Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
___________________
WICOR, Inc.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1346701
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
626 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 291-7026
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
_______________________
Joseph P. Wenzler
Senior Vice President, Treasurer and Chief Financial Officer
WICOR, Inc.
626 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 291-7026
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
______________________________
With a copy to:
Jay O. Rothman
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-5367
(414) 271-2400
____________________________
CALCULATION OF REGISTRATION FEE
Proposed
Maximum Proposed
Title of Each Offering Maximum
Class of Price Aggregate Amount of
Securities to be Amount to be Per Offering Registration
Registered Registered(1) Unit(2) Price(2) Fee
Common Stock, $1 150,000 $44.625 $6,693,750 $1,975
par value, with shares
attached Common and rights
Stock Purchase
Rights
(1) Each share of WICOR, Inc. Common Stock has attached thereto one
Common Stock Purchase Right.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933 based upon the
average of the high and low prices for WICOR, Inc. Common Stock as
reported on the New York Stock Exchange on December 19, 1997. The
value attributable to the Rights is reflected in the price of the
Common Stock.
______________________
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by WICOR, Inc. (the "Company") or
the SHURflo 401(k) Profit Sharing Plan (the "Plan") with the Commission
are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1996, which includes audited financial statements as of and
for the year ended December 31, 1996.
2. All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since December 31, 1996.
3. The description of the Company's Common Stock contained in
Item 1 of the Company's Registration Statement on Form 8-A under the
Exchange Act, and any other amendment or report filed for the purpose of
updating such description.
4. The description of the Company's Common Stock Purchase
Rights contained in Item 1 of the Company's Registration Statement on Form
8-A under the Exchange Act, and any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company or the Plan
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of filing of this Registration Statement and prior to such time
as the Company files a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby 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 hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities being offered hereby will be
passed on for the Company by Foley & Lardner, Milwaukee, Wisconsin.
Jere D. McGaffey, a partner in the firm of Foley & Lardner, is a director
of the Company. As of November 30, 1997, Foley & Lardner attorneys who
participated in the preparation of this Registration Statement, including
Mr. McGaffey, beneficially owned 2,479 shares of the Company's Common
Stock and accompanying Common Stock Purchase Rights.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Company's By-laws, directors and officers of the Company are entitled to
mandatory indemnification from the Company against certain liabilities and
expenses (i) to the extent such officers or directors are successful in
the defense of a proceeding and (ii) in proceedings in which the director
or officer is not successful in defense thereof, unless (in the latter
case only) it is determined that the director or officer breached or
failed to perform his duties to the Company and such breach or failure
constituted: (a) a willful failure to deal fairly with the Company or its
shareholders in connection with a matter in which the director or officer
had a material conflict of interest; (b) a violation of the criminal law
unless the director or officer had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her
conduct was unlawful; (c) a transaction from which the director or officer
derived an improper personal profit; or (d) willful misconduct. It should
be noted that the Wisconsin Business Corporation Law specifically states
that it is the public policy of Wisconsin to require or permit
indemnification in connection with a proceeding involving securities
regulation, as described therein, to the extent required or permitted as
described above. Additionally, under the Wisconsin Business Corporation
Law, directors of the Company are not subject to personal liability to the
Company, its shareholders or any person asserting rights on behalf thereof
for certain breaches or failures to perform any duty resulting solely from
their status as directors except in circumstances paralleling those in
subparagraphs (a) through (d) outlined above.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
The indemnification provided by the Wisconsin Business
Corporation Law and the Company's By-laws is not exclusive of any other
rights to which a director or officer may be entitled.
The Company maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law which may extend to,
among other things, liability arising under the Securities Act of 1933, as
amended.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit
No. Exhibit
(4.1) Adoption Agreement #005 for Nonstandardized Code
Section 401(k) Profit Sharing Plan dated December 22,
1997 between SHURflo Pump Manufacturing Company and
Marshall & Ilsley Trust Company
(4.2) WICOR, Inc. Master Savings Trust Agreement dated
October 1, 1996 between WICOR, Inc. and Marshall &
Ilsley Trust Company
(4.3) Restated Articles of Incorporation of WICOR, Inc., as
amended (incorporated by reference to Exhibit 3.1 to
WICOR, Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1992)
(4.4) Rights Agreement, dated as of August 29, 1989, between
WICOR, Inc. and Chase Manhattan Bank (f/k/a
Manufacturers Hanover Trust Company), as Rights Agent
(incorporated by reference to Exhibit 4.3 to WICOR,
Inc.'s Registration Statement on Form S-3, dated
October 20, 1995)
(23.1) Consent of Arthur Andersen LLP
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this Registration
Statement)
This filing does not include an opinion regarding the legality
of the securities being registered hereby because none of such securities
will be original issuance securities.
The undersigned Registrant hereby undertakes to submit the 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 under Section
401 of the Internal Revenue Code of 1986, as amended.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement to include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
(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 herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The 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 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to 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
herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act 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 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. 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 City of Milwaukee, and
State of Wisconsin, on this 24th day of December, 1997.
WICOR, INC.
By: /s/ Joseph P. Wenzler
Joseph P. Wenzler
Senior Vice President, Treasurer and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each person whose signature
appears below constitutes and appoints George E. Wardeberg and Joseph P.
Wenzler, and each of them individually, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement, and any additional
registration statement to be filed pursuant to Rule 462(b) under the
Securities Act of 1933, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, may lawfully do or cause to be done by virtue
hereof.
Signature Title Date
/s/ George E. Wardeberg Chairman, Chief December 24, 1997
George E. Wardeberg Executive Officer
and Director
(Principal
Executive Officer)
/s/ Joseph P. Wenzler Senior Vice December 24, 1997
Joseph P. Wenzler President,
Treasurer and Chief
Financial Officer
(Principal
Financial and
Accounting Officer)
/s/ Wendell F. Bueche Director December 24, 1997
Wendell F. Bueche
/s/ Willie P. Davis Director December 24, 1997
Willie D. Davis
/s/ Jere D. McGaffey Director December 24, 1997
Jere D. McGaffey
/s/ Daniel F. McKeithan, Jr. Director December 24, 1997
Daniel F. McKeithan, Jr.
/s/ Guy A. Osborn Director December 24, 1997
Guy A. Osborn
/s/ Thomas F. Schrader Director December 24, 1997
Thomas F. Schrader
/s/ Stuart W. Tisdale Director December 24, 1997
Stuart W. Tisdale
/s/ Essie M. Whitelaw Director December 24, 1997
Essie M. Whitelaw
/s/ William B. Winter Director December 24, 1997
William B. Winter
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of
1933, the Administrative Committee of the SHURflo 401(k) Profit Sharing
Plan, which administers the Plan, has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Santa Ana, California, as of the 24th day of December,
1997.
SHURflo 401(k) PROFIT SHARING PLAN
By: ADMINISTRATIVE COMMITTEE OF THE
SHURflo 401(k) PROFIT SHARING PLAN
/s/ J. Russell Phillips
J. Russell Phillips
/s/ Kevin S. McLean
Kevin S. McLean
/s/ Janet M. Scott
Janet M. Scott
/s/ Norman A. Alexander
Norman A. Alexander
/s/ Kathleen M. Robe
Kathleen M. Robe
The foregoing persons are all of the member of the
Administrative Committee of the SHURflo 401(k) Profit Sharing Plan, which
is the administrator of the SHURflo 401(k) Profit Sharing Plan.
<PAGE>
EXHIBIT INDEX
Exhibit
No. Exhibit
(4.1) Adoption Agreement #005 for Nonstandardized Code
Section 401(k) Profit Sharing Plan dated December 22,
1997 between SHURflo Pump Manufacturing Company and
Marshall & Ilsley Trust Company
(4.2) WICOR, Inc. Master Savings Trust Agreement dated
October 1, 1996 between WICOR, Inc. and Marshall &
Ilsley Trust Company
(4.3) Restated Articles of Incorporation of WICOR, Inc., as
amended (incorporated by reference to Exhibit 3.1 to
WICOR, Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1992)
(4.4) Rights Agreement, dated as of August 29, 1989, between
WICOR, Inc. and Chase Manhattan Bank (f/k/a
Manufacturers Hanover Trust Company), as Rights Agent
(incorporated by reference to Exhibit 4.3 to WICOR,
Inc.'s Registration Statement on Form S-3, dated
October 20, 1995)
(23.1) Consent of Arthur Andersen LLP
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this Registration
Statement)
ADOPTION AGREEMENT #005
NONSTANDARDIZED CODE Section 401(k) PROFIT SHARING PLAN
The undersigned, SHURflo Pump Manufacturing Company ("Employer"), by
executing this Adoption Agreement, elects to become a participating
Employer in the MARSHALL & ILSLEY TRUST COMPANY Defined Contribution
Master Plan (basic plan document #01) by adopting the accompanying Plan
and Trust in full as if the Employer were a signatory to that Agreement.
The Employer makes the following elections granted under the provisions of
the Master Plan.
ARTICLE I
DEFINITIONS
1.02 TRUSTEE. The Trustee executing this Adoption Agreement is:
(Choose (a) or (b))
[x] (a) A discretionary Trustee. See Section 10.03[A] of the Plan.
[ ] (b) A nondiscretionary Trustee. See Section 10.03[B] of the Plan.
[Note: The Employer may not elect Option (b) if a Custodian executes
the Adoption Agreement.]
1.03 PLAN. The name of the Plan as adopted by the Employer is
SHURflo 401(k) Profit Sharing Plan.
1.07 EMPLOYEE. The following Employees are not eligible to
participate in the Plan: (Choose (a) or at least one of (b) through (g))
[ ] (a) No exclusions.
[x] (b) Collective bargaining employees (as defined in Section 1.07 of
the Plan). [Note: If the Employer excludes union employees from the
Plan, the Employer must be able to provide evidence that retirement
benefits were the subject of good faith bargaining.]
[x] (c) Nonresident aliens who do not receive any earned income (as
defined in Code Section 911(d)(2)) from the Employer which
constitutes United States source income (as defined in Code Section
861(a)(3)).
[ ] (d) Commission Salesmen.
[ ] (e) Any Employee compensated on a salaried basis.
[ ] (f) Any Employee compensated on an hourly basis.
[x] (g) (Specify) Any employee expected to work less than 1,000 hours
during a Plan Year. Leased Employees. Any Leased Employee treated
as an Employee under Section 1.31 of the Plan, is: (Choose (h) or
(i))
[x] (h) Not eligible to participate in the Plan.
[ ] (i) Eligible to participate in the Plan, unless excluded by reason
of an exclusion classification elected under this Adoption Agreement
Section 1.07.
Related Employers. If any member of the Employer's related group (as
defined in Section 1.30 of the Plan) executes a Participation Agreement to
this Adoption Agreement, such member's Employees are eligible to
participate in this Plan, unless excluded by reason of an exclusion
classification elected under this Adoption Agreement Section 1.07. In
addition: (Choose (j) or (k))
[x] (j) No other related group member's Employees are eligible to
participate in the Plan.
[ ] (k) The following nonparticipating related group member's Employees
are eligible to participate in the Plan unless excluded by reason of
an exclusion classification elected under this Adoption Agreement
Section 1.07: .
1.12 COMPENSATION.
Treatment of elective contributions. (Choose (a) or (b))
[x] (a) "Compensation" includes elective contributions made by the
Employer on the Employee's behalf.
[ ] (b) "Compensation" does not include elective contributions.
Modifications to Compensation definition. (Choose (c) or at least one of
(d) through (j))
[ ] (c) No modifications other than as elected under Options (a) or
(b).
[ ] (d) The Plan excludes Compensation in excess of $ .
[ ] (e) In lieu of the definition in Section 1.12 of the Plan,
Compensation means any earnings reportable as W-2 wages for Federal
income tax withholding purposes, subject to any other election under
this Adoption Agreement Section 1.12.
[ ] (f) The Plan excludes bonuses.
[ ] (g) The Plan excludes overtime.
[ ] (h) The Plan excludes Commissions.
[ ] (i) Compensation will not include Compensation from a related
employer (as defined in Section 1.30 of the Plan) that has not
executed a Participation Agreement in this Plan unless, pursuant to
Adoption Agreement Section 1.07, the Employees of that related
employer are eligible to participate in this Plan.
[x] (j) (Specify) wages defined in IRC Section 3121(a) for purposes of
calculating social security taxes, but without regard to the wage
base limitation in Section 3121(a), the special rule of Section
3121(v) and rules limiting wages based on family relationship or
employment.
If, for any Plan Year, the Plan uses permitted disparity in the
contribution or allocation formula elected under Article III, any election
of Options (f), (g), (h) or (j) is ineffective for such Plan Year with
respect to any Nonhighly Compensated Employee.
Special definition for matching contributions. "Compensation" for
purposes of any matching contribution formula under Article III means:
(Choose (k) or (l) only if applicable)
[x] (k) Compensation as defined in this Adoption Agreement Section
1.12.
[ ] (l) (Specify) _____________.
Special definition for salary reduction contributions. An Employee's
salary reduction agreement applies to his Compensation determined prior to
the reduction authorized by that salary reduction agreement, with the
following exceptions: (Choose (m) or at least one of (n) or (o), if
applicable)
[x] (m) No exceptions.
[ ] (n) If the Employee makes elective contributions to another plan
maintained by the Employer, the Advisory Committee will determine
the amount of the Employee's salary reduction contribution for the
withholding period: (Choose (1) or (2))
[ ] (1) After the reduction for such period of elective
contributions to the other plan(s).
[ ] (2) Prior to the reduction for such period of elective
contributions to the other plan(s).
[ ] (o) (Specify) _________________.
1.17 PLAN YEAR/LIMITATION YEAR.
Plan Year. Plan Year means: (Choose (a) or (b))
[x] (a) The 12 consecutive month period ending every December 31.
[ ] (b) (Specify) __________.
Limitation Year. The Limitation Year is: (Choose (c) or (d))
[x] (c) The Plan Year.
[ ] (d) The 12 consecutive month period ending every .
1.18 EFFECTIVE DATE.
New Plan. The "Effective Date" of the Plan is .
Restated Plan. The restated Effective Date is January 1, 1998.
This Plan is a substitution and amendment of an existing retirement
plan(s) originally established May 1, 1971. [Note: See the Effective
Date Addendum.]
1.27 HOUR OF SERVICE. The crediting method for Hours of Service is:
(Choose (a) or (b))
[x] (a) The actual method.
[ ] (b) The equivalency method, except:
[ ] (1) No exceptions.
[ ] (2) The actual method applies for purposes of: (Choose at least
one)
[ ] (i) Participation under Article II.
[ ] (ii) Vesting under Article V.
[ ] (iii) Accrual of benefits under Section 3.06.
[Note: On the blank line, insert "daily," "weekly," "semi-monthly payroll
periods" or "monthly."]
1.29 SERVICE FOR PREDECESSOR EMPLOYER. In addition to the
predecessor service the Plan must credit by reason of Section 1.29 of the
Plan, the Plan credits Service with the following predecessor employer(s):
N/A . Service with the designated predecessor employer(s) applies:
(Choose at least one of (a) or (b); (c) is available only in addition to
(a) or (b))
[ ] (a) For purposes of participation under Article II.
[ ] (b) For purposes of vesting under Article V.
[ ] (c) Except the following Service: __________.
[Note: If the Plan does not credit any predecessor service under this
provision, insert "N/A" in the first blank line. The Employer may attach
a schedule to this Adoption Agreement, in the same format as this Section
1.29, designating additional predecessor employers and the applicable
service crediting elections.]
1.31 LEASED EMPLOYEES. If a Leased Employee is a Participant in the
Plan and also participates in a plan maintained by the leasing
organization: (Choose (a) or (b))
[ ] (a) The Advisory Committee will determine the Leased Employee's
allocation of Employer contributions under Article III without
taking into account the Leased Employee's allocation, if any, under
the leasing organization's plan.
[x] (b) The Advisory Committee will reduce a Leased Employee's
allocation of Employer nonelective contributions (other than
designated qualified nonelective contributions) under this Plan by
the Leased Employee's allocation under the leasing organization's
plan, but only to the extent that allocation is attributable to the
Leased Employee's service provided to the Employer. The leasing
organization's plan:
[x] (1) Must be a money purchase plan which would satisfy the
definition under Section 1.31 of a safe harbor plan,
irrespective of whether the safe harbor exception applies.
[ ] (2) Must satisfy the features and, if a defined benefit plan,
the method of reduction described in an addendum to this
Adoption Agreement, numbered 1.31.
ARTICLE II
EMPLOYEE PARTICIPANTS
2.01 ELIGIBILITY.
Eligibility conditions. To become a Participant in the Plan, an Employee
must satisfy the following eligibility conditions: (Choose (a) or (b) or
both; (c) is optional as an additional election)
[ ] (a) Attainment of age (specify age, not exceeding 21).
[x] (b) Service requirement. (Choose one of (1) through (3))
[ ] (1) One Year of Service.
[x] (2) 6 months (not exceeding 12) following the Employee's
Employment Commencement Date.
[ ] (3) One Hour of Service.
[x] (c) Special requirements for non-401(k) portion of plan. (Make
elections under (1) and under (2))
(1) The requirements of this Option (c) apply to participation
in: (Choose at least one of (i) through (iii))
[x] (i) The allocation of Employer nonelective contributions
and Participant forfeitures.
[ ] (ii) The allocation of Employer matching contributions
(including forfeitures allocated as matching contributions).
[ ] (iii) The allocation of Employer qualified nonelective
contributions.
(2) For participation in the allocations described in (1), the
eligibility conditions are: (Choose at least one of (i) through
(iv))
[ ] (i) (one or two) Year(s) of Service, without an
intervening Break in Service (as described in Section 2.03(A)
of the Plan) if the requirement is two Years of Service.
[x] (ii) 6 (six) months (not exceeding 24) following the
Employee's Employment Commencement Date.
[ ] (iii) One Hour of Service.
[ ] (iv) Attainment of age (Specify age, not exceeding
21).
Plan Entry Date. "Plan Entry Date" means the Effective Date and: (Choose
(d), (e) or (f))
[x] (d) Semi-annual Entry Dates. The first day of the Plan Year and
the first day of the seventh month of the Plan Year.
[ ] (e) The first day of the Plan Year.
[x] (f) (Specify entry dates) "Plan Entry Date" for allocations
pursuant to Option (c)(1)(i) of this Adoption Agreement 2.01 means
the Effective Date and the first day of the Plan Year immediately
preceding the date the Employee completes the eligibility conditions
described in Option (c)(2) of this Adoption Agreement Section 2.01.
Time of Participation. An Employee will become a Participant (and, if
applicable, will participate in the allocations described in Option
(c)(1)), unless excluded under Adoption Agreement Section 1.07, on the
Plan Entry Date (if employed on that date): (Choose (g), (h) or (i))
[x] (g) immediately following
[ ] (h) immediately preceding
[ ] (i) nearest
the date the Employee completes the eligibility conditions described in
Options (a) and (b) (or in Option (c)(2) if applicable) of this Adoption
Agreement Section 2.01. [Note: The Employer must coordinate the selection
of (g), (h) or (i) with the "Plan Entry Date" selection in (d), (e) or
(f). Unless otherwise excluded under Section 1.07, the Employee must
become a Participant by the earlier of: (1) the first day of the Plan Year
beginning after the date the Employee completes the age and service
requirements of Code Section 410(a); or (2) 6 months after the date the
Employee completes those requirements.]
Dual eligibility. The eligibility conditions of this Section 2.01 apply
to: (Choose (j) or (k))
[x] (j) All Employees of the Employer, except: (Choose (1) or (2))
[ ] (1) No exceptions.
[x] (2) Employees who are Participants in the Plan as of the
Effective Date.
[ ] (k) Solely to an Employee employed by the Employer after . If
the Employee was employed by the Employer on or before the specified
date, the Employee will become a Participant: (Choose (1), (2) or
(3))
[ ] (1) On the latest of the Effective Date, his Employment
Commencement Date or the date he attains age (not to
exceed 21).
[ ] (2) Under the eligibility conditions in effect under the Plan
prior to the restated Effective Date. If the restated Plan
required more than one Year of Service to participate, the
eligibility condition under this Option (2) for participation in
the Code Section 401(k) arrangement under this Plan is one Year
of Service for Plan Years beginning after December 31, 1988.
[For restated plans only]
[ ] (3) (Specify) ______________________.
2.02 YEAR OF SERVICE - PARTICIPATION.
Hours of Service. An Employee must complete: (Choose (a) or (b))
[x] (a) 1,000 Hours of Service
[ ] (b) Hours of Service
during an eligibility computation period to receive credit for a Year of
Service. [Note: The Hours of Service requirement may not exceed 1,000.]
Eligibility computation period. After the initial eligibility computation
period described in Section 2.02 of the Plan, the Plan measures the
eligibility computation period as: (Choose (c) or (d))
[ ] (c) The 12 consecutive month period beginning with each anniversary
of an Employee's Employment Commencement Date.
[x] (d) The Plan Year, beginning with the Plan Year which includes the
first anniversary of the Employee's Employment Commencement Date.
2.03 BREAK IN SERVICE - PARTICIPATION. The Break in Service rule
described in Section 2.03(B) of the Plan: (Choose (a) or (b))
[x] (a) Does not apply to the Employer's Plan.
[ ] (b) Applies to the Employer's Plan.
2.06 ELECTION NOT TO PARTICIPATE. The Plan: (Choose (a) or (b))
[x] (a) Does not permit an eligible Employee or a Participant to elect
not to participate.
[ ] (b) Does permit an eligible Employee or a Participant to elect not
to participate in accordance with Section 2.06 and with the
following rules: (Complete (1), (2), (3) and (4))
(1) An election is effective for a Plan Year if filed no later than
.
(2) An election not to participate must be effective for at least
Plan Year(s).
(3) Following a re-election to participate, the Employee or
Participant:
[ ] (i) May not again elect not to participate for any subsequent
Plan Year.
[ ] (ii) May again elect not to participate, but not earlier than
the Plan Year following the Plan Year in which the
re-election first was effective.
(4) (Specify) _______ [Insert "N/A" if no other rules apply].
ARTICLE III
EMPLOYER CONTRIBUTIONS AND FORFEITURES
3.01 AMOUNT.
Part I. [Options (a) through (g)] Amount of Employer's contribution. The
Employer's annual contribution to the Trust will equal the total amount of
deferral contributions, matching contributions, qualified nonelective
contributions and nonelective contributions, as determined under this
Section 3.01. (Choose any combination of (a), (b), (c) and (d), or choose
(e))
[x] (a) Deferral contributions (Code Section 401(k) arrangement).
(Choose (1) or (2) or both)
[x] (1) Salary reduction arrangement. The Employer must contribute
the amount by which the Participants have reduced their
Compensation for the Plan Year, pursuant to their salary
reduction agreements on file with the Advisory Committee. A
reference in the Plan to salary reduction contributions is a
reference to these amounts.
[x] (2) Cash or deferred arrangement. The Employer will contribute
on behalf of each Participant the portion of the Participant's
proportionate share of the cash or deferred contribution which
he has not elected to receive in cash. See Section 14.02 of the
Plan. The Employer's cash or deferred contribution is the
amount the Employer may from time to time deem advisable which
the Employer designates as a cash or deferred contribution prior
to making that contribution to the Trust.
[x] (b) Matching contributions. The Employer will make matching
contributions in accordance with the formula(s) elected in Part II
of this Adoption Agreement Section 3.01.
[x] (c) Designated qualified nonelective contributions. The Employer,
in its sole discretion, may contribute an amount which it designates
as a qualified nonelective contribution.
[x] (d) Nonelective contributions. (Choose any combination of (1)
through (4))
[x] (1) Discretionary contribution. The amount (or additional
amount) the Employer may from time to time deem advisable.
[ ] (2) The amount (or additional amount) the Employer may from time
to time deem advisable, separately determined for each of the
following classifications of Participants: (Choose (i) or (ii))
[ ] (i) Nonhighly Compensated Employees and Highly
Compensated Employees.
[ ] (ii) (Specify classifications) .
Under this Option (2), the Advisory Committee will allocate the
amount contributed for each Participant classification in
accordance with Part II of Adoption Agreement Section 3.04, as if
the Participants in that classification were the only
Participants in the Plan.
[ ] (3) % of the Compensation of all Participants under the
Plan, determined for the Employer's taxable year for which it
makes the contribution. [Note: The percentage selected may not
exceed 15%.]
[ ] (4) % of Net Profits but not more than $ .
[ ] (e) Frozen Plan. This Plan is a frozen Plan effective .
The Employer will not contribute to the Plan with respect to any
period following the stated date.
Net Profits. The Employer: (Choose (f) or (g))
[x] (f) Need not have Net Profits to make its annual contribution under
this Plan.
[ ] (g) Must have current or accumulated Net Profits exceeding $
to make the following contributions: (Choose at least one)
[ ] (1) Cash or deferred contributions described in Option (a)(2).
[ ] (2) Matching contributions described in Option (b), except:
.
[ ] (3) Qualified nonelective contributions described in Option (c).
[ ] (4) Nonelective contributions described in Option (d).
The term "Net Profits" means the Employer's net income or profits for any
taxable year determined by the Employer upon the basis of its books of
account in accordance with generally accepted accounting practices
consistently applied without any deductions for Federal and state taxes
upon income or for contributions made by the Employer under this Plan or
under any other employee benefit plan the Employer maintains. The term
"Net Profits" specifically excludes N/A . [Note: Enter "N/A" if no
exclusions apply.]
If the Employer requires Net Profits for matching contributions and the
Employer does not have sufficient Net Profits under Option (g), it will
reduce the matching contribution under a fixed formula on a prorata basis
for all Participants. A Participant's share of the reduced contribution
will bear the same ratio as the matching contribution the Participant
would have received if Net Profits were sufficient bears to the total
matching contribution all Participants would have received if Net Profits
were sufficient. If more than one member of a related group (as defined
in Section 1.30) execute this Adoption Agreement, each participating
member will determine Net Profits separately but will not apply this
reduction unless, after combining the separately determined Net Profits,
the aggregate Net Profits are insufficient to satisfy the matching
contribution liability. "Net Profits" includes both current and
accumulated Net Profits.
Part II. [Options (h) through (j)] Matching contribution formula. [Note:
If the Employer elected Option (b), complete Options (h), (i) and (j).]
[x] (h) Amount of matching contributions. For each Plan Year, the
Employer's matching contribution is: (Choose any combination of (1),
(2), (3), (4) and (5))
[ ] (1) An amount equal to % of each Participant's eligible
contributions for the Plan Year.
[ ] (2) An amount equal to % of each Participant's first tier
of eligible contributions for the Plan Year, plus the following
matching percentage(s) for the following subsequent tiers of
eligible contributions for the Plan __________ .
[x] (3) Discretionary formula.
[x] (i) An amount (or additional amount) equal to a matching
percentage the Employer from time to time may deem
advisable of the Participant's eligible contributions for
the Plan Year.
[ ] (ii) An amount (or additional amount) equal to a matching
percentage the Employer from time to time may deem
advisable of each tier of the Participant's eligible
contributions for the Plan Year.
[ ] (4) An amount equal to the following percentage of each
Participant's eligible contributions for the Plan Year, based on
the Participant's Years of Service:
Number of Years of Service Matching Percentage
The Advisory Committee will apply this formula by determining
Years of Service as follows: _____________.
[x] (5) A Participant's matching contributions may not: (Choose (i)
or (ii))
[x] (i) Exceed five hundred dollars ($500) per Plan Year .
[ ] (ii) Be less than ______________.
Related Employers. If two or more related employers (as defined in
Section 1.30) contribute to this Plan, the related employers may
elect different matching contribution formulas by attaching to the
Adoption Agreement a separately completed copy of this Part II.
Note: Separate matching contribution formulas create separate
current benefit structures that must satisfy the minimum
participation test of Code Section 401(a)(26).]
[x] (i) Definition of eligible contributions. Subject to the
requirements of Option (j), the term "eligible contributions" means:
(Choose any combination of (1) through (3))
[x] (1) Salary reduction contributions.
[x] (2) Cash or deferred contributions (including any part of the
Participant's proportionate share of the cash or deferred
contribution which the Employer defers without the Participant's
election).
[ ] (3) Participant mandatory contributions, as designated in
Adoption Agreement Section 4.01. See Section 14.04 of the Plan.
[x] (j) Amount of eligible contributions taken into account. When
determining a Participant's eligible contributions taken into
account under the matching contributions formula(s), the following
rules apply: (Choose any combination of (1) through (4))
[ ] (1) The Advisory Committee will take into account all eligible
contributions credited for the Plan Year.
[x] (2) The Advisory Committee will disregard eligible contributions
exceeding 4% of Compensation .
[ ] (3) The Advisory Committee will treat as the first tier of
eligible contributions, an amount not exceeding: _____________.
The subsequent tiers of eligible contributions are:
.
[ ] (4) (Specify) ________________.
Part III. [Options (k) and (l)]. Special rules for Code Section 401(k)
Arrangement. (Choose (k) or (l), or both, as applicable)
[x] (k) Salary Reduction Agreements. The following rules and
restrictions apply to an Employee's salary reduction agreement:
(Make a selection under (1), (2), (3) and (4))
(1) Limitation on amount. The Employee's salary reduction
contributions: (Choose (i) or at least one of (ii) or (iii))
[ ] (i) No maximum limitation other than as provided in the
Plan.
[x] (ii) May not exceed 15% of Compensation for the Plan Year,
subject to the annual additions limitation described in Part
2 of Article III and the 402(g) limitation described in
Section 14.07 of the Plan.
[x] (iii) Based on percentages of Compensation must equal at
least 1% or five dollars ($5.00).
(2) An Employee may revoke, on a prospective basis, a salary
reduction agreement: (Choose (i), (ii), (iii) or (iv))
[ ] (i) Once during any Plan Year but not later than of
the Plan Year.
[ ] (ii) As of any Plan Entry Date.
[ ] (iii) As of the first day of any month.
[x] (iv) (Specify, but must be at least once per Plan Year) at
such times as determined by the Plan Administrator on a
uniform and nondiscriminatory basis.
(3) An Employee who revokes his salary reduction agreement may
file a new salary reduction agreement with an effective date:
(Choose (i), (ii), (iii) or (iv))
[ ] (i) No earlier than the first day of the next Plan Year.
[ ] (ii) As of any subsequent Plan Entry Date.
[ ] (iii) As of the first day of any month subsequent to the
month in which he revoked an Agreement.
[x] (iv) (Specify, but must be at least once per Plan Year
following the Plan Year of revocation) at such times as
determined by the Plan Administrator on a uniform and
nondiscriminatory basis.
(4) A Participant may increase or may decrease, on a prospective
basis, his salary reduction percentage or dollar amount: (Choose
(i), (ii), (iii) or (iv))
[ ] (i) As of the beginning of each payroll period.
[ ] (ii) As of the first day of each month.
[ ] (iii) As of any Plan Entry Date.
[x] (iv) (Specify, but must permit an increase or a decrease at
least once per Plan Year) at such times as determined by the
Plan Administrator on a uniform and nondiscriminatory basis.
[x] (l) Cash or deferred contributions. For each Plan Year for which
the Employer makes a designated cash or deferred contribution, a
Participant may elect to receive directly in cash not more than the
following portion (or, if less, the 402(g) limitation described in
Section 14.07 of the Plan) of his proportionate share of that cash
or deferred contribution: (Choose (1) or (2))
[x] (1) All or any portion.
[ ] (2) ________%.
3.04 CONTRIBUTION ALLOCATION. The Advisory Committee will allocate
deferral contributions, matching contributions, qualified nonelective
contributions and nonelective contributions in accordance with Section
14.06 and the elections under this Adoption Agreement Section 3.04.
Part I. [Options (a) through (d)]. Special Accounting Elections.
(Choose whichever elections are applicable to the Employer's Plan)
[x] (a) Matching Contributions Account. The Advisory Committee will
allocate matching contributions to a Participant's: (Choose (1) or
(2); (3) is available only in addition to (1))
[x] (1) Regular Matching Contributions Account.
[ ] (2) Qualified Matching Contributions Account.
[ ] (3) Except, matching contributions under Option(s) of Adoption
Agreement Section 3.01 are allocable to the Qualified Matching
Contributions Account.
[x] (b) Special Allocation Dates for Salary Reduction Contributions.
The Advisory Committee will allocate salary reduction contributions
as of the Accounting Date and as of the following additional
allocation dates: each day contributions are received by the
Trustee.
[x] (c) Special Allocation Dates for Matching Contributions. The
Advisory Committee will allocate matching contributions as of the
Accounting Date and as of the following additional allocation dates:
and any other date, after the end of the plan year, in which
contributions are received by the Trustee.
[x] (d) Designated Qualified Nonelective Contributions - Definition of
Participant. For purposes of allocating the designated qualified
nonelective contribution, "Participant" means: (Choose (1), (2) or
(3))
[ ] (1) All Participants.
[x] (2) Participants who are Nonhighly Compensated Employees for the
Plan Year.
[ ] (3) (Specify) __________.
Part II. Method of Allocation - Nonelective Contribution. Subject to any
restoration allocation required under Section 5.04, the Advisory Committee
will allocate and credit each annual nonelective contribution (and
Participant forfeitures treated as nonelective contributions) to the
Employer Contributions Account of each Participant who satisfies the
conditions of Section 3.06, in accordance with the allocation method
selected under this Section 3.04. If the Employer elects Option (e)(2),
Option (g)(2) or Option (h), for the first 3% of Compensation allocated to
all Participants, "Compensation" does not include any exclusions elected
under Adoption Agreement Section 1.12 (other than the exclusion of
elective contributions), and the Advisory Committee must take into account
the Participant's Compensation for the entire Plan Year. (Choose an
allocation method under (e), (f), (g) or (h); (i) is mandatory if the
Employer elects (f), (g) or (h); (j) is optional in addition to any other
election.)
[x] (e) Nonintegrated Allocation Formula. (Choose (1) or (2))
[ ] (1) The Advisory Committee will allocate the annual nonelective
contributions in the same ratio that each Participant's
Compensation for the Plan Year bears to the total Compensation
of all Participants for the Plan Year.
[x] (2) The Advisory Committee will allocate the annual nonelective
contributions in the same ratio that each Participant's
Compensation for the Plan Year bears to the total Compensation
of all Participants for the Plan Year. For purposes of this
Option (2), "Participant" means, in addition to a Participant
who satisfies the requirements of Section 3.06 for the Plan
Year, any other Participant entitled to a top heavy minimum
allocation under Section 3.04(B), but such Participant's
allocation will not exceed 3% of his Compensation for the Plan
Year.
[ ] (f) Two-Tiered Integrated Allocation Formula - Maximum Disparity.
First, the Advisory Committee will allocate the annual Employer
nonelective contributions in the same ratio that each Participant's
Compensation plus Excess Compensation for the Plan Year bears to the
total Compensation plus Excess Compensation of all Participants for
the Plan Year. The allocation under this paragraph, as a percentage
of each Participant's Compensation plus Excess Compensation, must
not exceed the applicable percentage (5.7%, 5.4% or 4.3%) listed
under the Maximum Disparity Table following Option (i).
The Advisory Committee then will allocate any remaining nonelective
contributions in the same ratio that each Participant's Compensation
for the Plan Year bears to the total Compensation of all
Participants for the Plan Year.
[ ] (g) Three-Tiered Integrated Allocation Formula. First, the
Advisory Committee will allocate the annual Employer nonelective
contributions in the same ratio that each Participant's Compensation
for the Plan Year bears to the total Compensation of all
Participants for the Plan Year. The allocation under this
paragraph, as a percentage of each Participant's Compensation may
not exceed the applicable percentage (5.7%, 5.4% or 4.3%) listed
under the Maximum Disparity Table following Option (i). Solely for
purposes of the allocation in this first paragraph, "Participant"
means, in addition to a Participant who satisfies the requirements
of Section 3.06 for the Plan Year: (Choose (1) or (2))
[ ] (1) No other Participant.
[ ] (2) Any other Participant entitled to a top heavy minimum
allocation under Section 3.04(B), but such Participant's
allocation under this Option (g) will not exceed 3% of his
Compensation for the Plan Year.
As a second tier allocation, the Advisory Committee will allocate
the nonelective contributions in the same ratio that each
Participant's Excess Compensation for the Plan Year bears to the
total Excess Compensation of all Participants for the Plan Year.
The allocation under this paragraph, as a percentage of each
Participant's Excess Compensation, may not exceed the allocation
percentage in the first paragraph.
Finally, the Advisory Committee will allocate any remaining
nonelective contributions in the same ratio that each Participant's
Compensation for the Plan Year bears to the total Compensation of
all Participants for the Plan Year.
[ ] (h) Four-Tiered Integrated Allocation Formula. First, the Advisory
Committee will allocate the annual Employer nonelective
contributions in the same ratio that each Participant's Compensation
for the Plan Year bears to the total Compensation of all
Participants for the Plan Year, but not exceeding 3% of each
Participant's Compensation. Solely for purposes of this first tier
allocation, a "Participant" means, in addition to any Participant
who satisfies the requirements of Section 3.06 for the Plan Year,
any other Participant entitled to a top heavy minimum allocation
under Section 3.04(B) of the Plan.
As a second tier allocation, the Advisory Committee will allocate
the nonelective contributions in the same ratio that each
Participant's Excess Compensation for the Plan Year bears to the
total Excess Compensation of all Participants for the Plan Year, but
not exceeding 3% of each Participant's Excess Compensation.
As a third tier allocation, the Advisory Committee will allocate the
annual Employer contributions in the same ratio that each
Participant's Compensation plus Excess Compensation for the Plan
Year bears to the total Compensation plus Excess Compensation of all
Participants for the Plan Year. The allocation under this
paragraph, as a percentage of each Participant's Compensation plus
Excess Compensation, must not exceed the applicable percentage
(2.7%, 2.4% or 1.3%) listed under the Maximum Disparity Table
following Option (i).
The Advisory Committee then will allocate any remaining nonelective
contributions in the same ratio that each Participant's Compensation
for the Plan Year bears to the total Compensation of all
Participants for the Plan Year.
[ ] (i) Excess Compensation. For purposes of Option (f), (g) or (h),
"Excess Compensation" means Compensation in excess of the following
Integration Level: (Choose (1) or (2))
[ ] (1) % (not exceeding 100%) of the taxable wage base, as
determined under Section 230 of the Social Security Act, in
effect on the first day of the Plan Year: (Choose any
combination of (i) and (ii) or choose (iii))
[ ] (i) Rounded to (but not exceeding the taxable wage
base).
[ ] (ii) But not greater than $ .
[ ] (iii) Without any further adjustment or limitation.
[ ] (2) $ [Note: Not exceeding the taxable wage base for
the Plan Year in which this Adoption Agreement first is
effective.]
