<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 19, 1997
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 MERIT 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 AMOUNT
OFFERING MAXIMUM OF
TITLE OF SECURITIES AMOUNT TO BE PRICE PER AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED SHARE(1) OFFERING PRICE(1) FEE
- ---------------- ---------- -------- ----------------- ---
<S> <C> <C> <C> <C>
Plan Interests in The Dexter
Merit Plan indeterminate $42.25(2) indeterminate $---(3)
Common Stock, having a par
value of $1.00 per share 300,000 shares $42.25(2) $12,675,000 $3,739.13
</TABLE>
(1) Estimated 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 December 15, 1997.
(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 year ended December 31, 1996;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
1997;
(c) Quarterly Report on Form 10-Q for the quarter ended June 30,
1997;
(d) Quarterly Report on Form 10-Q for the quarter ended September
30, 1997; and
(e) 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, 1996 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, 1997, June 30, 1997 and September
30, 1997, 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 reports included in the Registrant's quarterly reports
on Form 10-Q for the quarters ended March 31, 1997, June 30, 1997 and September
30, 1997 and incorporated by reference herein, state that they did not audit and
they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their reports 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 for their report on the unaudited interim financial
information because
<PAGE> 3
those reports are 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 Securities Act of 1933.
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 audited
such financial statements and consented to the use of their reports thereon.
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 Business 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
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 the Registration Statement;
<PAGE> 4
(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.
(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 19th day of
December, 1997.
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.
<TABLE>
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SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
K. Grahame Walker* Chairman, President, December 19, 1997
- ------------------------- Chief Executive Officer
K. Grahame Walker and Director (principal
executive officer)
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
Kathleen Burdett* Vice President and December 19, 1997
- ------------------------- Chief Financial Officer
Kathleen Burdett (principal financial
officer and principal
accounting officer)
- ------------------------- Director December 19, 1997
Charles H. Curl
Henrietta Holsman Fore* Director December 19, 1997
- -------------------------
Henrietta Holsman Fore
Bernard M. Fox* Director December 19,1997
- -------------------------
Bernard M. Fox
Robert M. Furek* Director December 19, 1997
- -------------------------
Robert M. Furek
Martha Clark Goss* Director December 19, 1997
- -------------------------
Martha Clark Goss
Edgar G. Hotard* Director December 19, 1997
- -------------------------
Edgar G. Hotard
- ------------------------- Director December 19, 1997
Peter G. Kelly
- ------------------------- Director December 19, 1997
Jean-Francois Saglio
- ------------------------- Director December 19, 1997
Glen L. Urban
- ------------------------- Director December 19, 1997
George M. Whitesides
</TABLE>
*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
Securities and Exchange Commission.
By: /s/ Bruce H. Beatt
-------------------------------
Bruce H. Beatt
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, the
undersigned, duly authorized administrator of The Dexter Merit Plan, has duly
<PAGE> 6
caused this Registration Statement to be signed on behalf of said Plan, in the
Town of Fremont, California, as of December 19, 1997.
The Dexter Merit Plan
By: /s/ Henry Lipschitz
-----------------------------------------
Henry Lipschitz
Administrator
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
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EXHIBIT NO.
