment for the Plan, applying such fiduciary standards required by
ERISA, the Trustee may grant the loan request. In making such determination, the
Trustee may consider the liquidity of the Plan assets available for loans. The
Trustee shall then require that the Participant execute all documents necessary
to establish the loan, including a promissory note and such other documents
which will provide the Plan with adequate security.
9. This loan policy may be amended from time to time.
Adopted this day of , 19 .
--------- --------------- ---
THE DEXTER CORPORATION
By:
------------------------------------------
Title:
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<PAGE> 64
ESPRIT
APPENDIX B
(Applicable to Employees Who Were
Plan Participants on December 31, 1984)
B1. ELECTING PARTICIPANTS
An Electing Participant is an Employee who was a Participant on
December 31, 1984 and who makes an election prior to his or her death
to receive his or her benefits in the form of a life annuity, provided
such election is still in effect at his or her death.
In the event of any such election, the provisions of this Appendix B
shall take precedence over any conflicting Plan provisions. Amounts
transferred pursuant to Section 6.5 shall be subject to this Appendix B
to the extent required under the "elective transfer" provisions of the
Income Tax regulation under Code Section 411(d)(6).
B2. STANDARD FORMS OF RETIREMENT BENEFIT
(a) Unmarried Electing Participants. The standard form of benefit
for an Electing Participant who is not married on his or her
annuity starting date shall be a straight life annuity payable
as of his or her annuity starting date and on the first day of
each month thereafter during his or her lifetime. The annuity
shall equal the amount which may be purchased with the value
of an Electing Participant's vested Accounts. In addition,
prior to such Electing Participant's commencement of benefits,
he or she may choose an optional form of benefit as described
in Plan Section 9.2 or Appendix B5.
(b) Married Participants. An Electing Participant who is married
on his or her annuity starting date shall, unless he or she
elects otherwise pursuant to the provisions of Section B5,
receive his or her benefit in the form of a Qualified Joint
and Survivor Annuity. A Qualified Joint and Survivor Annuity
is an annuity payable for the life of the Participant with a
survivor annuity payable for the remaining life of the
Participant's surviving spouse (as of the annuity starting
date) which is 50% of the amount of the annuity payable during
the life of the Participant. Such annuity payments will
commence on the first date on which payments can practicably
be commenced after such annuity starting date and continue
monthly thereafter. The annuity shall be in an amount which
can be purchased with the value of the Electing Participant's
vested Account.
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B3. RETIREMENT BENEFIT PAYMENT ELECTIONS
Not earlier than 90 days before nor later than 30 days before the
Electing Participant's annuity starting date (the first day of the
first period for which an amount is payable as an annuity or in the
case of a benefit not payable as an annuity, the first day on which all
events have occurred which entitle a participant to such benefit), the
Administrator shall provide a benefit notice to the Electing
Participant. The notice will explain the optional forms of benefit in
the Plan, including the material features and relative value of those
options and the Electing Participant's right to defer distribution
until he or she attains age 65.
At that time the Administrator will provide the Electing Participant
with a written explanation of:
(a) the terms and conditions of the Qualified Joint and Survivor
Annuity;
(b) the Electing Participant's right to make, and the effect of,
an election to waive the Qualified Joint and Survivor Annuity;
(c) the rights of the Electing Participant's Spouse regarding the
waiver election; and
(d) the Electing Participant's right to make, and the effect of, a
revocation of a previous election to waive the Qualified Joint
and Survivor Annuity.
B4. ELECTION TO WAIVE QUALIFIED JOINT AND SURVIVOR ANNUITY
A married Electing Participant may elect with the consent of his or her
spouse pursuant to the provisions of Appendix B5, to waive the
Qualified Joint and Survivor Annuity which would otherwise be his or
her form of benefit pursuant to Appendix B2(b), and to elect instead
one of the alternate benefit forms specified in Appendix B5. The waiver
election must be in writing and signed by the Electing Participant and
made no earlier than 90 days before the Electing Participant's annuity
starting date (election period). The waiver election may be revoked by
the Electing Participant in writing at any time within the 90-day
election period. Any election in effect upon the expiration of the
90-day election period shall become irrevocable.