Maximum Disparity Table. For purposes of Options (f), (g) and (h), the
applicable percentage is:
Integration Level (as Applicable Percentages Applicable
percentage of taxable for Option (f) or Percentages
wage base) Option (g) for Option (h)
100% 5.7% 2.7%
More than 80% but less
than 100% 5.4% 2.4%
More than 20% (but not
less than $10,001)
and not more than 80% 4.3% 1.3%
20% (or $10,000, if
greater) or less 5.7% 2.7%
[ ] (j) Allocation offset. The Advisory Committee will reduce a
Participant's allocation otherwise made under Part II of this
Section 3.04 by the Participant's allocation under the following
qualified plan(s) maintained by the Employer: .
The Advisory Committee will determine this allocation reduction:
(Choose (1) or (2))
[ ] (1) By treating the term "nonelective contribution" as including
all amounts paid or accrued by the Employer during the Plan Year
to the qualified plan(s) referenced under this Option (j). If a
Participant under this Plan also participates in that other
plan, the Advisory Committee will treat the amount the Employer
contributes for or during a Plan Year on behalf of a particular
Participant under such other plan as an amount allocated under
this Plan to that Participant's Account for that Plan Year. The
Advisory Committee will make the computation of allocation
required under the immediately preceding sentence before making
any allocation of nonelective contributions under this Section
3.04.
[ ] (2) In accordance with the formula provided in an addendum to
this Adoption Agreement, numbered 3.04(j).
Top Heavy Minimum Allocation - Method of Compliance. If a Participant's
allocation under this Section 3.04 is less than the top heavy minimum
allocation to which he is entitled under Section 3.04(B): (Choose (k) or
(l))
[x] (k) The Employer will make any necessary additional contribution to
the Participant's Account, as described in Section 3.04(B)(7)(a) of
the Plan.
[ ] (l) The Employer will satisfy the top heavy minimum allocation
under the following plan(s) it maintains: . However, the
Employer will make any necessary additional contribution to satisfy
the top heavy minimum allocation for an Employee covered only under
this Plan and not under the other plan(s) designated in this Option
(l). See Section 3.04(B)(7)(b) of the Plan.
If the Employer maintains another plan, the Employer may provide in an
addendum to this Adoption Agreement, numbered Section 3.04, any
modifications to the Plan necessary to satisfy the top heavy requirements
under Code Section 416.
Related employers. If two or more related employers (as defined in
Section 1.30) contribute to this Plan, the Advisory Committee must
allocate all Employer nonelective contributions (and forfeitures treated
as nonelective contributions) to each Participant in the Plan, in
accordance with the elections in this Adoption Agreement Section 3.04:
(Choose (m) or (n))
[ ] (m) Without regard to which contributing related group member
employs the Participant.
[x] (n) Only to the Participants directly employed by the contributing
Employer. If a Participant receives Compensation from more than one
contributing Employer, the Advisory Committee will determine the
allocations under this Adoption Agreement Section 3.04 by prorating
among the participating Employers the Participant's Compensation
and, if applicable, the Participant's Integration Level under Option
(i).
3.05 FORFEITURE ALLOCATION. Subject to any restoration allocation
required under Sections 5.04 or 9.14, the Advisory Committee will allocate
a Participant forfeiture in accordance with Section 3.04: (Choose (a) or
(b); (c) and (d) are optional in addition to (a) or (b))
[x] (a) As an Employer nonelective contribution for the Plan Year in
which the forfeiture occurs, as if the Participant forfeiture were
an additional nonelective contribution for that Plan Year.
[ ] (b) To reduce the Employer matching contributions and nonelective
contributions for the Plan Year: (Choose (1) or (2))
[ ] (1) in which the forfeiture occurs.
[ ] (2) immediately following the Plan Year in which the forfeiture
occurs.
[ ] (c) To the extent attributable to matching contributions: (Choose
(1), (2) or (3))
[ ] (1) In the manner elected under Options (a) or (b).
[ ] (2) First to reduce Employer matching contributions for the Plan
Year: (Choose (i) or (ii))
[ ] (i) in which the forfeiture occurs,
[ ] (ii) immediately following the Plan Year in which the
forfeiture occurs, then as elected in Options (a) or (b).
[ ] (3) As a discretionary matching contribution for the Plan Year
in which the forfeiture occurs, in lieu of the manner elected
under Options (a) or (b).
[ ] (d) First to reduce the Plan's ordinary and necessary
administrative expenses for the Plan Year and then will allocate any
remaining forfeitures in the manner described in Options (a), (b) or
(c), whichever applies. If the Employer elects Option (c), the
forfeitures used to reduce Plan expenses: (Choose (1) or (2))
[ ] (1) relate proportionately to forfeitures described in Option
(c) and to forfeitures described in Options (a) or (b).
[ ] (2) relate first to forfeitures described in Option .
Allocation of forfeited excess aggregate contributions. The Advisory
Committee will allocate any forfeited excess aggregate contributions (as
described in Section 14.09): (Choose (e), (f) or (g))
[x] (e) To reduce Employer matching contributions for the Plan Year:
(Choose (1) or (2))
[ ] (1) in which the forfeiture occurs.
[x] (2) immediately following the Plan Year in which the forfeiture
occurs.
[ ] (f) As Employer discretionary matching contributions for the Plan
Year in which forfeited, except the Advisory Committee will not
allocate these forfeitures to the Highly Compensated Employees who
incurred the forfeitures.
[ ] (g) In accordance with Options (a) through (d), whichever applies,
except the Advisory Committee will not allocate these forfeitures
under Option (a) or under Option (c)(3) to the Highly Compensated
Employees who incurred the forfeitures.
3.06 ACCRUAL OF BENEFIT.
Compensation taken into account. For the Plan Year in which the Employee
first becomes a Participant, the Advisory Committee will determine the
allocation of any cash or deferred contribution, designated qualified
nonelective contribution or nonelective contribution by taking into
account: (Choose (a) or (b))
[x] (a) The Employee's Compensation for the entire Plan Year.
[ ] (b) The Employee's Compensation for the portion of the Plan Year in
which the Employee actually is a Participant in the Plan.
Accrual Requirements. Subject to the suspension of accrual requirements
of Section 3.06(E) of the Plan, to receive an allocation of cash or
deferred contributions, matching contributions, designated qualified
nonelective contributions, nonelective contributions and Participant
forfeitures, if any, for the Plan Year, a Participant must satisfy the
conditions described in the following elections: (Choose (c) or at least
one of (d) through (f))
[ ] (c) Safe harbor rule. If the Participant is employed by the
Employer on the last day of the Plan Year, the Participant must
complete at least one Hour of Service for that Plan Year. If the
Participant is not employed by the Employer on the last day of the
Plan Year, the Participant must complete at least 501 Hours of
Service during the Plan Year.
[x] (d) Hours of Service condition. The Participant must complete the
following minimum number of Hours of Service during the Plan Year:
(Choose at least one of (1) through (5))
[x] (1) 1,000 Hours of Service.
[ ] (2) (Specify, but the number of Hours of Service may not exceed
1,000) .
[ ] (3) No Hour of Service requirement if the Participant terminates
employment during the Plan Year on account of: (Choose (i), (ii)
or (iii))
[ ] (i) Death.
[ ] (ii) Disability.
[ ] (iii) Attainment of Normal Retirement Age in the current
Plan Year or in a prior Plan Year.
[ ] (4) Hours of Service (not exceeding 1,000) if the
Participant terminates employment with the Employer during the
Plan Year, subject to any election in Option (3).
[ ] (5) No Hour of Service requirement for an allocation of the
following contributions: .
[x] (e) Employment condition. The Participant must be employed by the
Employer on the last day of the Plan Year, irrespective of whether
he satisfies any Hours of Service condition under Option (d), with
the following exceptions: (Choose (1) or at least one of (2) through
(5))
[x] (1) No exceptions.
[ ] (2) Termination of employment because of death.
[ ] (3) Termination of employment because of disability.
[ ] (4) Termination of employment following attainment of Normal
Retirement Age.
[ ] (5) No employment condition for the following contributions:
.
[ ] (f) (Specify other conditions, if applicable): .
Suspension of Accrual Requirements. The suspension of accrual
requirements of Section 3.06(E) of the Plan: (Choose (g), (h) or (i))
[x] (g) Applies to the Employer's Plan.
[ ] (h) Does not apply to the Employer's Plan.
[ ] (i) Applies in modified form to the Employer's Plan, as described
in an addendum to this Adoption Agreement, numbered Section 3.06(E).
Special accrual requirements for matching contributions. If the Plan
allocates matching contributions on two or more allocation dates for a
Plan Year, the Advisory Committee, unless otherwise specified in Option
(l), will apply any Hours of Service condition by dividing the required
Hours of Service on a prorata basis to the allocation periods included in
that Plan Year. Furthermore, a Participant who satisfies the conditions
described in this Adoption Agreement Section 3.06 will receive an
allocation of matching contributions (and forfeitures treated as matching
contributions) only if the Participant satisfies the following additional
condition(s): (Choose (j) or at least one of (k) or (l))
[x] (j) No additional conditions.
[ ] (k) The Participant is not a Highly Compensated Employee for the
Plan Year. This Option (k) applies to: (Choose (1) or (2))
[ ] (1) All matching contributions.
[ ] (2) Matching contributions described in Option(s) of
Adoption Agreement Section 3.01.
[ ] (l) (Specify) .
3.15 MORE THAN ONE PLAN LIMITATION. If the provisions of Section
3.15 apply, the Excess Amount attributed to this Plan equals: (Choose (a),
(b) or (c))
[ ] (a) The product of:
(i) the total Excess Amount allocated as of such date (including
any amount which the Advisory Committee would have allocated but
for the limitations of Code Section 415), times
(ii) the ratio of (1) the amount allocated to the Participant as
of such date under this Plan divided by (2) the total amount
allocated as of such date under all qualified defined
contribution plans (determined without regard to the limitations
of Code Section 415).
[x] (b) The total Excess Amount.
[ ] (c) None of the Excess Amount.
3.18 DEFINED BENEFIT PLAN LIMITATION.
Application of limitation. The limitation under Section 3.18 of the Plan:
(Choose (a) or (b))
[x] (a) Does not apply to the Employer's Plan because the Employer does
not maintain and never has maintained a defined benefit plan
covering any Participant in this Plan.
[ ] (b) Applies to the Employer's Plan. To the extent necessary to
satisfy the limitation under Section 3.18, the Employer will reduce:
(Choose (1) or (2))
[ ] (1) The Participant's projected annual benefit under the defined
benefit plan under which the Participant participates.
[ ] (2) Its contribution or allocation on behalf of the Participant
to the defined contribution plan under which the Participant
participates and then, if necessary, the Participant's projected
annual benefit under the defined benefit plan under which the
Participant participates.
[Note: If the Employer selects (a), the remaining options in this Section
3.18 do not apply to the Employer's Plan.]
Coordination with top heavy minimum allocation. The Advisory Committee
will apply the top heavy minimum allocation provisions of Section 3.04(B)
of the Plan with the following modifications: (Choose (c) or at least one
of (d) or (e))
[ ] (c) No modifications.
[ ] (d) For Non-Key Employees participating only in this Plan, the top
heavy minimum allocation is the minimum allocation described in
Section 3.04(B) determined by substituting % (not less than 4%)
for "3%," except: (Choose (i) or (ii))
[ ] (i) No exceptions.
[ ] (ii) Plan Years in which the top heavy ratio exceeds 90%.
[ ] (e) For Non-Key Employees also participating in the defined benefit
plan, the top heavy minimum is: (Choose (1) or (2))
[ ] (1) 5% of Compensation (as determined under Section 3.04(B) or
the Plan) irrespective of the contribution rate of any Key
Employee, except: (Choose (i) or (ii))
[ ] (i) No exceptions.
[ ] (ii) Substituting "7-1/2%" for "5%" if the top heavy ratio
does not exceed 90%.
[ ] (2) 0%. [Note: The Employer may not select this Option (2)
unless the defined benefit plan satisfies the top heavy minimum
benefit requirements of Code Section 416 for these Non-Key
Employees.]
Actuarial Assumptions for Top Heavy Calculation. To determine the top
heavy ratio, the Advisory Committee will use the following interest rate
and mortality assumptions to value accrued benefits under a defined
benefit plan: .
If the elections under this Section 3.18 are not appropriate to satisfy
the limitations of Section 3.18, or the top heavy requirements under Code
Section 416, the Employer must provide the appropriate provisions in an
addendum to this Adoption Agreement.
ARTICLE IV
PARTICIPANT CONTRIBUTIONS
4.01 PARTICIPANT NONDEDUCTIBLE CONTRIBUTIONS. The Plan: (Choose (a)
or (b); (c) is available only with (b))
[x] (a) Does not permit Participant nondeductible contributions.
[ ] (b) Permits Participant nondeductible contributions, pursuant to
Section 14.04 of the Plan.
[ ] (c) The following portion of the Participant's nondeductible
contributions for the Plan Year are mandatory contributions under
Option (i)(3) of Adoption Agreement Section 3.01: (Choose (1) or
(2))
[ ] (1) The amount which is not less than: .
[ ] (2) The amount which is not greater than: .
Allocation dates. The Advisory Committee will allocate nondeductible
contributions for each Plan Year as of the Accounting Date and the
following additional allocation dates: (Choose (d) or (e))
[ ] (d) No other allocation dates.
[ ] (e) (Specify) .
As of an allocation date, the Advisory Committee will credit all
nondeductible contributions made for the relevant allocation period.
Unless otherwise specified in (e), a nondeductible contribution relates to
an allocation period only if actually made to the Trust no later than 30
days after that allocation period ends.
4.05 PARTICIPANT CONTRIBUTION - WITHDRAWAL/DISTRIBUTION. Subject to
the restrictions of Article VI, the following distribution options apply
to a Participant's Mandatory Contributions Account, if any, prior to his
Separation from Service: (Choose (a) or at least one of (b) through (d))
[ ] (a) No distribution options prior to Separation from Service.
[ ] (b) The same distribution options applicable to the Deferral
Contributions Account prior to the Participant's Separation from
Service, as elected in Adoption Agreement Section 6.03.
[ ] (c) Until he retires, the Participant has a continuing election to
receive all or any portion of his Mandatory Contributions Account
if: (Choose (1) or at least one of (2) through (4))
[ ] (1) No conditions.
[ ] (2) The mandatory contributions have accumulated for at least
Plan Years since the Plan Year for which contributed.
[ ] (3) The Participant suspends making nondeductible
contributions for a period of months.
[ ] (4) (Specify) .
[ ] (d) (Specify) .
ARTICLE V
TERMINATION OF SERVICE - PARTICIPANT VESTING
5.01 NORMAL RETIREMENT. Normal Retirement Age under the Plan is:
(Choose (a) or (b))
[ ] (a) [State age, but may not exceed age 65].
[x] (b) The later of the date the Participant attains 65 years of age
or the 5th anniversary of the first day of the Plan Year in which
the Participant commenced participation in the Plan. [The age
selected may not exceed age 65 and the anniversary selected may not
exceed the 5th.]
5.02 PARTICIPANT DEATH OR DISABILITY. The 100% vesting rule under
Section 5.02 of the Plan: (Choose (a) or choose one or both of (b) and
(c))
[ ] (a) Does not apply.
[x] (b) Applies to death.
[x] (c) Applies to disability.
5.03 VESTING SCHEDULE.
Deferral Contributions Account/Qualified Matching Contributions
Account/Qualified Nonelective Contributions Account/Mandatory
Contributions Account. A Participant has a 100% Nonforfeitable interest
at all times in his Deferral Contributions Account, his Qualified Matching
Contributions Account, his Qualified Nonelective Contributions Account and
in his Mandatory Contributions Account.
Regular Matching Contributions Account/Employer Contributions Account.
With respect to a Participant's Regular Matching Contributions Account and
Employer Contributions Account, the Employer elects the following vesting
schedule: (Choose (a) or (b); (c) and (d) are available only as additional
options)
[ ] (a) Immediate vesting. 100% Nonforfeitable at all times. [Note:
The Employer must elect Option (a) if the eligibility conditions
under Adoption Agreement Section 2.01(c) require 2 years of service
or more than 12 months of employment.]
[x] (b) Graduated Vesting Schedules.
Top Heavy Schedule Non Top Heavy Schedule
(Mandatory) (Optional)
Years of Nonforfeitable Years of Nonforfeitable
Service Percentage Service Percentage
Less than 1 0% Less than 1 0%
1 0% 1 0%
2 20% 2 0%
3 40% 3 20%
4 60% 4 40%
5 80% 5 60%
6 or more 100% 6 80%
7 or more 100%
[ ] (c) Special vesting election for Regular Matching Contributions
Account. In lieu of the election under Options (a) or (b), the
Employer elects the following vesting schedule for a Participant's
Regular Matching Contributions Account: (Choose (1) or (2))
[ ] (1) 100% Nonforfeitable at all times.
[ ] (2) In accordance with the vesting schedule described in the
addendum to this Adoption Agreement, numbered 5.03(c). [Note:
If the Employer elects this Option (c)(2), the addendum must
designate the applicable vesting schedule(s) using the same
format as used in Option (b).]
[Note: Under Options (b) and (c)(2), the Employer must complete a Top
Heavy Schedule which satisfies Code Section 416. The Employer, at its
option, may complete a Non Top Heavy Schedule. The Non Top Heavy Schedule
must satisfy Code Section 411(a)(2). Also see Section 7.05 of the Plan.]
[x] (d) The Top Heavy Schedule under Option (b) (and, if applicable,
under Option (c)(2)) applies: (Choose (1) or (2))
[ ] (1) Only in a Plan Year for which the Plan is top heavy.
[x] (2) In the Plan Year for which the Plan first is top heavy and
then in all subsequent Plan Years. [Note: The Employer may not
elect Option (d) unless it has completed a Non Top Heavy
Schedule.]
Minimum vesting. (Choose (e) or (f))
[x] (e) The Plan does not apply a minimum vesting rule.
[ ] (f) A Participant's Nonforfeitable Accrued Benefit will never
be less than the lesser of $ or his entire Accrued Benefit,
even if the application of a graduated vesting schedule under
Options (b) or (c) would result in a smaller Nonforfeitable Accrued
Benefit.
Life Insurance Investments. The Participant's Accrued Benefit
attributable to insurance contracts purchased on his behalf under Article
XI is: (Choose (g) or (h))
[ ] (g) Subject to the vesting election under Options (a), (b) or (c).
[x] (h) 100% Nonforfeitable at all times, irrespective of the vesting
election under Options (b) or (c)(2).
5.04 CASH-OUT DISTRIBUTIONS TO PARTIALLY-VESTED PARTICIPANTS/
RESTORATION OF FORFEITED ACCRUED BENEFIT. The deemed cash-out rule
described in Section 5.04(C) of the Plan: (Choose (a) or (b))
[ ] (a) Does not apply.
[x] (b) Will apply to determine the timing of forfeitures for 0% vested
Participants. A Participant is not a 0% vested Participant if he
has a Deferral Contributions Account.
5.06 YEAR OF SERVICE - VESTING.
Vesting computation period. The Plan measures a Year of Service on the
basis of the following 12 consecutive month periods: (Choose (a) or (b))
[x] (a) Plan Years.
[ ] (b) Employment Years. An Employment Year is the 12 consecutive
month period measured from the Employee's Employment Commencement
Date and each successive 12 consecutive month period measured from
each anniversary of that Employment Commencement Date.
Hours of Service. The minimum number of Hours of Service an Employee must
complete during a vesting computation period to receive credit for a Year
of Service is: (Choose (c) or (d))
[x] (c) 1,000 Hours of Service.
[ ] (d) Hours of Service. [Note: The Hours of Service
requirement may not exceed 1,000.]
5.08 INCLUDED YEARS OF SERVICE - VESTING. The Employer specifically
excludes the following Years of Service: (Choose (a) or at least one of
(b) through (e))
[ ] (a) None other than as specified in Section 5.08(a) of the Plan.
[ ] (b) Any Year of Service before the Participant attained the age of
. Note: The age selected may not exceed age 18.]
[ ] (c) Any Year of Service during the period the Employer did not
maintain this Plan or a predecessor plan.
[x] (d) Any Year of Service before a Break in Service if the number of
consecutive Breaks in Service equals or exceeds the greater of 5 or
the aggregate number of the Years of Service prior to the Break.
This exception applies only if the Participant is 0% vested in his
Accrued Benefit derived from Employer contributions at the time he
has a Break in Service. Furthermore, the aggregate number of Years
of Service before a Break in Service do not include any Years of
Service not required to be taken into account under this exception
by reason of any prior Break in Service.
[ ] (e) Any Year of Service earned prior to the effective date of ERISA
if the Plan would have disregarded that Year of Service on account
of an Employee's Separation from Service under a Plan provision in
effect and adopted before January 1, 1974.
ARTICLE VI
TIME AND METHOD OF PAYMENTS OF BENEFITS
Code Section 411(d)(6) Protected Benefits. The elections under this
Article VI may not eliminate Code Section 411(d)(6) protected benefits.
To the extent the elections would eliminate a Code Section 411(d)(6)
protected benefit, see Section 13.02 of the Plan. Furthermore, if the
elections liberalize the optional forms of benefit under the Plan, the
more liberal options apply on the later of the adoption date or the
Effective Date of this Adoption Agreement.
6.01 TIME OF PAYMENT OF ACCRUED BENEFIT.
Distribution date. A distribution date under the Plan means any date .
[Note: The Employer must specify the appropriate date(s). The specified
distribution dates primarily establish annuity starting dates and the
notice and consent periods prescribed by the Plan. The Plan allows the
Trustee an administratively practicable period of time to make the actual
distribution relating to a particular distribution date.]
Nonforfeitable Accrued Benefit Not Exceeding $3,500. Subject to the
limitations of Section 6.01(A)(1), the distribution date for distribution
of a Nonforfeitable Accrued Benefit not exceeding $3,500 is: (Choose (a),
(b), (c), (d) or (e))
[ ] (a) ______ of the _____ Plan Year beginning after the Participant's
Separation from Service.
[x] (b) the first distribution date following the Participant's
Separation from Service.
[ ] (c) __ of the Plan Year after the Participant incurs Break(s) in
Service (as defined in Article V).
[ ] (d) _______ following the Participant's attainment of Normal
Retirement Age, but not earlier than _____ days following his
Separation from Service.
[ ] (e) (Specify) _________.
Nonforfeitable Accrued Benefit Exceeds $3,500. See the elections under
Section 6.03.
Disability. The distribution date, subject to Section 6.01(A)(3), is:
(Choose (f), (g) or (h))
[ ] (f) _________ after the Participant terminates employment because
of disability.
[x] (g) The same as if the Participant had terminated employment
without disability.
[ ] (h) (Specify) _____________.
Hardship. (Choose (i) or (j))
[x] (i) The Plan does not permit a hardship distribution to a
Participant who has separated from Service.
[ ] (j) The Plan permits a hardship distribution to a Participant who
has separated from Service in accordance with the hardship
distribution policy stated in: (Choose (1), (2) or (3))
[ ] (1) Section 6.01(A)(4) of the Plan.
[ ] (2) Section 14.11 of the Plan.
[ ] (3) The addendum to this Adoption Agreement, numbered Section
6.01.
Default on a Loan. If a Participant or Beneficiary defaults on a loan
made pursuant to a loan policy adopted by the Advisory Committee pursuant
to Section 9.04, the Plan: (Choose (k), (l) or (m))
[x] (k) Treats the default as a distributable event. The Trustee, at
the time of the default, will reduce the Participant's
Nonforfeitable Accrued Benefit by the lesser of the amount in
default (plus accrued interest) or the Plan's security interest in
that Nonforfeitable Accrued Benefit. To the extent the loan is
attributable to the Participant's Deferral Contributions Account,
Qualified Matching Contributions Account or Qualified Nonelective
Contributions Account, the Trustee will not reduce the Participant's
Nonforfeitable Accrued Benefit unless the Participant has separated
from Service or unless the Participant has attained age 59-1/2.
[ ] (l) Does not treat the default as a distributable event. When an
otherwise distributable event first occurs pursuant to Section 6.01
or Section 6.03 of the Plan, the Trustee will reduce the
Participant's Nonforfeitable Accrued Benefit by the lesser of the
amount in default (plus accrued interest) or the Plan's security
interest in that Nonforfeitable Accrued Benefit.
[ ] (m) (Specify) ______________.
6.02 METHOD OF PAYMENT OF ACCRUED BENEFIT. The Advisory Committee
will apply Section 6.02 of the Plan with the following modifications:
(Choose (a) or at least one of (b), (c), (d) and (e))
[ ] (a) No modifications.
[ ] (b) Except as required under Section 6.01 of the Plan, a lump sum
distribution is not available .
[ ] (c) An installment distribution: (Choose (1) or at least one of (2)
or (3))
[ ] (1) Is not available under the Plan.
[ ] (2) May not exceed the lesser of years or the maximum
period permitted under Section 6.02.
[ ] (3) (Specify) _____.
[X] (d) The Plan permits the following annuity options: For
participants with a Plan Entry Date prior to January 1, 1998, a
participant may elect a joint and survivor annuity with a monthly
payment to the surviving spouse equal to an amount not less than 50%
of the amount payable over the joint lines of the participant and
the spouse. The preretirement survivor annuity may be any annuity
for the life of a participant's spouse which is not less than the
survivor annuity payable under the qualified joint and survivor
annuity elected by the Participant.
Any Participant who elects a life annuity option is subject to the
requirements of Sections 6.04(A), (B), (C) and (D) of the Plan. See
Section 6.04(E). [Note: The Employer may specify additional annuity
options in an addendum to this Adoption Agreement, numbered
6.02(d).]
[ ] (e) If the Plan invests in qualifying Employer securities, as
described in Section 10.03(F), a Participant eligible to elect
distribution under Section 6.03 may elect to receive that
distribution in Employer securities only in accordance with the
provisions of the addendum to this Adoption Agreement, numbered
6.02(e).
6.03 BENEFIT PAYMENT ELECTIONS.
Participant Elections After Separation from Service. A Participant who is
eligible to make distribution elections under Section 6.03 of the Plan may
elect to commence distribution of his Nonforfeitable Accrued Benefit:
(Choose at least one of (a) through (c))
[ ] (a) As of any distribution date, but not earlier than of the
Plan Year beginning after the Participant's Separation from Service.
[x] (b) As of the following date(s): (Choose at least one of Options
(1) through (6))
[ ] (1) Any distribution date after the close of the Plan Year in
which the Participant attains Normal Retirement Age.
[x] (2) Any distribution date following his Separation from Service
with the Employer.
[ ] (3) Any distribution date in the Plan Year(s) beginning after
his Separation from Service.
[ ] (4) Any distribution date in the Plan Year after the Participant
incurs one (1) Break(s) in Service (as defined in Article V).
[ ] (5) Any distribution date following attainment of age and
completion of at least Years of Service (as defined in
Article V).
[ ] (6) (Specify) __________.
[ ] (c) (Specify) ___________.
The distribution events described in the election(s) made under
Options (a), (b) or (c) apply equally to all Accounts maintained for the
Participant unless otherwise specified in Option (c).
Participant Elections Prior to Separation from Service - Regular Matching
Contributions Account and Employer Contributions Account. Subject to the
restrictions of Article VI, the following distribution options apply to a
Participant's Regular Matching Contributions Account and Employer
Contributions Account prior to his Separation from Service: (Choose (d) or
at least one of (e) through (h))
[ ] (d) No distribution options prior to Separation from Service.
[x] (e) Attainment of Specified Age. Until he retires, the Participant
has a continuing election to receive all or any portion of his
Nonforfeitable interest in these Accounts after he attains: (Choose
(1) or (2))
[ ] (1) Normal Retirement Age.
[x] (2) 59 1/2 years of age and is at least 20% vested in these
Accounts. [Note: If the percentage is less than 100%, see the
special vesting formula in Section 5.03.]
[ ] (f) After a Participant has participated in the Plan for a period
of not less than years and he is 100% vested in these
Accounts, until he retires, the Participant has a continuing
election to receive all or any portion of the Accounts. [Note: The
number in the blank space may not be less than 5.]
[ ] (g) Hardship. A Participant may elect a hardship distribution
prior to his Separation from Service in accordance with the hardship
distribution policy: (Choose (1), (2) or (3); (4) is available only
as an additional option)
[ ] (1) Under Section 6.01(A)(4) of the Plan.
[ ] (2) Under Section 14.11 of the Plan.
[ ] (3) Provided in the addendum to this Adoption Agreement,
numbered Section 6.03.
[ ] (4) In no event may a Participant receive a hardship
distribution before he is at least % vested in these
Accounts. [Note: If the percentage in the blank is less than
100%, see the special vesting formula in Section 5.03.]
[ ] (h) (Specify)
[Note: The Employer may use an addendum, numbered 6.03, to provide
additional language authorized by Options (b)(6), (c), (g)(3) or (h) of
this Adoption Agreement Section 6.03.]
Participant Elections Prior to Separation from Service - Deferral
Contributions Account, Qualified Matching Contributions Account and
Qualified Nonelective Contributions Account. Subject to the restrictions
of Article VI, the following distribution options apply to a Participant's
Deferral Contributions Account, Qualified Matching Contributions Account
and Qualified Nonelective Contributions Account prior to his Separation
from Service: (Choose (i) or at least one of (j) through (l))
[ ] (i) No distribution options prior to Separation from Service.
[x] (j) Until he retires, the Participant has a continuing election to
receive all or any portion of these Accounts after he attains:
(Choose (1) or (2))
[ ] (1) The later of Normal Retirement Age or age 59-1/2.
[x] (2) Age 59 1/2 (at least 59-1/2).
[ ] (k) Hardship. A Participant, prior to this Separation from
Service, elect a hardship distribution from his Deferral
Contributions Account in accordance with the hardship distribution
policy under Section 14.11 of the Plan.
[ ] (l) (Specify) [Note: Option (l) may not permit in service
distributions prior to age 59-1/2 (other than hardship) and may not
modify the hardship policy described in Section 14.11.]
Sale of trade or business/subsidiary. If the Employer sells substantially
all of the assets (within the meaning of Code Section 409(d)(2)) used in a
trade or business or sells a subsidiary (within the meaning of Code
Section 409(d)(3)), a Participant who continues employment with the
acquiring corporation is eligible for distribution from his Deferral
Contributions Account, Qualified Matching Contributions Account and
Qualified Nonelective Contributions Account: (Choose (m) or (n))
[x] (m) Only as described in this Adoption Agreement Section 6.03 for
distributions prior to Separation from Service.
[ ] (n) As if he has a Separation from Service. After March 31, 1988,
a distribution authorized solely by reason of this Option (n) must
constitute a lump sum distribution, determined in a manner
consistent with Code Section 401(k)(10) and the applicable Treasury
regulations.
6.04 ANNUITY DISTRIBUTIONS TO PARTICIPANTS AND SURVIVING SPOUSES.
The annuity distribution requirements of Section 6.04: (Choose (a) or (b))
[ ] (a) Apply only to a Participant described in Section 6.04(E) of the
Plan (relating to the profit sharing exception to the joint and
survivor requirements).
[x] (b) Apply to all Participants with a Plan Entry Date prior to
January 1, 1998. For participants with a Plan Entry Date after
December 31, 1997, the annuity distribution requirements of Section
6.04 apply only to a participant described in Section 6.04(e) of the
Plan.
ARTICLE IX
ADVISORY COMMITTEE - DUTIES WITH RESPECT TO PARTICIPANTS' ACCOUNTS
9.10 VALUE OF PARTICIPANT'S ACCRUED BENEFIT. If a distribution
(other than a distribution from a segregated Account and other than a
corrective distribution described in Sections 14.07, 14.08, 14.09 or 14.10
of the Plan) occurs more than 90 days after the most recent valuation
date, the distribution will include interest at: (Choose (a), (b) or (c))
[x] (a) 0% per annum. [Note: The percentage may equal 0%.]
[ ] (b) The 90 day Treasury bill rate in effect at the beginning of the
current valuation period.
[ ] (c) (Specify) _____________________.
9.11 ALLOCATION AND DISTRIBUTION OF NET INCOME GAIN OR LOSS.
Pursuant to Section 14.12, to determine the allocation of net income, gain
or loss: (Complete only those items, if any, which are applicable to the
Employer's Plan)
[x] (a) For salary reduction contributions, the Advisory Committee
will: (Choose (1), (2), (3), (4) or (5))
[x] (1) Apply Section 9.11 without modification.
[ ] (2) Use the segregated account approach described in Section
14.12.
[ ] (3) Use the weighted average method described in Section 14.12,
based on a weighting period.
[ ] (4) Treat as part of the relevant Account at the beginning of
the valuation period % of the salary reduction
contributions: (Choose (i) or (ii))
[ ] (i) made during that valuation period.
[ ] (ii) made by the following specified time:
.
[ ] (5) Apply the allocation method described in the addendum to
this Adoption Agreement numbered 9.11(a).
[x] (b) For matching contributions, the Advisory Committee will:
(Choose (1), (2), (3) or (4))
[x] (1) Apply Section 9.11 without modification.
[ ] (2) Use the weighted average method described in Section 14.12,
based on a weighting period.
[ ] (3) Treat as part of the relevant Account at the beginning of
the valuation period % of the matching contributions
allocated during the valuation period.
[ ] (4) Apply the allocation method described in the addendum to
this Adoption Agreement numbered 9.11(b).
[ ] (c) For Participant nondeductible contributions, the Advisory
Committee will: (Choose (1), (2), (3), (4) or (5))
[ ] (1) Apply Section 9.11 without modification.
[ ] (2) Use the segregated account approach described in Section
14.12.
[ ] (3) Use the weighted average method described in Section 14.12,
based on a weighting period.
[ ] (4) Treat as part of the relevant Account at the beginning of
the valuation period % of the Participant nondeductible
contributions: (Choose (i) or (ii))
[ ] (i) made during that valuation period.
[ ] (ii) made by the following specified time:
_______________.
[ ] (5) Apply the allocation method described in the addendum to
this Adoption Agreement numbered 9.11(c).
ARTICLE X
TRUSTEE AND CUSTODIAN, POWERS AND DUTIES
10.03 INVESTMENT POWERS. Pursuant to Section 10.03[F] of the Plan,
the aggregate investments in qualifying Employer securities and in
qualifying Employer real property: (Choose (a) or (b))
[ ] (a) May not exceed 10% of Plan assets.
[x] (b) May not exceed 100% of Plan assets. [Note: The percentage may
not exceed 100%.]
10.14 VALUATION OF TRUST. In addition to each Accounting Date, the
Trustee must value the Trust Fund on the following valuation date(s):
(Choose (a) or (b))
[ ] (a) No other mandatory valuation dates.
[x] (b) (Specify) such other dates designated by the Plan Administrator
on a uniform and nondiscriminatory basis.
<PAGE>
EFFECTIVE DATE ADDENDUM
(Restated Plans Only)
The Employer must complete this addendum only if the restated
Effective Date specified in Adoption Agreement Section 1.18 is different
than the restated effective date for at least one of the provisions listed
in this addendum. In lieu of the restated Effective Date in Adoption
Agreement Section 1.18, the following special effective dates apply:
(Choose whichever elections apply)
[ ] (a) Compensation definition. The Compensation definition of
Section 1.12 (other than the $200,000 limitation) is effective for
Plan Years beginning after . [Note: May not be
effective later than the first day of the first Plan Year beginning
after the Employer executes this Adoption Agreement to restate the
Plan for the Tax Reform Act of 1986, if applicable.]
[ ] (b) Eligibility conditions. The eligibility conditions specified
in Adoption Agreement Section 2.01 are effective for Plan Years
beginning after .
[ ] (c) Suspension of Years of Service. The suspension of Years of
Service rule elected under Adoption Agreement Section 2.03 is
effective for Plan Years beginning after .
[ ] (d) Contribution/allocation formula. The contribution formula
elected under Adoption Agreement Section 3.01 and the method of
allocation elected under Adoption Agreement Section 3.04 is
effective for Plan Years beginning after .
[ ] (e) Accrual requirements. The accrual requirements of Section 3.06
are effective for Plan Years beginning after .
[ ] (f) Employment condition. The employment condition of Section 3.06
is effective for Plan Years beginning after .
[ ] (g) Elimination of Net Profits. The requirement for the Employer
not to have net profits to contribute to this Plan is effective for
Plan Years beginning after . [Note: The date
specified may not be earlier than December 31, 1985.]
[ ] (h) Vesting Schedule. The vesting schedule elected under Adoption
Agreement Section 5.03 is effective for Plan Years beginning after
.
[ ] (i) Allocation of Earnings. The special allocation provisions
elected under Adoption Agreement Section 9.11 are effective for Plan
Years beginning after .
[ ] (j) (Specify)
.
For Plan Years prior to the special Effective Date, the terms of the
Plan prior to its restatement under this Adoption Agreement will control
for purposes of the designated provisions. A special Effective Date may
not result in the delay of a Plan provision beyond the permissible
Effective Date under any applicable law requirements.
<PAGE>
Execution Page
The Trustee (and Custodian, if applicable), by executing this
Adoption Agreement, accepts its position and agrees to all of the
obligations, responsibilities and duties imposed upon the Trustee (or
Custodian) under the Master Plan and Trust. The Employer hereby agrees to
the provisions of this Plan and Trust, and in witness of its agreement,
the Employer by its duly authorized officers, has executed this Adoption
Agreement, and the Trustee (and Custodian, if applicable) signified its
acceptance, on this day of
, 19 .
Name and EIN of Employer: SHURflo Pump Manufacturing Company EIN# 95-
2674564
Signed:
Name(s) of Trustee:
Signed:
Name of Custodian:
Signed:
[Note: A Trustee is mandatory, but a Custodian is optional. See Section
10.03 of the Plan.]
Plan Number. The 3-digit plan number the Employer assigns to this Plan
for ERISA reporting purposes (Form 5500 Series) is: 001.
Use of Adoption Agreement. Failure to complete properly the elections in
this Adoption Agreement may result in disqualification of the Employer's
Plan. The 3-digit number assigned to this Adoption Agreement (see page 1)
is solely for the Master Plan Sponsor's recordkeeping purposes and does
not necessarily correspond to the plan number the Employer designated in
the prior paragraph.
Master Plan Sponsor. The Master Plan Sponsor identified on the first page
of the basic plan document will notify all adopting employers of any
amendment of this Master Plan or of any abandonment or discontinuance by
the Master Plan Sponsor of its maintenance of this Master Plan. For
inquiries regarding the adoption of the Master Plan, the Master Plan
Sponsor's intended meaning of any plan provisions or the effect of the
opinion letter issued to the Master Plan Sponsor, please contact the
Master Plan Sponsor at the following address and telephone number: 1000
NORTH WATER STREET MILWAUKEE, WISCONSIN 53202 (414)287-7270.
Reliance on Opinion Letter. The Employer may not rely on the Master Plan
Sponsor's opinion letter covering this Adoption Agreement. For reliance
on the Plan's qualification, the Employer must obtain a determination
letter from the applicable IRS Key District office.