-----------
<S> <C>
4.1 The Dexter Merit 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 Dexter Merit Plan to the Internal Revenue
Service ("IRS") in a timely manner and will make all
changes required by the IRS in order to qualify the Plan
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
</TABLE>
<PAGE> 1
EXHIBIT 4.1
THE DEXTER MERIT PLAN
Amended And Restated
As Of January 1, 1998
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C>
FOREWORD ................................................................................................................ 2
SECTION 1 Definitions..................................................................................................... 3
SECTION 2 Eligibility And Participation................................................................................... 12
SECTION 3 Contributions................................................................................................... 14
SECTION 4 Investment Of Contributions..................................................................................... 27
SECTION 5 Vesting ........................................................................................................ 30
SECTION 6 Accounts; Valuation And Allocation.............................................................................. 32
SECTION 7 Withdrawals During Employment................................................................................... 34
SECTION 8 Distributions On Termination Of Employment...................................................................... 38
SECTION 9 Payment Of Benefits............................................................................................. 41
SECTION 10 Administration Of The Plan...................................................................................... 47
SECTION 11 Management Of The Trust Fund.................................................................................... 51
SECTION 12 Amendment Of The Plan........................................................................................... 54
SECTION 13 Discontinuance Of The Plan...................................................................................... 55
SECTION 14 Participation In The Plan By Subsidiaries Or Affiliates......................................................... 57
SECTION 15 Construction Of The Plan........................................................................................ 59
SECTION 16 Top-Heavy Provisions............................................................................................ 60
SECTION 17 Loans........................................................................................................... 63
Appendix A Participant Loan Policy ........................................................................................ A-1
Appendix B Affiliated Companies............................................................................................ B-1
B-i
</TABLE>
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FOREWORD
Effective as of March 26, 1962, Permag Corp. (as of February 28, 1985, a
wholly-owned subsidiary of The Dexter Corporation) adopted the Permag Employees
Retirement Trust (the "Permag Plan") for the benefit of its eligible employees.
The Permag Plan has been amended and restated effective as of January 1, 1998 to
be the Dexter Magnetic's Employee Retirement Income Trust Plan (the "Dexter
MERIT Plan"), maintained for the benefit of eligible employees of Permag Corp.
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 January 1, 1998. The Dexter MERIT 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.
2.
<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 B.
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 Permag Corp., a wholly-owned subsidiary of the Dexter
Corporation and any successor to such corporation by merger,
purchase,
3.
<PAGE> 5
reorganization or otherwise. If a subsidiary or affiliate of the
Company 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 and other post-November 1,
1994 salary reduction deferred compensation), cash bonuses,
profit-sharing payments, executive incentive payments, overtime,
payments in lieu of vacation, sales incentive payments and payments
of previously deferred compensation, except for post-November 1, 1994
salary reduction deferred compensation, which shall count as
Compensation not when paid but when deferred. 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.
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 fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is 12.
If Compensation for any prior determination period is taken into
account in determining 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
4.
<PAGE> 6
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 March 26, 1962 with respect to the Permag
Plan. The effective date of this amendment and restatement, to be
known as the Dexter MERIT Plan, is January 1, 1998.
1.12 "Eligible Employee" means an Employee who is employed by the Company,
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
an 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 "Employee"
shall not include those leased employees covered by a plan described
in Code Section 414(n)(5).
The Company's determination that a person is employed as an employee
by the Company or an Affiliated Company shall be final and binding
for purposes of the Plan, notwithstanding any contrary determination
of employment status by the Internal Revenue Service or other
governmental authority.
1.14 "Entry Date" means the first day of each calendar month.
5.
<PAGE> 7
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, effective January 1, 1997, an
Employee who 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)(2), during the current Plan Year or the preceding
Plan Year; or
(b) An Employee who received compensation in the preceding Plan
Year in excess of $80,000 (indexed in accordance with Code
Section 415(d)), and, if the Company elects to apply the
"top-paid" group for determining its "Highly Compensated
Employees", was a member of the "top-paid group" for such
preceding Plan Year.
For purposes of (b), the "top-paid group" means the highest paid 20%
of Employees, excluding Employees described in Code Section
414(q)(5), ranked on the basis of compensation received during the
relevant computation period.
For purposes of this Section 1.16, effective January 1, 1998,
compensation means compensation as defined in Code Section 415(c)(3).
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).
For periods beginning prior to January 1, 1997, 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. For periods beginning on
and after January 1, 1997, this paragraph shall not apply.
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:
6.
<PAGE> 8
(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.
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
7.
<PAGE> 9
(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 "Investment Committee" means the committee appointed by the Company
as provided in Section 10.4 to oversee the investment of plan assets.