(a) Waiver Election. A waiver election by a married Electing
Participant is not valid unless:
(i) the Electing Participant's Spouse (to whom the
survivor annuity under the Qualified Joint and
Survivor Annuity is payable) has consented in writing
to the waiver election;
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(ii) the Spouse's consent acknowledges the effect of the
election;
(iii) a notary public or a Plan Representative witnesses
the Spouse's consent;
(iv) the Spouse consents to the alternate form of payment
designated by the Electing Participant, or to any
change in that designated form of payment; and
(v) unless the Spouse is the Electing Participant's sole
Beneficiary, the Spouse consents to the Electing
Participant's Beneficiary designation or to any
change in Beneficiary designation.
The Spouse's consent to a waiver of the Qualified Joint and
Survivor Annuity is irrevocable, unless the Electing
Participant revokes the waiver election. The Spouse may
execute a blanket consent to any form of payment designation
or to any Beneficiary designation made by the Electing
Participant, if the Spouse acknowledges the right to limit
that consent to a specific designation but, in writing, waives
that right. The consent requirements of this Appendix B apply
to a former Spouse of an Electing Participant, to the extent
required under a Qualified Domestic Relations Order described
in Plan Section 7.4.
(b) Spousal Consent. The Administrator shall accept as valid a
waiver election which does not satisfy the Spousal consent
requirements if the Administrator establishes that the
Electing Participant:
(i) does not have a Spouse;
(ii) cannot locate his or her Spouse;
(iii) is legally separated or has been abandoned (within
the meaning of State law) and the Electing
Participant has a court order to that effect; or
(iv) other circumstances exist under which the Secretary
of the Treasury will excuse the consent requirement.
If the Electing Participant's Spouse is legally
incompetent to give consent, the Spouse's legal
guardian (even if the guardian is the Electing
Participant) may give consent.
B5. OPTIONAL FORMS OF BENEFIT
An Electing Participant may elect, subject to the provisions of
Appendix B, if applicable, and Plan Section 9.2, one of the following
optional forms of benefit:
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(a) life annuity, including variable life annuity, joint and
survivor annuity, or a variable life annuity for the lives of
the former Electing Participant and any Beneficiary selected
by the Electing Participant;
(b) lump sum payment; or
(c) a series of equal or substantially equal installments in a
number selected by the Electing Participant, not extending
beyond the life expectancy of the Electing Participant or his
or her designated Beneficiary.
(d) in non-periodic payments or in periodic payments in amounts as
elected by the Participant subject to the requirements of
Section 9.2(b).
B6. LATEST DATE FOR COMMENCEMENT OF DISTRIBUTIONS
The provisions of Plan Section 9 apply to distributions made pursuant
to this Appendix B.
B7. DISTRIBUTION OF SMALL ACCOUNTS
The provisions of Sections 8.6 and 9.2 shall apply, notwithstanding the
right of an Electing Participant to receive payment of benefits in the
form of an annuity pursuant to this Appendix B. Nevertheless, no
distribution shall be made pursuant to Plan Section 9.2 after his or
her first day of the first period for which an amount is received as an
annuity unless the Electing Participant and his or her Spouse consent
in writing to such distribution.
B8. DEATH BENEFITS
(a) Unmarried Electing Participants. If any Electing Participant
dies, or if the Trustee holds any unpaid balance of the amount
due to a former Electing Participant at his or her death, and
at the time of death the Electing Participant is unmarried,
the Administrator shall, in accordance with any benefit option
elected by the Electing Participant direct the Trustee to pay
the vested Account or the remaining balance of the Account, as
the case may be, to the Beneficiary of such deceased Electing
Participant as he or she shall have designated, or who is
otherwise designated pursuant to the terms and provisions of
Plan Section 8.9. The form and manner of payment shall be
determined by the Beneficiary and shall include the options
set forth in Appendix B5, but with reference to the
Beneficiary rather than the Electing Participant.
(b) Married Electing Participants. If any Electing Participant
dies, or if the Trustee holds any unpaid balance of the amount
due to an Electing Participant, and at the time of his or her
death the Electing Participant was married, the Administrator
shall in accordance with the benefit option selected by the
Electing Participant, and
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subject further to the provisions of Appendix B5 direct the
Trustee to use the value of the vested Account (as determined
on the Valuation Date next following the Participant's death)
to purchase an annuity, payable monthly, for the life of the
Spouse. Such annuity shall be known as a Qualified
Pre-Retirement Survivor Annuity and shall be subject to the
provisions of Appendix B9. An optional form and manner of
payment may be selected by the Beneficiary; and such options
shall include the options set forth in Appendix B5, but with
reference to the Beneficiary rather than the Electing
Participant.