<PAGE>
PARTICIPATION AGREEMENT
For Participation by Related Group Members (Plan Section 1.30)
The undersigned Employer, by executing this Participation Agreement,
elects to become a Participating Employer in the Plan identified in
Section 1.03 of the accompanying Adoption Agreement, as if the
Participating Employer were a signatory to that Agreement. The
Participating Employer accepts, and agrees to be bound by, all of the
elections granted under the provisions of the Master Plan as made by
SHURflo Pump Manufacturing Company, the Signatory Employer to the
Execution Page of the Adoption Agreement.
1. The Effective Date of the undersigned Employer's participation in
the designated Plan is:
2. The undersigned Employer's adoption of this Plan constitutes:
[ ] (a) The adoption of a new plan by the Participating Employer.
[ ] (b) The adoption of an amendment and restatement of a plan
currently maintained by the Employer, identified as
, and having an original
effective date of .
Dated this day of , 19 .
Name of Participating Employer:
Signed:
Participating Employer's EIN:
Acceptance by the Signatory Employer to the Execution Page of the Adoption
Agreement and by the Trustee.
Name of Signatory Employer: SHURflo Pump
Manufacturing Compan
Accepted:__________________
[Date] Signed:
Name(s) of Trustee:
Accepted:__________________
[Date] Signed:
[Note: Each Participating Employer must execute a separate Participation
Agreement. See the Execution Page of the Adoption Agreement for important
Master Plan information.]
<PAGE>
SHURFLO PLAN
ADDENDUM TO ADOPTION AGREEMENT
SECTION 1.28
The Advisory Committee shall deem a participant to be disabled when the
Participant is determined to be disabled by the Social Security
Administration and qualifies for Social Security Disability Benefits.
<PAGE>
MARSHALL & ILSLEY TRUST COMPANY
DEFINED CONTRIBUTION MASTER PLAN
AND
TRUST AGREEMENT
<PAGE>
TABLE OF CONTENTS
Page
ALPHABETICAL LISTING OF DEFINITIONS . . . . . . . . . . . . . . . . . . vi
ARTICLE I DEFINITIONS
1.01 Employer . . . . . . . . . . . . . . . . . . . . . . . . .
1.02 Trustee . . . . . . . . . . . . . . . . . . . . . . . . .
1.03 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.04 Adoption Agreement . . . . . . . . . . . . . . . . . . . .
1.05 Plan Administrator . . . . . . . . . . . . . . . . . . . .
1.06 Advisory Committee . . . . . . . . . . . . . . . . . . . .
1.07 Employee . . . . . . . . . . . . . . . . . . . . . . . . .
1.08 Self-Employed Individual/Owner-Employee . . . . . . . . .
1.09 Highly Compensated Employee . . . . . . . . . . . . . . .
1.10 Participant . . . . . . . . . . . . . . . . . . . . . . .
1.11 Beneficiary . . . . . . . . . . . . . . . . . . . . . . .
1.12 Compensation . . . . . . . . . . . . . . . . . . . . . . .
1.13 Earned Income . . . . . . . . . . . . . . . . . . . . . .
1.14 Account . . . . . . . . . . . . . . . . . . . . . . . . .
1.15 Accrued Benefit . . . . . . . . . . . . . . . . . . . . .
1.16 Nonforfeitable . . . . . . . . . . . . . . . . . . . . . .
1.17 Plan Year/Limitation Year . . . . . . . . . . . . . . . .
1.18 Effective Date . . . . . . . . . . . . . . . . . . . . . .
1.19 Plan Entry Date . . . . . . . . . . . . . . . . . . . . .
1.20 Accounting Date . . . . . . . . . . . . . . . . . . . . .
1.21 Trust . . . . . . . . . . . . . . . . . . . . . . . . . .
1.22 Trust Fund . . . . . . . . . . . . . . . . . . . . . . . .
1.23 Nontransferable Annuity . . . . . . . . . . . . . . . . .
1.24 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . .
1.25 Code . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.26 Service . . . . . . . . . . . . . . . . . . . . . . . . .
1.27 Hour of Service . . . . . . . . . . . . . . . . . . . . .
1.28 Disability . . . . . . . . . . . . . . . . . . . . . . . .
1.29 Service for Predecessor Employer . . . . . . . . . . . . .
1.30 Related Employers . . . . . . . . . . . . . . . . . . . .
1.31 Leased Employees . . . . . . . . . . . . . . . . . . . . .
1.32 Special Rules of Owner-Employers . . . . . . . . . . . . .
1.33 Determination of Top Heavy Status . . . . . . . . . . . .
1.34 Paired Plans . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE II EMPLOYEE PARTICIPANTS
2.01 Eligibility . . . . . . . . . . . . . . . . . . . . . . .
2.02 Year of Service - Participation . . . . . . . . . . . . .
2.03 Break in Service - Participation . . . . . . . . . . . . .
2.04 Participation upon Re-employment . . . . . . . . . . . . .
2.05 Change in Employee Status . . . . . . . . . . . . . . . .
2.06 Election Not to Participate . . . . . . . . . . . . . . .
ARTICLE III EMPLOYER CONTRIBUTIONS AND FORFEITURES
3.01 Amount . . . . . . . . . . . . . . . . . . . . . . . . . .
3.02 Determination of Contribution . . . . . . . . . . . . . .
3.03 Time of Payment of Contribution . . . . . . . . . . . . .
3.04 Contribution Allocation . . . . . . . . . . . . . . . . .
3.05 Forfeiture Allocation . . . . . . . . . . . . . . . . . .
3.06 Accrual of Benefit . . . . . . . . . . . . . . . . . . . .
3.07-3.16 Limitations on Allocations . . . . . . . . . . . . . . . .
3.17 Special Allocation Limitation . . . . . . . . . . . . . .
3.18 Defined Benefit Plan Limitation . . . . . . . . . . . . .
3.19 Definitions - Article III . . . . . . . . . . . . . . . .
ARTICLE IV PARTICIPANT CONTRIBUTIONS
4.01 Participant Nondeductible Contributions . . . . . . . . .
4.02 Participant Deductible Contributions . . . . . . . . . . .
4.03 Participant Rollover Contributions . . . . . . . . . . . .
4.04 Participant Contribution - Forfeitability . . . . . . . .
4.05 Participant Contribution - Withdrawal/Distribution . . . .
4.06 Participant Contribution - Accrued Benefit . . . . . . . .
ARTICLE V TERMINATION OF SERVICE - PARTICIPANT VESTING
5.01 Normal Retirement Age . . . . . . . . . . . . . . . . . .
5.02 Participant/Disability or Death . . . . . . . . . . . . .
5.03 Vesting Schedule . . . . . . . . . . . . . . . . . . . . .
5.04 Cash-Out Distributions to Partially-Vested
Participants/Restoration of Forfeited Accrued Benefit . .
5.05 Segregated Account for Repaid Amount . . . . . . . . . . .
5.06 Year of Service - Vesting . . . . . . . . . . . . . . . .
5.07 Break in Service - Vesting . . . . . . . . . . . . . . . .
5.08 Included Years of Service - Vesting . . . . . . . . . . .
5.09 Forfeiture Occurs . . . . . . . . . . . . . . . . . . . .
ARTICLE VI TIME AND METHOD OF PAYMENT OF BENEFITS
6.01 Time of Payment of Accrued Benefit . . . . . . . . . . . .
6.02 Method of Payment of Accrued Benefit . . . . . . . . . . .
6.03 Benefit Payment Elections . . . . . . . . . . . . . . . .
6.04 Annuity Distributions to Participants and Surviving
Spouses . .. . . . . . . . . . . . . . . . . . . . . . . .
6.05 Waiver Election - Qualified Joint and Survivor Annuity . .
6.06 Waiver Election - Preretirement Survivor Annuity . . . . .
6.07 Distributions under Domestic Relation Orders . . . . . . .
ARTICLE VII EMPLOYER ADMINISTRATIVE PROVISIONS
7.01 Information to Committee . . . . . . . . . . . . . . . . .
7.02 No Liability . . . . . . . . . . . . . . . . . . . . . . .
7.03 Indemnity of Plan Administrator and Committee . . . . . .
7.04 Employer Direction of Investment . . . . . . . . . . . . .
7.05 Amendment to Vesting Schedule . . . . . . . . . . . . . .
ARTICLE VIII PARTICIPANT ADMINISTRATIVE PROVISIONS
8.01 Beneficiary Designation . . . . . . . . . . . . . . . . .
8.02 No Beneficiary Designation/Death of Beneficiary . . . . .
8.03 Personal Data to Committee . . . . . . . . . . . . . . . .
8.04 Address for Notification . . . . . . . . . . . . . . . . .
8.05 Assignment or Alienation . . . . . . . . . . . . . . . . .
8.06 Notice of Change in Terms . . . . . . . . . . . . . . . .
8.07 Litigation Against the Trust . . . . . . . . . . . . . . .
8.08 Information Available . . . . . . . . . . . . . . . . . .
8.09 Appeal Procedure for Denial of Benefits . . . . . . . . .
8.10 Participant Direction of Investment . . . . . . . . . . .
ARTICLE IX ADVISORY COMMITTEE - DUTIES WITH RESPECT TO PARTICIPANTS
ACCOUNTS
9.01 Members' Compensation, Expenses . . . . . . . . . . . . .
9.02 Term . . . . . . . . . . . . . . . . . . . . . . . . . . .
9.03 Powers . . . . . . . . . . . . . . . . . . . . . . . . . .
9.04 General . . . . . . . . . . . . . . . . . . . . . . . . .
9.05 Funding Policy . . . . . . . . . . . . . . . . . . . . . .
9.06 Manner of Action . . . . . . . . . . . . . . . . . . . . .
9.07 Authorized Representative . . . . . . . . . . . . . . . .
9.08 Interested Member . . . . . . . . . . . . . . . . . . . .
9.09 Individual Accounts . . . . . . . . . . . . . . . . . . .
9.10 Value of Participant's Accrued Benefit . . . . . . . . . .
9.11 Allocation and Distribution of net Income Gain or Loss . .
9.12 Individual Statement . . . . . . . . . . . . . . . . . . .
9.13 Account Charged . . . . . . . . . . . . . . . . . . . . .
9.14 Unclaimed Account Procedure . . . . . . . . . . . . . . .
ARTICLE X CUSTODIAN/TRUSTEE, POWERS AND DUTIES
10.01 Acceptance . . . . . . . . . . . . . . . . . . . . .
10.02 Receipt of Contributions . . . . . . . . . . . . . .
10.03 Investment Powers . . . . . . . . . . . . . . . . . .
10.04 Records and Statements . . . . . . . . . . . . . . .
10.05 Fees and Expenses from Fund . . . . . . . . . . . . .
10.06 Parties to Litigation . . . . . . . . . . . . . . . .
10.07 Professional Agents . . . . . . . . . . . . . . . . .
10.08 Distribution of Cash or Property . . . . . . . . . .
10.09 Distribution Directions . . . . . . . . . . . . . . .
10.10 Third Party/Multiple Trustees . . . . . . . . . . . .
10.11 Resignation . . . . . . . . . . . . . . . . . . . . .
10.12 Removal . . . . . . . . . . . . . . . . . . . . . . .
10.13 Interim Duties and Successor Trustee . . . . . . . .
10.14 Valuation of Trust . . . . . . . . . . . . . . . . .
10.15 Limitation on Liability - If Investment Manager,
Ancillary Trustee or Independent Fiduciary . . . . .
10.16 Investment in Group Trust Fund
10.17 Appointment of Ancillary Trustee or Independent
Fiduciary . . . . . . . . . . . . . . . . . . . . . .
ARTICLE XI PROVISIONS RELATING TO INSURANCE AND INSURANCE COMPANY
11.01 Insurance Benefit . . . . . . . . . . . . . . . . . .
11.02 Limitation on Life Insurance Protection . . . . . . .
11.03 Definitions . . . . . . . . . . . . . . . . . . . . .
11.04 Dividend Plan . . . . . . . . . . . . . . . . . . . .
11.05 Insurance Company Not a Party to Agreement . . . . .
11.06 Insurance Company Not Responsible for Trustee's
Action . . . . . . . . . . . . . . . . . . . . . . .
11.07 Insurance Company Reliance on Trustee's Signature . .
11.08 Acquittance . . . . . . . . . . . . . . . . . . . . .
11.09 Duties of Insurance Company . . . . . . . . . . . . .
ARTICLE XII MISCELLANEOUS
12.01 Evidence . . . . . . . . . . . . . . . . . . . . . .
12.02 No Responsibility for Employer Action . . . . . . . .
12.03 Fiduciaries Not Insurers . . . . . . . . . . . . . .
12.04 Waiver of Notice . . . . . . . . . . . . . . . . . .
12.05 Successors . . . . . . . . . . . . . . . . . . . . .
12.06 Word Usage . . . . . . . . . . . . . . . . . . . . .
12.07 State Law . . . . . . . . . . . . . . . . . . . . . .
12.08 Employer's Right to Participate . . . . . . . . . . .
12.09 Employment Not Guaranteed . . . . . . . . . . . . . .
ARTICLE XIII EXCLUSIVE BENEFIT, AMENDMENT, TERMINATION
13.01 Exclusive Benefit . . . . . . . . . . . . . . . . . .
13.02 Amendment By Employer . . . . . . . . . . . . . . . .
13.03 Amendment By Master Plan Sponsor . . . . . . . . . .
13.04 Discontinuance . . . . . . . . . . . . . . . . . . .
13.05 Full Vesting on Termination . . . . . . . . . . . . .
13.06 Merger/Direct Transfer . . . . . . . . . . . . . . .
13.07 Termination . . . . . . . . . . . . . . . . . . . . .
ARTICLE XIV CODE Section 401(K) & CODE Section 401(M) ARRANGEMENTS
14.01 Application . . . . . . . . . . . . . . . . . . . . .
14.02 Code Section 401(k) Arrangement . . . . . . . . . . .
14.03 Definitions . . . . . . . . . . . . . . . . . . . . .
14.04 Matching Contributions/Employee Contributions . . . .
14.05 Time of Payment of Contributions . . . . . . . . . .
14.06 Special Allocation Provisions - Deferral
Contributions, matching Contributions and Qualified
Nonelective Contributions . . . . . . . . . . . . . .
14.07 Annual Elective Deferral Limitation . . . . . . . . .
14.08 Actual Deferral Percentage ("ADP") Test . . . . . . .
14.09 Nondiscrimination Rules for Employer Matching
Contributions . . . . . . . . . . . . . . . . . . . .
14.10 Multiple Use Limitation . . . . . . . . . . . . . . .
14.11 Distribution Restrictions . . . . . . . . . . . . . .
14.12 Special Allocation Rules . . . . . . . . . . . . . .
<PAGE>
ALPHABETICAL LISTING OF DEFINITIONS
PLAN DEFINITION SECTION REFERENCE
(Page Number)
100% Limitation . . . . . . . . . . . . . . . . . . . . . . 3.19(1) (3.09)
Account . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.14 (1.05)
Accounting Date . . . . . . . . . . . . . . . . . . . . . . . . 120 (1.05)
Accrued Benefit . . . . . . . . . . . . . . . . . . . . . . . 1.15 (1.05)
Actual Deferral Percentage ("ADP") Test . . . . . . . . . . 14.08 (14.06)
Adoption Agreement . . . . . . . . . . . . . . . . . . . . . 1.04 (1.01)
Advisory Committee . . . . . . . . . . . . . . . . . . . . . 1.06 (1.02)
Annual Addition . . . . . . . . . . . . . . . . . . . . . . 3.19(a) (3.07)
Average Contribution Percentage Test . . . . . . . . . . . 14.09 (14.07)
Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . 1.11 (1.03)
Break in Service for Eligibility Purposes . . . . . . . . . . 2.03 (2.01)
Break in Service for Vesting Purposes . . . . . . . . . . . . 5.07 (5.03)
Cash-out Distribution . . . . . . . . . . . . . . . . . . . . 5.04 (5.01)
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 (1.06)
Code Section 411(d)(6) Protected Benefits . . . . . . . . . 13.02 (13.01)
Compensation . . . . . . . . . . . . . . . . . . . . . . . . 1.12 (1.03)
Compensation for Code Section 401(k) Purposes . . . . . . 14.03(f) (14.02)
Compensation for Code Section 415 Purposes . . . . . . . . 3.19(b) (3.07)
Compensation for Top Heavy Purposes . . . . . . . . . . 1.33(B)(3) (1.10)
Contract(s) . . . . . . . . . . . . . . . . . . . . . . . 11.03(c) (11.02)
Custodian Designation . . . . . . . . . . . . . . . . . . 10.03(B) (10.02)
Deemed Cash-out Rule . . . . . . . . . . . . . . . . . . . 5.04(C) (5.02)
Deferral Contributions . . . . . . . . . . . . . . . . . 14.03(g) (14.02)
Deferral Contributions Account . . . . . . . . . . . . . . 14.06 (14.04)
Defined Benefit Plan . . . . . . . . . . . . . . . . . . . 3.19(i) (3.08)
Defined Benefit Plan Fraction . . . . . . . . . . . . . . . 3.19(j) (3.08)
Defined Contribution Plan . . . . . . . . . . . . . . . . . 3.19(h) (3.08)
Defined Contribution Plan Fraction . . . . . . . . . . . . 3.19(k) (3.09)
Determination Date . . . . . . . . . . . . . . . . . . 1.33(B)(7) (1.10)
Disability . . . . . . . . . . . . . . . . . . . . . . . . . . 128 (1.07)
Distribution Date . . . . . . . . . . . . . . . . . . . . . . 6.01 (6.01)
Distribution Restrictions . . . . . . . . . . . . . . . . 14.03(m) (14.03)
Earned Income . . . . . . . . . . . . . . . . . . . . . . . . 1.13 (1.05)
Effective Date . . . . . . . . . . . . . . . . . . . . . . . 1.18 (1.05)
Elective Deferrals . . . . . . . . . . . . . . . . . . . 14.03(h) (14.02)
Elective Transfer . . . . . . . . . . . . . . . . . . . . 13.06(A) (13.02)
Eligible Employee . . . . . . . . . . . . . . . . . . . . 14.03(c) (14.02)
Employee . . . . . . . . . . . . . . . . . . . . . . . . . . 1.07 (1.02)
Employee Contributions . . . . . . . . . . . . . . . . . 14.03(n) (14.03)
Employer . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01 (1.01)
Employer Contribution Account . . . . . . . . . . . . . . . 14.06 (14.04)
Employer for Code Section 415 Purposes . . . . . . . . . . 3.19(c) (3.08)
Employer for Top Heavy Purposes . . . . . . . . . . . . 1.33(B)(6) (1.10)
Employment Commencement Date . . . . . . . . . . . . . . . . 2.02 (2.01)
ERISA 1.24(1.06)
Excess Aggregate Contributions 14.09 (14.07)
Excess Amount 3.19(d) (3.08)
Excess Contributions 14.08 (14.06)
Exempt Participant &01 (&01)
Forfeiture Break in Service 5.08 (5.03)
Group Trust Fund 10.16 (10.07)
Hardship 6.01(A)(4) (6.02)
Hardship for Code Section 401(k) Purposes 14.11(14.10)
Highly Compensated Employee 1.09 (1.02)
Highly Compensated Group 14.03(d) (14.02)
Hour of Service 127 (1.06)
Incidental insurance Benefits 11.01 (11.01)
Insurable Participant 11.03(d) (11.02)
Investment Manager 9.04(i) (9.01)
Issuing Insurance Company 11.03 (11.02)
Joint and Survivor Annuity 6.04(A) (6.06)
Key Employee 1.33)(1) (1.10)
Leased Employees 131 (1.08)
limitation Year 1.17 and 3.19(e) (1.05) and (3.08)
an Policy 9.04(A) (9.02)
Mandatory Contributions 14.04(14.03)
Mandatory Contributions Account 14.04(14.03)
Master or Prototype Plan 3.19(f) (3.08)
Matching Contributions 14.03(i) (14.03)
Minimum Permissible Amount 3.19 (3.08)
Minimum Distribution Incidental Benefit (MDIB) 6.02(A) (6.03)
Multiple Use limitation 14.10 (14.09)
Named Fiduciary 10.03 (10.04)
Nonelective Contributions 14.03(1) (14.03)
Nonforfeitable 1.16 (1.05)
Nonhighly Compensated Employee 14.03(b) (14.02)
Nonhighly Compensated Group 14(e) (14.02)
Non-Key Employee 133)(2) (1.10)
Nontransferable Annuity 123(1.05)
Normal Retirement Age 5.01(5.01)
Owner-Employee 1.08(1.02)
Paired Plans 1.34(1.10)
Participant 1.10 (1.03)
Participant Deductible Contributions 4.02(4.01)
Participant Forfeiture 3.05 (3.03)
Participant Loans 10.03[E] (10.05)
Participant Nondeductible Contributions 4.01 (4.01)
Permissive Aggregation Group 133)(5) (1.10)
Plan 1.03 (1.01)
Plan Administrator 1.05 (1.02)
Plan Entry Date 1.19 (1.05)
Plan Year 1.17 (1.05)
Policy 11.03(a) (11.02)
Predecessor Employer 19 (1.07)
Preretirement Survivor Annuity 6.04(B) (6.06)
Qualified Domestic Relations Order 6.07 (6.09)
Qualified Matching Contributions 14.03(k) (14.03)
Qualified Nonelective Contributions 14.03(1) (14.03)
Qualifying Employer Real Property 10.03(F] (10.05)
Qualifying Employer Securities 10.03(F) (10.05)
Related Employers 1.30(1.07)
Required Aggregation Group 1.33)(4) (1.10)
Required Beginning Date 6.01 (6.02)
Rollover Contributions 4.03 (4.01)
Self-Employed Individual 1.08(1.02)
Service 1.26(1.06)
Term Life Insurance Contract 11.03 (11.02)
Top Heavy Minimum Allocation 3.04) (3.01)
Top Heavy Ratio 1.33 (1.09)
Trust 1.21(1.05)
Trustee 1.02(1.01)
Trustee Designation 10.03[A] (10.01)
Trust Fund 1.22 (1.05)
Weighted Average Allocation Method 14.12 (14.11)
Year of Service for Eligibility Purposes 2.02 (2.01)
Year of Service for Vesting Purposes 5.06 (5.03)
<PAGE>
MARSHALL & ILSLEY TRUST COMPANY
DEFINED CONTRIBUTION PLAN AND TRUST AGREEMENT
BASIC PLAN DOCUMENT #01
MARSHALL & ILSLEY TRUST COMPANY in its capacity as Master Plan
Sponsor, establishes this Master Plan intended to conform to and qualify
under Section 401 and Section 501 of the Internal Revenue Code of 1986, as
amended an Employer establishes a Plan and Trust under this Master Plan by
executing an Adoption Agreement. If the Employer adopts this Plan as a
restated Plan in substitution for, and in amendment of, an existing plan,
the provisions of this Plan, as a restated Plan, apply solely to an
Employee whose employment with the Employer terminates on or after the
restated Effective Date of the Employer's Plan. If an Employee's
employment with the Employer terminates prior to the restated Effective
Date, that Employee is entitled to benefits under the Plan as the Plan
existed on the date of the Employee's termination of employment.
ARTICLE I
DEFINITIONS
1.01 "Employer" means each employer who adopts this Plan by executing
an Adoption Agreement.
1.02 "Trustee" means the person or persons who as Trustee execute the
Employer's Adoption Agreement, or any successor in office who in writing
accepts the position of Trustee. The Employer must designate in its
Adoption Agreement whether the Trustee will administer the Trust as a
discretionary Trustee or as a nondiscretionary Trustee. If a person acts
as a discretionary Trustee, the Employer also may appoint a Custodian.
See Article X. If the Master Plan Sponsor is a bank, savings and loan,
credit union or similar financial institution, a person other than the
Master Plan Sponsor (or its affiliate) may not serve as Trustee or as
Custodian of the Employer's Plan without the written consent of the Master
Plan Sponsor.
1.03 "Plan" means the retirement plan established or continued by the
Employer in the form of this Agreement, including the Adoption Agreement
under which the Employer has elected to participate in this Master Plan.
The Employer must designate the name of the Plan in its Adoption
Agreement. An Employer may execute more than one Adoption Agreement
offered under this Master Plan, each of which will constitute a separate
Plan and Trust established or continued by that Employer. The Plan and
the Trust created by each adopting Employer is a separate Plan and a
separate Trust, independent from the plan and the trust of any other
employer adopting this Master Plan. All section references within the
Plan are Plan section references unless the context clearly indicates
otherwise.
1.04 "Adoption Agreement" means the document executed by each
Employer adopting this Master Plan. The terms of this Master Plan as
modified by the terms of an adopting Employer's Adoption Agreement
constitute a separate Plan and Trust to be construed as a single
Agreement. Each elective provision of the Adoption Agreement corresponds
by section reference to the section of the Plan which grants the election.
Each Adoption Agreement offered under this Master Plan is either a
Nonstandardized Plan or a Standardized Plan, as identified in the preamble
to that Adoption Agreement. The provisions of this Master Plan apply
equally to Nonstandardized Plans and to Standardized Plans unless
otherwise specified.
1.05 "Plan Administrator" is the Employer unless the Employer
designates another person to hold the position of Plan Administrator. In
addition to his other duties, the Plan Administrator has full
responsibility for compliance with the reporting and disclosure rules
under ERISA as respects this Agreement.
1.06 "Advisory Committee" means the Employer's Advisory Committee as
from time to time constituted.
1.07 "Employee" means any employee (including a Self-Employed
Individual) of the Employer. The Employer must specify in its Adoption
Agreement any Employee, or class of Employees, not eligible to participate
in the Plan. If the Employer elects to exclude collective bargaining
employees, the exclusion applies to any employee of the Employer included
in a unit of employees covered by an agreement which the Secretary of
Labor finds to be a collective bargaining agreement between employee
representatives and one or more employers unless the collective bargaining
agreement requires the employee to be included within the Plan. The term
"employee representatives" does not include any organization more than
half the members of which are owners, officers, or executives of the
Employer.
1.08 "Self-Employed Individual/Owner-Employee." "Self-Employed
Individual" means an individual who has Earned Income (or who would have
had Earned Income but for the fact that the trade or business did not have
net earnings) for the taxable year from the trade or business for which
the Plan is established "Owner-Employee" means a Self-Employed Individual
who is the sole proprietor in the case of a sole proprietorship. If the
Employer is a partnership, "Owner-Employee" means a Self-Employed
Individual who is a partner and owns more than 10% of either the capital
or profits interest of the partnership.
1.09 "Highly Compensated Employee" means an Employee who, during the
Plan Year or during the preceding 12-month period:
(a) is a more than 5% owner of the Employer (applying the
constructive ownership rules of Code Section 318, and applying the
principles of Code Section 318, for an unincorporated entity);
(b) has Compensation in excess of $75,000 (as adjusted by the
Commissioner of Internal Revenue for the relevant year);
(c) has Compensation in excess of $50,000 (as adjusted by the
Commissioner of Internal Revenue for the relevant year) and is part
of the top-paid 20% group of employees (based on Compensation for the
relevant year); or
(d) has Compensation in excess of 50% of the dollar amount
prescribed in Code Section 415)(1)(A) (relating to defined benefit
plans) and is an officer of the Employer.
If the Employee satisfies the definition in clause (b), (c) or (d) in
the Plan Year but does not satisfy clause (b), (c) or (d) during the
preceding 12-month period and does not satisfy clause (a) in either
period, the Employee is a Highly Compensated Employee only if he is one of
the 100 most highly compensated Employees for the Plan Year. The number
of officers taken into account under clause (d) will not exceed the
greater of 3 or 10% of the total number (after application of the Code
Section 414(q) exclusions) of Employees, but no more than 50 officers. If
no Employee satisfies the Compensation requirement in clause (d) for the
relevant year, the Advisory Committee will treat the highest paid officer
as satisfying clause (d) for that year.
For purposes of this Section 1.09, "Compensation" means Compensation
as defined in Section 1.12, except any exclusions from Compensation
elected in the Employer's Adoption Agreement Section 1.12 do not apply,
and Compensation must include "elective contributions" (as defined in
Section 1.12). The Advisory Committee must make the determination of who
is a Highly Compensated Employee, including the determinations of the
number and identity of the top paid 20% group, the top 100 paid Employees,
the number of officers includible in clause (d) and the relevant
Compensation, consistent with Code Section 414(q) and regulations issued
under that Code section. The Employer may make a calendar year election
to determine the Highly Compensated Employees for the Plan Year, as
prescribed by Treasury regulations. A calendar year election must apply
to all plans and arrangements of the Employer. For purposes of applying
any nondiscrimination test required under the Plan or under the Code, in a
manner consistent with applicable Treasury regulations, the Advisory
CommIttee will treat a Highly Compensated Employee and all family members
(a spouse, a lineal ascendant or descendant, or a spouse of a lineal
ascendant or descendant) as a single Highly Compensated Employee, but only
if the Highly Compensated Employee is a more than 5% owner or is one of
the 10 Highly Compensated Employee with the greatest Compensation for the
Plan Year. This aggregation rule applies to a family member even if that
family member is a Highly Compensated Employee without family aggregation.
The term "Highly Compensated Employee" also includes any former
Employee who separated from Service (or has a deemed Separation from
Service, as determined under Treasury regulations) prior to the Plan Year,
performs no Service for the Employer during the Plan Year, and was a
Highly Compensated Employee either for the separation year or any Plan
Year ending on or after his 55th birthday. If the former Employee's
Separation from Service occurred prior to January 1, 1987, he is a Highly
Compensated Employee only if he satisfied clause (a) of this Section 1.09
or received Compensation in of $50,000 during: (i) the year of his
Separation from Service (or the prior year); or (2) any year ending after
his 54th birthday.
1.10 "Participant" is an Employee who is eligible to be and becomes a
Participant in accordance with the provisions of Section 2,01.
1.11 "Beneficiary" is a person designated by a Participant who is or
may become entitled to a benefit under the Plan. A Beneficiary who
becomes entitled to a benefit under the Plan remains a Beneficiary under
the Plan until the Trustee has fully distributed his benefit to him. A
Beneficiary's right to (and the Plan Administrator's, the Advisory
Committee's or a Trustee's duty to provide to the Beneficiary) information
or data concerning the Plan does not arise until he first becomes entitled
to receive a benefit under the Plan.
1.12 "Compensation" means, except as provided in the Employer's
Adoption Agreement, the Participant's Earned Income, wages, salaries, fees
for professional service and other amounts received for personal services
actually rendered in the course of employment with the Employer
maintaining the plan (including, but not limited to, commissions paid
salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums tips and bonuses). The
Employer must elect in its Adoption Agreement whether to include elective
contributions in the definition of Compensation. "Elective contributions"
are amounts excludible from the Employee's gross income under Code Section
Section 125, 402(a)(8), 402(h) or 403(b), and contributed by the Employer,
at the Employee's election, to a Code Section 401(k) arrangement, a
Simplified Employee Pension, cafeteria plan or tax-sheltered annuity. The
term "Compensation" does not include:
(a) Employer contributions (other than "elective contributions," if
includible in the definition of Compensation under Section 1.12 of
the Employer's Adoption Agreement) to a plan of deferred compensation
to the extent the contributions are not included in the gross income
of the Employee for the taxable year in which contributed, on behalf
of an Employee to a Simplified Employee Pension Plan to the extent
such contributions are excludible from the Employee's gross income,
and any distributions from a plan of deferred compensation,
regardless of whether such amounts are includible in the gross income
of the Employee when distributed.
(b) Amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by an Employee
either becomes freely transferable or is no longer subject to a
substantial risk of forfeiture.
(c) Amounts realized from the sale, exchange or other disposition of
stock acquired under a stock option described in Part II, Subchapter
D, Chapter 1 of the Code.
(d) Other amounts which receive special tax benefits, such as
premiums for group term life insurance (but only to the extent that
the premiums are not includible in the gross income of the Employee),
or contributions made by an Employer (whether or not under a salary
reduction agreement) towards the purchase of an annuity contract
described in Code Section 403(b) (whether or not the contributions
are excludible from the gross income of the Employee), other than
"elective contributions," if elected in the Employer's Adoption
Agreement.
Any reference in this Plan to Compensation is a reference to the
definition in this Section 1.12, unless the Plan reference specifies a
modification to this definition. The Advisory Committee will take into
account only Compensation actually paid for the relevant period. A
Compensation payment includes Compensation by the Employer through another
person under the common paymaster provisions in Code Section Section 3121
and 3306.
(A) Limitations on Compensation.
(1) Compensation dollar limitation. For any Plan Year beginning
after December 31, 1988, the Advisory Committee must take into account
only the first $200,000 (or beginning January 1,1990, such larger amount
as the Commissioner of Internal Revenue may prescribe) of any
Participant's Compensation. For any Plan Year beginning prior to January
1, 1989, this $200,000 limitation but not the family aggregation
requirement described in the next paragraph) applies only if the Plan is
top heavy for such Plan Year or operates as a deemed top heavy plan for
such Plan Year.
(2) Application of compensation limitation to certain family
members. The $200,000 Compensation limitation applies to the combined
Compensation of the Employee and of any family member aggregated with the
Employee under Section 1.09 who is either (i) the Employee's spouse; or
(ii) the Employee's lineal descendant under the age of 19. If, for a Plan
Year, the combined Compensation of the Employee and such family members
who are Participants entitled to an allocation for that Plan Year exceeds
the $200,000 (or adjusted) limitation, Compensation for each such
Participant, for purposes of the contribution and allocation provisions of
Article III, means his Adjusted compensation. Adjusted Compensation is
the amount which bears the same ratio to the $200,000 (or adjusted)
limitation as the affected Participant's Compensation (without regard to
the $200,000 Compensation limitation) bears to the combined Compensation
of all the affected Participants in the family unit. If the Plan uses
permitted disparity, the Advisory Committee must determine the integration
level of each affected family member Participant prior to the proration of
the $200,000 Compensation limitation, but the combined integration level
of the affected Participants may not exceed $200,000 (or the adjusted
limitation). The combined Excess Compensation of the affected
Participants in the family unit may not exceed $200,000 (or the adjusted
limitation) minus the affected Participants' combined integration level
(as determined under the preceding sentence). If the combined Excess
Compensation exceed this limitation, the Advisory Committee will prorate
the Excess Compensation limitation among the affected Participants in the
family unit in proportion to each such individual's Adjusted Compensation
minus his integration level. If the Employer's Plan is a Nonstandardized
Plan, the Employer may elect to use a different method in determining the
Adjusted Compensation of the affected Participants by specifying that
method in an addendum to the Adoption Agreement, numbered Section 1.12.
(B) Nondiscrimination. For purposes of determining whether the Plan
discriminates in favor of Highly Compensated Employees, Compensation means
Compensation as defined in this Section 1.12, except: (1) the Employer
may elect to include or to exclude elective contributions, irrespective of
the Employer's election in its Adoption Agreement regarding elective
contributions; and (2) the Employer will not effect to any elections made
in the "modifications to Compensation definition" section of Adoption
Agreement Section 1.12. The Employer's election described in clause (i)
must be consistent and uniform with respect to all Employees and all plans
of the Employer for any particular Plan Year. If the Employer's Plan is a
Nonstandardized Plan, the Employer, irrespective of clause (2), may elect
to exclude from this nondiscrimination definition of Compensation any
items of Compensation excludible under Code Section 414(s) and the
applicable Treasury regulations, provided such adjusted definition
conforms to the nondiscrimination requirements of those regulations.
1.13 "Earned Income" means net earnings from self-employment in the
trade or business with respect to which the Employer has established the
Plan, provided personal services of the individual are a material income
producing factor. The Advisory Committee will determine net earnings
without regard to items excluded from gross income and the deductions
allocable to those items. The Advisory Committee will determine net
earnings after the deduction allowed to the Self-Employed Individual for
all contributions made by the Employer to a qualified plan and, for Plan
Years beginning after December 31, 1989, the deduction allowed to the
Self-Employed under Code Section 164(f) for self-employment taxes.
1.14 "Account" means the separate account(s) which the Advisory
Committee or the Trustee maintains for a Participant under the Employer's
Plan.
1.15 "Accrued Benefit" means the amount standing in a Participant's
Account(s) as of any date derived from both Employer contributions and
Employee contributions, if any.
1.16 "Nonforfeitable" means a Participant's or Beneficiary's
unconditional claim, legally enforceable against the Plan to the
Participant's Accrued Benefit.
1.17 "Plan Year" means the fiscal year of the Plan, the consecutive
month period specified in the Employer's Adoption Agreement. The
Employer's Adoption Agreement also must specify the "Limitation Year"
applicable to the limitations on allocations described in Article III. If
the Employer maintains Paired Plans, each Plan must have the same Plan
Year.
1.18 "Effective Date" of this Plan is the date specified in the
Employer's Adoption Agreement.
1.19 "Plan Entry Date" means the date(s) specified in Section 2.01 of
the Employer's Adoption Agreement.
1.20 "Accounting Date" is the last day of an Employer's Plan Year.
Unless otherwise specified in the Plan, the Advisory Committee will make
all Plan allocations for a particular Plan Year as of the Accounting Date
of that Plan Year.
1.21 "Trust" means the separate Trust created under the Employer's
Plan.
1.22 "Trust Fund" means all property of every kind held or acquired
by the Employer's Plan, other than incidental benefit insurance contracts.
1.23 "Nontransferable Annuity" means an annuity which by its terms
provides that it may not be sold, assigned, discounted, pledged as
collateral for a loan or security for the performance of an obligation or
for any purpose to any person other than the insurance company. If the
Plan distributes an annuity contract, the contract must be a
Nontransferable Annuity.
1.24 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
1.25 "Code" means the Internal Revenue Code of 1986, as amended.
1.26 "Service" means any period of time the Employee is in the employ
of the Employer, including any period the Employee is on an unpaid leave
of absence authorized by the Employer under a uniform, nondiscriminatory
policy applicable to all Employees. "Separation from Service" means the
Employee no longer has an employment relationship with the Employer
maintaining this Plan.
1.27 "Hour of Service" means:
(a) Each Hour of Service for which the Employer, either directly or
indirectly, pays an Employee, or for which the Employee is entitled
to payment, for the performance of duties. The Advisory Committee
credits Hours of Service under this paragraph (a) to the Employee for
the computation period in which the Employee performs the duties,
irrespective of when paid;
(b) Each Hour of Service for back pay, irrespective of mitigation of
damages, to which the Employer has agreed or for which the Employee
has received an award. The Advisory Committee credits Hours of
Service under this paragraph (b) to the Employee for the computation
period(s) to which the award or the agreement pertains rather than
for the computation period in which the award, agreement or payment
is made; and
(c) Each Hour of Service for which the Employer, either directly or
indirectly, pays an Employee, or for which the Employee is entitled
to payment (irrespective of whether the employment relationship is
terminated), for reasons other than for the performance of duties
during a computation period, such as leave of absence, vacation,
holiday, sick leave illness, incapacity (including disability),
layoff, jury duty or military duty. The Advisory Committee will
credit no more than 501 Hours of Service under this paragraph (c) to
an Employee on account of any single continuous period during which
the Employee does not perform any duties (whether or not such period
occurs during a single computation period). The Advisory Committee
credits Hours of Service under this paragraph (c) in accordance with
the rules of paragraphs (b) and (c) of Labor Reg. Section 2530.200b-
2, which the Plan, by this reference, specifically incorporates in
full within this paragraph (c).