1.19 "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.
(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 one (1) year.
(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.
(f) FMLA Leave. An Employee is on leave under the terms of the
Family and Medical Leave Act of 1993 ("FMLA").
A person who is on Leave shall not participate in the allocation of
the contributions and forfeitures provided in Section 3.4 hereof,
except to the extent of his or her Compensation during any Plan Year
during part of which he
8.
<PAGE> 10
or she is a Participant not on Leave. A person who is on Leave shall
not incur a One-Year Break in Service.
1.20 "Non-Highly Compensated Employee" means any Employee who is not a
Highly Compensated Employee.
1.21 "One-Year Break in Service" for vesting purposes means a Plan Year in
which an Employee has not been credited with more than 500 Hours of
Service. One-Year 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.
1.22 "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.
1.23 "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.
1.24 "Plan" means The Dexter MERIT Plan as herein set forth, or as it may
be amended from time to time.
1.25 "Plan Year" means the calendar year.
1.26 "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.
1.27 "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 (MERIT-Plus) Contributions made on his or her
behalf, and any earnings thereon.
1.28 "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 that are subject to the other requirements set forth in Section
1.401(k)-1(b)(5) of the Regulations.
9.
<PAGE> 11
1.29 "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.
1.30 "Rollover Contributions" means those contributions made by the
Participant pursuant to Section 3.11.
1.31 "Rollover Contributions Account" means the Account to which the
Trustee shall allocate Rollover Contributions, and any earnings
thereon.
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.
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.
10.
<PAGE> 12
1.39 "Valuation Date" means (i) with respect to a Participant's Company
Contributions Account, March 31, June 30, September 30, and December
31 of each Plan Year, and/or such other date(s) as may be prescribed
by the Administrator, and (ii) with respect to any other Account
maintained for a Participant, 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 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.
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.
11.
<PAGE> 13
SECTION 2
ELIGIBILITY AND PARTICIPATION
2.1 ELIGIBILITY FOR PARTICIPATION
Each Eligible Employee who was a Participant in the Plan 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 completed one (1) Year of Eligibility Service; provided, however,
that with respect to Pre-Tax Contributions and Voluntary After-Tax
Contributions, an Eligible Employee shall be deemed to be a
Participant on the Entry Date immediately following his or her
enrollment in the Plan. Enrollment is permitted at any time following
a Participant's date of hire.
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 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
12.
<PAGE> 14
continuing authorization as 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
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 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 all Affiliated
Companies 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 terminates employment after becoming a
Participant (including having satisfied the eligibility requirements
of Section 2.1) but before becoming vested pursuant to Section 5.2
and is subsequently re-employed as an Eligible Employee, the former
Participant's Years of Eligibility Service before termination will be
disregarded for purposes of Section 2.1 if the number of his or her
consecutive One-Year Breaks in Service equals or exceeds the greater
of five (5) or the number of such former Participant's Years of
Eligibility Service on the date of termination. If such Years of
Eligibility Service are disregarded, the former Participant shall be
treated as a newly hired Eligible Employee for purposes of Section
2.1. 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.
13.
<PAGE> 15
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 Contributions Account. Such reduction will be referred to as
the Participant's Pre-Tax Contributions (sometimes referred to as the
MERIT-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), $7,000 (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
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
14.
<PAGE> 16
Contributions 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
15.
<PAGE> 17
conditions set forth in Section 1.401(k)-1(b)(5) of the
Income Tax Regulations.
The Company's right of election expressed in this paragraph
is in addition to that expressed in Section 3.7.
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 retirement pursuant to Section 8.2 and who
has 1,000 or more Hours of Service in such Plan
Year.
(c) The amount of Company Contributions determined under
Section 3.4(a) and any forfeitures shall be allocated in
the ratio that the Compensation of each Participant who is
eligible for a Company Contribution pursuant to Section
3.6(b) bears to the total Compensation of all such
Participants for such Plan Year.