B9. PRE-RETIREMENT SURVIVOR ANNUITY
If a married Electing Participant dies prior to his or her annuity
starting date (as described in Appendix B3), the Administrator will
direct the Trustee to distribute any unpaid balance of the Electing
Participant's Account to the Electing Participant's Surviving Spouse.
Payment will be made in the form of a Qualified Pre-Retirement Survivor
Annuity, unless, the Electing Participant has a valid Waiver election
in effect (as described in Appendix B10). A Qualified Pre-Retirement
Survivor Annuity is an annuity which is purchasable with the value of
the vested Account, as determined on the Valuation Date next following
the Electing Participant's death and payable monthly for the life of
the Spouse.
Subject to the provisions of Section 9.2(b), Qualified Pre-Retirement
Survivor Annuity payments shall not commence prior to the time the
Electing Participant's surviving spouse elects to have such payments
commence.
B10. PRE-RETIREMENT SURVIVOR ANNUITY WAIVER ELECTIONS
In order to alert a married Electing Participant and his or her Spouse
that forms of death benefits other than the Qualified Pre-Retirement
Survivor Annuity may be elected, the Administrator shall comply with
the following procedure. The Administrator shall furnish each Electing
Participant with a written explanation in nontechnical language of the
Qualified Pre-Retirement Survivor annuity within the following period
which ends last:
(a) the period beginning on the first day of the Plan Year in
which the Electing Participant attains age thirty-two (32) and
ending with the last day of the Plan Year in which the
Electing Participant attains age thirty-four (34);
(b) a reasonable period after an Employee becomes an Electing
Participant;
(c) a reasonable period after the joint and survivor rules become
applicable to an Electing Participant; or
(d) a reasonable period after a fully subsidized Qualified
Pre-Retirement Survivor Annuity no longer satisfies the
requirements for a fully subsidized benefit.
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A reasonable period described in clauses (b), (c) and (d) is the period
beginning one (1) year after the applicable event.
If the Electing Participant separates from service before attaining age
35, clauses (a), (b), (c) and (d) do not apply. The Administrator must
provide the written explanation within the period beginning one (1)
year before and ending one (1) year after the Electing Participant's
separation from service. The written explanation must describe, in a
manner consistent with Treasury regulations, the terms and conditions
of the Qualified Pre-Retirement Survivor Annuity comparable to the
explanation of the Qualified Joint and Survivor Annuity required under
Appendix B3. An Electing Participant's waiver election is not valid
unless:
(a) the Electing Participant makes the waiver election no earlier
than the first day of the Plan Year in which he or she attains
age thirty-five (35); and
(b) the Participant's Spouse (to whom the Qualified Pre-Retirement
Survivor Annuity is payable) satisfies the consent
requirements described in Appendix B, except the Spouse need
not consent to the form of benefit payable to the designated
Beneficiary. Such consent by a Spouse is irrevocable, unless
the Electing Participant revokes the waiver election. Said
election may be revoked by the Electing Participant in writing
at any time within such period. The alternate form of death
benefit that may be elected is that set forth in Appendix B2.
An election in effect on the Electing Participant's death
shall be irrevocable.
Irrespective of the time of election requirement described in clause
(a) above, if the Electing Participant separates from service prior to
the first day of the Plan Year in which he or she attains age
thirty-five (35), the Administrator will accept a waiver election as
respects the Electing Participant's Account balance attributable to his
or her service prior to the separation from service. Furthermore, if an
Electing Participant who has not separated from service makes a valid
waiver election except for the timing requirement of clause (a), the
Plan Administrator will accept that election as valid, but only until
the first day of the Plan Year in which the Electing Participant
attains age thirty-five (35).
B11. CASH-OUT OF DEATH BENEFIT TO SPOUSE
If a married Electing Participant dies with a Qualified Pre-Retirement
Survivor Annuity in effect, the Spouse will nevertheless receive a lump
sum distribution equal to the value of the vested Account balance of
the Electing Participant, as determined on the Valuation Date next
following circumstances:
(a) the value of the Participant's Account is not greater than
$3,500 on the said Valuation Date; or
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(b) the Electing Participant's Spouse elects, prior to said
Valuation Date, to receive a lump sum cash-out of the Account
balance. Such cash-out shall be made as soon as practicable
after such Valuation Date.
B12. RESTRICTIONS ON FORMS OF DEATH BENEFIT
The restrictions of Plan Section 8.7 relating to the payment of death
benefits shall also apply to the death benefits provided under this
Appendix B.