The Advisory Committee will not credit an Hour of service under more
than one of the above paragraphs. A computation period for purposes of
this Section 1.27 is the Plan Year, Year of Service period, Break in
Service period or other period, as determined under the Plan provision for
which the Advisory Committee is measuring an Employee's Hours of Service.
The Advisory Committee will resolve any ambiguity with respect to the
crediting of an Hour of Service in favor of the Employee.
(A) Method of crediting Hours of Service. The Employer must elect in its
Adoption Agreement the method the Advisory Committee will use in crediting
an Employee with Hours of Service. For purposes of the Plan, "actual"
method means the determination of Hours of Service from records of hours
worked and hours for which the Employer makes payment or for which payment
is due from the Employer. If the Employer elects to apply an "equivalency"
method, for each equivalency period for which the Advisory Committee would
credit the Employee with at least one Hour of Service, the Advisory
Committee will credit the Employee with: (i) 10 Hours of Service for a
daily equivalency (ii) 45 Hours of Service for a weekly equivalency; (iii)
95 Hours of Service for a semimonthly payroll period equivalency; and (iv)
190 Hours of Service for monthly equivalency.
(B) Maternity/paternity leave. Solely for purposes of determining
whether the Employee incurs a Break in Service under any provision of this
Plan, the Advisory Committee must credit Hours of Service during an
Employee's unpaid absence period due to maternity or paternity leave. The
Advisory Committee considers an Employee on maternity or paternity leave
if the Employee's absence is due to the Employee's pregnancy, the birth of
the Employee's child, the placement with the Employee of an adopted child,
or the care of the Employee's child immediately following the child's
birth or placement. The Advisory Committee credits Hours of Service under
this paragraph on the basis of the number of Hours of Service the Employee
would receive if he were paid during the absence period or, if the
Advisory Committee cannot determine the number of Hours of Service the
Employee would receive on the basis of 8 hours per day during the absence
period. The Advisory Committee will credit only the number (not exceeding
501) of Hours of Service necessary to prevent an Employee's Break in
Service. The Advisory Committee credits all Hour of Service described in
this paragraph to the computation period in which the absence period
begins or, if the Employee does not need these Hours of Service to prevent
a Break in Service in the computation period in which his absence period
begins, the Advisory Committee credits these Hours of Service to the
immediately following computation period.
1.28 "Disability" means the Participant, because of a physical or
mental disability, will be unable to perform the duties of his customary
position of employment (or is unable to engage in any substantial gainful
activity) for an indefinite period which the Advisory Committee considers
will be of long continued duration. A Participant also is disabled if he
incurs the permanent loss or loss of use of a member or function of the
body, or is permanently disfigured, and incurs a Separation from Service.
The Plan considers a Participant disabled on the date the Advisory
Committee determines the Participant satisfies the definition of
disability. The Advisory Committee may require a Participant to submit to
a physical examination in order to confirm disability. The Advisory
Committee will apply the provisions of this Section 1.28 in a
nondiscriminatory, consistent and uniform manner. If the Employer's Plan
is a Nonstandardized Plan, the Employer may provide an alternate
definition of disability in an addendum to its Adoption Agreement,
numbered Section 1.28.
1.29 SERVICE FOR PREDECESSOR EMPLOYER. If the Employer maintains the
plan of a predecessor employer, the Plan treats service of the Employee
with the predecessor employer as service with the Employer. If the
Employer does not maintain the plan of a predecessor employer, the Plan
does not credit service with the predecessor employer, unless the Employer
identifies the predecessor in its Adoption Agreement and specifies the
purposes for which the Plan will credit service with that predecessor
employer.
1.30 RELATED EMPLOYERS. A related group is a controlled group of
corporations (as defined in Code Section 414(b)), trades or businesses
(whether or not incorporated) which are under common control (as defined
in Code Section 414(c)) or an affiliated service group (as defined in Code
14(m) or in Code Section 414(0)). If the Employer is a member of a
related group, the term "Employer' includes the related group members for
purposes of crediting Hours of Service determining Years of Service and
Breaks in Service under Articles II and V, applying the Participation Test
and the Coverage Test under Section 3.06(E), applying the limitations on
allocations in Part 2 of Article III, applying the top heavy rules and the
minimum allocation requirements of Article III, the definitions of
Employee, Highly Compensated Employee, Compensation and Leased Employee,
and for any other purpose required by the applicable Code section or by a
Plan provision. However, an Employer may contribute to the Plan only by
being a signatory to the Execution Page of the Adoption Agreement or to a
Participation Agreement to the Employer's Adoption Agreement. If one or
more of the Employer's related group members become Participating
Employers by executing a Participation Agreement to the Employer's
Adoption Agreement, the term "Employer" includes the participating related
group members for all purposes of the Plan, and "Plan Administrator" means
the Employer that is the signatory to the Execution Page of the Adoption
Agreement.
If the Employer's Plan is a Standardized Plan, all Employees of the
Employer or of any member of the Employer's related group, are eligible to
participate in the Plan, irrespective of whether the related group member
directly employing the Employee is a Participating Employer. If the
Employer's Plan is a Nonstandardized Plan, the Employer must specify in
Section 1.07 of its Adoption Agreement, whether the Employees of related
group members that are not Participating Employers are eligible to
participate in the Plan. Under a Nonstandardized Plan, the Employer may
elect to exclude from the definition of "Compensation" for allocation
purposes any Compensation received from a related employer that has not
executed a Participation Agreement and whose Employees are not eligible to
participate in the Plan.
1.31 LEASED EMPLOYEES. The Plan treats a Leased Employee as an
Employee of the Employer. A Leased Employee is an individual (who
otherwise is not an Employee of the Employer) who, pursuant to a leasing
agreement between the Employer and any other person, has performed
services for the Employer (or for the Employer and any persons related to
the Employer within the meaning of Code Section 144(a)(3)) on a
substantially full time basis for at least one year and who performs
services historically performed by employees in the Employer's business
field. If a Leased Employee is treated as an Employee by reason of this
Section 1.31 of the Plan, "Compensation" includes Compensation from the
leasing organization which is attributable to services performed for the
Employer.
(A) Safe harbor plan exception. The Plan does not treat a leased
Employee as an Employee if the leasing organization covers the employee in
a safe harbor plan and, prior to application of this safe harbor plan
exception, 20% or less of the Employer's Employees (other than Highly
Compensated Employees) are Leased Employees. A safe harbor plan is a
money purchase pension plan providing immediate participation, full and
immediate vesting, and a nonintegrated contribution formula equal to at
least 10% of the employee's compensation without regard to employment by
the leasing organization on a specified date. The safe harbor plan must
determine the 10% contribution on the basis of compensation as defined in
Code Section 415(c)(3) plus elective contributions (as defined in Section
1.12).
(B) Other requirements. The Advisory Committee must apply this Section
1.31 in a manner consistent with Code Section Section 414(n) and 414(o)
and the regulations issued under those Code sections. The Employer must
specify in the Adoption Agreement the manner in which the Plan will
determine the allocation of Employer contributions and Participant
forfeitures on behalf of a Participant if the Participant is a Leased
Employee covered by a plan maintained by the leasing organization.
1.32 SPECIAL RULES FOR OWNER-EMPLOYEES. The following special
provisions and restrictions apply to Owner-Employees:
(a) If the Plan provides contributions or benefits for an Owner-
Employee or for a group of Owner-Employees who controls the trade or
business with respect to which this Plan is established and the
Owner-Employee or Owner-Employees also control as Owner-Employees one
or more other trades or businesses, plans must exist or be
established with respect to all the controlled trades or businesses
so that when the plans are combined they form a single plan which
satisfies the requirements of Code Section 401(a) and Code Section
401(d) with respect to the employees of the controlled trades or
businesses.
(b) The Plan excludes an Owner-Employee or group of Owner-Employees
if the Owner-Employee or group of Owner-Employees controls any other
trade or business, unless the employees of the other controlled trade
or business participate in a plan which satisfies the requirements of
Code Section 401(a) and Code Section 401(d). The other qualified
plan must provide contributions and benefits which are not less
favorable than the contributions and benefits provided for the Owner-
Employee or group of Owner-Employees under this Plan, or if an Owner-
Employee is covered under another qualifIed plan as an Owner-
Employee, then the plan established with respect to the trade or
business he does control must provide contributions or benefits as
favorable as those provided under the most favorable plan of the
trade or business he does not control. If the exclusion of this
paragraph (b) applies and the Employer's Plan is a Standardized Plan,
the Employer may not participate or continue to participate in this
Master Plan and the Employer's Plan becomes an individually-
designated plan for purposes of qualification reliance.
(c) For purposes of paragraphs (a) and (b) of this SectIon 1.32, an
Owner-Employee or group of Owner-Employees controls a trade or
business if the Owner-Employee or Owner-Employees together (1) own
the entire interest in an unincorporated trade or business, or (2) in
the case of a partnership, own more than 50% of either the capital
interest or the profits interest in the partnership.
1.33 DETERMINATION OF TOP HEAVY STATUS. If this Plan is the only
qualified plan maintained by the Employer, the Plan is top heavy for a
Plan Year if the top heavy ratio as of the Determination Date exceeds 60%.
The top heavy ratio is a fraction, the numerator of which is the sum of
the present value of Accrued Benefits of all Key Employees as of the
Determination Date and the denominator of which is a similar sum
determined for all Employees. The Advisory Committee must include in the
top heavy ratio, as part of the present value of Accrued Benefits, any
contribution not made as of the Determination Date but includible under
Code Section 416 and the applicable Treasury regulations, and
distributions made within the Determination Period. The Advisory
Committee must calculate the top heavy ratio by disregarding the Accrued
Benefit (and distributions, if any, of the Accrued Benefit) of any Non-
Employee who was formerly a Key Employee, and by disregarding the Accrued
Benefit (including distributions, if any, of the Accrued Benefit) of an
individual who has not received credit for at least one Hour of Service
with the Employer during the Determination Period. The Advisory Committee
must calculate the top heavy ratio, including the extent to which it must
take into account distributions, rollovers and transfers, in accordance
with Code Section 416 and the regulations under that Code section.
If the Employer maintains other qualified plans (including a
simplified employee pension plan), or maintained another such plan which
now is terminated, this Plan is top heavy only if it is part of the
Required Aggregation Group, and the top heavy ratio for the Required
Aggregation Group and for the Permissive Aggregation Group, if any, each
exceeds 60%. The Advisory Committee will calculate the top heavy ratio in
the same manner as required by the first paragraph of this Section 1.33,
taking into account all plans within the Aggregation Group. To the extent
the Advisory Committee must take into account distributions to a
Participant, the Advisory Committee must include distributions from a
terminated plan which would have been part of the Required Aggregation
Group if it were in existence on the Determination Date. The Advisory
Committee will calculate the present value of accrued benefits under
defined benefit plans or simplified employee pension plans included within
the group in accordance with the terms of those plans, Code Section 416
and the regulations under that Code Section. If a Participant in a
defined benefit plan is a Non-Key Employee, the Advisory Committee will
determine his accrued benefit under the accrual method, if any, which is
applicable uniformly to all defined benefit plans maintained by the
Employer or, if there is no uniform method, in accordance with the slowest
accrual rate permitted under the fractional rule accrual method described
in Code Section 411(b)(1)(C). If the Employer maintains a defined benefit
plan, the Employer must specify in Adoption Agreement Section 3.18 the
actuarial assumptions (interest and mortality only) the Advisory Committee
will use to calculate the present value of benefits from a defined benefit
plan. If an aggregated plan does not have a valuation date coinciding
with the Determination Date, the Advisory Committee must value the Accrued
Benefits in the aggregated plan as of the most recent valuation date
falling within the twelve-month period ending on the Determination Date,
except as Code Section 416 and applicable Treasury regulations require for
the first and second plan year of a defined benefit plan. The Advisory
Committee will calculate the top heavy ratio with reference to the
Determination Dates that fall within the same calendar year.
(A) Standardized Plan. If the Employer's Plan is a Standardized Plan,
the Plan operates as a deemed top heavy plan in all Plan Years, except, if
the Standardized Plan includes a Code Section 401(k) arrangement, the
Employer may elect to apply the top heavy requirements only in Plan Years
for which the Plan actually is top heavy. Under a deemed top heavy plan,
the Advisory Committee need not determine whether the Plan actually is top
heavy. However, if the Employer, in Adoption Agreement Section 3.18,
elects to override the 100% limitation, the Advisory Committee will need
to determine whether a deemed top heavy Plan's top heavy ratio for a Plan
Year exceeds 90%.
(B) Definitions. For purposes of applying the provisions of this Section
1.33:
(1) "Key Employee" means, as of any Determination Date, any Employee
or former Employee (or Beneficiary of such Employee) who, for any
Plan Year in the Determination Period: (i) has Compensation in
excess of 50% of the dollar amount prescribed in Code Section
415(c)(1)(A) (relating to defined benefit plans) and is an officer of
the Employer; (ii) has Compensation in excess of the dollar amount
prescribed in Code Section 415(c)(1)(A) (relating to defined
contribution plans) and is one of the Employees owning the ten
largest interests in the Employer; (iii) is a more than 5% owner of
the Employer; or (iv) is a more than 1% owner of the Employer and has
Compensation of more than $150,000. The constructive ownership rules
of Code Section 318 (or the principles of that section, in the case
of an unincorporated Employer,) will apply to determine ownership in
the Employer. The number of officers taken into account under clause
(i) will not exceed the greater of 3 or 10% of the total number
(after application of the Code Section 414(q) exclusions) of
Employees, but no more than 50 officers. The Advisory Committee will
make the determination of who is a Key Employee in accordance with
Code Section 416(i)(1) and the regulations under that Code section.
(2) "Non-Key Employee" is an employee who does not meet the
definition of Key Employee.
(3) "Compensation" means Compensation as determined under Section
1.09 for purposes of identifying Highly Compensated Employees.
(4) "Required Aggregation Group" means: (i) each qualified plan of
the Employer in which at least one Key Employee participates at any
time during the Determination Period; and (ii) any other qualified
plan of the Employer which enables a plan described in clause (i) to
meet the requirements of Code Section 401(a)(4) or of Code Section
410.
(5) "Permissive Aggregation Group" is the Required Aggregation Group
plus any other qualified plans maintained by the Employer, but only
if such group would satisfy in the aggregate the requirements of Code
Section 401(a)(4) and of Code Section 410. The Advisory Committee
will determine the Permissive Aggregation Group.
(6) Employer" means the Employer that adopts this Plan and any
related employees described in Section 1.30.
(7) "Determination Date" for any Plan Year is the Accounting Date of
the preceding Plan Year or, in the case of the first Plan Year of the
Plan, the Accounting Date of that Plan Year. The "Determination
Period" is the 5 year period ending on the Determination Date.
1.34 "Paired Plans" means the Employer has adopted two Standardized
Plan Adoption Agreements offered with this Master Plan, one Adoption
Agreement being a Paired Profit Sharing Plan and one Adoption Agreement
being a Paired Pension Plan. A Paired Profit Sharing Plan may include a
Code Section 401(k) arrangement. A Paired Pension Plan must be a money
purchase pension plan or a target benefit pension plan. Paired Plans must
be the subject of a favorable opinion letter issued by the National Office
of the Internal Revenue Service. This Master Plan does not pair any of
its Standardized Plan Adoption Agreements with Standardized Plan Adoption
Agreements under a defined benefit master plan.
* * * * * * * * * * * * * * * *
ARTICLE II
EMPLOYEE PARTICIPANTS
2.01 ELIGIBILITY. Each Employee becomes a Participant in the Plan in
accordance with the participation option selected by the Employer in its
Adoption Agreement. If this Plan is a restated Plan, each Employee who
was a Participant in the Plan on the day before the Effective Date
continues as a Participant in the Plan, irrespective of whether he
satisfies the participation conditions in the restated Plan, unless
otherwise provided in the Employer's Adoption Agreement
2.02 YEAR OF SERVICE - PARTICIPATION. For purposes of an Employee's
participation in the Plan under Adoption Agreement Section 2.01, the Plan
takes into account all of his Years of Service with the Employer, except
as provided in Section 2.03. "Year of Service" means an eligibility
computation period during which the Employee completes not less than the
number of Hours of Service specified in the Employer's Adoption Agreement.
The initial eligibility computation period is the first 12 consecutive
month period measured from the Employment Commencement Date. The Plan
measures succeeding eligibility computation periods in accordance with the
option selected by the Employer in its Adoption Agreement. If the
Employer elects to measure subsequent periods on a Plan Year basis, an
Employee who receives credit for the required number of Hours of Service
during the initial eligibility computation period and during the first
applicable Plan Year will receive credit for two Years of Service under
Article II. "Employment Commencement Date" means the date on which the
Employee first performs an Hour of Service for the Employer. If the
Employer elects a service condition under Adoption Agreement Section 2.01
based on months, the Plan does not apply any Hour of Service requirement
after the completion of the first Hour of Service.
2.03 BREAK IN SERVICE - PARTICIPATION. An Employee incurs a "Break
in Service" if during any 12 consecutive month period he does not complete
more than 500 Hours of Service with the Employer. The "12 consecutive
month period" under this Section 2.03 is the same 12 consecutive month
Period for which the Plan measures "Years of Service" under Section 2.02.
(A) 2-year Eligibility. If the Employer elects a 2 years of service
condition for eligibility purposes under Adoption Agreement Section 2.01,
the Plan treats an Employee who incurs a one year Break in Service and who
has never become a Participant as a new Employee on the date he first
performs an Hour of Service for the Employer after the Break in Service.
(B) Suspension of Years of Service. The Employer must elect in its
Adoption Agreement whether a Participant will incur a suspension of Years
of Service after incurring a one year Break in Service. If this rule
applies under the Employer's Plan, the Plan disregards a Participant's
Years of Service (as defined in Section 2.02 earned prior to a Break in
Service until the Participant completes another Year of Service and the
Plan suspends the Participant's participation in the Plan. If the
Participant completes a Year of Service following his Break in Service,
the Plan restores that Participant's pre-Break Years of Service (and the
Participant resumes active participation in the Plan) retroactively to the
first day of the computation period in which the Participant earns the
first post-Break Year of Service. The initial computation period under
this Section 2.03(B) is the 12 consecutive month period measured from the
date the Participant first receives credit for an Hour of Service
following the one year Break in Service period. The Plan measures any
subsequent periods, if necessary, in a manner consistent with the
computation period selection in Adoption Agreement Section 2.02. This
Section 2.03(B) does not affect a Participant's vesting credit under
Article V and, during a suspension period, the Participant's Account
continues to share fully in Trust Fund allocations under Section 9.11.
Furthermore, this Section 2.03(B) will not result in the restoration of
any Year of Service disregarded under the Break in Service rule of Section
2.03(A).
2.04 PARTICIPATION UPON RE-EMPLOYMENT. A Participant whose
employment with the Employer terminates will re-enter the Plan as a
Participant on the date of his re-employment, subject to the Break in
Service rule, if applicable, under Section 2.03(B). An Employee who
satisfies the Plan's eligibility conditions but who terminates employment
with the Employer prior to becoming a Participant will become a
Participant on the later of the Plan Entry Date on which he would have
entered the Plan had he not terminated employment or the date of his re-
employment, subject to the Break in Service rule, if applicable, under
Section 2.03(B). Any Employee who terminates employment prior to
satisfying the Plan's eligibility conditions becomes a Participant in
accordance with Adoption Agreement Section 2.01.
2.05 CHANGE IN EMPLOYEE STATUS. If a Participant has not incurred a
Separation from Service but ceases to be eligible to participate in the
Plan, by reason of employment within an employment classification excluded
by the Employer under Adoption Agreement Section 1.07, the Advisory
Committee must treat the Participant as an Excluded Employee during the
period such a Participant is subject to the Adoption Agreement exclusion.
The Advisory Committee determines a Participant's sharing in the
allocation of Employer contributions and Participant forfeitures, if
applicable, by disregarding his Compensation paid by the Employer for
services rendered in his capacity as an Excluded Employee. However,
during such period of exclusion, the Participant, without regard to
employment classification, continues to receive credit for vesting under
Article V for each included Year of Service and the Participant's Account
continues to share fully in Trust Fund allocations under Section 9.11.
If an Excluded Employee who is not a Participant becomes eligible to
participate in the Plan by reason of a change in employment
classification, he will participate in the Plan immediately if he has
satisfied the eligibIlity conditions of Section 2.01 and would have been a
Participant had he not been an Excluded Employee during his period of
Service. Furthermore, the Plan takes into account all of the
Participant's included Years of Service with the Employer as an Excluded
Employee for purposes of vesting credit under Article V.
2.06 ELECTION NOT TO PARTICIPATE. If the Employer's Plan is a
Standardized Plan, the Plan does not permit an otherwise eligible Employee
nor any Participant to elect not to participate in the Plan. If the
Employer's Plan is a Nonstandardized Plan, the Employer must specify in
its Adoption Agreement whether an Employee eligible to Participate, or any
present Participant, may elect not to participate in the Plan. For an
election to be effective for a particular Plan Year, the Employee or
Participant must file the election in writing with the Plan Administrator
not later than the time specified in the Employer's Adoption Agreement.
The Employer may not make a contribution under the Plan for the Employee
or for the Participant for the Plan Year for which the election is
effective, nor for any succeeding Plan Year, unless the Employee or
Participant re-elects to participate in the Plan. After an Employee's or
Participant's election not to participate has been effective for at least
the minimum period prescribed by the Employer's Adoption Agreement, the
Employee or Participant may re-elect to participate in the Plan for any
Plan Year and subsequent Plan Years. An Employee or Participant may re-
elect to participate in the Plan by filing his election in writing with
the Plan Administrator not later than the time specified in the Employer's
Adoption Agreement. An Employee or Participant who re-elects to
participate may again elect not to participate only as permitted in the
Employer's Adoption Agreement. If an Employee is a Self-Employed
Individual, the Employee's election (except as permitted by Treasury
regulations without creating a Code Section 401(k) arrangement with
respect to that Self-Employed Individual) must be effective no later than
the date the Employee first would become a Participant in the Plan and the
election is irrevocable. The Plan Administrator must furnish an Employee
or a Participant any form required for purposes of an election under this
Section 2.06. An election timely filed is effective for the entire Plan
Year.
A Participant who elects not to participate may not receive a
distribution of his Accrued Benefit attributable either to Employer or to
Participant contributions except as provided under Article IV or under
Article VI. However, for each Plan Year for which a Participant's
election not to participate is effective, the Participant's Account, if
any, continues to share in Trust Fund allocations under Article IX.
Furthermore, the Employee or the Participant receives vesting credit under
Article V for each included Year of Service during the period the election
not to participate is effective.
* * * * * * * * * * * * *
ARTICLE III
EMPLOYER CONTRIBUTIONS AND FORFEITURES
Part 1. Amount of Employer Contributions and Plan Allocations: Sections
3.01 through 3.06
3.01 AMOUNT. For each Plan Year, the Employer contributes to the
Trust the amount determined by application of the contribution option
selected by the Employer in its Adoption Agreement. The Employer may not
make a contribution to the Trust for any Plan Year to the extent the
contribution would exceed the Participants' Maximum Permissible Amounts.
The Employer contributes to this Plan on the condition its
contribution is not due to a mistake of fact and the Revenue Service will
not disallow the deduction for its contribution. The Trustee, upon
written request from the Employer, must return to the Employer the amount
of the Employer's contribution made by the Employer by mistake of fact or
the amount of the Employer's contribution disallowed as a deduction under
Code Section 404. The Trustee will not return any portion of the
Employer's contribution under the provisions of this paragraph more than
one year after:
(a) The Employer made the contribution by mistake of fact; or
(b) The disallowance of the contribution as a deduction, and then,
only to the extent of the disallowance.
The Trustee will not increase the amount of the Employer contribution
returnable under this Section 3.01 for any earnings attributable to the
contribution, but the Trustee will decrease the Employer contribution
returnable for any losses attributable to it. The Trustee may require the
Employer to it whatever evidence the Trustee deems necessary to enable
the Trustee to confirm the amount the Employer has requested be returned
is properly returnable under ERISA.
3.02 DETERMINATION OF CONTRIBUTION. The Employer, from its records,
determines the amount of any contributions to be made by it to the Trust
under the terms of the Plan.
3.03 TIME OF PAYMENT OF CONTRIBUTION. The Employer may pay its
contribution for each Plan Year in one or more installments without
interest. The Employer must make its contribution to the Plan within the
time prescribed by the Code or applicable Treasury regulations. Subject
to the consent of the Trustee, the Employer may make its contribution in
property rather than in cash, provided the contribution of property is not
a prohibited transaction under the Code or under ERISA.
3.04 CONTRIBUTION ALLOCATION.
(A) Method of Allocation. The Employer must specify in its Adoption
Agreement the manner of allocating each annual Employer contribution to
this Trust.
(B) Top Heavy Minimum Allocation. The Plan must comply with the
provisions of this Section 3.04(B), subject to the elections in the
Employer's Adoption Agreement.
(1) Top Heavy Minimum Allocation Under Standardized Plan. Subject
to the Employer's election under Section 3.04(B)(3), the top heavy
minimum allocation requirement applies to a Standardized Plan for
each Plan Year, irrespective of whether the Plan is top heavy.
(a) Each Participant employed by the Employer on the last day
of the Plan Year will receive top heavy minimum allocation for
that Plan Year. The Employer may elect in Section 3.04 of its
Adoption Agreement to apply this paragraph (a) only to a
Participant who is a Non-Key Employee.
(b) Subject to any overriding elections in Section 3.18 of the
Employer's Adoption Agreement, the top heavy minimum allocation
is the lesser of 3% of the Participant's Compensation for the
Plan Year or the highest contribution rate for the Plan Year
made on behalf of any Participant for the Plan Year. However,
if the Employee participates in Paired Plans, the top heavy
minimum allocation is 3% of his Compensation. If, under
Adoption Agreement Section 3.04, the Employer elects to apply
paragraph (a) only to a Participant who is a Non-Key Employee,
the Advisory Committee will determine the "highest contribution
rate" described in the first sentence of this paragraph (b) by
reference only to the contribution rates of Participants who are
Key Employees for the Plan Year.
(2) Top Heavy Minimum Allocation Under Nonstandardized Plan. The
top heavy minimum allocation requirement applies to a Nonstandardized
Plan only in Plan Years for which the Plan is top heavy. Except as
provided in the Employer's Adoption Agreement, if the Plan is top
heavy in any Plan Year:
(a) Each Non-Key Employee who is a Participant and is employed
by the Employer on the last day of the Plan Year will receive a
top heavy minimum allocation for that Plan Year, irrespective of
whether he satisfies the Hours of Service condition under
Section 3.06 of the Employer's Adoption Agreement; and
(b) The top heavy minimum allocation is the lesser of 3% of the
Non-Key Employee's Compensation for the Plan Year or the highest
contribution rate for the Plan Year made on behalf of any Key
Employee. However, if a defined benefit plan maintained by the
Employer which benefits a Key Employee depends on this Plan to
satisfy the antidiscrimination rules of Code Section 401(a)(4)
or the coverage rules of Code Section 410 (or another plan
benefiting the Key Employee so depends on such defined benefit
plan), the top heavy minimum allocation is 3% of the Non-Key
Employee's Compensation regardless of the contribution rate for
the Key Employees.
(3) Special Election for Standardized Code Section 401(k) Plan. If
the Employer's Plan is a Standardized Code Section 401(k) Plan, the
Employer may elect in Adoption Agreement Section 3.04 to apply the
top heavy minimum allocation requirements of Section 3.04(B)(1) only
for Plan Years in which the Plan actually is a top heavy plan.
(4) Special Definitions. For purposes of this Section 3.04(B), the
term "Participant" includes any Employee otherwise eligible to
participate in the Plan but who is not a Participant because of his
Compensation level or because of his failure to make elective
deferrals under a Code Section 401(k) arrangement or because of his
failure to make mandatory contributions. For purposes of
subparagraph (1)(b) or (2)(b), "Compensation" means Compensation as
defined in Section 1.12, except Compensation does not include
elective contributions, irrespective of whether the Employer has
elected to include these amounts in Section 1.12 of its Adoption
Agreement, any exclusion selected in Section 1.12 of the Adoption
Agreement (other than the exclusion of elective contributions) does
not apply, and any modification to the definition of Compensation in
Section 3.06 does not apply.
(5) Determining Contribution Rates. For purposes of this Section
3.04(B), a Participant's contribution rate is the sum of all Employer
contributions (not including Employer contributions to Social
Security) and forfeitures allocated to the Participant's Account for
the Plan Year divided by his Compensation for the entire Plan Year.
However, for purposes of satisfying a Participant's top heavy minimum
allocation in Plan Years beginning after December 31, 1988, the
Participant's contribution rate does not include any elective
contributions under a Code Section 401(k) arrangement nor any
Employer matching contributions allocated on the basis of those
elective contributions or on the basis of employee contributions,
except a Nonstandardized Plan may include in the contribution rate
any matching contributions not necessary to satisfy the
nondiscrimination requirements of Code Section 401(k) or of Code
Section 401(m).
If the Employee is a Participant in Paired Plans, the Advisory
Committee will consider the Paired Plans as a single Plan to determine a
Participant's contribution rate and to determine whether the Plans satisfy
this top heavy minimum allocation requirement. To determine a
Participant's contribution rate under a Nonstandardized Plan, the Advisory
Committee must treat all qualified top heavy defined contribution plans
maintained by the Employer (or by any related Employers described in
Section 1.30) as a single plan.
(6) No Allocations. If, for a Plan Year, there are no allocations
of Employer contributions or forfeitures for any Participant (for purposes
of Section 3.04(B)(1)(b)) or for any Key Employee (for purposes of Section
3.04(B)(2)(b)), the Plan does not require any top heavy minimum allocation
for the Plan Year, unless a top heavy minimum allocation applies because
of the maintenance by the Employer of more than one plan.
(7) Election of Method. The Employer must specify in its Adoption
Agreement the manner in which the Plan will satisfy the top heavy minimum
allocation requirement.
(a) If the Employer elects to make any necessary additional
contribution to this Plan the Advisory Committee first will allocate
the Employer contributions (and Participant forfeitures, if any) for
the Plan Year in accordance with the provisions of Adoption Agreement
Section 3.04. The Employer then will contribute an additional amount
for the Account of any Participant entitled under this Section
3.04(B) to a top heavy minimum allocation and whose contribution rate
for the Plan Year, under this Plan and any other plan aggregated
under paragraph (5), is less than the top heavy minimum allocation.
The additional amount is the amount necessary to increase the
Participant's contribution rate to the top heavy minimum allocation.
The Advisory Committee will allocate the additional contribution to
the Account of the Participant on whose behalf the Employer makes the
contribution.
(b) If the Employer elects to guarantee the top heavy minimum
allocation under another plan, this Plan does not provide the top
heavy minimum allocation and the Advisory Committee will allocate the
annual Employer contributions (and Participant forfeitures) under the
Plan solely in accordance with the allocation method selected under
Adoption Agreement Section 3.04.
3.05 FORFEITURE ALLOCATION. The amount of a Participant's Accrued
Benefit forfeited under the Plan is a Participant forfeiture. The
Advisory Committee will allocate Participant forfeitures in the manner
specified by the Employer in its Adoption Agreement. The Advisory
Committee will continue to hold the undistributed, non-vested portion of a
terminated Participant's Accrued Benefit in his Account solely for his
benefit until a forfeiture occurs at the time specified in Section 5.09 or
if applicable, until the time specified in Section 9.14. Except as
provided under Section 5.04, a Participant will not share in allocation
of a forfeiture of any portion of his Accrued Benefit.
3.06 ACCRUAL OF BENEFIT. The Advisory Committee will determine the
accrual of benefit (Employer contributions and Participant forfeitures) on
the basis of the Plan Year in accordance with the Employer's elections in
its Adoption Agreement.
(A) Compensation Taken Into Account. The Employer must specify in its
Adoption Agreement Compensation the Advisory Committee is to take into
account in allocating an Employer contribution to a Participant's Account
for the Plan Year in which the Employee first becomes a Participant. For
all other Plan Years, the Advisory Committee will take into account only
the Compensation determined for the portion of the Plan Year in which the
Employee actually is a Participant. The Advisory Committee must take into
account the Employee's entire Compensation for the Plan Year to determine
whether the Plan satisfies the top heavy minimum allocation requirement of
Section 3.04(B). The Employer, in an addendum to its Adoption Agreement
numbered 3.06(A), may elect to measure Compensation for the Plan Year for
allocation purposes on the basis of a specified period other than the Plan
Year.
(B) Hours of Service Requirement. Subject to the applicable minimum
allocation requirement of Section 3.04, the Advisory Committee will not
allocate any portion of an Employer contribution for a Plan Year to any
Participant's Account if the Participant does not complete the applicable
minimum Hours of Service requirement specified in the Employer's Adoption
Agreement.
(C) Employment Requirement. If the Employer's Plan is a Standardized
Plan, a Participant who, during a particular Plan Year, completes the
accrual requirements of Adoption Agreement Section 3.06 will share in the
allocation of Employer contributions for that Plan Year without regard to
whether he is employed by the Employer on the Accounting Date of that Plan
Year. If the Employer's Plan is a Nonstandardized Plan, the Employer must
specify in its Adoption Agreement whether the Participant will accrue a
benefit if he is not employed by the Employer on the Accounting Date of
the Plan Year. If the Employer's Plan is a money purchase plan or a
target benefit plan, whether Nonstandardized or Standardized, the Plan
conditions benefit accrual on employment with the Employer on the last day
of the Plan Year for the Plan Year in which the Employer terminates the
Plan.
(D) Other Requirements. If the Employer's Adoption Agreement
includes options for other requirements affecting the Participant's
accrual of benefits under the Plan, the Advisory Committee will apply this
Section 3.06 in accordance with the Employer's Adoption Agreement
selections.
(E) Suspension of Accrual Requirements Under Nonstandardized Plan. If
the Employer's Plan is a Nonstandardized Plan, the Employer may elect in
its Adoption Agreement to suspend the accrual requirements elected under
Adoption Agreement Section 3.06 if, for any Plan Year beginning after
December 31, 1989, the Plan fails to satisfy the Participation Test or the
Coverage Test. A Plan satisfies the Participation Test if, on each day of
the Plan Year, the number of Employees who benefit under the Plan is at
least equal to the lesser of 50 or 40% of the total number of Includible
Employees as of such day. A Plan satisfies the coverage Test if, on the
last day of each quarter of the Plan Year, the number of Nonhighly
Compensated Employees who benefit under the Plan is at least equal to 70%
of the total number of Includible Nonhighly Compensated Employees as of
such day. "Includible" Employees are all Employees other than: (1) those
Employees excluded from participating in the Plan for the entire Plan Year
by reason of the collective bargaining unit exclusion or the nonresident
alien exclusion under Adoption Agreement Section 1.07 or by reason of the
participation requirements of Sections 2.01 and 2.03; and (2) any Employee
who incurs a Separation from Service during the Plan Year and fails to
complete at least 501 Hours of Service for the Plan Year. A "Nonhighly
Compensated Employee" is an Employee who is not a Highly Compensated
Employee and who is not a family member aggregated with a Highly
Compensated Employee pursuant to Section 1.09 of the Plan.
For Purposes of the Participation Test and the Coverage Test, an
Employee is benefiting under the Plan on a particular date if, under
Adoption Agreement Section 3.04, he is entitled to an allocation for the
Plan Year. Under the Participation Test, when determining whether an
Employee is entitled to an allocation under Adoption Agreement Section
3.04, the Advisory Committee will disregard any allocation required solely
by reason of the top heavy minimum allocation, unless the top heavy
minimum allocation is the only allocation made under the Plan for the Plan
Year.
If this Section 3.06(E) applies for a Plan Year, the Advisory
Committee will suspend the accrual requirements for the Includible
Employees who are Participants, beginning first with the Includible
Employee(s) employed with the Employer on the last day of the Plan Year,
then the Includible Employee(s) who have the latest Separation from
Service during the Plan Year, and continuing to suspend in descending
order the accrual requirements for each Includible Employee who incurred
an earlier Separation from Service, from the latest to the earliest
Separation from Service date, until the Plan satisfies both the
Participation Test and the Coverage Test for the Plan Year. If two or
more Includible Employees have a Separation from Service on the same day,
the Advisory Committee will suspend the accrual requirements for all such
Includible Employees, irrespective of whether the Plan can satisfy the
Participation Test and the Coverage Test by accruing benefits for fewer
than all such Includible Employees. If the Plan suspends the accrual
requirements for an Includible Employee, that Employee will share in the
allocation of Employer contributions and Participant forfeitures, if any,
without regard to the number of Hours of Service he has earned for the
Plan Year and without regard to whether he is employed by the Employer on
the last day of the Plan Year. If the Employer's Plan includes Employer
matching contributions subject to Code Section 401(m), this suspension of
accrual requirements applies separately to the Code Section 401(m) portion
of the Plan, and the Advisory Committee will treat an Employee as
benefiting under that portion of the Plan if he is an Eligible Employee
for purposes of the Code Section 401(m) nondiscrimination test. The
Employer may modify the operation of this Section 3.06(E) by electing
appropriate modifications in Section 3.06 of its Adoption Agreement.
Part 2. Limitations On Allocations: Sections 3.07 through 3.19
[Note: Sections 3.07 through 3.10 apply only to Participants in this
Plan who do not participate, and who have never participated, in another
qualified plan or in a welfare benefit fund (as defined in Code Section
419(e)) maintained by the Employer.]
3.07 The amount of Annual Additions which the Advisory Committee may
allocate under this Plan on a Participant's behalf for a limitation Year
may not exceed the Maximum Permissible Amount. If the amount the Employer
otherwise would contribute to the Participant's Account would cause the
Annual Additions for the Limitation Year to exceed the Maximum Permissible
Amount, the Employer will reduce the amount of its contribution so the
Annual Additions for the limitation Year will equal the Maximum
Permissible Amount. If an allocation of Employer contributions, pursuant
to Section 3.04, would result in an Excess Amount (other than an Excess
Amount resulting from the circumstances described in Section 3.10) to the
Participant's Account, the Advisory Committee will reallocate the Excess
Amount to the remaining Participants who are eligible for an allocation of
Employer contributions for the Plan Year in which the Limitation Year
ends. The Advisory Committee will make this reallocation on the basis of
the allocation method under the Plan as if the Participant whose Account
otherwise would receive the Excess Amount is not eligible for an
allocation of Employer contributions.
3.08 Prior to the determination of the Participant's actual
Compensation for a Limitation Year, the Advisory Committee may determine
the Maximum Permissible Amount on the basis of the Participant's estimated
annual Compensation for such Limitation Year. The Advisory Committee must
make this determination on a reasonable and uniform basis for all
Participants similarly situated. The Advisory Committee must reduce any
Employer contributions (including any allocation of forfeitures) based on
estimated annual Compensation by any Excess Amounts carried over from
prior years.