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<PAGE> 18
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, as determined for the current year,
is not more than the Average Actual Deferral Percentage for
the group consisting of all eligible Non-Highly Compensated
Employee Participants, as determined for the preceding Plan
Year, multiplied by 1.25.
Notwithstanding the foregoing, if the Company so elects,
this subsection (a) may be applied by using the Plan Year,
rather than the preceding Pan Year, for determining the
"Average Actual Deferral Percentage" for the group
consisting of all eligible Non-Highly Compensated Employee
Participants, except that if such an election is made by
the Company, such election may not be changed except as
provided by the Secretary of the Treasury.
Notwithstanding the foregoing, unless the Company elects
otherwise, for the Plan Year ending December 31, 1998, the
"Average Actual Deferral Percentage" for the group
consisting of all eligible Non-Highly Compensated Employee
Participants shall be deemed to be three percent (3%). If
the Company so elects, the "Average Actual Deferral
Percentage" for the group consisting of all eligible
Non-Highly Compensated Employee Participants for the Plan
Year ending December 31, 1998 may be the amount determined
in accordance with Section 3.7(d)(i) for such Plan Year,
except that if such an election is made by the Company,
such election may not be changed except as provided by the
Secretary of the Treasury.
(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
17.
<PAGE> 19
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 Contributions Account within such Plan.
(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 applicable Plan Year to the
Participant's Compensation for the applicable
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 an 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 an Affiliated
Company shall be determined as if such tax
deferred contributions were made under a single
arrangement.
(iv) 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
18.
<PAGE> 20
(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 Pre-Tax Contributions of eligible Highly
Compensated Employee Participants on the basis of
the amount of Pre-Tax Contributions made by, or
on behalf of, each of such Highly Compensated
Employee Participant, beginning with such Highly
Compensated Employee Participants with the
highest dollar amount and continuing this process
until the limits of this Section 3.7 are met).
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.
(v) 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.
(vi) Notwithstanding any distributions pursuant to the
foregoing provisions, Excess Contributions shall
be treated as Annual Additions for purposes of
Section 3.10. Distributions 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.
(e) In determining whether a plan satisfies Section 3.7(a) or
3.7(b), all Pre-Tax Contributions that are made under two
or more plans that are
19.
<PAGE> 21
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, as determined for the current Plan
Year, is not more than the Average Contribution Percentage
of all eligible Non-Highly Compensated Employee
Participants, as determined for the preceding Plan Year,
multiplied by 1.25.
Notwithstanding the foregoing, if the Company so elects,
this subsection (a) may be applied by using the Plan Year,
rather than the preceding Plan Year, for determining the
"Average Contribution Percentage" for the group consisting
of all eligible Non-Highly Compensated Employee
Participants, except that if such an election is made by
the Company, such election may not be changed except as
provided by the Secretary of the Treasury.
(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
20.
<PAGE> 22
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 applicable Plan Year to the Participant's
Compensation as a Participant for the applicable
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. The
specified groups are the group consisting of all
eligible Highly Compensated Employee Participants
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) 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 of eligible Highly
Compensated Employee Participants on the basis of
the amount of such contributions made by, or on
behalf of, such Highly Compensated Employee
21.
<PAGE> 23
Participants, beginning with such Highly
Compensated Employee Participants with the
highest dollar amount, 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
Participant, in compliance with Code Section
401(m)(6)(C). 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.
(v) Notwithstanding any distributions or forfeitures
pursuant to the foregoing provisions, Excess
Aggregate Contributions 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.
(vi) The term "eligible employee" means an employee
who is directly or indirectly eligible to make
Participant contributions under the
22.
<PAGE> 24
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 of Code Section
401(m) even though the employee may not make such
Participant contributions.
(vii) 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
23.
<PAGE> 25
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.
3.10 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 compensation
as defined in Code Section 415(c)(3); or
(ii) $30,000.
(b) The term "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, and
(iv) amounts described in Code Sections 415(l)(1) and
419A(d)(2).