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ESPRIT
APPENDIX C
Affiliated Companies
The following entities are Affiliated Companies authorized by The Dexter
Corporation to be included in the terms "Affiliated Company" wherever specified
in the Plan:
Life Technologies, Inc.
D&S Plastics International (Effective March 1, 1993)
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<PAGE> 1
EXHIBIT 15
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: The Dexter Corporation
Registration Statement of Form S-8
We are aware that our report dated April 11, 1996 on our review of interim
financial information of The Dexter Corporation for the periods ended March 31,
1996 and 1995 and included in the Company's quarterly report on Form 10-Q for
the quarter ended March 31, 1996 is incorporated by reference in this
registration statement. Pursuant to Rule 436(c) under the Securities Act of
1933, this report should not be considered a part of the registration statement
prepared or certified by us within the meaning of Sections 7 and 11 of that Act.
/s/ Coopers & Lybrand, L.L.P
------------------------
COOPERS & LYBRAND
Springfield, Massachusetts
May 20, 1996
EXH15
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of The Dexter Corporation on Form S-8 of our report dated February 1,
1996, on our audits of the consolidated financial statements and financial
statement schedules of The Dexter Corporation as of December 31, 1995, 1994, and
1993 and for the years then ended, appearing on page F-2 of The Dexter
Corporation's Annual Report on Form 10-K for the year ended December 31, 1995.
We also consent to the reference to our firm under the caption "Interests of
Named Experts and Counsel" in this Registration Statement.
/s/ Coopers & Lybrand,L.L.P.
----------------------------
COOPERS & LYBRAND
Springfield, Massachusetts
May 20, 1996
EXH23
<PAGE> 1
EXHIBIT 24
THE DEXTER CORPORATION
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that THE DEXTER CORPORATION, a
Connecticut corporation (the "Corporation"), which anticipates filing with the
Securities and Exchange Commission, Washington, D.C. (the "SEC"), under the
Securities Act of 1933, as amended (the "Act"), a registration statement or
registration statements on Form S-8 or such other form as the officers of the
Corporation may determine to be appropriate with respect to shares of Common
Stock, having a par value of $1.00 per share, of the Corporation to be issued
pursuant to the Corporation's Employees' Savings and Profit Sharing Retirement
Income Trust and the Corporation's 401(k) Retirement Savings Plan and each of
the undersigned directors and officers of the Corporation, hereby constitute and
appoint Bruce H. Beatt and Mary Anne B. Tillona and each of them (with full
power of substitution and resubstitution) his or her true and lawful
attorney-in-fact and agent for each of such persons and on his or her behalf and
in his or her name, place and stead, in any and all capacities, to sign, execute
and file with the SEC and any state securities regulatory board or commission
such registration statement(s) aforesaid under the Act, including any amendment
or amendments or any post-effective amendment or amendments relating thereto
with all exhibits, and any and all documents required to be filed with any
federal or state regulatory authority pertaining to the securities subject to
such registration, granting unto said attorneys, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the same
as fully and to all intents and purposes as each of them might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or any of their substitutes, may
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have hereunto signed this Power of
Attorney as of the date(s) indicated.
SIGNATURE TITLE DATE
--------- ----- ----
K. Grahame Walker Chairman, President, April 29, 1996
--------------------------- Chief Executive Officer
K. Grahame Walker and Director (principal
executive officer)
Kathleen Burdett Vice President and April 29, 1996
--------------------------- Chief Financial Officer
Kathleen Burdett (principal financial officer)
George Collin Controller April 29, 1996
--------------------------- (principal accounting
George Collin officer)
Charles H. Curl Director April 29, 1996
---------------------------
Charles H. Curl
Henrietta Holsman Fore Director April 29, 1996
---------------------------
Henrietta Holsman Fore
Bernard M. Fox Director April 29, 1996
---------------------------
Bernard M. Fox
<PAGE> 2
SIGNATURE TITLE DATE
Robert M. Furek Director April 29, 1996
---------------------------
Robert M. Furek
Edgar G. Hotard Director April 29, 1996
---------------------------
Edgar G. Hotard
Martha Clark Goss Director April 29, 1996
---------------------------
Martha Clark Goss
Director April 29, 1996
---------------------------
Peter G. Kelly
Director April 29, 1996
---------------------------
Jean-Francois Saglio
Director April 29, 1996
---------------------------
Glen L. Urban
Director April 29, 1996
---------------------------
George M. Whitesides