3.09 As soon as is administratively feasible after the end of the
Limitation Year, the Advisor Committee will determine the Maximum
Permissible Amount for such Limitation Year on the basis of the
Participant's actual Compensation for such Limitation Year.
3.10 If, pursuant to Section 3.09, or because of the allocation of
forfeitures, there is an Excess Amount with respect to a Participant for a
Limitation Year, the Advisory Committee will dispose of such Excess Amount
as follows:
(a) The Advisory Committee will return any nondeductible voluntary
Employee contributions to the Participant to the extent the return
would reduce the Excess Amount.
(b) If, after the application of paragraph (a), an Excess Amount
still exists, and the Plan covers the Participant at the end of the
Limitation Year, then the Advisory Committee will use the Excess
Amount(s) to reduce future Employer contributions (including any
allocation of forfeitures) under the Plan for the next Limitation
Year and for each succeeding Limitation Year, as is necessary, for
the Participant. If the Employer's Plan is a profit sharing plan,
the Participant may elect to limit his Compensation for allocation
purposes to the extent necessary to reduce his allocation for the
Limitation Year to the Maximum Permissible Amount and eliminate the
Excess Amount.
(c) If, after the application of paragraph (a), an Excess Amount
still exists, and the Plan does not cover the Participant at the end
of the Limitation Year, then the Advisory Committee will hold the
Excess Amount unallocated in a suspense account. The Advisory
Committee will apply the suspense account to reduce Employer
Contributions (including allocation of forfeitures) for all remaining
Participants in the next Limitation Year, and in each succeeding
Limitation Year if necessary. Neither the Employer nor any Employee
may contribute to the Plan for any Limitation Year in which the Plan
is unable to allocate fully a suspense account maintained pursuant to
this paragraph (c).
(d) The Advisory Committee will not distribute any Excess Amount(s)
to Participants or to former Participants.
[Note: Sections 3.11 through 3.16 apply only to Participants who, in
addition to this Plan, participate in one or more plans (including Paired
Plans), all of which are qualified Master or Prototype defined
contribution plans or welfare benefit funds (as defined in Code Section
419(e)) maintained by the Employer during the Limitation Year.]
3.11 The amount of Annual Additions which the Advisory Committee may
allocate under this Plan on a Participant's behalf for a Limitation Year
may not exceed the Maximum Permissible Amount, reduced by the sum of any
Annual Additions allocated to the Participant's Accounts for the same
Limitation Year under this Plan and such other defined contribution plan.
If the amount the Employer otherwise would contribute to the Participant's
Account under this Plan would cause the Annual Additions for the
Limitation Year to exceed this limitation, the Employer will reduce the
amount of its contribution so the Annual Additions under all such plans
for the Limitation Year will equal the Maximum Permissible Amount. If an
allocation of Employer contributions, pursuant to Section 3.04, would
result in an Excess Amount (other than an Excess Amount resulting from the
circumstances described in Section 3.10) to the Participant's Account, the
Advisory Committee will reallocate the Excess Amount to the remaining
Participants who are eligible for an allocation of Employer contributions
for the Plan Year in which the Limitation Year ends. The Advisory
Committee will make this reallocation on the basis of the allocation
method under the Plan as if the Participant whose Account otherwise would
receive the Excess Amount is not eligible for an allocation of Employer
contributions.
3.12 Prior to the determination of the Participant's actual
Compensation for the Limitation Year, the Advisory Committee may determine
the amounts referred to in 3.11 above on the basis of the Participant's
estimated annual Compensation for such Limitation Year. The Advisory
Committee will make this determination on a reasonable and uniform basis
for all Participants similarly situated. The Advisory Committee must
reduce any Employer contribution (including allocation of forfeitures)
based on estimated annual Compensation by any Excess Amounts carried over
from prior years.
3.13 As soon as is administratively feasible after the end of the
Limitation Year, the Advisory Committee will determine the amounts
referred to in 3.11 on the basis of the Participant's actual Compensation
for such Limitation Year.
3.14 If pursuant to Section 3.13, or because of the allocation of
forfeitures, a Participant's Annual Additions under this Plan and all such
other plans result in an Excess Amount, such Excess Amount will consist of
the Amounts last allocated. The Advisory Committee will determine the
Amounts last allocated by treating the Annual Additions attributable to a
welfare benefit fund as allocated first, irrespective of the actual
allocation date under the welfare benefit fund.
3.15 The Employer must specify in its Adoption Agreement the Excess
Amount attributed to this Plan if the Advisory Committee allocates an
Excess Amount to a Participant on an allocation date of this Plan which
coincides with an allocation date of another plan.
3.16 The Advisory Committee will dispose of any Excess Amounts
attributed to this Plan as provided in Section 3.10.
[Note: Section 3.17 applies only to Participants who, in addition to
this Plan, participate in one or more qualified plans which are qualified
defined contribution plans other than a Master or Prototype plan
maintained by the Employer during the Limitation Year.]
3.17 SPECIAL ALLOCATION LIMITATION. The amount of Annual Additions
which the Advisory Committee may allocate under this Plan on behalf of any
Participant are limited in accordance with the provisions of Section 3.11
through 3.16, as though the other plan were a Master or Prototype plan,
unless the Employer provides other limitations in an addendum to the
Adoption Agreement, numbered Section 3.17.
3.18 DEFINED BENEFIT PLAN LIMITATION. If the Employer maintains a
defined benefit plan, or has ever maintained a defined benefit plan which
the Employer has terminated, then the sum of the defined benefit plan
fraction and the defined contribution plan fraction for any Participant
for any Limitation Year must not exceed 1.0. The Employer must provide in
Adoption Agreement Section 3.18 the manner in which the Plan will satisfy
this limitation. The Employer also must provide in its Adoption Agreement
Section 3.18 the manner in which the Plan will satisfy the top heavy
requirements of Code Section 416 after taking into account the existence
(or prior maintenance) of the defined benefit plan.
3.19 DEFINITIONS - ARTICLE III. For purposes of Article III, the
following terms mean:
(a) "Annual Addition" - The sum of the following amounts allocated
on behalf of a Participant for a Limitation Year, of (i) all Employer
contributions; (ii) all forfeitures; and (iii) all Employee
contributions. Except to the extent provided in Treasury
regulations, Annual Additions include excess contributions described
in Code Section 401(k), excess aggregate contributions described in
Code Section 401(m) and excess deferrals described in Code Section
402(g), irrespective of whether the plan distributes or forfeits such
excess amounts Annual Additions also include Excess Amounts reapplied
to reduce Employer contributions under Section 3.10. Amounts
allocated after March 31, 1984, to an individual medical account (as
defined in Code Section 415(1)(2)) included as part of a defined
benefit plan maintained by the Employer are Annual Additions.
Furthermore, Annual Additions include contributions paid or accrued
after December 31, 1985, for taxable years ending after December 31,
1985, attributable to post-retirement medical benefits allocated to
the separate account of a key employee (as defined in Code Section
419A(d)(3)) under a welfare benefit fund (as defined in Code Section
419(e)) maintained by the Employer.
(b) "Compensation" - For purposes of applying the limitations of
Part 2 of this Article III, "Compensation" means Compensation as
defined in Section 1.12, except Compensation does not include
elective contributions, irrespective of whether the Employer has
elected to include these amounts as Compensation under Section 1.12
of its Adoption Agreement, and any exclusion selected in Section 1.12
of the Adoption Agreement (other than the exclusion of elective
contributions) does not apply.
(c) "Employer" - The Employer that adopts this Plan and any related
employers in Section 1.30. Solely for purposes of applying the
limitations of Part 2 of this Article III, the Advisory Committee
will determine related employers described in Section 1.30 by
modifying Code Section Section 414(b) and (c) in accordance with Code
Section 415(h).
(d) "Excess Amount" - The excess of the Participant's Annual
Additions for the Limitation Year over the Maximum Permissible
Amount.
(e) "Limitation Year" - The period selected by the Employer under
Adoption Agreement Section 1.17. All qualified plans of the Employer
must use the same Limitation Year. If the Employer amends the
Limitation Year to a different 12 consecutive month period, the new
Limitation Year must begin on a date within the Limitation Year for
which the Employer makes the amendment, creating a short Limitation
Year.
(f) "Master or Prototype Plan" - A plan the form of which is the
subject of a favorable notification letter or a favorable opinion
letter from the Internal Revenue Service.
(g) "Maximum Permissible Amount" - The lesser of (i) $30,000 (or, if
greater, one-fourth of the defined benefit dollar limitation under
Code Section 415(b)(1)(A)), or (ii) 25% of the Participant's
Compensation for the Limitation Year. If there is a short Limitation
Year because of a change in Limitation Year, the Advisory Committee
will multiply the $30,000 (or adjusted) limitation by the following
fraction:
Number of months in the short Limitation Year
12
(b) "Defined contribution plan" - A retirement plan which provides
for an individual account for each participant and for benefits based
solely on the amount contributed to the participant's account, and
any income, expenses, gains and losses, and any forfeitures of
accounts of other participants which the plan may allocate to such
participant's account. The Advisory Committee must treat all defined
contribution plans (whether or not terminated) maintained by the
Employer as a single plan. Solely for purposes of the limitations of
Part 2 of this Article III, the Advisory Committee will treat
employee contributions made to a defined benefit plan maintained by
the Employer as a separate defined contribution plan. The Advisory
Committee also will treat as a defined contribution plan an
individual medical account (as defined in Code Section 415(1)(2))
included as part of a defined benefit plan maintained by the Employer
and, for taxable years ending after December 31, 1985, a welfare
benefit fund under Code Section 419(e) maintained by the Employer to
the extent there are post-retirement medical benefits allocated to
the separate account of a key employee (as defined in Code Section
419A(d)(3)).
(i) "Defined benefit plan" - A retirement plan which does not
provide for individual accounts for Employer contributions. The
Advisory Committee must treat all defined benefit plans (whether or
not terminated) maintained by the Employer as a single plan.
[Note: The definitions in paragraphs (j), (k) and (l) apply only if the
limitation descried in Section 3.18 applies to the Employer's Plan.]
(j) "Defined benefit plan fraction" -
Projected annual benefit of the Participant under the defined benefit
plan(s)
The lesser of (i) 125% (subject to the 100% limitation" in paragraph (1)
of the dollar limitation in effect under Code Section 415(b)(1)(A) for the
Limitation Year, or (ii) 140% of the Participant's average Compensation
for his high three (3) consecutive Years of Service
To determine the denominator of this fraction, the Advisory Committee
will make any adjustment required under Code Section 415(b) and will
determine a Year of Service, unless otherwise provided in an addendum to
Adoption Agreement Section 3.18, as a Plan Year in which the Employee
completed at least 1,000 Hours of Service. The "projected annual benefit"
is the annual retirement benefit (adjusted to an actuarially equivalent
straight life annuity if the plan expresses such benefit in a form other
than a straight life annuity or qualified joint and survivor annuity) of
the Participant under the terms of the defined benefit plan on the
assumptions he continues employment until his normal retirement age (or
current age, if later) as stated in the defined benefit plan, his
compensation continues at the same rate as in effect in the Limitation
Year under consideration until the date of his normal retirement age and
all other relevant factors used to determine benefits under the defined
benefit plan remain constant as of the current Limitation Year for all
future Limitation Years.
Current Accrued Benefit. If the Participant accrued benefits in one
or more defined benefit plans maintained by the Employer which were in
existence on May 6, 1986, the dollar limitation used in the denominator of
this fraction will not be less than the Participant's Current Accrued
Benefit. A Participant's Current Accrued Benefit is the sum of the annual
benefits under such defined benefit plans which the Participant had
accrued as of the end of the 1986 Limitation Year (the last Limitation
Year beginning before January 1, 1987), determined without regard to any
change in the terms or conditions of the Plan made after May 5, 1986, and
without regard to any cost of living adjustment occurring after May 5,
1986. This Current Accrued Benefit rule applies only if the defined
benefit plans individually and in the aggregate satisfied the requirements
of Code Section 415 as in effect at the end of the 1986 Limitation Year.
(k) "Defined contribution plan fraction" -
The sum, as of the close of the Limitation Year, of the
Annual Additions to the Participant's Account under the
defined contribution plan(s)
The sum of the lesser of the following amounts determined
for the Limitation Year and for each prior Year of Service
with the Employer:(i) 125% (subject to the "100% limitation"
in paragraph (1)) of the dollar limitation in effect under
Code Section 413(c)(1)(A) for the Limitation Year (determined without
regard to the special dollar limitations for employee stock
ownership plans), or
(ii) 35% of the Participant's Compensation for the Limitation Year
For purposes of determining the defined contribution plan fraction,
the Advisory Committee will not recompute Annual Additions in Limitation
Years beginning prior to January 1, 1987, to treat all Employee
contributions as Annual Additions. If the Plan satisfied Code Section 415
for Limitation Years beginning prior to January 1, 1987, the Advisory
Committee will redetermine the defined contribution plan fraction and the
defined benefit plan fraction as of the end of the 1986 Limitation Year,
in accordance with this Section 3.19. If the sum of the redetermined
fractions exceeds 1.0, the Advisory Committee will subtract permanently
from the numerator of the defined contribution plan fraction an amount
equal to the product of (1) the excess of the sum of the fractions over
1.0 times (2) the denominator of the defined contribution plan fraction.
In making the adjustment, the Advisory Committee must disregard any
accrued benefit under the defined benefit plan which is in excess of the
Current Accrued Benefit. This Plan continues any transitional rules
applicable to the determination of the defined contribution plan fraction
under the Employer's Plan as of the end of the 1986 Limitation Year.
(1) "100% limitation." If the 100% limitation applies, the Advisory
Committee must determine the denominator of the defined benefit plan
fraction and the denominator of the defined contribution plan fraction by
substituting 100% for 125%. If the Employer's Plan is a Standardized Plan,
the 100% limitation applies in all Limitation Years, subject to any
override provisions under Section 3.18 of the Employer's Adoption
Agreement. If the Employer overrides the 100% limitation under a
Standardized Plan, the Employer must specify in its Adoption Agreement the
manner in which the Plan satisfies the extra minimum benefit requirement
of Code Section 416(h) and the 100% limitation must continue to apply if
the Plan's top heavy ratio exceeds 90%. If the Employer's Plan is a
Nonstandardized Plan, the 100% limitation applies only if: (i) the Plan's
top heavy ratio exceeds 90%; or (ii) the Plan's top heavy ratio is greater
than 60%, and the Employer does not elect in its Adoption Agreement
Section 3.18 to provide extra minimum benefits which satisfy Code Section
416(h)(2).
* * * * * * * * * * * * * * * *
ARTICLE IV
PARTICIPANT CONTRIBUTIONS
4.01 PARTICIPANT NONDEDUCTIBLE CONTRIBUTIONS. This Plan does not
permit Participant nondeductible contributions unless the Employer
maintains its Plan under a Code Section 401(k) Adoption Agreement. If the
Employer does not maintain its Plan under a Code Section 401(k) Adoption
Agreement and, prior to the adoption of this Master Plan, the Plan
accepted Participant nondeductible contributions for a Plan Year beginning
after December 31, 1986, those contributions must satisfy the requirements
of Code Section 401(m). This Section 4.01 does not prohibit the Plan's
acceptance of Participant nondeductible contributions prior to the first
Plan Year commencing after the Plan Year in which the Employer adopts this
Master Plan.
4.02 PARTICIPANT DEDUCTIBLE CONTRIBUTIONS. A qualified Plan may not
accept Participant deductible contributions after April 15, 1987. If the
Employer's Plan includes Participant deductible contributions ("DECs")
made prior to April 16, 1987, the Advisory Committee must maintain a
separate accounting for the Participant's Accrued Benefit attributable to
DECs, including DECs which are part of a rollover contribution described
in Section 4.03. The Advisory Committee will treat the accumulated DECs
as part of the Participant's Accrued Benefit for all purposes of the Plan,
except for purposes of determining the top heavy ratio under Section 1.33.
The Advisory Committee may not use DECs to purchase life insurance on the
Participant's behalf.
4.03 PARTICIPANT ROLLOVER CONTRIBUTIONS. Any Participant, with the
Employer's written consent and after filing with the Trustee the form
prescribed by the Advisory Committee, may contribute cash or other
property to the Trust other than as a voluntary contribution if the
contribution is a "rollover contribution" which the Code permits an
employee to transfer either directly or indirectly from one qualified plan
to another qualified plan. Before accepting a rollover contribution, the
Trustee may require an Employee to furnish satisfactory evidence that the
proposed transfer is in fact a "rollover contribution" which the Code
permits an employee to make to a qualified plan. A rollover contribution
is not an Annual Addition under Part 2 of Article III.
The Trustee will invest the rollover contribution in a segregated
investment Account for the Participant's sole benefit unless the Trustee
(or the Named Fiduciary, in the case of a nondiscretionary Trustee
designation), in its sole discretion, agrees to invest the rollover
contribution as part of the Trust Fund. The Trustee will not have any
investment responsibility with respect to a Participant's segregated
rollover Account. The Participant, however, from time to time, may direct
the Trustee in writing as to the investment of his segregated rollover
Account in property, or property interests, of any kind, real, personal or
mixed; provided however, the Participant may not direct the Trustee to
make loans to his Employer. A Participant's segregated rollover Account
alone will bear any extraordinary expenses resulting from investments made
at the direction of the Participant. As of the Accounting Date (or other
valuation date) for each Plan Year, the Advisory Committee will allocate
and credit the net income (or net loss) from a Participant's segregated
rollover Account and the increase or decease in the fair market value of
the assets of a segregated rollover Account solely to that Account. The
Trustee is not liable nor responsible for any loss resulting to any
Beneficiary, nor to any Participant, by reason of any sale or investment
made or other action taken pursuant to and in accordance with the
direction of the Participant. In all other respects, the Trustee will
hold, administer and distribute a rollover contribution in the same manner
as any Employer contribution made to the Trust.
An eligible Employee, prior to satisfying the Plan's eligibility
conditions, may make a rollover contribution to the Trust to the same
extent and in the same manner as a Participant. If an Employee makes a
rollover contribution to the Trust prior to satisfying the Plan's
eligibility conditions, the Advisory Committee and Trustee must treat the
Employee as a Participant for all purposes of the Plan except the Employee
is not a Participant for purposes of sharing in Employer contributions or
Participant forfeitures under the Plan until he actually becomes a
Participant in the Plan. If the Employee has a Separation from Service
prior to becoming a Participant, the Trustee will distribute his rollover
contribution Account to him as if it were an Employer contribution
Account.
4.04 PARTICIPANT CONTRIBUTION - FORFEITABILITY. A Participant's
Accrued Benefit is, at all times, 100% Nonforfeitable to the extent the
value of his Accrued Benefit is derived from his Participant contributions
described in this Article IV.
4.05 PARTICIPANT CONTRIBUTION - WITHDRAWAL/DISTRIBUTION. A
Participant, by giving prior written notice to the Trustee, may withdraw
all or any part of the value of his Accrued Benefit derived from his
Participant contributions described in this Article IV. A distribution of
Participant contributions must comply with the joint and survivor
requirements described in Article VI, if those requirements apply to the
Participant. A Participant may not exercise his right to withdraw the
value of his Accrued Benefit derived from his Participant contributions
more than once during any Plan Year. The Trustee, in accordance with the
direction of the Advisory Committee, will distribute a Participant's
unwithdrawn Accrued Benefit attributable to his Participant contributions
in accordance with the provision of Article VI applicable to the
distribution of the Participant's Nonforfeitable Accrued Benefit.
4.06 PARTICIPANT CONTRIBUTION - ACCRUED BENEFIT. The Advisory
Committee must maintain a separate Account(s) in the name of each
Participant to reflect the Participant's Accrued Benefit under the Plan
derived from his Participant contributions. A Participant's Accrued
Benefit derived from his Participant contributions as of any applicable
date is the balance of his separate Participant
contribution Account(s).
* * * * * * * * * * * * * * * *
ARTICLE V
TERMINATION OF SERVICE - PARTICIPANT VESTING
5.01 NORMAL RETIREMENT AGE. The Employer must define Normal
Retirement Age in its Adoption Agreement. A Participant's Accrued Benefit
derived from Employer contributions is 100% Nonforfeitable upon and after
his attaining Normal Retirement Age (if employed by the Employer on or
after that date).
5.02 PARTICIPANT DISABILITY OR DEATH. The Employer may elect in its
Adoption Agreement to provide a Participant's Accrued Benefit derived from
Employer contributions will be 100% Nonforfeitable if the Participant's
Separation from Service is a result of his death or his disability.
5.03 VESTING SCHEDULE. Except as provided in Sections 5.01 and 5.02,
for each Year of Service, a Participant's Nonforfeitable percentage of his
Accrued Benefit derived from Employer contributions equals the percentage
in the vesting schedule completed by the Employer in its Adoption
Agreement.
(A) Election of Special Vesting Formula if the Trustee makes a
distribution (other than a cash-out distribution described in Section
5.04) to a partially-vested Participant, and the Participant has not
incurred a Forfeiture Break in Service at the relevant time, the Advisory
Committee will establish a separate Account for the Participant's Accrued
Benefit. At any relevant time following the distribution, the Advisory
Committee will determine the Participant's Nonforfeitable Accrued Benefit
derived from Employer contributions in accordance with the following
formula: P(AB + (R x D)) - (R x D).
To apply this formula, "P" is the Participant's current vesting
percentage at the relevant time, AB" is the Participant's Employer-derived
Accrued Benefit at the relevant time, "R" is the ratio of "AB" to the
Participant's Employer-derived Accrued Benefit immediately following the
earlier distribution and "D" is the amount of the earlier distribution.
If, under a restated Plan, the Plan has made distribution to a partially-
vested Participant prior to its restated Effective Date and is unable to
apply the cash-out provisions of Section 5.04 to that prior distribution,
this special vesting formula also applies to that Participant's remaining
Account. The Employer, in an addendum to its Adoption Agreement, numbered
Section 5.03, may elect to modify this formula to read as follows: P(AB +
D) - D.
5.04 CASH-OUT DISTRIBUTIONS TO PARTIALLY-VESTED PARTICIPANTS/
RESTORATION OF FORFEITED ACCRUED BENEFIT. If, pursuant to Article VI, a
partially-vested Participant receives a cash-out distribution before he
incurs a Forfeiture Break in Service (as defined in Section 5.08), the
cash-out distribution will result in an immediate forfeiture of the
nonvested portion of the Participant's Accrued Benefit derived from
Employer contributions. See Section 5.09. A partially-vested Participant
is a Participant whose Nonforfeitable Percentage determined under section
5.03 is less than 100%. A cash-out distribution is a distribution of the
entire present value of the Participant's Nonforfeitable Accrued Benefit.
(A) Restoration and Conditions upon Restoration. A partially-vested
Participant who is re-employed by the Employer after receiving a cash-out
distribution of the Nonforfeitable percentage of his Accrued Benefit may
repay the Trustee the amount of the cash-out distribution attributable to
Employer contributions, unless the Participant no longer has a right to
restoration by reason of the conditions of this Section 5.04(A). If a
partially-vested Participant makes the cash-out distribution repayment,
the Advisory Committee, subject to the conditions of this Section 5.04(A),
must restore his Accrued Benefit attributable to Employer contributions to
the same dollar amount as the dollar amount of his Accrued Benefit on the
Accounting Date, or other valuation date, immediately preceding the date
of the cash-out distribution, unadjusted for any gains or losses occurring
subsequent to that Accounting Date, or other valuation date, Restoration
of the Participant's Accrued Benefit includes restoration of all Code
Section 411(d)(6) protected benefits with respect to that restored Accrued
Benefit, in accordance with applicable Treasury regulations. The Advisory
Committee will not restore a re-employed Participant's Accrued Benefit
under this paragraph if:
(1) 5 years have elapsed since the Participant's first re-employment
date with the Employer following the cash-out distribution; or
(2) The Participant incurred a Forfeiture Break in Service (as
defined in Section 5.08). This condition also applies if the
Participant makes repayment within the Plan Year in which he incurs
the Forfeiture Break in Service and that Forfeiture Break in Service
would result in a complete forfeiture of the amount the Advisory
Committee otherwise would restore.
(B) Time and Method of Restoration. If neither of the two conditions
preventing restoration of the Participant's Accrued Benefit applies, the
Advisory Committee will restore the Participant's Accrued Benefit as of
the Plan Year Accounting Date coincident with or immediately following the
repayment. To restore the Participant's Accrued Benefit, the Advisory
Committee, to the extent necessary, will allocate to the Participant's
Account:
(1) First, the amount, if any, of Participant forfeitures the
Advisory Committee would otherwise allocate under Section 3.05;
(2) Second, the amount, if any, of the Trust Fund net income or gain
for the Plan Year; and
(3) Third, the Employer contribution for the Plan Year to the extent
made under a discretionary formula.
In an addendum to its Adoption Agreement numbered 5.04(B), the
Employer may eliminate as a means of restoration any of the amounts
described in clauses (1), (2) and (3) or may change the order of priority
of these amounts. To the extent the amounts described in clauses (1), (2)
and (3)are insufficient to enable the Advisory Committee to make the
required restoration, the Employer must contribute, without regard to any
requirement or condition of Section 3.01, the additional amount necessary
to enable the Advisory Committee to make the required restoration. If,
for a particular Plan Year, the Advisory Committee must restore the
Accrued Benefit of more than one re-employed Participant, then the
Advisory Committee will make the restoration allocations to each such
Participant's Account in the same proportion that a Participant's restored
amount for the Plan Year bears to the restored amount for the Plan Year of
all re-employed Participants. The Advisory Committee will not take into
account any allocation under this Section 5.04 in applying the limitation
on allocations under Part 2 of Article III.
(C) 0% Vested Participant. The Employer must specify in its Adoption
Agreement whether the deemed cash-out rule applies to a 0% vested
Participant. A 0% vested Participant is a Participant whose Accrued
Benefit derived from Employer contributions is entirely forfeitable at the
time of his Separation from Service. If the Participant's Account is not
entitled to an allocation of Employer contributions for the Plan Year in
which be has a Separation from Service, the Advisory Committee will apply
the deemed cash-out rule as if the 0% vested Participant received a cash-
out distribution on the date of the Participant's Separation from Service.
If the Participant's Account is entitled to an allocation of Employer
contributions or Participant forfeitures for the Plan Year in which he has
a Separation from Service, the Advisory Committee will apply the deemed
cash-out rule as if the 0% vested Participant received a cash-out
distribution on the first day of the first Plan Year beginning after his
Separation from Service. For purposes of applying the restoration
provisions of this Section 5.04, the Advisory Committee will treat the 0%
vested Participant as repaying his cash-out "distribution" on the first
date of his re-employment with the Employer. If the deemed cash-out rule
does not apply to the Employer's Plan, a 0% vested Participant will not
incur a forfeiture until he incurs a Forfeiture Break in Service.
5.05 SEGREGATED ACCOUNT FOR REPAID AMOUNT. Until the Advisory
Committee restores the Participant's Accrued Benefit, as described in
Section 5.04, the Trustee will invest the cash-out amount the Participant
has repaid in a segregated Account maintained solely for that Participant.
The Trustee must invest the amount in the Participant's segregated Account
in Federally insured interest bearing savings account(s) or time
deposit(s) (or a combination of both), or in other fixed income
investments. Until commingled with the balance of the Trust Fund on the
date the Advisory Committee restores the Participant's Accrued Benefit,
the Participant's segregated Account remains a part of the Trust, but it
alone shares in any income it earns and it alone bears any expense or loss
it incurs. Unless the repayment qualifies as a rollover contribution, the
Advisory Committee will direct the Trustee to repay to the Participant as
soon as is administratively practicable the full amount of the
Participant's segregated Account if the Advisory Committee determines
either of the conditions of Section 5.04(A) prevents restoration as of the
applicable Accounting Date, notwithstanding the Participant's repayment.
5.06 YEAR OF SERVICE - VESTING. For purposes of vesting under
Section 5.03, Year of Service means any 12-consecutive month period
designated in the Employer's Adoption Agreement during which an Employee
completes not less than the number of Hours of Service (not exceeding
1,000) specified in the Employer's Adoption Agreement A Year of Service
includes any Year of Service earned prior to the Effective Date of the
Plan, except as provided in Section 5.08.
5.07 BREAK IN SERVICE - VESTING. For purposes of this Article V, a
Participant incurs a "Break in Service" if during any vesting computation
period he does not complete more than 500 Hours of Service. If, pursuant
to Section 5.06, the Plan does not require more than 500 Hours of Service
to receive credit for a Year of Service, a Participant incurs a Break in
Service in a vesting computation period in which he fails to complete a
Year of Service.
5.08 INCLUDED YEARS OF SERVICE - VESTING. For purposes of
determining "Years of Service" under Section 5.06, the Plan takes into
account all Years of Service an Employee completes with the Employer
except:
(a) For the sole of determining a Participant's Nonforfeitable
percentage of his Accrued Benefit derived from Employer contributions
which accrued for his benefit prior to a Forfeiture Break in Service,
the Plan disregards any Year of Service after the Participant first
incurs a Forfeiture Break in Service. The Participant incurs a
Forfeiture Break in Service when he incurs 5 consecutive Breaks in
Service.
(b) The Plan disregards any Year of Service excluded under the
Employer's Adoption Agreement. The Plan does not apply the Break in
Service rule under Code Section 411(a)(6)(B). Therefore, an Employee
need not complete a Year of Service after a Break in Service before
the Plan takes into account the Employee's otherwise includible Years
of Service under this Article V.
5.09 FORFEITURE OCCURS. A Participant's forfeiture, if any, of his
Accrued Benefit derived from Employer contributions occurs under the Plan
on the earlier of:
(a) The last day of the vesting computation period in which the
Participant first incurs a Forfeiture Break in Service; or
(b) The date the Participant receives a cash-out distribution.
The Advisory Committee determines the percentage of a Participant's
Accrued Benefit forfeiture, if any under this Section 5.09 solely by
reference to the vesting schedule of Section 5.03. A Participant does not
forfeit any portion of his Accrued Benefit for any other reason or cause
except as expressly provided by this Section 5.09 or as provided under
Section 9.14.
* * * * * * * * * * * * * * * *
ARTIClE VI
TIME AND METHOD OF PAYMENT OF BENEFITS
6.01 TIME OF PAYMENT OF ACCRUED BENEFIT. Unless, pursuant to Section
6.03, the Participant or the Beneficiary elects in writing to a different
time or method of payment, the Advisory Committee will direct the Trustee
to commence distribution of a Participant's Nonforfeitable Accrued Benefit
in accordance with this Section 6.01. A Participant must consent, in
writing, to any distribution required under this Section 6.01 if the
present value of the Participant's Nonforfeitable Accrued Benefit, at the
time of the distribution to the Participant, exceeds $3,500 and the
Participant has not attained the later of Normal Retirement Age or age 62.
Furthermore, the Participant's spouse also must consent, in writing, to
any distribution, for which Section 6.04 requires the spouse's consent.
For all purposes of this Article VI, the term "annuity starting date"
means the first day of the first period for which the Plan pays an amount
as an annuity or in any other form. A distribution date under this
Article VI, unless otherwise specified within the Plan, is the date or
dates the Employer specifies in the Adoption Agreement, or as soon as
administratively practicable following that distribution date. For
purposes of the consent requirements under this Article VI, if the present
value of the Participant's Nonforfeitable Accrued Benefit, at the time of
any distribution, exceeds $3,500, the Advisory Committee must treat that
present value as exceeding $3,500 for purposes of all subsequent Plan
distributions to the Participant.
(A) Separation from Service For a Reason Other Than Death.
(1) Participant's Nonforfeitable Accrued Benefit Not Exceeding
$3,500. If the Participant's Separation from Service is for any reason
other than death, the Advisory Committee will direct the Trustee to
distribute the Participant's Nonforfeitable Accrued Benefit in a lump sum,
on the distribution date the Employer specifies in the Adoption Agreement,
but in no event later than the 60th day following the close of the Plan
Year in which the Participant attains Normal Retirement Age. If the
Participant has attained Normal Retirement Age at the time of his
Separation from Service, the distribution under this paragraph will occur
no later than the 60th day following the close of the Plan Year in which
the Participant's Separation from Service occurs.
(2) Participant's Nonforfeitable Accrued Benefit Exceeds $3,500. If
the Participant's Separation from Service is for any reason other than
death, the Advisory Committee will direct the Trustee to commence
distribution of the Participant's Nonforfeitable Accrued Benefit in a form
and at the time elected by the Participant, pursuant to Section 6.03. In
the absence of an election by the Participant, the Advisory Committee will
direct the Trustee to distribute the Participant Nonforfeitable Accrued
Benefit in a lump sum (or, if applicable, the normal annuity form of
distribution required under Section 6.04), on the 60th day following the
close of the Plan Year in which the latest of the following events occurs:
(a) the Participant attains Normal Retirement Age; (b) the Participant
attains age 62; or (c) the Participant's Separation from Service.
(3) Disability. If the Participant's separation from Service is
because of his disability, the Advisory Committee will direct the Trustee
to pay the Participant's Nonforfeitable Accrued Benefit in lump sum, on
the distribution date the Employer specifies in the Adoption Agreement,
subject to the notice and consent requirements of this Article VI and
subject to the applicable mandatory commencement dates described in
Paragraphs (1) and (2).
(4) Hardship. Prior to the time at which the Participant may
receive distribution under Paragraphs (1), (2) or (3), the Participant may
request a distribution from his Nonforfeitable Accrued Benefit in an
amount necessary to satisfy a hardship, if the Employer elects in the
Adoption Agreement to permit hardship distributions. Unless the Employer
elects otherwise in the Adoption Agreement, a hardship distribution must
be on account of any of the following: (a) medical expenses; (b) the
purchase (excluding mortgage payments) of the Participant's principal
residence; (c) post-secondary education tuition, for the next semester or
quarter, for the Participant or for the Participant's spouse, children or
dependents; (d) to prevent the eviction of the Participant from his
principal residence or the foreclosure on the mortgage of the
Participant's principal residence; (e) funeral expenses of the
Participant's family member; or (f) the Participant's disability. A
partially-vested Participant may not receive a hardship distribution
described in this Paragraph (A)(4) prior to incurring a Forfeiture Break
in Service, unless the hardship distribution is a cash-out distribution
(as defined in Article V). The Advisory Committee will direct the Trustee
to make the hardship distribution as soon as administratively practicable
after the Participant makes a valid request for the hardship distribution.
(B) Required Beginning Date. If any distribution commencement date
described under Paragraph (A) of this Section 6.01, either by Plan
provision or by Participant election (or nonelection), is later than the
Participant's Required Beginning Date, the Advisory Committee instead must
direct the Trustee to make distribution on the Participant's Required
Beginning Date, subject to the transitional election, if applicable, under
Section 6.03). A Participant's Required Beginning Date is the April 1
following the close of the calendar year in which the Participant attains
age 70 1/2. However, if the Participant, prior to incurring a Separation
from Service, attained age 70 1/2 by January 1, 1988, and, for the five
Plan Year period ending in the calendar year in which he attained age 70
1/2 and for all subsequent years, the Participant was not a more than 5%
owner, the Required Beginning Date is the April 1 following the close of
the calendar year in which the Participant separates from Service or, if
earlier, the April 1 following the close of the calendar year in which the
Participant becomes a more than 5% owner. Furthermore, if a Participant
who was not a more than 5% owner attained age 70-1/2 during 1988 and did not
incur a Separation from Service prior to January 1, 1989, his Required
Beginning Date is April 1, 1990. A mandatory distribution at the
Participant's Required Beginning Date will be in lump sum (or, if
applicable, the normal annuity form of distribution required under Section
6.04) unless the Participant, pursuant to the provisions of this Article
VI, makes a valid election to receive an alternative form of payment.
(C) Death of the Participant. The Advisory Committee will direct the
Trustee, in accordance with this Section 6.01(C), to distribute to the
Participant's Beneficiary the Participant's Nonforfeitable Accrued Benefit
remaining in the Trust at the time of the Participant's death. Subject to
the requirements of Section 6.04, the Advisory Committee will determine
the death benefit by reducing the Participant's Nonforfeitable Accrued
Benefit by any security interest the Plan has against that Nonforfeitable
Accrued Benefit by reason of an outstanding Participant loan.
(1) Deceased Participant's Nonforfeitable Accrued Benefit Does Not
Exceed $3,500. The Advisory Committee, subject to the requirements of
Section 6.04, must direct the Trustee to distribute the deceased
Participant's Nonforfeitable Accrued Benefit in a single sum, as soon as
administratively practicable following the Participant's death or, if
later, the date on which the Advisory Committee receives notification of
or otherwise confirms the Participant's death.
(2) Deceased Participant's Nonforfeitable Accrued Benefit Exceeds
$3,500. The Advisory Committee will direct the Trustee to distribute the
deceased Participant Nonforfeitable Accrued Benefit at the time and in the
form elected by the Participant or, if applicable by the Beneficiary, as
permitted under this Article VI. In the absence of an election, subject
to the requirements of Section 6.04, the Advisory Committee will direct
the Trustee to distribute the Participant's undistributed Nonforfeitable
Accrued Benefit in a lump sum on the first distribution date following the
close of the Plan Year in which the Participant's death occurs or, if
later, the first distribution date following the date the Advisory
Committee receives notification of or otherwise confirms the Participant's
death.
If the death benefit is payable in full to the Participant's
surviving spouse, the surviving spouse, in addition to the distribution
options provided in this Section 6.01(C), may elect distribution at any
time or in any form (other than a joint and survivor annuity) this Article
VI would permit for a Participant.
6.02 METHOD OF PAYMENT OF ACCRUED BENEFIT. Subject to the annuity
distribution requirements, if any, prescribed by Section 6.04, and any
restrictions prescribed by Section 6.03, a Participant or Beneficiary may
elect distribution under one, or any combination, of the following
methods:
(a) by payment in a lump sum; or (b) by payment in monthly, quarterly or
annual installments over a fixed reasonable period of time, not exceeding
the life expectancy of the Participant, or the joint life and last
survivor expectancy of the Participant and his Beneficiary. The Employer
may elect in its Adoption Agreement to modify the methods of payment
available under this Section 6.02.
The distribution options permitted under this Section 6.02 are
available only if the present value of the Participant Nonforfeitable
Accrued Benefit, at the time of the distribution to the Participant,
exceeds $3,500. To facilitate installment payments under this Article VI,
the Advisory Committee may direct the Trustee to segregate all or any part
of the Participant's Accrued Benefit in a separate Account. The Trustee
will invest the Participant's segregated Account in Federally insured
interest bearing savings account(s) or time deposit(s) (or a combination
of both), or in other fixed income investments. A segregated Account
remains a part of the Trust, but it alone shares in any income it earns,
and it alone bears any expense or loss it incurs. A Participant or
Beneficiary may elect to receive an installment distribution in the form
of a Nontransferable Annuity Contract. Under an installment distribution,
the Participant or Beneficiary, at any time, may elect to accelerate the
payment of all, or any portion, of the Participant's unpaid Nonforfeitable
Accrued Benefit, subject to the requirements of Section 6.04.