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 thereon, allocated to the Participant's
Account for the Limitation Year will be
distributed 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.
24.
<PAGE> 26
(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. For periods
beginning on or after January 1, 2000, this paragraph (d)
shall not apply.
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 preceding
limitations of Sections 3.7 through 3.10. 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:
(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
25.
<PAGE> 27
(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.
26.
<PAGE> 28
SECTION 4
INVESTMENT OF CONTRIBUTIONS
4.1 INVESTMENT OPTIONS FOR PARTICIPANT CONTRIBUTIONS
Each Participant may choose to invest amounts credited to his or her
Pre-Tax Contributions Account, Rollover Contributions Account,
Transfer Contributions Account and/or Voluntary After-Tax
Contributions Account in such investment funds that the Investment
Committee 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 ALLOCATION OF PARTICIPANT CONTRIBUTIONS AMONG INVESTMENT OPTIONS
Contributions made by Participants 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 in accordance with Section 4.3, in one or more of the
investment funds established by the Administrator. Such elections
shall be made in accordance with procedures determined by the
Administrator. The investment of such contributions shall be made in
accordance with rules established by the Administrator following an
election that conforms to the procedures 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
shall bear the expenses attributable to the investment thereof.
4.3 CHANGING INVESTMENT ELECTIONS; REALLOCATION AMONG INVESTMENT FUNDS
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 and contributions to be made
thereafter, in accordance with rules established by the
Administrator.
27.
<PAGE> 29
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 COMPANY CONTRIBUTIONS
(a) Investment of all amounts attributable to Company
Contributions shall be the responsibility of the Company,
acting through the Investment Committee. In order to carry
out the provisions of the Plan with respect to such funds,
the Investment Committee shall provide for the custody and
investment of such funds and for payment of benefits under
the Plan with respect to such funds by contract with the
Trustee or such other persons as it may from time to time
determine.
Subject to the provisions of this Section 4.5, upon written
direction by the Investment Committee, the Trustee or other
person with whom the Investment Committee has so contracted
may be instructed to pay over such funds (less any amount
constituting charges and expenses payable therefrom) or
such part thereof as the Investment Committee shall specify
to another trustee or person with whom the Company
contracts for the custody and investment of such funds.
The Investment Committee, in its sole and absolute
discretion, reserves the right at any time and from time to
time to designate successors to any trustee or person with
whom it has contracted for the custody and investment of
Company Contributions; to enter into and make amendments to
such contracts or agreements with any trustee or person as
it may deem desirable to accomplish the objectives of the
Plan with respect to custody and investment of Company
Contributions; to provide for the payment thereafter of the
Company Contributions hereunder to any other trustee or
person with whom the Investment Committee contracts for the
custody and investment of Company Contributions; and to
require any trustee or person with whom it has contracted
to transfer funds arising from Company Contributions
pursuant to the Plan to another trustee or person with whom
it has contracted for the custody and investment of Company
Contributions, provided the Investment Committee shall have
no power to perform any of such actions in such manner as
will cause or permit any parts of the funds accumulated
under the Plan with respect to Company Contributions to be
directed to purposes other than for the exclusive benefit
of Participants or their Beneficiaries, survivors or
estates, retired Employees or their Beneficiaries, or as
will cause or permit any portion of such funds to revert to
or become the property of the Company.
28.
<PAGE> 30
(b) Any trustee or other person with whom the Investment
Committee contracts for the custody and investment of
Company Contributions shall have the following powers and
responsibilities:
(i) To maintain custody of those amounts representing
Company Contributions as delegated by the
Investment Committee;
(ii) To manage and control the investment of such
amounts consistent with the funding policy of the
Plan, except to the extent that one or more
Investment Managers are appointed pursuant to
Section 11;
(iii) To disburse benefits as instructed by the
Administrator;
(iv) To purchase and sell securities as instructed by
an Investment Manager, if any has been appointed;
(v) To perform any other functions which are
specifically allocated to it in the contract
between the Company and such trustee or person.
(c) If Participants are given, at such future time as may be
determined by the Investment Committee, investment
authority over Company Contributions and earnings thereon
allocated to their Accounts, the provisions of Sections 4.1
through 4.4 shall apply to such Company Contributions and
earnings, and the provisions of this Section 4.5 shall
cease to apply.
29.
<PAGE> 31
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 the earlier of his or her Normal
Retirement Date (as defined in Section 8.2(a)) or age 65
while employed by an Affiliated Company;
(ii) The Participant's death while employed by an Affiliated
Company;
(iii) Termination of the Participant's employment by an Affiliate
Company due to Permanent Disability;
(iv) Completion of four (4) Years of Vesting Service (three (3)
Years of Vesting Service for Employees hired prior to
January 1, 1998); or
(v) 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, other than 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). 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.
30.
<PAGE> 32
(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, unadjusted for any gains or losses,
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.
31.
<PAGE> 33
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 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 calendar quarter, 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.
32.
<PAGE> 34
(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.
(b) 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 8.3.
33.
<PAGE> 35
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.
(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
34.
<PAGE> 36
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 and Voluntary After-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 and
Voluntary After-Tax Contributions to this Plan and pre-tax
contributions and after-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 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.
35.
<PAGE> 37
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.
36.
<PAGE> 38
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 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 7.8, "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.
7.9 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.
37.
<PAGE> 39
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 distributions
shall be made in accordance with the provisions of Section 9. However,
except as provided in Section 8.6, no distribution shall commence to a
Participant prior to the first day of the month following the date the
Participant attains the later of his or her Normal Retirement Date or age
62, without the written consent of the Participant.
8.2 RETIREMENT DATES
(a) A Participant's or former Participant's Normal Retirement Date shall
be the first day of the month next following the month in which the
later of the following events occurs: (i) the Participant attains
age 55, or (ii) the Participant completes five (5) years of
participation in the Plan.
(b) A Participant's or former Participant's Deferred Retirement Date
shall be the first day of the month next following the date on which
the Participant actually retires after attaining his or her Normal
Retirement Date.
(c) A Participant's Disability Retirement Date shall be the date on
which the Company receives certification of the Participant's
Permanent Disability.
8.3 VALUATION
The value of a Participant's vested Account for all purposes of this
Section 8 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 procedures established by the Administrator.
8.4 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.
38.
<PAGE> 40
8.5 DISTRIBUTION UPON RETIREMENT
If a Participant ceases to be an Employee by reason of his retirement
pursuant to Section 8.2, his Account shall be distributed as soon as
practicable following the date of retirement, provided such distribution
shall only be made with the Participant's consent if the date of
distribution precedes the later of the Participant's Normal Retirement
Date or the date the Participant attains age 62.
8.6 DISTRIBUTION UPON DEATH
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 8.6. Such distribution shall be made to the
Surviving Spouse or Beneficiary selected by the Participant in a cash lump
sum.
All such payments shall be at the value of the assets on the Valuation
Date coinciding with or immediately preceding the date of payment. Upon
the death of the Participant, the distribution will commence as follows:
(a) If the Participant dies after an installment 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 as
soon as reasonably practical following notice to the Administrator
of the Participant's death, but in no later than December 31 of the
year of the fifth (5th) anniversary of the Participant's death.
8.7 DISTRIBUTION UPON TERMINATION OTHER THAN DEATH OR RETIREMENT
If a Participant ceases to be an Employee by reason of his termination
other than by retirement or death, his Account shall be distributed as
soon as practicable following the first anniversary of the Participant's
date of termination of employment, provided, however, that if the balance
of his Account exceeds $5,000 ($3,500, prior to January 1, 1998), the
Participant consents to the distribution.
If the Participant's Account balance exceeds $5,000 ($3,500, prior to
January 1, 1998) and the Participant does not consent to the distribution,
then distribution shall be deferred until the earlier of (i) the later of
the Participant's Normal Retirement Date or the date the Participant
attains age 62, or (ii) the
39.