(A) Minimum Distribution Requirements for Participants. The
Advisory Committee may not direct the Trustee to distribute the
Participant's Nonforfeitable Accrued Benefit, nor may the Participant
elect to have the Trustee distribute his Nonforfeitable Accrued Benefit,
under a method of payment which, as of the Required Beginning Date, does
not satisfy the minimum distribution requirements under Code Section
401(a)(9) and the applicable Treasury regulations. The minimum
distribution for a calendar year equals the Participant's Nonforfeitable
Accrued Benefit as of the latest valuation date preceding the beginning of
the calendar year divided by the Participant's life expectancy or, if
applicable, the joint and last survivor expectancy of the Participant and
his designated Beneficiary (as determined under Article VIII, subject to
the requirements of the Code Section 401(a)(9) regulations). The Advisory
Committee will increase the Participant's Nonforfeitable Accrued Benefit,
as determined on the relevant valuation date, for contributions or
forfeitures allocated after the valuation date and by December 31 of the
valuation calendar year, and will decrease the valuation by distributions
made after the valuation date and by December 31 of the valuation calendar
year. For purposes of this valuation, the Advisory Committee will treat
any portion of the minimum distribution for the first distribution
calendar year made after the close of that year as a distribution
occurring in that first distribution calendar year. In computing a
minimum distribution, the Advisory Committee must use the unisex life
expectancy multiples under Treas. Reg. Section 1.72-9. The Advisory
Committee, only upon the Participant's written request, will compute the
minimum distribution for a calendar year subsequent to the first calendar
year for which the Plan requires a minimum distribution by redetermining
the applicable life expectancy. However, the Advisory Committee may not
redetermine the joint life and last survivor expectancy of the Participant
and a nonspouse designated Beneficiary in a manner which takes into
account any adjustment to a life expectancy other than the Participant's
life expectancy.
If the Participant's spouse is not his designated Beneficiary, a
method of payment to the Participant (whether by Participant election or
by Advisory Committee direction) may not Provide more than incidental
benefits to the Beneficiary. For Plan Years beginning after December
31,1988, the Plan must satisfy the minimum distribution incidental benefit
("MDIB") requirement in the Treasury regulations issued under Code Section
401(a)(9) for distributions made on or after the Participant's Required
Beginning Date and before the Participant's death. To satisfy the MDIB
requirement, the Advisory Committee will compute the minimum distribution
required by this Section 6.02(A) by substituting the applicable MDIB
divisor for the applicable life expectancy factor, if the MDIB divisor is
a lesser number. Following the Participant death, the Advisory Committee
will compute the minimum distribution required by this Section 6.02(A)
solely on the basis of the applicable life expectancy factor and will
disregard the MDIB factor. For Plan Year beginning prior to January 1,
1989, the Plan satisfies the incidental benefits requirement if the
distributions to the Participant satisfied the MDIB requirement or if the
present value of the retirement benefits payable solely to the Participant
is greater than 50% of the present value of the total benefits payable to
the Participant and his Beneficiaries. The Advisory Committee must
determine whether benefits to the Beneficiary are incidental as of the
date the Trustee is to commence payment of the retirement benefits to the
Participant, or as of any date the Trustee redetermines the payment period
to the Participant.
The minimum distribution for the first distribution calendar year is
due by the Participant's Required Beginning Date. The minimum
distribution for each subsequent distribution calendar year, including the
calendar year in which the Participant's Required Beginning Date occurs,
is due by December 31 of that year. If the Participant receives
distribution in the form of a Nontransferable Annuity Contract, the
distribution satisfies this Section 6.02(A) if the contract complies with
the requirements of Code Section 401(a)(9) and the applicable Treasury
regulations.
(B) Minimum Distribution Requirements for Beneficiaries. The method of
distribution to the Participant's Beneficiary must satisfy Code Section
401(a)(9) and the applicable Treasury regulations. If the Participant's
death occurs after his Required Beginning Date or, if earlier, the date
the Participant commences an irrevocable annuity pursuant to Section 6.04,
the method of payment to the Beneficiary must provide for completion of
payment over a period which does not exceed the payment period which had
commenced for the Participant. If the Participant's death occurs prior to
his Required Beginning Date, and the Participant had not commenced an
irrevocable annuity pursuant to Section 6.04, the method of payment to the
Beneficiary, subject to Section 6.04, must provide for completion of
payment to the Beneficiary over a period not exceeding: (i) 5 years after
the date of the Participant's death; or (ii) if the Beneficiary is a
designated Beneficiary, the designated Beneficiary's life expectancy. The
Advisory Committee may not direct payment of the Participant's
Nonforfeitable Accrued Benefit over a period described in clause (ii)
unless the Trustee will commence payment to the designated Beneficiary no
later than the December 31 following the close of the calendar year in
which the Participant's death occurred or, if later, and the designated
Beneficiary is the Participant's surviving spouse, December 31 of the
calendar year in which the Participant would have attained age 70-1/2. If
the Trustee will make distribution in accordance with clause (ii), the
minimum distribution for a calendar year equals the Participant's
Nonforfeitable Accrued Benefit as of the latest valuation date preceding
the beginning of the calendar year divided by the designated Beneficiary's
life expectancy. The Advisory Committee must use the unisex life
expectancy multiples under Treas. Reg. Section 1.72-9 for purposes of
applying this paragraph. The Advisory Committee, only upon the written
request of the Participant or of the Participant's surviving spouse, will
recalculate the life expectancy of the Participant's surviving spouse not
more frequently than annually, but may not recalculate the life expectancy
of a nonspouse designated Beneficiary after the Trustee commences payment
to the designated Beneficiary. The Advisory Committee will apply this
paragraph by treating any amount paid to the Participant's child, which
becomes payable to the Participant's surviving spouse upon the child's
attaining the age of majority, as paid to the Participant's surviving
spouse. Upon the Beneficiary's written request, the Advisory Committee
must direct the Trustee to accelerate payment of all, or any portion of
the Participant's unpaid Accrued Benefit, as soon as administratively
practicable following the effective date of that request.
6.03 BENEFIT PAYMENT ELECTIONS. Not earlier than 90 days, but not
later than 30 days, before the Participant's annuity starting date, the
Advisory Committee must provide a benefit notice to a Participant who is
eligible to make an election under this Section 6.03. The benefit notice
must explain the optional forms of benefit in the Plan, including the
material features and relative values of those options, and the
Participant's right to defer distribution until he attains the later of
Normal Retirement Age or age 62.
If a Participant or Beneficiary makes an election prescribed by this
Section 6.03, the Advisory Committee will direct the Trustee to distribute
the Participant's Nonforfeitable Accrued Benefit in accordance with that
election. Any election under this Section 6.03 is subject to the
requirements of Section 6.02 and of Section 6.04. The Participant or
Beneficiary must make an election under this Section 6.03 by filing his
election with the Advisory Committee at any time before the Trustee
otherwise would commence to pay a Participant's Accrued Benefit in
accordance with the requirements of Article VI.
(A) Participant Elections After Separation from Service. If the present
value of a Participant's Nonforfeitable Accrued Benefit exceeds $3,500, he
may elect to have the Trustee commence distribution as of any distribution
date permitted under the Employer's Adoption Agreement Section 6.03. The
Participant may reconsider an election at any time prior to the annuity
starting date and elect to commence distribution as of any other
distribution date permitted under the Employer's Adoption Agreement
Section 6.03. If the Participant is partially-vested in his Accrued
Benefit, an election under this Paragraph (A) to distribute prior to the
Participant's incurring a Forfeiture Break in Service (as defined in
Section 5.08), must be in the form of a cash-out distribution (as defined
in Article V). A Participant may not receive a cash-out distribution if,
prior to the time the Trustee actually makes the cash-out distribution,
the Participant returns to employment with the Employer. Following his
attainment of Normal Retirement Age, a Participant who has separated from
Service may elect distribution as of any distribution date, irrespective
of the elections under Adoption Agreement Section 6.03.
(B) Participant Elections Prior to Separation from Service. The Employer
must specify in its Adoption Agreement the distribution election rights,
if any, a Participant has prior to his Separation from Service. A
Participant must make an election under this Section 6.03(B) on a form
prescribed by the Advisory Committee at any time during the Plan Year for
which his election is to be effective. In his written election, the
Participant must specify the percentage or dollar amount he wishes the
Trustee to distribute to him. The Participant's election relates solely
to the percentage or dollar amount specified in his election form and his
right to elect to receive an amount, if any, for a particular Plan Year
greater than the dollar amount or percentage specified in his election
form terminates on the Accounting Date. The Trustee must make a
distribution to a Participant in accordance with his election under this
Section 6.03(B) within the 90 day period (or as soon as administratively
practicable) after the Participant files his written election with the
Trustee. The Trustee will distribute the balance of the Participant's
Accrued Benefit not distributed pursuant to his election(s) in accordance
with the other distribution provisions of this Plan.
(C) Death Benefit Elections. If the present value of the deceased
Participant's Nonforfeitable Accrued Benefit exceeds $3,500, the
Participant's Beneficiary may elect to have the Trustee distribute the
Participant's Nonforfeitable Accrued Benefit in a form and within a period
permitted under Section 6.02. The Beneficiary's election is subject to
any restrictions designated in writing by the Participant and not revoked
as of his date of death.
(D) Transitional Elections. Notwithstanding the provisions of Sections
6.01 and 6.02, if the Participant (or Beneficiary) signed a written
distribution designation prior to January 1, 1984, the Advisory Committee
must distribute the Participant's Nonforfeitable Accrued Benefit in
accordance with that designation, subject however, to the survivor
requirements, if applicable, of Sections 6.04, 6.05 and 6.06. This
Section 6.03(D) does not apply to a pre-1984 distribution designation, and
the Advisory Committee will not comply with that designation, if any of
the following applies: (1) the method of distribution would have
disqualified the Plan under Code Section 401(a)(9) as in effect on
December 31, 1983; (2) the Participant did not have an Accrued Benefit as
of December 31, 1983; (3) the distribution designation does not specify
the timing and form of the distribution and the death Beneficiaries (in
order of priority); (4) the substitution of a Beneficiary modifies the
payment period of the distribution; or, (5) the Participant (or
Beneficiary) modifies or revokes the distribution designation. In the
event of a revocation, the Plan must distribute, no later than December 31
of the calendar year following the year of revocation, the amount which
the Participant would have received under Section 6.02(A) if the
distribution designation had not been in effect or, if the Beneficiary
revokes the distribution designation, the amount which the Beneficiary
would have received under Section 6.02(B) if the distribution designation
had not been in effect. The Advisory Committee will apply this Section
6.02(D) to rollovers and transfers in accordance with Part J of the Code
Section 401(a)(9) Treasury regulations.
6.04 ANNUITY DISTRIBUTIONS TO PARTICIPANTS AND SURVIVING SPOUSES.
(A) Joint and Survivor Annuity. The Advisory Committee must direct the
Trustee to distribute a married or unmarried Participant's Nonforfeitable
Accrued Benefit in the form of a qualified joint and survivor annuity,
unless the Participant makes a valid waiver election (described in Section
6.05) within the 90 day period ending on the annuity starting date. If,
as of the annuity starting date, the Participant is married, a qualified
joint and survivor annuity is an immediate annuity which is purchasable
with the Participant's Nonforfeitable Accrued Benefit and which provides a
life annuity for the Participant and a survivor annuity payable for the
remaining life of the Participant's surviving spouse equal to 50% of the
amount of the annuity payable during the life of the Participant. If, as
of the annuity starting date, the Participant is not married, a qualified
joint and survivor annuity is an immediate life annuity for the
Participant which is purchasable with the Participant's Nonforfeitable
Accrued Benefit. On or before the annuity starting date, the Advisory
Committee, without Participant or spousal consent, must direct the Trustee
to pay the Participant's Nonforfeitable Accrued Benefit in a lump sum, in
lieu of a qualified joint and survivor annuity, in accordance with Section
6.01, if the Participant's Nonforfeitable Accrued Benefit is not greater
than $3,500. This Section 6.04(A) applies only to a Participant who has
completed at least one Hour of Service with the Employer after August 22,
1984.
(B) Preretirement Survivor Annuity. If a married Participant dies prior
to his annuity starting date, the Advisory Committee will direct the
Trustee to distribute a portion of the Participant's Nonforfeitable
Accrued Benefit to the Participant's surviving spouse in the form of a
preretirement survivor annuity, unless the Participant has a valid waiver
election (as described in Section 6.06) in effect, or unless the
Participant and his spouse were not married throughout the one year period
ending on the date of his death. A preretirement survivor annuity is an
annuity which is purchasable with 50% of the Participant's Nonforfeitable
Accrued Benefit (determined as of the date of the Participant's death) and
which is payable for the life of the Participant's surviving spouse. The
value of the preretirement survivor annuity is attributable to Employer
contributions and to Employee contributions in the same proportion as the
Participant's Nonforfeitable Accrued Benefit is attributable to those
contributions. The portion of the Participant's Nonforfeitable Accrued
Benefit not payable under this paragraph is payable to the Participant's
Beneficiary, in accordance with the other provisions of this Article VI.
If the present value of the preretirement survivor annuity does not exceed
$3,500, the Advisory Committee, on or before the annuity starting date,
must direct the Trustee to make a lump sum distribution to the
Participant's surviving spouse, in lieu of a preretirement survivor
annuity. This Section 6.04(B) applies only to a Participant who dies
after August 22, 1984, and either (i) completes at least one Hour of
Service with the Employer after August 22, 1984, or (ii) separated from
Service with at least 10 Years of Service (as defined in Section 5.06) and
completed at least one Hour of Service with the Employer in a Plan Year
beginning after December 31, 1975.
(C) Surviving Spouse Elections. If the present value of the
preretirement survivor annuity exceeds $3,500, the Participant's surviving
spouse may elect to have the Trustee commence payment of the preretirement
survivor annuity at any time following the date of the Participant's
death, but not later than the mandatory distribution periods described in
Section 6.02, and may elect any of the forms of payment described in
Section 6.02, in lieu of the preretirement survivor annuity. In the
absence of an election by the surviving spouse, the Advisory Committee
must direct the Trustee to distribute the preretirement survivor annuity
on the first distribution date following the close of the Plan Year in
which the latest of the following events occurs: (i) the Participant's
death; (ii) the date the Advisory Committee receives notification of or
otherwise confirms the Participant's death; (iii) the date the Participant
would have attained Normal Retirement Age; or (iv) the date the
Participant would have attained age 62.
(D) Special Rules. If the Participant has in effect a valid waiver
election regarding the qualified joint and survivor annuity or the
preretirement survivor annuity, the Advisory Committee must direct the
Trustee to distribute the Participant's Nonforfeitable Accrued Benefit in
accordance with Sections 6.01, 6.02 and 6.03. The Advisory Committee will
reduce the Participant's Nonforfeitable Accrued Benefit by any security
interest (pursuant to any offset rights authorized by Section 10.03[E])
held by the Plan by reason of a Participant loan to determine the value of
the Participant's Nonforfeitable Accrued Benefit distributable in the form
of a qualified joint and survivor annuity or preretirement survivor
annuity, provided any post-August 18, 1985, loan satisfied the spousal
consent requirement described in Section 10.03[B] of the Plan. For
purposes of applying this Article VI, the Advisory Committee treats a
former spouse as the Participant's spouse or surviving spouse to the
extent provided under a qualified domestic relations order described in
Section 6.07. The provisions of this Section 6.04, and of Sections 6.05
and 6.06, apply separately to the portion of the Participant's
Nonforfeitable Accrued Benefit subject to the qualified domestic relations
order and to the portion of the Participant's Nonforfeitable Accrued
Benefit not subject to that order.
(E) Profit Sharing Plan Election. If this Plan is a profit sharing plan,
the Employer must elect the extent to which the preceding provisions of
Section 6.04 apply. If the Employer elects to apply this Section 6.04
only to a Participant described in this Section 6.04(E), the preceding
provisions of this Section 6.04 apply only to the following Participants:
(1) a Participant as respects whom the Plan is a direct or indirect
transferee from a plan subject to the Code Section 417 requirements and
the Plan received the transfer after December 31, 1984, unless the
transfer is an elective transfer described in Section 13.06; (2) a
Participant who elects a life annuity distribution (if Section 6.02 or
Section 13.02 of the Plan requires the Plan to provide a life annuity
distribution option); and (3) a Participant whose benefits under a defined
benefit plan maintained by the Employer are offset by benefits provided
under this Plan. If the Employer elects to apply this Section 6.04 to all
Participants, the preceding provisions of this Section 6.04 apply to all
Participants described in the first two paragraphs of this Section 6.04,
without regard to the limitations of this Section 6.04(E). Sections 6.05
and 6.06 only apply to Participants to whom the preceding provisions of
this Section 6.04 apply.
6.05 WAIVER ELECTION QUALIFIED JOINT AND SURVIVOR ANNUITY. Not
earlier than 90 days, but not later than 30 days, before the Participant's
annuity starting date, the Advisory Committee must provide the Participant
a written explanation of the terms and conditions of the qualified joint
and survivor annuity, the Participant's right to make, and the effect of,
an election to waive the joint and survivor form of benefit, the rights of
the Participant's spouse regarding the waiver election and the
Participant's right to make, and the effect of, a revocation of a waiver
election. The Plan does not limit the number of times the Participant may
revoke a waiver of the qualified joint and survivor annuity or make a new
waiver during the election period.
A married Participant's waiver election is not valid unless (a) the
Participant's spouse (to whom the survivor annuity is payable under the
qualified joint and survivor annuity), after the Participant has received
the written explanation described in this Section 6.05, has consented in
writing to the waiver election, the spouse's consent acknowledges the
effect of the election, and a notary public or the Plan Administrator (or
his representative) witnesses the spouse's consent, (b) the spouse
consents to the alternate form of payment designated by the Participant or
to any change in that designated form of payment, and (c) unless the
spouse is the Participant's sole primary Beneficiary, the spouse consents
to the Participants Beneficiary designation or to any change in the
Participant's Beneficiary designation. The spouse's consent to a waiver
of the qualified joint and survivor annuity is irrevocable, unless the
Participant revokes the waiver election. The spouse may execute a blanket
consent to any form of payment designation or to any Beneficiary
designation made by the Participant, if the spouse acknowledges the right
to limit that consent to a specific designation but, in writing, waives
that right. The consent requirements of this Section 6.05 apply to a
former spouse of the Participant, to the extent required under a qualified
domestic relations order described in Section 6.07.
The Advisory Committee will accept as valid a waiver election which
does not satisfy the spousal consent requirements if the Advisory
Committee establishes the Participant does not have a spouse, the Advisory
Committee is not able to locate the Participant's spouse, the Participant
is legally separated or has been abandoned (within the meaning of State
law) and the Participant has a court order to that effect, or other
circumstances exist under which the Secretary of the Treasury will excuse
the consent requirement. If the Participant's spouse is legally
incompetent to give consent, the spouse's legal guardian (even if the
guardian is the Participant) may give consent.
6.06 WAIVER ELECTION - PRERETIREMENT SURVIVOR ANNUITY. The Advisory
Committee must provide a written explanation of the preretirement survivor
annuity to each married Participant, within the following period which
ends last: (1) the period beginning on the first day of the Plan Year in
which the Participant attains age 32 and ending on the last day of the
Plan Year in which the Participant attains age 34; (2) a reasonable period
after an Employee becomes a Participant; (3) a reasonable period after the
joint and survivor rules become applicable to the Participant; or (4) a
reasonable period after a fully subsidized preretirement survivor annuity
no longer satisfies the requirements for a fully subsidized benefit. A
reasonable period described in clauses (2), (3) and (4) is the period
beginning one year before and ending one year after the applicable event.
If the Participant separates from Service before attaining age 35, clauses
(1), (2), (3) and (4) do not apply and the Advisory Committee must provide
the written explanation within the period beginning one year before and
ending one year after the Separation from Service. The written explanation
must describe, in a manner consistent with Treasury regulations, the terms
and conditions of the preretirement survivor annuity comparable to the
explanation of the qualified joint and survivor annuity required under
Section 6.05. The Plan does not limit the number of times the Participant
may revoke a waiver of the preretirement survivor annuity or make a new
waiver during the election period.
A Participant's waiver election of the preretirement survivor annuity
is not valid unless (a) the Participant makes the waiver election no
earlier than the first day of the Plan Year in which he attains age 35 and
(b) the Participant's spouse (to whom the preretirement survivor annuity
is payable) satisfies the consent requirements described in Section 6.05,
except the spouse need not consent to the form of benefit payable to the
designated Beneficiary. The spouse's consent to the waiver of the
preretirement survivor annuity is irrevocable, unless the Participant
revokes the waiver election. Irrespective of the time of election
requirement described in clause (a), if the Participant separates from
Service prior to the first day of the Plan Year in which he attains age
35, the Advisory Committee will accept a waiver election as respects the
Participant's Accrued Benefit attributable to his Service prior to his
Separation from Service. Furthermore, if a Participant who has not
separated from Service makes a valid waiver election, except for the
timing requirement of clause (a), the Advisory Committee will accept that
election as valid, but only until the first day of the Plan Year in which
the Participant attains age 35. A waiver election described in this
paragraph is not valid unless made after the Participant has received the
written explanation described in this Section 6.06.
6.07 DISTRIBUTIONS UNDER DOMESTIC RELATIONS ORDERS. Nothing
contained in this Plan prevents the Trustee, in accordance with the
direction of the Advisory Committee, from complying with the provisions of
a qualified domestic relations order (as defined in Code Section 414(p)).
This Plan specifically permits distribution to an alternate payee under a
qualified domestic relations order at any time, irrespective of whether
the Participant has attained his earliest retirement age (as defined under
Code Section 414(p)) under the Plan. A distribution to an alternate payee
prior to the Participant's attainment of earliest retirement age is
available only if: (1) the order specifies distribution at that time or
permits an agreement between the Plan and the alternate payee to authorize
an earlier distribution; and (2) if the present value of the alternate
payee's benefits under the Plan exceeds $3,500, and the order requires,
the alternate payee consents to any distribution occurring prior to the
Participant's attainment of earliest retirement age. The Employer, in an
addendum to its Adoption Agreement numbered 6.07, may elect to limit
distribution to an alternate payee only when the Participant has attained
his earliest retirement age under the Plan. Nothing in this Section 6.07
gives a Participant a right to receive distribution at a time otherwise
not permitted under the Plan nor does it permit the alternate payee to
receive a form of payment not otherwise permitted under the Plan.
The Advisory Committee must establish reasonable procedures to
determine the qualified status of a domestic relations order. Upon
receiving a domestic relations order, the Advisory Committee promptly will
notify the Participant and any alternate payee named in the order, in
writing, of the receipt of the order and the Plan's procedures for
determining the qualified status of the order. Within a reasonable period
of time after receiving the domestic relations order, the Advisory
Committee must determine the qualified status of the order and must notify
the Participant and each alternate payee, in writing, of its
determination. The Advisory Committee must provide notice under this
paragraph by mailing to the individual's address specified in the domestic
relations order, or in a manner consistent with Department of Labor
regulations.
If any portion of the Participant's Nonforfeitable Accrued Benefit is
payable during the period the Advisory Committee is making its
determination of the qualified status of the domestic relations order, the
Advisory Committee must make a separate accounting of the amounts payable.
If the Advisory Committee determines the order is a qualified domestic
relations order within 18 months of the date amounts first are payable
following receipt of the order, the Advisory Committee will direct the
Trustee to distribute the payable amounts in accordance with the order.
If the Advisory Committee does not make its determination of the qualified
status of the order within the 18-month determination period, the Advisory
Committee will direct the Trustee to distribute the payable amounts in the
manner the Plan would distribute if the order did not exist and will apply
the order prospectively if the Advisory Committee later determines the
order is a qualified domestic relations order.
To the extent it is not inconsistent with the provisions of the
qualified domestic relations order, the Advisory Committee may direct the
Trustee to invest any partitioned amount in a segregated subaccount or
separate account and to invest the account in Federally insured, interest-
bearing savings account(s) or time deposit(s) (or a combination of both),
or in other fixed income investments. A segregated subaccount remains a
part of the Trust, but it alone shares in any income it earns, and it
alone bears any expense or loss it incurs. The Trustee will make any
payments or distributions required under this Section 6.07 by separate
benefit checks or other separate distribution to the alternate payee(s).
* * * * * * * * * * * * * * * *
ARTICLE VII
EMPLOYER ADMINISTRATIVE PROVISIONS
7.01 INFORMATION TO COMMITTEE. The Employer must supply current
information to the Advisory Committee as to the name, date of birth, date
of employment, annual compensation, leaves of absence, Years of Service
and date of termination of employment of each Employee who is, or who will
be eligible to become, a Participant under the Plan, together with any
other information which the Advisory Committee considers necessary. The
Employer's records as to the current information the Employer furnishes to
the Advisory Committee are conclusive as to all persons.
7.02 NO LIABILITY. The Employer assumes no obligation or
responsibility to any of its Employees, Participants or Beneficiaries for
any act of, or failure to act, on the part of its Advisory Committee
(unless the Employer is the Advisory Committee), the Trustee, the
Custodian, if any, or the Plan Administrator (unless the Employer is the
Plan Administrator).
7.03 INDEMNITY OF CERTAIN FIDUCIARIES. The Employer indemnifies and
saves harmless the Plan Administrator and the members of the Advisory
Committee, and each of them, from and against any and all loss resulting
from liability to which the Plan Administrator and the Advisory Committee,
or the members of the Advisory Committee, may be subjected by reason of
any act or conduct (except willful misconduct or gross negligence) in
their official capacities in the administration of this Trust or Plan or
both, including all expenses reasonably incurred in their defense, in case
the Employer fails to provide such defense. The indemnification
provisions of this Section 7.03 do not relieve the Plan Administrator or
any Advisory Committee member from any liability he may have under ERISA
for breach of a fiduciary duty. Furthermore, the Plan Administrator and
the Advisory Committee members and the Employer may execute a letter
agreement further delineating the indemnification agreement of this
Section 7.03, provided the letter agreement must be consistent with and
does not violate ERISA. The indemnification provisions of this Section
7.03 extend to the Trustee (or to a Custodian, if any) solely to the
extent provided by a letter agreement executed by the Trustee (or
Custodian) and the Employer.
7.04 EMPLOYER DIRECTION OF INVESTMENT. The Employer has the right to
direct the Trustee with resect to the investment and re-investment of
assets comprising the Trust Fund only if the Trustee consents in writing
to permit such direction. If the Trustee consents to Employer direction of
investment, the Trustee and the Employer must execute a letter agreement
as a part of this Plan containing such conditions, limitations and other
provisions they deem appropriate before the Trustee will follow any
Employer direction as respects the investment or re-investment of any part
of the Trust Fund.
7.05 AMENDMENT TO VESTING SCHEDULE. Though the Employer reserves the
right to amend the vesting schedule at any time the Advisory Committee
will not apply the amended vesting schedule to reduce the Nonforfeitable
percentage of any Participant's Accrued Benefit derived from Employer
contributions (determined as of the later of the date the Employer adopts
the amendment, or the date the amendment becomes effective) to a
percentage less than the Nonforfeitable percentage computed under the Plan
without regard to the amendment. An amended vesting schedule will apply
to a Participant only if the Participant receives credit for at least one
Hour of Service after the new schedule becomes effective.
If the Employer makes a permissible amendment to the vesting
schedule, each Participant having at least 3 Years of Service with the
Employer may elect to have the percentage of his Nonforfeitable Accrued
Benefit computed under the Plan without regard to the amendment. For Plan
Years beginning prior to January 1,1989, the election described in the
preceding sentence applies only to Participants having at least 5 Years of
Service with the Employer. The Participant must file his election with
the Advisory Committee within 60 days of the latest of (a) the Employer's
adoption of the amendment; (b) the effective date of the amendment; or (c)
his receipt of a copy of the amendment. The Advisory Committee, as soon as
practicable, must forward a true copy of any amendment to the vesting
schedule to each affected. Participant, together with an explanation of
the effect of the amendment, the appropriate form upon which the
Participant may make an election to remain under the vesting schedule
provided under the Plan prior to the amendment and notice of the time
within which the Participant must make an election to remain under the
prior vesting schedule. The election described in this Section 7.05 does
not apply to a Participant if the amended vesting schedule provides for
vesting at least as rapid at all times as the vesting schedule in effect
prior to the amendment. For purposes of this Section 7.05, an amendment
to the vesting schedule includes any Plan amendment which directly or
indirectly affects the computation of the Nonforfeitable percentage of an
Employee's rights to his Employer derived Accrued Benefit. Furthermore,
the Advisory Committee must treat any shift in the vesting schedule, due
to a change in the Plan's top heavy status, as an amendment to the vesting
schedule for purposes of this Section 7.05.
* * * * * * * * * * * * * * *
ARTICLE VIII
PARTICIPANT ADMINISTRATIVE PROVISIONS
8.01 BENEFICIARY DESIGNATION. Any Participant may from time to time
designate, in writing, any person or persons, contingently or
successively, to whom the Trustee will pay his Nonforfeitable Accrued
Benefit (including any life insurance proceeds payable to the
Participant's Account) in the event of his death and the Participant may
designate the form and method of payment. The Advisory Committee will
prescribe the form for the written designation of Beneficiary and, upon
the Participant's filing the form with the Advisory Committee, the form
effectively revokes all designations filed prior to that date by the same
Participant.
(A) Coordination with survivor requirements. If the joint and survivor
requirements of Article VI apply to the Participant, this Section 8.01
does not impose any special spousal consent requirements on the
Participant's Beneficiary designation. However, in the absence of spousal
consent (as required by Article VI) to the Participant's Beneficiary
designation: (1) any waiver of the joint and survivor annuity or of the
preretirement survivor annuity is not valid; and (2) if the Participant
dies prior to his annuity starting date, the Participant's Beneficiary
designation will apply only to the portion of the death benefit which is
not payable as a preretirement survivor annuity. Regarding clause (2), if
the Participant's surviving spouse is a primary Beneficiary under the
Participant's Beneficiary designation, the Trustee will satisfy the
spouse's interest in the Participant's death benefit first from the
portion which is payable as a preretirement survivor annuity.
(B) Profit sharing plan exception. If the Plan is a profit sharing plan,
the Beneficiary designation of a married Exempt Participant is not valid
unless the Participant's spouse consents (in a manner described in Section
6.05) to the Beneficiary designation. An "Exempt Participant" is a
Participant who is not subject to the joint and survivor requirements of
Article VI. The spousal consent requirement in this paragraph does not
apply if the Exempt Participant and his spouse are not married throughout
the one year period ending on the date of the Participant's death, or if
the Participant's spouse is the Participant's sole primary Beneficiary.
8.02 NO BENEFICIARY DESIGNATION/DEATH OF BENEFICIARY. If a
Participant fails to name a Beneficiary in accordance with Section 8.01,
or if the Beneficiary named by a Participant predeceases him, then the
Trustee will pay the Participant's Nonforfeitable Accrued Benefit in
accordance with Section 6.02 in the following order of priority, unless
the Employer specifies a different order of priority in an addendum to its
Adoption Agreement, to:
(a) The Participant's surviving spouse;
(b) The Participant's surviving children, including adopted
children, in equal shares;
(c) The Participant's surviving parents, in equal shares; or
(d) The Participant's estate.
If the Beneficiary does not predecease the Participant, but dies
prior to distribution of the Participant's entire Nonforfeitable Accrued
Benefit, the Trustee will pay the remaining Nonforfeitable Accrued Benefit
to the Beneficiary's estate unless the Participant's Beneficiary
designation provides otherwise or unless the Employer provides otherwise
in its Adoption Agreement. If the Plan is a profit sharing plan and the
Plan includes Exempt Participants, the Employer may not specify a
different order of priority in the Adoption Agreement unless the
Participant's surviving spouse will be first in the different order of
priority. The Advisory Committee will direct the Trustee as to the method
and to whom the Trustee will make payment under this Section 8.02.
8.03 PERSONAL DATA TO COMMITTEE. Each Participant and each
Beneficiary of a deceased Participant must furnish to the Advisory
Committee such evidence, data or information as the Advisory Committee
considers necessary or desirable for the purpose of administering the
Plan. The provisions of this Plan are effective for the benefit of each
Participant upon the condition precedent that each Participant will
furnish promptly full, true and complete evidence, data and information
when requested by the Advisory Committee, provided the Advisory Committee
advises each Participant of the effect of his failure to comply with its
request.
8.04 ADDRESS FOR NOTIFICATION. Each Participant and each Beneficiary
of a deceased Participant must file with the Advisory Committee from time
to time, in writing, his post office address and any change of post office
address. Any communication, statement or notice addressed to a
Participant, or Beneficiary, at his last post office address filed with
the Advisory Committee, or as shown on the records of the Employer, binds
the Participant, or Beneficiary, for all purposes of this Plan.
8.05 ASSIGNMENT OR ALIENATION. Subject to Code Section 414(p)
relating to qualified domestic relations orders, neither a Participant nor
a Beneficiary may anticipate, assign or alienate (either at law or in
equity) any benefit provided under the Plan, and the Trustee will not
recognize any such anticipation, assignment or alienation. Furthermore, a
benefit under the Plan is not subject to attachment, garnishment, levy,
execution or other legal or equitable process.
8.06 NOTICE OF CHANGE IN TERMS. The Plan Administrator, within the
time prescribed by ERISA and the applicable regulations, must furnish all
Participants and Beneficiaries a summary description of any material
amendment to the Plan or notice of discontinuance of the Plan and all
other information required by ERISA to be furnished without charge.
8.07 LITIGATION AGAINST THE TRUST. A court of competent jurisdiction
may authorize any appropriate equitable relief to redress violations of
ERISA or to enforce any provisions of ERISA or the terms of the Plan. A
fiduciary may receive reimbursement of expenses properly and actually
incurred in the performance of his duties with the Plan.
8.08 INFORMATION AVAILABLE. Any Participant in the Plan or any
Beneficiary may examine copies of the Plan description, latest annual
report, any bargaining agreement, this Plan and Trust, contract or any
other instrument under which the Plan was established or is operated. The
Plan Administrator will maintain all of the items listed in this Section
8.08 in his office, or in such other place or places as he may designate
from time to time in order to comply with the regulations issued under
ERISA, for examination during reasonable business hours. Upon the written
request of a Participant or Beneficiary the Plan Administrator must
furnish him with a copy of any item listed in this Section 8.08. The Plan
Administrator may make a reasonable charge to the requesting person for
the copy so furnished.
8.09 APPEAL PROCEDURE FOR DENIAL OF BENEFITS. A Participant or a
Beneficiary ("Claimant") may file with the Advisory Committee a written
claim for benefits, if the Participant or Beneficiary determines the
distribution procedures of the Plan have not provided him his proper
Nonforfeitable Accrued Benefit. The Advisory Committee must render a
decision on the claim within 60 days of the Claimant's written claim for
benefits. The Plan Administrator must provide adequate notice in writing
to the Claimant whose claim for benefits under the Plan the Advisory
Committee has denied. The Plan Administrator's notice to the Claimant
must set forth:
(a) The specific reason for the denial;
(b) Specific references to pertinent Plan provisions on which the
Advisory Committee based its denial;
(c) A description of any additional material and information needed
for the Claimant to perfect his claim and an explanation of why the
material or information is needed; and
(d) That any appeal the Claimant wishes to make of the adverse
determination must be in writing to the Advisory Committee within 75
days after receipt of the Plan Administrator's notice of denial of
benefits. The Plan Administrator's notice must further advise the
Claimant that his failure to appeal the action to the Advisory
Committee in writing within the 75-day period will render the
Advisory Committee's determination final, binding and conclusive.
If the Claimant should appeal to the Advisory Committee, he, or his
duly authorized representative, may submit, in writing, whatever issues
and comments he, or his duly authorized representative, feels are
pertinent. The Claimant, or his duly authorized representative, may
review pertinent Plan documents. The Advisory Committee will re-examine
all facts related to the appeal and make a final determination as to
whether the denial of benefits is justified under the circumstances. The
Advisory Committee must advise the Claimant of its decision within 60 days
of the Claimant's written request for review, unless special circumstances
(such as a hearing) would make the rendering of a decision within the 60-
day limit unfeasible, but in no event may the Advisory Committee render a
decision respecting a denial for a claim for benefits later than 120 days
after its receipt of a request for review.
The Plan Administrator's notice of denial of benefits must identify
the name of each member of the Advisory Committee and the name and address
of the Advisory Committee member to whom the Claimant may forward his
appeal.
8.10 PARTICIPANT DIRECTION OF INVESTMENT. A Participant has the
right to direct the Trustee with respect to the investment or re-
investment of the assets comprising the Participant's individual Account
only if the Trustee consents in writing to permit such direction. If the
Trustee consents to Participant direction of investment, the Trustee will
accept direction from each Participant on a written election form (or
other written agreement), as a part of this Plan containing such
conditions, limitations and other provisions the parties deem appropriate.
The Trustee or, with the Trustee's consent, the Advisory Committee, may
establish written procedures, incorporated specifically as part of this
Plan, relating to Participant direction of investment under this Section
8.10. The Trustee will maintain a segregated investment Account to the
extent a Participant's Account is subject to Participant self-direction.
The Trustee is not liable for any loss, nor is the Trustee liable for any
breach, resulting from a Participant's direction of the investment of any
part of his directed Account.
The Advisory Committee, to the extent provided in a written loan
policy adopted under Section 9.04, will treat a loan made to a Participant
as a Participant direction of investment under this Section 8.10. To the
extent of the loan outstanding at any time, the borrowing Participant's
Account alone shares in any interest paid on the loan, and it alone bears
any expense or loss it incurs in connection with the loan. The Trustee
may retain any principal or interest paid on the borrowing Participant's
loan in an interest bearing segregated Account on behalf of the borrowing
Participant until the Trustee (or the Named Fiduciary, in the case of a
nondiscretionary Trustee) deems it appropriate to add the amount paid to
the Participant's separate Account under the Plan.
If the Trustee consents to Participant direction of investment of his
Account, the Plan treats any post-December 31, 1981, investment by a
Participant's directed Account in collectibles (as defined by Code Section
408(m)) as a deemed distribution to the Participant for Federal income tax
purposes.
* * * * * * * * * * * * * * *
ARTICLE IX
ADVISORY COMMITTEE DUTIES WITH RESPECT TO PARTICIPANTS' ACCOUNTS
9.01 MEMBERS' COMPENSATION, EXPENSES. The Employer must appoint an
Advisory Committee to administer the Plan, the members of which may or may
not be Participants in the Plan, or which may be the Plan Administrator
acting alone. In the absence of an Advisory Committee appointment, the
Plan Administrator assumes the powers, duties and responsibilities of the
Advisory Committee. The members of the Advisory Committee will serve
without compensation for services as such, but the Employer will pay all
expenses of the Advisory Committee, except to the extent the Trust
properly pays for such expenses, pursuant to Article X.