<PAGE> 41
date the Participant consents to the distribution and shall be made as
soon as practicable following such date.
40.
<PAGE> 42
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 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, as elected by the Participant:
(i) In a single lump sum payment; or
(ii) the payment each year in periodic cash installments, of an
amount equal to the following fractions of the total amount
remaining in the Account of the former Participant:
Fraction Year Of Payment
-------- ---------------
1/10 1
1/9 2
1/8 3
1/7 4
1/6 5
1/5 6
1/4 7
1/3 8
1/2 9
1/1 10
provided, however, that all amounts credited to an Account on
or after July 1, 1992 shall be paid in the form of a single
lump sum, and the installment option shall not be available.
Notwithstanding the foregoing, if the vested value of the Participant's
Account exceeds $5,000 ($3,500, prior to January 1, 1998), payment shall
be made as prescribed in this Section 9.2 prior to the later of the
Participant's Normal Retirement Date or the date the Participant attains
age 62 only if the Participant so elects. If the vested value of the
Participant's Account is not greater than $5,000 ($3,500, prior to January
1, 1998), the Participant automatically will
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receive a distribution of the value of the vested portion of his or her
Account in a lump sum, for which the Participant's consent shall not be
required.
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 the purpose of the preceding sentence, "Company Securities" means the
common stock, $1.00 per 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, subject to Sections 8.5 through 8.7, in accordance with rules
determined by the Administrator; 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
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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
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, for Plan Years
prior to January 1, 1997, distribution of a Participant's entire interest
in the Plan shall begin no later than the April 1 of the calendar year
next following the calendar year in which the Participant attains age
70-1/2 in accordance with applicable rules and regulations, and 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.
For Plan Years beginning on or after January 1, 1997, distribution of a
Participant's entire interest in the Plan shall begin no later than the
April 1 of the calendar year next following the later of the calendar year
in which the Participant attains age 70-1/2, or the calendar year in which
the Participant terminates employment with all Affiliated Companies.
Notwithstanding the foregoing, distribution of the entire interest in the
Plan of a Participant who is a 5-percent owner (as defined in Section
416(i) of the Code) shall begin no later than April 1 following the year
in which such Participant attains age 70 1/2, regardless of whether such
Participant continues to be employed by any Affiliated Company after such
date.
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.
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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, 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 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.
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<PAGE> 47
(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.
9.12 USERRA COMPLIANCE
Notwithstanding any provision of the Plan to the contrary, contributions,
benefits and service credit with respect to qualified military service
will be provided in compliance with Section 414(u) of the Code.
9.13 FMLA COMPLIANCE
Notwithstanding any provision of the Plan to the contrary, an Employee's
Leave under the Family and Medical Leave Act of 1993 ("FMLA") shall not
result in the loss of any benefit accrued under the Plan prior to the date
the leave under FMLA commenced.
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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;
(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
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<PAGE> 49
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 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
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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.
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 Affiliated 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.
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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.
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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 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 assets
of the Trust
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Fund. 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 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 or to review any securities or other property of the
Trust Fund constituting assets thereof with respect to which an Investment
Manager has investment responsibility, or 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 or 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.
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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.
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SECTION 12
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:
(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 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 Vesting Service at
the time of such amendment may elect to continue under the vesting
schedule in effect prior to such amendment.
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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.
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, written
notice of such termination shall be given to the Administrator and to the
Trustee. 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 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
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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
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Company. The Administrator shall direct the Trustee, in the discretion of
the Administrator and subject to 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.
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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.
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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.
(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
60.
<PAGE> 62
(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) 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 in Code Section 414(q)(4) and Section 3.10(a)(i) of the
Plan. 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) 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
61.
<PAGE> 63
Company Contributions Account upon the completion of three (3) Years
of Vesting Service as described below:
Years Of Vesting Service Percentage Vested
------------------------ ----------------
Less than 3 0%
3 or more 100%
(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 3.10. 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).
(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.
62.
<PAGE> 64
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 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.
17.2 TERMS OF LOAN
In addition to the provisions of the Loan Policy 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) 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 no earlier
than 1 year, or no 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 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.
(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:
63.
<PAGE> 65
(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.
(e) The Participant's respective Account shall be reduced by the amount
of the loan taken from that Account, and such Account shall be
increased to reflect loan payments for purposes of revaluing such
Account balance pursuant to Section 6.
(f) A loan will be treated as in default if any scheduled payment
remains unpaid for more than 90 days.
(g) 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.
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
64.
<PAGE> 66
Company in writing from time to time without the necessity of amending this
Section 17.
17.3 USERAA COMPLIANCE
Loan repayments will be suspended under this Plan, as permitted under Code
Section 414(u).
IN WITNESS WHEREOF, the Company has executed this amended and restated Plan this
________ day of ______________, 1997.
ATTEST: THE DEXTER CORPORATION
_____________________________ By:___________________________________
Title:________________________________
65.
<PAGE> 67
APPENDIX A
THE DEXTER MERIT 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.
A-1
<PAGE> 68
(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
A-2
<PAGE> 69
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:
A-3
<PAGE> 70
APPENDIX B
Affiliated Companies
The following entities are Affiliated Companies authorized by The Dexter
Corporation to be included in the term "Affiliated Company" wherever specified
in the Plan:
None
B-1
<PAGE> 1
EXHIBIT 15
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: The Dexter Corporation
Registration Statement on Form S-8
We are aware that our reports dated April 10, 1997, July 16, 1997 and
October 15, 1997 on our reviews of the interim financial information of The
Dexter Corporation for the periods ended March 31, 1997, June 30, 1997 and
September 30, 1997, respectively, and included in the Company's quarterly
reports on Form 10-Q for the quarters ended March 31, June 30 and September 30,
1997 are incorporated by reference in this registration statement. Pursuant to
Rule 436(c) under the Securities Act of 1933, these reports 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.
COOPERS & LYBRAND L.L.P.
/s/ Coopers & Lybrand L.L.P.
----------------------------
Springfield, Massachusetts
December 19, 1997
<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 4,
1997, on our audits of the consolidated financial statements and financial
statement schedule of The Dexter Corporation as of December 31, 1996, 1995, and
1994 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, 1996.
We also consent to the reference to our firm under the caption "Interests of
Named Experts and Counsel" in this Registration Statement.
COOPERS & LYBRAND L.L.P.
/s/ Coopers & Lybrand L.L.P.
----------------------------
Springfield, Massachusetts
December 19, 1997
<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 Dexter
Merit 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ K. Grahame Walker Chairman, President, December 19, 1997
- ---------------------- Chief Executive Officer
K. Grahame Walker and Director (principal
executive officer)
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Kathleen Burdett Vice President and December 19, 1997
- ------------------------- Chief Financial Officer
Kathleen Burdett (principal financial
officer and principal
accounting officer)
- -------------------------- Director December 19, 1997
Charles H. Curl
/s/ Henrietta Holsman Fore Director December 19, 1997
- --------------------------
Henrietta Holsman Fore
/s/ Bernard M. Fox Director December 19,1997
- --------------------------
Bernard M. Fox
/s/ Robert M. Furek Director December 19, 1997
- -------------------------
Robert M. Furek
/s/ Martha Clark Goss Director December 19, 1997
- --------------------------
Martha Clark Goss
/s/ Edgar G. Hotard Director December 19, 1997
- --------------------------
Edgar G. Hotard
Director December 19, 1997
------------------------
Peter G. Kelly
Director December 19, 1997
- --------------------------
Jean-Francois Saglio
Director December 19, 1997
- --------------------------
Glen L. Urban
Director December 19, 1997
- --------------------------
George M. Whitesides
</TABLE>