9.02 TERM. Each member of the Advisory Committee serves until the
appointment of his successor.
9.03 POWERS. In case of a vacancy in the membership of the Advisory
Committee, the remaining members of the Advisory Committee may exercise
any and all of the powers, authority, duties and discretion conferred upon
the Advisory Committee pending the filling of the vacancy.
9.04 GENERAL. The Advisory Committee has the following powers and
duties:
(a) To select a Secretary, who need not be a member of the Advisory
Committee;
(b) To determine the rights of eligibility of an Employee to
participate in the Plan the value of a Participant's Accrued Benefit
and the Nonforfeitable percentage of each Participant's Accrued
Benefit;
(c) To adopt rules of procedure and regulations necessary for the
proper and efficient administration of the Plan provided the rules
are not inconsistent with the terms of this Agreement;
(d) To construe and enforce the terms of the Plan and the rules and
regulations it adopts, including interpretation of the Plan documents
and documents related to the Plan's operation;
(e) To direct the Trustee as respects the crediting and distribution
of the Trust;
(f) To review and render decisions respecting a claim for (or denial
of a claim for) a benefit under the Plan;
(g) To furnish the Employer with information which the Employer may
require for tax or other purposes;
(h) To engage the service of agents whom it may deem advisable to
assist it with the performance of its duties;
(i) To engage the services of an Investment Manager or Managers (as
defined in ERISA Section 3(38)), each of whom will have full power
and authority to manage, acquire or dispose (or direct the Trustee
with respect to acquisition or disposition) of any Plan asset under
its control;
(j) To establish, in its sole discretion, a nondiscriminatory policy
(see Section 9.04(A)) which the Trustee must observe in making loans,
if any, to Participants and Beneficiaries; and
(k) To establish and maintain a funding standard account and to make
credits and charges to the account to the extent required by and in
accordance with the provisions of the Code.
The Advisory Committee must exercise all of its powers duties and
discretion under the Plan in a uniform and nondiscriminatory manner.
(A) Loan Policy. If the Advisory Committee adopts a loan policy,
pursuant to paragraph (j),the loan policy must be a written document and
must include: (1) the identity of the person or positions authorized to
administer the participant loan program; (2) a procedure for applying for
the loan; (3) the criteria for approving or denying a loan; (4) the
limitations, if any, on the types and amounts of loans available; (5) the
procedure for determining a reasonable rate of interest; (6) the types of
collateral which may secure the loan; and (7) the events constituting
default and the steps the Plan will take to preserve plan assets in the
event of default. This Section 9.04 specifically incorporates a written
loan policy as part of the Employer's Plan.
9.05 FUNDING POLICY. The Advisory Committee will review, not less
often than annually, all pertinent Employee information and Plan data in
order to establish the funding policy of the Plan and to determine the
appropriate methods of carrying out the Plan's objectives. The Advisory
Committee must communicate periodically, as it deems appropriate, to the
Trustee and to any Plan Investment Manager the Plan's short-term and long-
term financial needs so investment policy can be coordinated with Plan
financial requirements.
9.06 MANNER OF ACTION. The decision of a majority of the members
appointed and qualified controls.
9.07 AUTHORIZED REPRESENTATIVE. The Advisory Committee may authorize
any one of its members, or its Secretary, to sign on its behalf any
notices, directions, applications, certificates, consents, approvals,
waivers, letters or other documents. The Advisory Committee must evidence
this authority by an instrument signed by all members and filed with the
Trust.
9.08 INTERESTED MEMBER. No member of the Advisory Committee may
decide or determine any matter concerning the distribution, nature or
method of settlement of his own benefits under the Plan except in
exercising an election available to that member in his capacity as a
Participant, unless the Plan Administrator is acting alone in the capacity
of the Advisory Committee.
9.09 INDIVIDUAL ACCOUNT. The Advisory Committee will maintain, or
direct the Trustee to maintain, a separate Account, or multiple Accounts,
in the name of each Participant to reflect the Participant's Accrued
Benefit under the Plan. If a Participant re-enters the Plan subsequent to
his having a Forfeiture Break in Service, the Advisory Committee, or the
Trustee, must maintain a separate Account for the Participant's pre-
Forfeiture Break in Service Accrued Benefit and a separate Account for his
post-Forfeiture Break in Service Accrued Benefit, unless the Participant's
entire Account Benefit under the Plan is 100% Nonforfeitable.
The Advisory Committee will make its allocations or request the
Trustee to make its allocations, to the Accounts of the Participants in
accordance with the provisions of Section 9.11. The Advisory Committee
may direct the Trustee to maintain a temporary segregated investment
Account in the name of a Participant to prevent a distortion of income,
gain or loss allocations under Section 9.11. The Advisory Committee must
maintain records of its activities.
9.10 VALUE OF PARTICIPANT'S ACCRUED BENEFIT. The value of each
Participant's Accrued Benefit consists of that proportion of the net worth
(at fair market value) of the Employer's Trust Fund which the net credit
balance in his Account (exclusive of the cash value of incidental benefit
insurance contracts) bears to the total net credit balance in the Accounts
(exclusive of the cash value of the incidental benefit insurance
contracts) of all Participants plus the cash surrender value of any
incidental benefit insurance contracts held by the Trustee on the
Participant's life.
For purposes of a distribution under the Plan, the value of a
Participant's Accrued Benefit is its value as of the valuation date
immediately preceding the date of the distribution. Any distribution
(other that a distribution from a segregated Account) made to a
Participant (or to his Beneficiary) more than 90 days after the most
recent valuation date may include interest on the amount of the
distribution as an expense of the Trust Fund. The interest, if any,
accrues from such valuation date to the date of the distribution at the
rate established in the Employer's Adoption Agreement.
9.11 ALLOCATION AND DISTRIBUTION OF NET INCOME GAIN OR LOSS. A
"valuation date" under this Plan is each Accounting Date and each interim
valuation date determined under Section 10.14. As of each valuation date
the Advisory Committee must adjust Accounts to reflect net income, gain or
loss since the last valuation date. The valuation period is the period
beginning the day after the last valuation date and ending on the current
valuation date.
(A) Trust Fund Accounts. The allocation provisions of this paragraph
apply to all Participant Accounts other than segregated investment
Accounts. The Advisory Committee first will adjust the Participant
Accounts, as those Accounts stood at the beginning of the current
valuation period by reducing the Accounts for any forfeitures arising
under Section 5.09 or under Section 9.14, for amounts charged during the
valuation period to the Accounts in accordance with Section 9.13 (relating
to distributions) and Section 11.01 (relating to insurance premiums), and
for the cash value of incidental benefit insurance contracts. The
Advisory Committee then, subject to the restoration allocation
requirements of Section 5.04 or of Section 9.14, will allocate the net
income, gain or loss pro rata to the adjusted Participant Accounts. The
allocable net income, gain or loss is the net income (or net loss),
including the increase or decrease in the fair market value of assets,
since the last valuation date.
(B) Segregated Investment Account. A segregated investment Account
receives all income it earns and bears all expense or loss it incurs. The
Advisory Committee will adopt uniform and nondiscriminatory procedures for
determining income or loss of a segregated investment Account in a manner
which reasonably reflects investment directions relating to pooled
investments and investment directions occurring during a valuation period.
As of the valuation date, the Advisory Committee must reduce a segregated
Account for any forfeiture arising under Section 5.09 after the Advisory
Committee has made all other allocations, changes or adjustments to the
Account for the Plan Year.
(C) Additional rules. An Excess Amount or suspense account described in
Part 2 of Article III does not share in the allocation of net income, gain
or loss described in this Section 9.11. If the Employer maintains its
Plan under a Code Section 401(k) Adoption Agreement, the Employer may
specify in its Adoption Agreement alternate valuation provisions
authorized by that Adoption Agreement. This Section 9.11 applies solely
to the allocation of net income, gain or loss of the Trust. The Advisory
Committee will allocate the Employer contributions and Participant
forfeitures, if any, in accordance with Article III.
9.12 INDIVIDUAL STATEMENT. As soon as practicable after the
Accounting Date of each Plan Year, but within the time prescribed by ERISA
and the regulations under ERISA, the Plan Administrator will deliver to
each Participant (and to each Beneficiary) a statement reflecting the
condition of his Accrued Benefit in the Trust as of that date and such
other information ERISA requires be furnished the Participant or
Beneficiary. No Participant, except a member of the Advisory Committee,
has the right to inspect the records reflecting the Account of any other
Participant.
9.13 ACCOUNT CHARGED. The Advisory Committee will charge a
Participant's Account for all distributions made from that Account to the
Participant, to his Beneficiary or to an alternate payee. The Advisory
Committee also will charge a Participant's Account for any administrative
expenses by the Plan directly related to that Account.
9.14 UNCLAIMED ACCOUNT PROCEDURE. The Plan does not require either
the Trustee or the Advisory Committee to search for, or to ascertain the
whereabouts of any Participant or Beneficiary. At the time the
Participant's or Beneficiary's benefit becomes distributable under Article
VI, the Advisory Committee, by certified or registered mail addressed to
his last known address of record with the Advisory Committee or the
Employer, must notify any Participant, or Beneficiary, that he is entitled
to a distribution under this Plan. The notice must quote the provisions
of this Section 9.14 and otherwise must comply with the notice
requirements of Article VI. If the Participant, or Beneficiary, fails to
claim his distributive share or make his whereabouts known in writing to
the Advisory Committee within 6 months from the date of mailing of the
notice, the Advisory Committee will treat the Participant's or
Beneficiary's unclaimed payable Accrued Benefit as forfeited and will
reallocate the unclaimed payable Accrued Benefit in accordance with
Section 3.05. A forfeiture under this paragraph will occur at the end of
the notice period or, if later, the earliest date applicable Treasury
regulations would permit the forfeiture. Pending forfeiture, the Advisory
Committee, following the expiration of the notice period, may direct the
Trustee to segregate the Nonforfeitable Accrued Benefit in a segregated
Account and to invest that segregated Account in Federally insured
interest bearing savings accounts or time deposits (or in a combination of
both), or in other fixed income investments.
If a Participant or Beneficiary who has incurred a forfeiture of his
Accrued Benefit under the provisions of the first paragraph of this
Section 9.14 makes a claim, at any time, for his forfeited Accrued
Benefit, the Advisory Committee must restore the Participant's or
Beneficiary's forfeited Accrued Benefit to the same dollar amount as the
dollar amount of the Accrued Benefit forfeited, unadjusted for any gains
or losses occurring subsequent to the date of the forfeiture. The
Advisory Committee will make the restoration during the Plan Year in which
the Participant or Beneficiary makes the claim, first from the amount, if
any, of Participant forfeitures the Advisory Committee otherwise would
allocate for the Plan Year, then from additional amount, if any, of the
Trust Fund net income or gain for the Plan Year and then from the amount,
or additional amount, the Employer contributes to enable the Advisory
Committee to make the required restoration. The Advisory Committee must
direct the Trustee to distribute the Participant's or Beneficiary's
restored Accrued Benefit to him not later than 60 days after the close of
the Plan Year in which the Advisory Committee restores the forfeited
Accrued Benefit. The forfeiture provisions of this Section 9.14 apply
solely to the Participant's or to the Beneficiary's Accrued Benefit
derived from Employer contributions.
* * * * * * * * * * * * * * *
ARTICLE X
CUSTODIAN/TRUSTEE, POWERS AND DUTIES
10.01 ACCEPTANCE. The Trustee accepts the Trust created under
the Plan and agrees to perform the obligations imposed. The Trustee must
provide bond for the faithful performance of its duties under the Trust to
the extent required by ERISA.
10.02 RECEIPT OF CONTRIBUTIONS. The Trustee is accountable to
the Employer for the funds contributed to it by the Employer, but does not
have any duty to see that the contributions received comply with the
provisions of the Plan. The Trustee is not obliged to collect any
contributions from the Employer, nor is obliged to see that funds
deposited with it are deposited according to the provisions of the Plan.
10.03 INVESTMENT POWERS.
[A] Discretionary Trustee Designation. If the Employer, in Adoption
Agreement Section 1.02, designates the Trustee to administer the Trust as
a discretionary Trustee, then the Trustee has full discretion and
authority with regard to the investment of the Trust Fund, except with
respect to a Plan asset under the control or direction of a properly
appointed Investment Manager or with respect to a Plan asset properly
subject to Employer, Participant or Advisory Committee direction of
investment. The Trustee must coordinate its investment policy with Plan
financial needs as communicated to it by the Advisory Committee. The
Trustee is authorized and empowered, but not by way of limitation, with
the following powers, rights and duties:
(a) To invest any part or all of the Trust Fund in any common
or preferred stocks, open-end or closed-end mutual funds put and call
options traded on a national exchange, United States retirement plan
bonds, corporate bonds, debentures, convertible debentures,
commercial paper, U.S. Treasury bills, U.S. Treasury notes and other
direct or indirect obligations of the United States Government or its
agencies, improved or unimproved real estate situated in the United
States, limited Partnerships, insurance contracts of any type,
mortgages, notes or other property of any kind, real or personal, to
buy or sell options on common stock on a nationally recognized
exchange with or without holding the underlying common stock to buy
and sell commodities, commodity options and contracts for the future
delivery of commodities, and to make any other investments the
Trustee deems appropriate, as a prudent man would do under like
circumstances with due regard for the purposes of this Plan. Any
investment made or retained by the Trustee in good faith is proper
but must be of a kind constituting a diversification considered by
law suitable for trust investments.
(b) To retain in cash so much of the Trust Fund as it may deem
advisable to satisfy liquidity needs of the Plan and to deposit any
cash held in the Trust Fund in a bank account at reasonable interest.
(c) To invest, if the Trustee is a bank or similar financial
institution supervised by the United States or by a State, in any
type of deposit of the Trustee (or of a bank related to the Trustee
within the meaning of Code Section 414(b)) at a reasonable rate of
interest or in a common trust fund, as described in Code Section 584,
or in a collective investment fund, the provisions of which govern
the investment of such assets and which the Plan incorporates by this
reference, which the Trustee (or its affiliate, as defined in Code
Section 1504) maintains exclusively for the collective investment of
money contributed by the bank (or the affiliate) in its capacity as
trustee and which conforms to the rules of the Comptroller of the
Currency.
(d) To manage, sell, contract to sell, grant options to
purchase, convey, exchange, transfer, abandon, improve, repair,
insure, lease for any term even though commencing in the future or
extending beyond the term of the Trust, and otherwise deal with all
property, real or personal, in such manner, for such considerations
and on such terms and conditions as the Trustee decides.
(e) To credit and distribute the Trust as directed by the
Advisory Committee. The Trustee is not obliged to inquire as to
whether any payee or distributee is entitled to any payment or
whether the distribution is proper or within the terms of the Plan,
or as to the manner of making any payment or distribution. The
Trustee is accountable only to the Advisory Committee for any payment
or distribution made by it in good faith on the order or direction of
the Advisory Committee.
(f) To borrow money, to assume indebtedness, extend mortgages
and encumber by mortgage or pledge.
(g) To compromise, contest, arbitrate or abandon claims and
demands, in its discretion.
(h) To have with respect to the Trust all of the rights of an
individual owner, including the power to give proxies, to participate
in any voting trusts, mergers, consolidations or liquidations, and to
exercise or sell stock subscriptions or conversion rights.
(i) To lease for oil, gas and other mineral purposes and to
create mineral severances by grant or reservation; to pool or unitize
interests in oil, gas and other minerals; and to enter into operating
agreements and to execute division and transfer orders.
(j) To hold any securities or other property in the name of the
Trustee or its nominee, with depositories or agent depositories or in
another form as it may deem best, with or without disclosing the
trust relationship.
(k) To perform any and all other acts in its judgment necessary
or appropriate for the proper and advantageous management, investment
and distribution of the Trust.
(l) To retain any funds or property subject to any dispute
without liability for the payment of interest, and to decline to make
payment or delivery of the funds or property until final adjudication
is made by a court of competent jurisdiction.
(m) To file all tax returns required of the Trustee.
(n) To furnish to the Employer, the Plan Administrator and the
Advisory Committee an annual statement of account showing the
condition of the Trust Fund and all investments, receipts,
disbursements and other transactions effected by the Trustee during
the Plan Year covered by the statement and also stating the assets of
the Trust held at the end of the Plan Year, which accounts are
conclusive on all persons, including the Employer, the Plan
Administrator and the Advisory Committee, except as to any act or
transaction concerning which the Employer, the Plan Administrator or
the Advisory Committee files with the Trustee written exceptions or
objections within 90 days after the receipt of the accounts or for
which ERISA authorizes a longer period within which to object.
(o) To begin, maintain or defend any litigation necessary in
connection with the administration of the Plan, except that the
Trustee is not obliged or required to do so unless indemnified to its
satisfaction.
[B] Nondiscretionary Trustee Designation/Appointment of Custodian. If
the Employer, in its Adoption Agreement Section 1.02, designates the
Trustee to administer the Trust as a nondiscretionary Trustee, then the
Trustee will not have any discretion or authority with regard to the
investment of the Trust Fund, but must act solely as a directed trustee of
the funds contributed to it. A nondiscretionary Trustee, as directed
trustee of the funds held by it under the Employer's Plan, is authorized
and empowered, by way of limitation, with the following powers, rights and
duties, each of which the nondiscretionary Trustee exercises solely as
directed trustee in accordance with the written direction of the Named
Fiduciary (except to the extent a Plan asset is subject to the control and
management of a properly appointed Investment Manager or subject to
Advisory Committee or Participant direction of investment):
(a) To invest any part or all of the Trust Fund in any common or
preferred stocks, open-end or closed-end mutual funds, put and call
options traded on a national exchange, United States retirement plan
bonds, corporate bonds, debentures, convertible debentures,
commercial paper, U.S. Treasury bills, U.S. Treasury notes and other
direct or indirect obligations of the United States Government or its
agencies, improved or unimproved real estate situated in the United
States, limited partnerships, insurance contracts of any type,
mortgages, notes or other property of any kind, real or personal, to
buy or sell options on common stock on a nationally recognized
options exchange with or without holding the underlying common stock,
to buy and sell commodities, commodity options and contracts for the
future delivery of commodities, and to make any other investments the
Named Fiduciary deems appropriate.
(b) To retain in cash so much of the Trust Fund as the Named
Fiduciary may direct in writing to satisfy liquidity needs of the
Plan and to deposit any cash held in the Trust Fund in a bank account
at reasonable interest, including, specific authority to invest in
any type of deposit of the Trustee (or of a bank related to the
Trustee within the meaning of Code Section 414(b)) at a reasonable
rate of interest.
(c) To sell, contract to sell, grant options to purchase, convey,
exchange, transfer, abandon, improve, repair, insure, lease for any
term even though commencing in the future or extending beyond the
term of the Trust, and otherwise deal with all property, real or
personal in such manner, for such considerations and on such terms
and conditions as the Named Fiduciary directs in writing.
(d) To credit and distribute the Trust as directed by the Advisory
Committee. The Trustee is not obliged to inquire as to whether any
payee or distributee is entitled to any payment or whether the
distribution is proper or within the terms of the Plan, or as to the
manner of making any payment or distribution. The Trustee is
accountable only to the Advisory Committee for any payment or
distribution made by it in good faith on the order or direction of
the Advisory Committee.
(e) To borrow money, to assume indebtedness, extend mortgages and
encumber by mortgage or pledge.
(f) To have with respect to the Trust all of the rights of an
individual owner, including the power to give proxies, to participate
in any voting trusts, mergers, consolidations or liquidations, and to
exercise or sell stock subscriptions or conversion rights, provided
the exercise of any such powers is in accordance with and at the
written direction of the Named Fiduciary.
(g) To lease for oil, gas and other mineral purposes and to create
mineral severances by grant or reservation; to pool or unitize
interests in oil, gas and other minerals; and to enter into operating
agreements and to execute division and transfer orders, provided the
exercise of any such powers is in accordance with and at the written
direction of the Named Fiduciary.
(h) To hold any securities or other property in the name of the
nondiscretionary Trustee or its nominee, with depositories or agent
depositories or in another form as the Named Fiduciary may deem best,
with or without disclosing the custodial relationship.
(i) To retain any funds or property subject to any dispute without
liability for the payment of interest, and to decline to make payment
or delivery of the funds or property until a court of competent
jurisdiction makes final adjudication.
(j) To file all tax returns required of the Trustee.
(k) To furnish to the Named Fiduciary, the Employer, the Plan
Administrator and the Advisory Committee an annual statement of
account showing the condition of the Trust Fund and all investments,
receipts, disbursements and other transactions effected by the
nondiscretionary Trustee during the Plan Year covered by the
statement and also stating the assets of the Trust held at the end of
the Plan Year, which accounts are conclusive on all persons,
including the Named Fiduciary, the Employer, the Plan Administrator
and the Advisory Committee, except as to any act or transaction
concerning which the Named Fiduciary, the Employer, the Plan
Administrator or the Advisory Committee files with the
nondiscretionary Trustee written exceptions or objections within 90
days after the receipt of the accounts or for which ERISA authorizes
a longer period within which to object.
(l) To begin, maintain or defend any litigation necessary in
connection with the administration of the Plan, except that the
Trustee is not obliged or required to do so unless indemnified to its
satisfaction.
Appointment of Custodian. The Employer may appoint a Custodian under
the Plan, the acceptance by the Custodian indicated on the execution page
of the Employer's Adoption Agreement. If the Employer appoints a
Custodian, the Employer's Plan must have a discretionary Trustee, as
described in Section 10.03[A]. A Custodian has the same powers, rights
and duties as a nondiscretionary Trustee, as described in this Section
10.03[B]. The Custodian accepts the terms of the Plan and Trust by
executing the Employer's Adoption Agreement. Any reference in the Plan to
a Trustee also is a reference to a Custodian where the context of the Plan
dictates. A limitation of the Trustee's liability by Plan provision also
acts as a limitation of the Custodian's liability. Any action taken by
the Custodian at the discretionary Trustee's direction satisfies any
provision in the Plan referring to the Trustee's taking that action.
Modification of Powers/Limited Responsibility. The Employer and the
Custodian or nondiscretionary Trustee, by letter agreement, may limit the
powers of the Custodian or nondiscretionary Trustee to any combination of
powers listed within this Section 10.03[B]. If there is a Custodian or a
nondiscretionary Trustee under the Employer's Plan, then the Employer, in
adopting this Plan acknowledges the Custodian or nondiscretionary Trustee
has no discretion with respect to the investment or re-investment of the
Trust Fund and that the Custodian or nondiscretionary Trustee is acting
solely as custodian or as directed trustee with respect to the assets
comprising the Trust Fund.
[C] Limitation of Powers of Certain Custodians. If a Custodian is a bank
which, under its governing state law, does not possess trust powers, then
paragraphs (a), (c), (e), (f), (g) of Section 10.03[B], Section 10.16 and
Article XI do not apply to that bank and that bank only has the power and
authority to exercise the remaining powers, rights and duties under
Section 10.03[B].
[D] Named Fiduciary/Limitation of Liability of Nondiscretionary Trustee
or Custodian. Under a nondiscretionary Trustee designation, the Named
fiduciary under the Employer's Plan has the sole responsibility for the
management and control of the Employer's Trust Fund, except with respect
to a Plan asset under the control or direction of a properly appointed
Investment Manager or with respect to a Plan asset properly subject to
Participant or Advisory Committee direction of investment. If the
Employer appoints a Custodian, the Named Fiduciary is the discretionary
Trustee. Under a nondiscretionary Trustee designation, unless the
Employer designates in writing another person or persons to serve as Named
Fiduciary, the Named Fiduciary under the Plan is the president of a
corporate Employer, the managing partner of a partnership Employer or the
sole proprietor, as appropriate. The Named Fiduciary will exercise its
management and control of the Trust Fund through its written direction to
the nondiscretionary Trustee or to the Custodian, whichever applies to the
Employer's Plan.
The nondiscretionary Trustee or Custodian has no duty to review or to
make recommendations regarding investments made at the written direction
of the Named Fiduciary. The nondiscretionary Trustee or Custodian must
retain any investment obtained at the written direction of the Named
Fiduciary until further directed in writing by the Named Fiduciary to
dispose of such investment. The nondiscretionary Trustee or Custodian is
not liable in any manner or for any reason for making, retaining or
disposing of any investment pursuant to any written direction described in
this paragraph. Furthermore, the Employer agrees to indemnify and to hold
the nondiscretionary Trustee or Custodian harmless from any damages, costs
or expenses, including reasonable counsel fees, which the nondiscretionary
Trustee or Custodian may incur as a result of any claim asserted against
the nondiscretionary Trustee, the Custodian or the Trust arising out of
the nondiscretionary Trustee's or Custodian's compliance with any written
direction described in this paragraph.
[E] Participant Loans. This Section 10.03[E] specifically authorizes the
Trustee to make loans on a nondiscriminatory basis to a Participant or to
a Beneficiary in accordance with the loan policy established by the
Advisory Committee, provided: (1) the loan policy satisfies the
requirements of Section 9.04; (2) loans are available to all Participants
and Beneficiaries on a reasonably equivalent basis and are not available
in a greater amount for Highly Compensated Employees than for other
Employee; (3) any loan is adequately secured and bears a reasonable rate
of interest; (4) the loan provides for repayment within a specified time;
(5) the default provisions of the note prohibit offset of the
Participant's Nonforfeitable Accrued Benefit prior to the time the Trustee
otherwise would distribute the Participant's Nonforfeitable Accrued
Benefit; (6) the amount of the loan does not exceed (at the time the Plan
extends the loan) the present value of the Participant's Nonforfeitable
Accrued Benefit; and (7) the loan otherwise conforms to the exemption
provided by Code Section 4975(d)(1). If the joint and survivor
requirements of Article VI apply to the Participant, the Participant may
not pledge any portion of his Accrued Benefit as security for a loan made
after August 18, 1985, unless, within the 90 day period ending on the date
the pledge becomes effective, the Participant's spouse, if any, consents
(in a manner described in Section 6.05 other than the requirement relating
to the consent of a subsequent spouse) to the security or, by separate
consent, to an increase in the amount of security. If the Employer is an
unincorporated trade or business, a Participant who is an Owner-Employee
may not receive a loan from the Plan unless he has obtained a prohibited
transaction exemption from the Department of labor. If the Employer is an
"S Corporation" a Participant who is a shareholder-employee (an employee
or an officer) who, at any time during the Employer's taxable year, owns
more than 5%, either directly or by attribution under Code Section
318(a)(1), of the Employer's outstanding stock may not receive a loan from
the Plan, unless he has obtained a prohibited transaction exemption from
the Department of Labor. If the Employer is not an unincorporated trade
or business nor an "S Corporation" this Section 10.03[E] does not impose
any restrictions on the class of Participants eligible for a loan from the
Plan.
[F] Investment in qualifying Employer securities and qualifying Employer
real property. The investment options in this Section 10.03[F] include
the ability to invest in qualifying Employer securities or qualifying
Employer real property, as defined in and as limited by ERISA. If the
Employer's Plan is a Nonstandardized profit sharing plan, it may elect in
its Adoption Agreement to permit the aggregate investments in qualifying
Employer securities and in qualifying Employer real property to exceed 10%
of the value of Plan assets.
10.04 RECORDS AND STATEMENTS. The records of the Trustee
pertaining to the Plan must be open to the inspection of the Plan
Administrator, the Advisory Committee and the Employer at all reasonable
times and maybe audited from time to time by any person or persons as the
Employer, Plan Administrator or Advisory Committee may specify in writing.
The Trustee must furnish the Plan Administrator or Advisory Committee with
whatever information relating to the Trust Fund the Plan Administrator or
Advisory Committee considers necessary.
10.05 FEES AND EXPENSES FROM FUND. A Trustee or Custodian will
receive reasonable annual compensation as may be agreed upon from time to
time between the Employer and the Trustee or Custodian. No person who is
receiving full pay from the Employer may receive compensation for services
as Trustee or as Custodian. The Trustee will pay from the Trust Fund all
fees and expenses reasonably incurred by the Plan, to the extent such fees
and expenses are for the ordinary and necessary administration and
operation of the Plan, unless the Employer pays such fees and expenses.
Any fee or expense paid, directly or indirectly, by the Employer is not an
Employer contribution to the Plan, provided the fee or expense relates to
the ordinary and necessary administration of the Fund.
10.06 PARTIES TO LITIGATION. Except as otherwise provided by
ERISA, no Participant or Beneficiary is a necessary party or is required
to receive notice of process in any court proceeding involving the Plan,
the Trust Fund or any fiduciary of the Plan. Any final judgment entered
in any proceeding will be conclusive upon the Employer, the Plan
Administrator, the Advisory Committee, the Trustee, Custodian,
Participants and Beneficiaries.
10.07 PROFESSIONAL AGENTS. The Trustee may employ and pay from
the Trust Fund reasonable compensation to agents, attorneys, accountants
and other persons to advise the Trustee as in its opinion may be
necessary. The Trustee may delegate to any agent, attorney, accountant or
other person selected by it any non-Trustee power or duty vested in it by
the Plan, and the Trustee may act or refrain from acting on the advice or
opinion of any agent, attorney, accountant or other person so selected.
10.08 DISTRIBUTION OF CASH OR PROPERTY. The Trustee may make
distribution under the Plan in cash or property, or partly in each, at its
fair market value as determined by the Trustee. For purposes of a
distribution to a Participant or to a Participant's designated Beneficiary
or surviving spouse, "property" includes a Nontransferable Annuity
Contract, provided the contract satisfies the requirements of this Plan.
10.09 DISTRIBUTION DIRECTIONS. If no one claims a payment or
distribution made from the Trust, the Trustee must promptly notify the
Advisory Committee and then dispose of the payment in accordance with the
subsequent direction of the Advisory Committee.
10.10 THIRD PARTY/MULTIPLE TRUSTEES. No person dealing with the
Trustee is obligated to see to the proper application of any money paid or
property delivered to the Trustee, or to inquire whether the Trustee has
acted pursuant to any of the terms of the Plan. Each person dealing with
the Trustee may act upon any notice, request or representation in writing
by the Trustee, or by the Trustee's duly authorized agent, and is not
liable to any person in so acting, The certificate of the Trustee that it
is acting in accordance with the Plan will be conclusive in favor of any
person relying on the certificate. If more than two persons act as
Trustee, a decision of the majority of such persons controls with respect
to any decision regarding the administration or investment of the Trust
Fund or of any portion of the Trust Fund with respect to which such
persons act as Trustee. However, the signature of only one Trustee is
necessary to effect any transaction on behalf of the Trust.
10.11 RESIGNATION. The Trustee or Custodian may resign its
position at any time by giving 30 days' written notice in advance to the
Employer and to the Advisory Committee. If the Employer fails to appoint
a successor Trustee within 60 days of its receipt of the Trustee's written
notice of resignation, the Trustee will treat the Employer as having
appointed itself as Trustee and as having filed its acceptance of
appointment with the former Trustee. The Employer, in its sole
discretion, may replace a Custodian. If the Employer does not replace a
Custodian, the discretionary Trustee will assume possession of Plan assets
held by the former Custodian.
10.12 REMOVAL. The Employer, by giving 30 days' written notice
in advance to the Trustee, may remove any Trustee or Custodian. In the
event of the resignation or removal of a Trustee, the Employer must
appoint a successor Trustee if it intends to continue the Plan. If two or
more persons hold the position of Trustee, in the event of the removal of
one such person, during any period the selection of a replacement is
pending, or during any period such person is unable to serve for any
reason, the remaining person or persons will act as the Trustee.
10.13 INTERIM DUTIES AND SUCCESSOR TRUSTEE. Each successor
Trustee succeeds to the title to the Trust vested in his predecessor by
accepting in writing his appointment as successor Trustee and by filing
the acceptance with the former Trustee and the Advisory Committee without
the signing or filing of any further statement. The resigning or removed
Trustee, upon receipt of acceptance in writing of the Trust by the
successor Trustee, must execute all documents and do all acts necessary to
vest the title of record in any successor Trustee. Each successor Trustee
has and enjoys all of the powers, both discretionary and ministerial,
conferred under this Agreement upon his predecessor. A successor Trustee
is not personally liable for any act or failure to act of any predecessor
Trustee, except as required under ERISA. With the approval of the
Employer and the Advisory Committee, a successor Trustee, with respect to
the Plan, may accept the account rendered and the property delivered to it
by a predecessor Trustee without incurring any liability or responsibility
for so doing.
10.14 VALUATION OF TRUST. The Trustee must value the Trust Fund
as of each Accounting Date to determine the fair market value of each
Participant's Accrued Benefit in the Trust. The Trustee also must value
the Trust Fund on such other valuation dates as directed in writing by the
Advisory Committee or as required by the Employer's Adoption Agreement.
10.15 LIMITATION ON LIABILITY IF INVESTMENT MANAGER, ANCILLARY
TRUSTEE OR INDEPENDENT FIDUCIARY APPOINTED. The Trustee is not liable for
the acts or omissions of any Investment Manager the Advisory Committee may
appoint, nor is the Trustee under any obligation to invest or otherwise
manage any asset of the Plan which is subject to the management of a
properly appointed Investment Manager. The Advisory Committee, the
Trustee and any properly appointed Investment Manager may execute a letter
agreement as part of this Plan delineating the duties, responsibilities
and liabilities of the Investment Manager with respect to any part of the
Trust Fund under the control of the Investment Manager.
The limitation on liability described in this Section 10.15 also
applies to the acts or omissions of any ancillary trustee or independent
fiduciary properly appointed under Section 10.17 of the Plan. However, if
a discretionary Trustee, pursuant to the delegation described in Section
10.17 of the Plan, appoints an ancillary trustee, the discretionary
Trustee is responsible for the periodic review of the ancillary trustee's
actions and must exercise its delegated authority in accordance with the
terms of the Plan and in a manner consistent with ERISA. The Employer,
the discretionary Trustee and an ancillary trustee may execute a letter
agreement as a part of this Plan delineating any indemnification agreement
between the parties.
10.16 INVESTMENT IN GROUP TRUST FUND. The Employer, by adopting
this Plan, specifically authorizes the Trustee to invest all or any
portion of the assets comprising the Trust Fund in any group trust fund
which at the time of the investment provides for the pooling of the assets
of plans qualified under Code Section 401(a). This authorization applies
solely to a group trust fund exempt from taxation under Code Section
501(a) and the trust agreement of which satisfies the requirements of
Revenue Ruling 81-100. The provisions of the group trust fund agreement,
as amended from time to time, are by this reference incorporated within
this Plan and Trust. The provisions of the group trust fund will govern
any investment of Plan assets in that fund. The Employer must specify in
an attachment to its adoption agreement the group trust fund(s) to which
this authorization applies. If the Trustee is acting as a
nondiscretionary Trustee, the investment in the group trust fund is
available only in accordance with a proper direction, by the Named
Fiduciary, in accordance with Section 10.03[B]. Pursuant to paragraph (c)
of Section 10.03[A] of the Plan, a Trustee has the authority to invest in
certain common trust funds and collective investment funds without the
need for the authorizing addendum described in this Section 10.16.
Furthermore, at the Employer's direction, the Trustee, for collective
investment purposes, may combine into one trust fund the Trust created
under this Plan with the Trust created under any other qualified
retirement plan the Employer maintains. However, the Trustee must maintain
separate records of account for the assets of each Trust in order to
reflect properly each Participant's Accrued Benefit under the plan(s) in
which he is a Participant.
10.17 APPOINTMENT OF ANCILLARY TRUSTEE OR INDEPENDENT FIDUCIARY.
The Employer, in writing, may appoint any person in any State to act as
ancillary trustee with respect to a designated portion of the Trust Fund,
subject to the consent required under Section 1.02 if the Master Plan
Sponsor is a financial institution. An ancillary trustee must acknowledge
in writing its acceptance of the terms and conditions of its appointment
as ancillary trustee and its fiduciary status under ERISA. The ancillary
trustee has the rights, powers, duties and discretion as the Employer may
delegate, subject to any limitations or directions specified in the
instrument evidencing appointment of the ancillary trustee and to the
terms of the Plan or of ERISA. The investment powers delegated to the
ancillary trustee may include any investment powers available under
Section 10.03 of the Plan including the right to invest any portion of the
assets of the Trust Fund in a common trust fund, as described in Code
Section 584, or in any collective investment fund, the provisions of which
govern the investment of such assets and which the Plan incorporates by
this reference, but only if the ancillary trustee is a bank or similar
financial institution supervised by the United States or by a State and
the ancillary trustee (or its affiliate, as defined in Code Section 1504)
maintains the common trust fund or collective investment fund exclusively
for the collective investment of money contributed by the ancillary
trustee (or its affiliate) in a trustee capacity and which conforms to the
rules of the Comptroller of the Currency. The Employer also may appoint as
an ancillary trustee, the trustee of any group trust fund designated for
investment pursuant to the provisions of Section 10.16 of the Plan.
The ancillary trustee may resign its position at any time by
providing at least 30 days' advance written notice to the Employer, unless
the Employer waives this notice requirement. The Employer, in writing,
may remove an ancillary trustee at any time. In the event of resignation
or removal, the Employer may appoint another ancillary trustee, return the
assets to the control and management of the Trustee or receive such assets
in the capacity of ancillary trustee. The Employer may delegate its
responsibilities under this Section 10.17 to a discretionary Trustee under
the Plan, but not to a nondiscretionary Trustee or to a Custodian, subject
to the acceptance by the discretionary Trustee of that delegation.
If the U.S. Department of Labor (the "Department") requires
engagement of an independent fiduciary to have control or management of
all or a portion of the Trust Fund, the Employer will appoint such
independent fiduciary, as directed by the Department. The independent
fiduciary will have the duties, responsibilities and powers prescribed by
the Department and will exercise those duties, responsibilities and powers
in accordance with the terms, restrictions and conditions established by
the Department and, to the extent not inconsistent with ERISA, the terms
of the Plan. The independent fiduciary must accept its appointment in
writing and must acknowledge its status as a fiduciary of the Plan.
* * * * * * * * * * * * * * *
ARTICLE XI
PROVISIONS RELATING TO INSURANCE AND INSURANCE COMPANY
11.01 INSURANCE BENEFIT. The Employer may elect to provide
incidental life insurance benefits for insurable Participants who consent
to life insurance benefits by signing the appropriate insurance company
application form. The Trustee will not purchase any incidental life
insurance benefit for any Participant prior to an allocation to the
Participant's Account. At an insured Participant's written direction, the
Trustee will use all or any portion of the Participant's nondeductible
voluntary contributions, if any, to pay insurance premiums covering the
Participant's life. This Section 11.01 also authorizes the purchase of
life insurance, for the benefit of the Participant, on the life of a
family member of the Participant or on any person in whom the Participant
has an insurable interest. However, if the policy is on the joint lives of
the Participant and another person, the Trustee may not maintain that
policy if that other person predeceases the Participant.
The Employer will direct the Trustee as to the insurance company and
insurance agent through which the Trustee is to purchase the insurance
contracts, the amount of the coverage and the applicable dividend plan.
Each application for a policy, and the policies themselves, must designate
the Trustee as sole owner, with the right reserved to the Trustee to
exercise any right or option contained in the policies, subject to the
terms and provisions of this Agreement. The Trustee must be the named
beneficiary for the Account of the insured Participant. Proceeds of
insurance contracts paid to the Participant's Account under this Article
XI are subject to the distribution requirements of Article V and of
Article VI. The Trustee will not retain any such proceeds for the benefit
of the Trust.
The Trustee will charge the premiums on any incidental benefit
insurance contract covering the life of a Participant against the Account
of that Participant. The Trustee will hold all incidental benefit
insurance contracts issued under the Plan as assets of the Trust created
under the Plan.
(A) Incidental insurance benefit. The aggregate of life insurance
premiums paid for the benefit of a Participant, at all times, may not
exceed the following percentages of the aggregate of the Employer's
contributions allocated to any Participant's Account: (i) 49% in the case
of the purchase of ordinary life insurance contracts; or (ii) 25% in the
case of the purchase of term life insurance or universal life insurance
contracts. If the Trustee purchases a combination of ordinary life
insurance contract(s) and term life insurance or universal life insurance
contract(s), then the sum of one-half of the premiums paid for the
ordinary life insurance contract(s) and the premiums paid for the term
life insurance or universal life insurance contract(s) may not exceed 25%
of the Employer contributions allocated to any Participant's Account.
(B) Exception for certain profit sharing plans. If the Employer's Plan
is a profit sharing plan, the incidental insurance benefits requirement
does not apply to the Plan if the Plan purchases life insurance benefits
only from Employer contributions accumulated in the Participant's Account
for at least two years (measured from the allocation date).
11.02 LIMITATION ON LIFE INSURANCE PROTECTION. The Trustee will
not continue any life insurance protection for any Participant beyond his
annuity starting date (as defined in Article VI). If the Trustee holds any
incidental benefit insurance contract(s) for the benefit of a Participant
when he terminates his employment (other than by reason of death), the
Trustee must proceed as follow:.
(a) If the entire cash value of the contract(s) is vested in
the terminating Participant, or if the contract(s) will have no cash
value at the end of the policy year in which termination of
employment occurs, the Trustee will transfer the contract(s) to the
Participant endorsed so as to vest in the transferee all right, title
and interest to the contract(s), free and clear of the Trust; subject
however, to restrictions as to surrender or payment of benefits as
the issuing insurance company may permit and as the Advisory
Committee directs;
(b) If only part of the cash value of the contract(s) is vested
in the terminating Participant, the Trustee, to the extent the
Participant's interest in the cash value of the contract(s) is not
vested, may adjust the Participant's interest in the value of his
Account attributable to Trust assets other than incidental benefit
insurance contracts and proceed as in (a), or the Trustee must effect
a loan from the issuing insurance company on the sole security of the
contract(s) for an amount equal to the difference between the cash
value of the contract(s) at the end of the policy year in which
termination of employment occurs and the amount of the cash value
that is vested in the terminating Participant, and the Trustee must
transfer the contract(s) endorsed so as to vest in the transferee all
right, title and interest to the contract(s), free and clear of the
Trust; subject however, to the restrictions as to surrender or
payment of benefits as the issuing insurance company may permit and
the Advisory Committee directs;
(c) If no part of the cash value of the contract(s) is vested
in the terminating Participant, the Trustee must surrender the
contract(s) for cash proceeds as may be available.
In accordance with the written direction of the Advisory Committee,
the Trustee will make any transfer of contract(s) under this Section 11.02
on the Participant's annuity starting date (or as soon as administratively
practicable after that date). The Trustee may not transfer any contract
under this Section 11.02 which contains a method of payment not
specifically authorized by Article VI or which fails to comply with the
joint and survivor annuity requirements, if applicable, of Article VI. In
this regard, the Trustee either must convert such a contract to cash and
distribute the cash instead of the contract, or before making the
transfer, require the issuing company to delete the unauthorized method of
payment option from the contract.
11.03 DEFINITIONS. For purposes of this Article XI:
(a) "Policy" means an ordinary life insurance contract or a
term life insurance contract issued by an insurer on the life of a
Participant.
(b) "Issuing insurance company" is any life insurance company
which has issued a policy upon application by the Trustee under the
terms of this Agreement.
(c) "Contract" or "Contracts" means a policy of insurance. In
the event of any conflict between the provisions of this Plan and the
terms of any contract or policy of insurance issued in accordance
with this Article XI, the provisions of the Plan control.
(d) "Insurable Participant" means a Participant to whom an
insurance company, upon an application being submitted in accordance
with the Plan, will issue insurance coverage, either as a standard
risk or as a risk an extra mortality classification.
11.04 DIVIDEND PLAN. The dividend plan is premium reduction
unless the Advisory Committee directs the Trustee to the contrary. The
Trustee must use all dividends for a contract to purchase insurance
benefits or additional insurance benefits for the Participant on whose
life the insurance company has issued the contract. Furthermore, the
Trustee must arrange, where possible, for all policies issued on the lives
of Participants under the Plan to have the same premium due date and all
ordinary life insurance contracts to contain guaranteed cash values with
as uniform basic options as are possible to obtain. The term "dividends"
includes policy dividends, refunds of premiums and other credit.
11.05 INSURANCE COMPANY NOT A PARTY TO AGREEMENT. No insurance
company, solely in its capacity as an issuing insurance company, is a
party to this Agreement nor is the company responsible for its validity.
11.06 INSURANCE COMPANY NOT RESPONSIBLE FOR TRUSTEE'S ACTIONS.
No insurance company, solely in its capacity as an issuing insurance
company, need examine the terms of this Agreement nor is responsible for
any action taken by the Trustee.
11.07 INSURANCE COMPANY RELIANCE ON TRUSTEE'S SIGNATURE. For the
purpose of making application to an insurance company and in the exercise
of any right or option contained in any policy, the insurance company may
rely upon the signature of the Trustee and is saved harmless and
completely discharged in acting at the direction and authorization of the
Trustee.
11.08 ACQUITTANCE. An insurance company is discharged from all
liability for any amount paid to the Trustee or paid in accordance with
the direction of the Trustee, and is not obliged to see to the
distribution or further application of any moneys it so pays.
11.09 DUTIES OF INSURANCE COMPANY. Each insurance company must
keep such records, make such identification of contracts, funds and
accounts within funds, and supply such information as may be necessary for
the proper administration of the Plan under which it is carrying insurance
benefits.
Note: The provisions of this Article XI are not applicable, and the
Plan may not invest in insurance Contracts, if a Custodian signatory to
the Adoption Agreement is a bank which has not acquired trust powers from
its governing state banking authority.
* * * * * * * * * * * * * * *
ARTICLE XII
MISCELLANEOUS
12.01 EVIDENCE. Anyone required to give evidence under the terms
of the Plan may do so by certificate, affidavit, document or other
information which the person to act in reliance may consider pertinent,
reliable and genuine, and to have been signed, made or presented by the
proper party or parties. The Advisory Committee and the Trustee are fully
protected in acting and relying upon any evidence described under the
immediately preceding sentence.
12.02 NO RESPONSIBILITY FOR EMPLOYER ACTION. Neither the Trustee
nor the Advisory Committee has any obligation or responsibility with
respect to any action required by the Plan to be taken by the Employer,
any Participant or eligible Employee, or for the failure of any of the
above persons to act or make any payment or contribution, or to otherwise
provide any benefit contemplated under this Plan. Furthermore, the Plan
does not require the Trustee or the Advisory Committee to collect any
contribution required under the Plan, or to determine the correctness of
the amount of any Employer contribution. Neither the Trustee nor the
Advisory Committee need inquire into or be responsible for any action or
failure to act on the part of the others, or on the part of any other
person who has any responsibility regarding the management, administration
or operation of the Plan, whether by the express terms of the Plan or by a
separate agreement authorized by the Plan or by the applicable provisions
of ERISA. Any action required of a corporate Employer must be by its
Board of Directors or its designate.
12.03 FIDUCIARIES NOT INSURERS. The Trustee, the Advisory
Committee, the Plan Administrator and the Employer in no way guarantee the
Trust Fund from loss or depreciation. The Employer does not guarantee the
payment of any money which may be or becomes due to any person from the
Trust Fund. The liability of the Advisory Committee and the Trustee to
make any payment from the Trust Fund at any time and all times is limited
to the then available assets of the Trust.
12.04 WAIVER OF NOTICE. Any person entitled to notice under the
Plan may waive the notice, unless the Code or Treasury regulations
prescribe the notice or ERISA specifically or impliedly prohibits such a
waiver.
12.05 SUCCESSORS. The Plan is binding upon all persons entitled
to benefits under the Plan, their respective heirs and legal
representatives, upon the Employer, its successors and assigns, and upon
the Trustee, the Advisory Committee, the Plan Administrator and their
successors.
12.06 WORD USAGE. Words used in the masculine also apply to the
feminine where applicable, and wherever the context of the Employer's Plan
dictates, the plural includes the singular and the singular includes the
plural.
12.07 STATE LAW. The law of the state of the Employer's
principal place of business (unless otherwise designated in an addendum to
the Employer's Adoption Agreement) will determine all questions arising
with respect to the provisions of this Agreement except to the extent
superseded by Federal law.
12.08 EMPLOYER'S RIGHT TO PARTICIPATE. If the Employer Plan
fails to qualify or to maintain qualification or if the Employer makes any
amendment or modification to a provision of this Plan (other than a proper
completion of an elective provision under the Adoption Agreement or the
attachment of an addendum authorized by the Plan or by the Adoption
Agreement), the Employer may no longer participate under this Master Plan.
The Employer also may not participate (or continue to participate) in this
Master Plan if the Trustee or Custodian (or a change in the Trustee or
Custodian) does not satisfy the requirements of Section 1.02 of the Plan.
If the Employer is not entitled to participate under this Master Plan, the
Employer's Plan is an individually-designed plan and the reliance
procedures specified in the applicable Adoption Agreement no longer will
apply.
12.09 EMPLOYMENT NOT GUARANTEED. Nothing contained in this Plan,
or with respect to the establishment of the Trust, or any modification or
amendment to the Plan or Trust, or in the creation of any Account, or the
payment of any benefit, gives any Employee, Employee-Participant or any
Beneficiary any right to continue employment, any legal or equitable right
against the Employer, or Employee of the Employer, or against the Trustee,
or its agents or employees, or against the Plan Administrator, except as
expressly provided by the Plan, the Trust, ERISA or by a separate
agreement.
* * * * * * * * * * * * * * *
ARTICLE XIII
EXCLUSIVE BENEFIT, AMENDMENT, TERMINATION
13.01 EXCLUSIVE BENEFIT. Except as provided under Article III, the
Employer has no beneficial interest in any asset of the Trust and no part
of any asset in the Trust may ever revert to or be repaid to an Employer,
either directly or indirectly; nor, prior to the satisfaction of all
liabilities with respect to the Participants and their Beneficiaries under
the Plan, may any part of the corpus or income of the Trust Fund, or any
asset of the Trust, be (at any time) used for, or diverted to, purposes
other than the exclusive benefit of the Participants or their
Beneficiaries. However, if the Commissioner of Internal Revenue, upon the
Employer's request for initial approval of this Plan, determines the Trust
created under the Plan is not a qualified trust exempt from Federal income
tax, then (and only then) the Trustee, upon written notice from the
Employer, will return the Employer's contributions (and increment
attributable to the contributions) to the Employer. The Trustee must make
the return of the Employer contribution under this Section 13.01 within
one year of a final disposition of the Employer's request for initial
approval of the Plan. The Employer's Plan and Trust will terminate upon
the Trustee's return of the Employer's contributions.
13.02 AMENDMENT BY EMPLOYER. The Employer has the right at any
time and from time to time:
(a) To amend the elective provisions of the Adoption Agreement in
any manner it deems necessary or advisable in order to qualify (or
maintain qualification of) this Plan and the Trust created under it under
the provisions of Code Section 401(a);
(b) To amend the Plan to allow the Plan to operate under a waiver of
the minimum funding requirement; and
(c) To amend this Agreement in any other manner.
No amendment may authorize or permit any of the Trust Fund (other
than the part which is required to pay taxes and administration expenses)
to be used for or diverted to purposes other than for the exclusive
benefit of the Participants or their Beneficiaries or estates. No
amendment may Cause or permit any portion of the Trust Fund to revert to
or become a property of the Employer. The Employer also may not make any
amendment which affects the rights, duties or responsibilities of the
Trustee, the Plan Administrator or the Advisory Committee without the
written consent of the affected Trustee, the Plan Administrator or the
affected member of the Advisory Committee. The Employer must make all
amendments in writing. Each amendment must state the date to which it is
either retroactively or prospectively effective. See Section 12.08 for
the effect of certain amendments adopted by the Employer.
(A) Code Section 411(d)(6) protected benefits. An amendment
(including the adoption of this Plan as a restatement of an existing plan)
may not decrease a Participant's Accrued Benefit, except to the extent
permitted under Code Section 412(c)(8), and may not reduce or eliminate
Code Section 411(d)(6) protected benefits determined immediately prior to
the adoption date (or, if later, the effective date) of the amendment. An
amendment reduces or eliminates Code Section 411(d)(6) protected benefits
if the amendment has the effect of either (1) eliminating or reducing an
early retirement benefit or a retirement-type subsidy (as defined in
Treasury regulations), or (2) except as provided by Treasury regulations,
eliminating an optional form of benefit. The Advisory Committee must
disregard an amendment to the extent application of the amendment would
fail to satisfy this paragraph. If the Advisory Committee must disregard
an amendment because the amendment would violate clause (1) or clause (2),
the Advisory Committee must maintain a schedule of the early retirement
option or other optional forms of benefit the Plan must continue for the
affected Participants.
13.03 AMENDMENT BY MASTER PLAN SPONSOR. The Master Plan Sponsor
(or PPD, as agent of the Master Plan Sponsor), without the Employer's
consent, may amend the Plan and Trust, from time to time, in order to
conform the Plan and Trust to any requirement for qualification of the
Plan and Trust under the Internal Revenue Code. The Master Plan Sponsor
may not amend the Plan in any manner which would modify any election made
by the Employer under the Plan without the Employer's written consent.
Furthermore, the Master Plan Sponsor may not amend the Plan in any manner
which would violate the proscription of Section 13.02. A Trustee does not
have the power to amend the Plan or Trust.
13.04 DISCONTINUANCE. The Employer has the right, at any time,
to suspend or discontinue its contributions under the Plan, and to
terminate, at any time, this Plan and the Trust created under this
Agreement. The Plan will terminate upon the first to occur of the
following:
(a) The date terminated by action of the Employer;
(b) The dissolution or merger of the Employer, unless the successor
makes provision to continue the Plan, in which event the successor must
substitute itself as the Employer under this Plan. Any termination of the
Plan resulting from this paragraph (b) is not effective until compliance
with any applicable notice requirements under ERISA.
13.05 FULL VESTING ON TERMINATION. Upon either full or partial
termination of the Plan, or, if applicable, upon complete discontinuance
of profit sharing plan contributions to the Plan, an affected
Participant's right to his Accrued Benefit is 100% Nonforfeitable,
irrespective of the Nonforfeitable percentage which otherwise would apply
under Article V.
13.06 MERGER/DIRECT TRANSFER. The Trustee may not consent to, or
be a party to, any merger or consolidation with another plan, or to a
transfer of assets or liabilities to another plan, unless immediately
after the merger, consolidation or transfer, the surviving Plan provides
each Participant a benefit equal to or greater than the benefit each
Participant would have received had the Plan terminated immediately before
the merger or consolidation or transfer. The Trustee possesses the
specific authority to enter into merger agreements or direct transfer of
assets agreements with the trustees of other retirement plans described in
Code Section 401(a), including an elective transfer, and to accept the
direct transfer of plan assets, or to transfer plan assets, as a party to
any such agreement.
The Trustee may accept a direct transfer of plan assets on behalf of
an Employee prior to the date the Employee satisfies the Plan's
eligibility conditions. If the Trustee accepts such a direct transfer of
plan assets, the Advisory Committee and Trustee must treat the Employee as
a Participant for all purposes of the Plan except the Employee is not a
Participant for purposes of sharing in Employer contributions or
Participant forfeitures under the Plan until he actually becomes a
Participant in the Plan.
(A) Elective transfers. The Trustee, after August 9, 1988, may not
consent to, or be a party to a merger, consolidation or transfer of assets
with a defined benefit plan, except with respect to an elective transfer,
or unless the transferred benefits are in the form of paid-up individual
annuity contracts guaranteeing the payment of the transferred benefits in
accordance with the terms of the transferor plan and in a manner
consistent with the Code and with ERISA. The Trustee will hold,
administer and distribute the transferred assets as a part of the Trust
Fund and the Trustee must maintain a separate Employer contribution
Account for the benefit of the Employee on whose behalf the Trustee
accepted the transfer in order to reflect the value of the transferred
assets. Unless a transfer of assets to this Plan is an elective transfer,
the Plan will preserve all Code Section 411(d)(6) protected benefits with
respect to those transferred assets, in the manner described in Section
13.02. A transfer is an elective transfer if: (1) the transfer satisfies
the first paragraph of this Section 13.06; (2) the transfer is voluntary,
under a fully informed election by the Participant; (3) the Participant
has an alternative that retains his Code Section 411(d)(6) protected
benefits (including an option to leave his benefit in the transferor plan,
if that plan is not terminating); (4) the transfer satisfies the
applicable spousal consent requirements of the Code; (5) the transferor
plan satisfies the joint and survivor notice requirements of the Code, if
the Participant's transferred benefit is subject to those requirements;(6)
the Participant has a right to immediate distribution from the transferor
plan, in lieu of the elective transfer; (7) the transferred benefit is at
least the greater of the single sum distribution provided by the
transferor plan for which the Participant is eligible or the present value
of the Participant's accrued benefit under the transferor plan payable at
that plan's normal retirement age; (8) the Participant has a 100%
Nonforfeitable interest in the transferred benefit; and (9) the transfer
otherwise satisfies applicable Treasury regulations. An elective transfer
may occur between qualified plans of any type. Any direct transfer of
assets from a defined benefit plan after August 9, 1988, which does not
satisfy the requirements of this paragraph will render the Employer's Plan
individually-designed. See Section 12.08.
(B) Distribution restrictions under Code Section 401(k). If the
Plan receives a direct transfer (by merger or otherwise) of elective
contributions (or amounts treated as elective contributions) under a Plan
with a Code Section 401(k) arrangement, the distribution restrictions of
Code Section Section 401(k)(2) and (10) continue to apply to those
transferred elective contributions.
13.07 TERMINATION
(A) Procedure. Upon termination of the Plan, the distribution
provisions of Article VI remain operative, with the following exceptions:
(1) if the present value of the Participant's Nonforfeitable Accrued
Benefit does not exceed $3,500, the Advisory Committee will direct
the Trustee to distribute the Participant's Nonforfeitable Accrued
Benefit to him in lump sum as soon as administratively practicable
after the Plan terminates; and
(2) if the present value of the Participant's Nonforfeitable Accrued
Benefit exceeds $3,500, the Participant or the Beneficiary, in
addition to the distribution events permitted under Article VI, may
elect to have the Trustee commence distribution of his Nonforfeitable
Accrued Benefit as soon as administratively practicable after the
Plan terminates.
To liquidate the Trust, the Advisory Committee will purchase a
deferred annuity contract for each Participant which protects the
Participant's distribution rights under the Plan, if the Participant's
Nonforfeitable Accrued Benefit exceeds $3,500 and the Participant does not
elect an immediate distribution pursuant to Paragraph (2).
If the Employer's Plan is a profit sharing plan, in lieu of the
preceding provisions of this Section 13.07 and the distribution provisions
of Article VI, the Advisory Committee will direct the Trustee to
distribute each Participant's Nonforfeitable Accrued Benefit, in lump sum,
as soon as administratively practicable after the termination of the Plan,
irrespective of the present value of the Participant's Nonforfeitable
Accrued Benefit and whether the Participant consents to that distribution.
This paragraph does not apply if: (1) the Plan provides an annuity option;
or (2)as of the period between the Plan termination date and the final
distribution of assets, the Employer maintains any other defined
contribution plan (other than an ESOP). The Employer, in an addendum to
its Adoption Agreement numbered 13.07, may elect not to have this
paragraph apply.
The Trust will continue until the Trustee in accordance with the
direction of the Advisory Committee has distributed all of the benefits
under the Plan. On each valuation date, the Advisory Committee will
credit any part of a Participant's Accrued Benefit retained in the Trust
with its proportionate share of the Trust's income, expenses, gains and
losses, both realized and unrealized. Upon termination of the Plan, the
amount, if any, in a suspense account under Article III will revert to the
Employer, subject to the conditions of the Treasury regulations permitting
such a reversion. A resolution or amendment to freeze all future benefit
accrual but otherwise to continue maintenance of this Plan, is not a
termination for purposes of this Section 13.07.
(B) Distribution restrictions under Code Section 401(k). If the
Employer's Plan includes a Code Section 401(k) arrangement or if
transferred assets described in Section 13.06 are subject to the
distribution restrictions of Code Section Section 401(k)(2) and (10), the
special distribution provisions of this Section 13.07 are subject to the
restrictions of this paragraph. The portion of the Participant's
Nonforfeitable Accrued Benefit attributable to elective contributions (or
to amounts treated under the Code Section 401(k) arrangement as elective
contributions) is not distributable on account of Plan termination, as
described in this Section 13.07, unless: (a) the Participant otherwise is
entitled under the Plan to a distribution of that portion of his
Nonforfeitable Accrued Benefit; or (b) the Plan termination occurs without
the establishment of a successor plan. A successor plan under clause (b)
is a defined contribution plan (other than an ESOP) maintained by the
Employer (or by a related employer) at the time of the termination of the
Plan or within the period ending twelve months after the final
distribution of assets. A distribution made after March 31, 1988,
pursuant to clause (b), must be part of a lump sum distribution to the
Participant of his Nonforfeitable Accrued Benefit.
* * * * * * * * * * * * * * *
ARTICLE XIV
CODE Section 401(k) AND CODE Section 401(m) ARRANGEMENTS
14.01 APPLICATION. This Article XIV applies to an Employer's
Plan only if the Employer is maintaining its Plan under a Code Section
401(k) Adoption Agreement.
14.02 CODE Section 401(k) ARRANGEMENT. The Employer will elect
in Section 3.01 of its Adoption Agreement the terms of the Code Section
401(k) arrangement, if any, under the Plan. If the Employer's Plan is a
Standardized Plan, the Code Section 401(k) arrangement must be a salary
reduction arrangement. If the Employer's Plan is a Nonstandardized Plan,
the Code Section 401(k) arrangement may be a salary reduction arrangement
or a cash or deferred arrangement.
(A) Salary Reduction Arrangement. If the Employer elects a salary
reduction arrangement, any Employee eligible to participate in the Plan
may file a salary reduction agreement with the Advisory Committee. The
salary reduction agreement may not be effective earlier than the following
date which occurs last: (i) the Employee's Plan Entry Date (or, in the
case of a reemployed Employee, his reparticipation date under Article II);
(ii) the execution date of the Employee's salary reduction agreement;
(iii) the date the Employer adopts the Code Section 401(k) arrangement by
executing the Adoption Agreement; or (iv) the effective date of the Code
Section 401(k) arrangement, as specified in the Employer's Adoption
Agreement. Regarding clause (i), an Employee subject to the Break in
Service rule of Section 2.03(B) of the Plan may not enter into a salary
reduction agreement until the Employee has completed a sufficient number
of Hours of Service to receive credit for a Year of Service (as defined in
Section 2.02) following his reemployment commencement date. A salary
reduction agreement must specify the amount of Compensation (as defined in
Section 1.12) or percentage of Compensation the Employee wishes to defer.
The salary reduction agreement will apply only to Compensation which
becomes currently available to the Employee after the effective date of
the salary reduction agreement, The Employer will apply a reduction
election to all Compensation (and to increases in such Compensation)
unless the Employee specifies in his salary reduction agreement to limit
the election to certain Compensation. The Employer will specify in
Adoption Agreement Section 3.01 the rules, and restrictions applicable to
the Employees salary reduction agreements.
(B) Cash or deferred arrangement. If the Employer elects a cash or
deferred arrangement, a Participant may elect to make a cash election
against his proportionate share of the Employer's Cash or Deferred
Contribution, in accordance with the Employer's elections in Adoption
Agreement Section 3.01. A Participant's proportionate share of the
Employer's Cash or Deferred Contribution is the percentage of the total
Cash or Deferred Contribution which bears the same ratio that the
Participant's Compensation for the Plan Year bears to the total
Compensation of all Participants for the Plan Year. For purposes of
determining each Participant's proportionate share of the Cash or Deferred
Contribution, a Participant's Compensation is his Compensation as
determined under Section 1.12 of the Plan (as modified by Section 3.06 for
allocation purposes), excluding any effect the proportionate share may
have on the Participant's Compensation for the Plan Year. The Advisory
Committee will determine the proportionate share prior to the Employer's
actual contribution to the Trust, to provide the Participants the
opportunity to file cash elections. The Employer will pay directly to the
Participant the portion of his proportionate share the Participant has
elected to receive in cash.
(C) Election not to participate. A Participant's or Employee's
election not to participate, pursuant to Section 2.06, includes his right
to enter into a salary reduction agreement or to share in the allocation
of a Cash or Deferred Contribution, unless the Participant or Employee
limits the effect of the election to the non-401(k) portions of the Plan.
14.03 DEFINITIONS. For purposes of this Article XIV:
(a) "Highly Compensated Employee" means an Eligible Employee who
satisfies the definition in Section 1.09 of the Plan. Family members
aggregated as a single Employee under Section 1.09 constitute a single
Highly Compensated Employee, whether a particular family member is a
Highly Compensated Employee or a Nonhighly Compensated Employee without
the application of family aggregation.
(b) "Nonhighly Compensated Employee" means an Eligible Employee who
is not a Highly Compensated Employee and who is not a family member
treated as a Highly Compensated Employee.
(c) "Eligible Employee" means, for purposes of the ADP test
described in Section 14.08, an Employee who is eligible to enter into a
salary reduction agreement for the Plan Year, irrespective of whether he
actually enters into such an agreement, and a Participant who is eligible
for an allocation of the Employer's Cash or Deferred Contribution for the
Plan Year. For purposes of the ADP test described in Section 14.09, an
"Eligible Employee" means a Participant who is eligible to receive an
allocation of matching contributions (or would be eligible if he made the
type of contributions necessary to receive an allocation of matching
contributions) and a Participant who is eligible to make nondeductible
contributions, irrespective of whether he actually makes nondeductible
contributions. An Employer continues to be an Eligible Employee during a
period the Plan suspends the Employee's right to make elective deferrals
or nondeductible contributions following a hardship distribution.
(d) "Highly Compensated Group" means the group of Eligible Employees
who are Highly Compensated Employees for the Plan Year.
(e) "Nonhighly Compensated Group" means the group of Eligible
Employees who are Nonhighly Compensated Employees for the Plan Year.
(f) "Compensation" means, except as specifically provided in this
Article XIV, Compensation as defined for nondiscrimination purposes in
Section 1.12(B) of the Plan. To compute an Employee's ADP or ACP, the
Advisory Committee may limit Compensation taken into account to
Compensation received only for the portion of the Plan Year in which the
Employee was an Eligible Employee and only for the portion of the Plan
Year in which the Plan or the Code Section 401(k) arrangement was in
effect.
(g) "Deferral Contributions" are Salary Reduction Contributions and
Cash or Deferred Contributions the Employer contributes to the Trust on
behalf of an Eligible Employee, irrespective of whether, in the case of
Cash or Deferred Contributions, the contribution is at the election of the
Employee. For Salary Reduction Contributions, the terms "deferral
contributions" and "elective deferrals" have the same meaning.
(h) "Elective deferrals" are all Salary Reduction Contributions and
that portion of any Cash or Deferred Contribution which the Employer
contributes to the Trust at the election of an Eligible Employee. Any
portion of a Cash or Deferred Contribution contributed to the Trust
because of the Employee's failure to make a cash election is an elective
deferral. However, any portion of a Cash or Deferred Contribution over
which the Employee does not have a cash election is not an elective
deferral. Elective deferrals do not include amounts which have become
currently available to the Employee prior to the election nor amounts
designated as nondeductible contributions at the time of deferral or
contribution.
(i) "Matching contributions" are contributions made by the Employer
on account of elective deferrals under a Code Section 401(k) arrangement
or on account of employee contributions. Matching contributions also
include Participant forfeitures allocated on account of such elective
deferrals or employee contributions.
(j) "Nonelective contributions" are contributions made by the
Employer which are not subject to a deferral election by an Employee and
which are not matching contributions.
(k) "Qualified matching contributions" are matching contributions
which are 100% Nonforfeitable at all times and which are subject to the
distribution restrictions described in paragraph (m). Matching
contributions are not 100% Nonforfeitable at all times if the Employee has
a 100% Nonforfeitable interest because of his Years of Service taken into
account under a vesting schedule. Any matching contributions allocated to
a Participant's Qualified Matching Contributions Account under the Plan
automatically satisfy the definition of qualified matching contributions.
(l) "Qualified nonelective contributions" are nonelective
contributions which are 100% Nonforfeitable at all times and which are
subject to the distribution restrictions described in paragraph (m).
Nonelective contributions are not 100% Nonforfeitable at all times if the
Employee has a 100% Nonforfeitable interest because of his Years of
Service taken into account under a vesting schedule. Any nonelective
contributions allocated to a Participant's Qualified Nonelective
Contributions Account under the Plan automatically satisfy the definition
of qualified nonelective contributions.
(m) "Distribution restrictions" means the Employee may not receive a
distribution of the specified contributions (nor earnings on those
contributions) except in the event of (1) the Participant's death,
disability, termination of employment or attainment of age 59-1/2, (2)
financial hardship satisfying the requirements of Code Section 401(k) and
the applicable Treasury regulations, (3) a plan termination, without
establishment of a successor defined contribution plan (other than an
ESOP), (4) a sale of substantially all of the assets (within the meaning
of Code Section 409(d)(2)) used in a trade or business, but only to an
employee who continues employment with the corporation acquiring those
assets, or (5) a sale by a corporation of its interest in a subsidiary
(within the meaning of Code Section 409(d)(3)), but only to an employee
who continues employment with the subsidiary. For Plan Years beginning
after December 31, 1988, a distribution on account of financial hardship,
as described in clause (2), may not include earnings on elective deferrals
credited as of a date later than December 31, 1988, and may not include
qualified matching contributions and qualified nonelective contributions,
nor any earnings on such contributions, credited after December 31, 1988.
A plan does not violate the distribution restrictions if, instead of the
December 31, 1988, date in the preceding sentence the plan specifies a
date not later than the end of the last Plan Year ending before July 1,
1989. A distribution described in clauses (3), (4) or (5), if made after
March 31, 1988, must be a lump sum distribution, as required under Code
Section 401(k)(10).
(n) "Employee contributions" are contributions made by a Participant
on an after-tax basis, whether voluntary or mandatory, and designated, at
the time of contribution, as an employee (or nondeductible) contribution.
Elective deferrals and deferral contributions are not employee
contributions. Participant nondeductible contributions, made pursuant to
Section 4.01 of the Plan, are employee contributions.
14.04 MATCHING CONTRIBUTIONS/EMPLOYEE CONTRIBUTIONS. The
Employer may elect in Adoption Agreement Section 3.01 to provide matching
contributions. The Employer also may elect in Adoption Agreement Section
4.01 to permit or to require a Participant to make nondeductible
contributions.
(A) Mandatory contributions. Any Participant nondeductible
contributions eligible for matching contributions are mandatory
contributions. The Advisory Committee will maintain a separate
accounting, pursuant to Section 4.06 of the Plan, to reflect the
Participant's Accrued Benefit derived from his mandatory contributions.
The Employer, under Adoption Agreement Section 4.05, may prescribe special
distribution restrictions which will apply to the Mandatory Contributions
Account prior to the Participant's Separation from Service. Following his
Separation from Service, the general distribution provisions of Article VI
apply to the distribution of the Participant's Mandatory Contributions
Account.
14.05 TIME OF PAYMENT OF CONTRIBUTIONS. The Employer must make
Salary Reduction Contributions to the Trust within an administratively
reasonable period of time after withholding the corresponding Compensation
from the Participant. Furthermore, the Employer must make Salary
Reduction Contributions, Cash or Deferred Contributions, Employer matching
contributions (including qualified Employer matching contributions) and
qualified Employer nonelective contributions no later than the time
prescribed by the Code or by applicable Treasury regulations. Salary
Reduction Contributions and Cash or Deferred Contributions are Employer
contributions for all purposes under this Plan, except to the extent the
Code or Treasury regulations prohibit the use of these contributions to
satisfy the qualification requirements of the Code.
14.06 SPECIAL ALLOCATION PROVISIONS DEFERRAL CONTRIBUTIONS,
MATCHING CONTRIBUTIONS AND QUALIFIED NONELECTIVE CONTRIBUTIONS. To make
allocations under the Plan, the Advisory Committee must establish a
Deferral Contributions Account, a Qualified Matching Contributions
Account, a Regular Matching Contributions Account, a Qualified Nonelective
Contributions Account and an Employer Contributions Account for each
Participant.
(A) Deferral contributions. The Advisory Committee will allocate to
each Participant's Deferral Contributions Account the amount of Deferral
Contributions the Employer makes to the Trust on behalf of the
Participant. The Advisory Committee will make this allocation as of the
last day of each Plan Year unless, in Adoption Agreement Section 3.04, the
Employer elects more frequent allocation dates for salary reduction
contributions.
(B) Matching contributions. The Employer must specify in its
Adoption Agreement whether the Advisory Committee will allocate matching
contributions to the Qualified Matching Contributions Account or to the
Regular Matching Contributions Account of each Participant. The Advisory
Committee will make this allocation as of the last day of each Plan Year
unless, in Adoption Agreement Section 3.04, the Employer elects more
frequent allocation dates for matching contributions.
(1) To the extent the Employer makes matching contributions under a
fixed matching contribution formula, the Advisory Committee will
allocate the matching contribution to the Account of the Participant
on whose behalf the Employer makes that contribution. A fixed
matching contribution formula is a formula under which the Employer
contributes a certain percentage or dollar amount on behalf of a
Participant based on that Participant's deferral contributions or
nondeductible contributions eligible for a match, as specified in
Section 3.01 of the Employer's Adoption Agreement. The Employer may
contribute on a Participant's behalf under a specific matching
contribution formula only if the Participant satisfies the accrual
requirements for matching contributions specified in Section 3.06 of
the Employer's Adoption Agreement and only to the extent the matching
contribution does not exceed the Participant's annual additions
limitation in Part 2 of Article III.
(2) To the extent the Employer makes matching contributions under a
discretionary formula, the Advisory Committee will allocate the
discretionary matching contributions to the Account of each
Participant who satisfies the accrual requirements for matching
contributions specified in Section 3.06 of the Employer's Adoption
Agreement. The allocation of discretionary matching contributions to
a Participant's Account is in the same proportion that each
Participant's eligible contributions bear to the total eligible
contributions of all Participants. If the discretionary formula is a
tiered formula, the Advisory Committee will make this allocation
separately with respect to each tier of eligible contributions,
allocating in such manner the amount of the matching contributions
made with respect to that tier. "Eligible contributions" are the
Participant's deferral contributions or nondeductible contributions
eligible for an allocation of matching contributions, as specified in
Section 3.01 of the Employer's Adoption Agreement.
If the matching contribution formula applies both to deferral
contributions and to Participant nondeductible contributions, the matching
contributions apply first to deferral contributions. Furthermore, the
matching contribution formula does not apply to deferral contributions
that are excess deferrals under Section 14.07. For this purpose: (a)
excess deferrals relate first to deferral contributions for the Plan Year
not otherwise eligible for a matching contribution; and (2) if the Plan
Year is not a calendar year, the excess deferrals for a Plan Year are the
last elective deferrals made for a calendar year. Under a Standardized
Plan, an Employee forfeits any matching contribution attributable to an
excess contribution or to an excess aggregate contribution, unless
distributed pursuant to Sections 14.08 or 14.09. Under a Nonstandardized
Plan, this forfeiture rule applies only if specified in Adoption Agreement
Section 3.06. The provisions of Section 3.05 govern the treatment of any
forfeiture described in this paragraph, and the Advisory Committee will
compute a Participant's ACP under 14.09 by disregarding the forfeiture.
(C) Qualified nonelective contributions. If the Employer, at the
time of contribution, designates a contribution to be a qualified
nonelective contribution for the Plan Year, the Advisory Committee will
allocate that qualified nonelective contribution to the Qualified
Nonelective Contributions Account of each Participant eligible for an
allocation of that designated contribution, as specified in Section 3.04
of the Employer's Adoption Agreement. The Advisory Committee will make
the allocation to each eligible Participant's Account in the same ratio
that the Participant's Compensation for the Plan Year bears to the total
Compensation of all eligible Participants for the Plan Year. The Advisory
Committee will determine a Participant's Compensation in accordance with
the general definition of Compensation under Section 1.12 of the Plan, as
modified by the Employer in Sections 1.12 and 3.06 of its Adoption
Agreement.
(D) Nonelective contributions. To the extent the Employer makes
nonelective contributions for the Plan Year which, at the time of
contribution, it does not designate as qualified nonelective
contributions, the Advisory Committee will allocate those contributions in
accordance with the elections under Section 3.04 of the Employer's
Adoption Agreement. For purposes of the special nondiscrimination tests
described in Sections 14.08 and 14.09, the Advisory Committee may treat
nonelective contributions allocated under this paragraph as qualified
nonelective contributions, if the contributions otherwise satisfy the
definition of qualified nonelective contributions.
14.07 ANNUAL ELECTIVE DEFERRAL LIMITATION.
(A) Annual Elective Deferral Limitation. An Employee's elective
deferrals for a calendar year beginning after December 31, 1986, may not
exceed the 402(g) limitation. The 402(g) limitation is the greater of
$7,000 or the adjusted amount determined by the Secretary of the Treasury.
If, pursuant to a salary reduction agreement or pursuant to a cash or
deferral election, the Employer determines the Employee's elective
deferrals to the Plan for a calendar year would exceed the 402(g)
limitation, the Employer will suspend the Employee's salary reduction
agreement, if any, until the following January 1 and pay in cash the
portion of a cash or deferral election which would result in the
Employee's elective deferrals for the calendar year exceeding the 402(g)
limitation. If the Advisory Committee determines an Employee's elective
deferrals already contributed to the Plan for a calendar year exceed the
402(g) limitation, the Advisory Committee will distribute the amount in
excess of the 402(g) limitation (the "excess deferral"), as adjusted for
allocable income, no later than April 15 of the following calendar year.
If the Advisory Committee distributes the excess deferral by the
appropriate April 15, it may make the distribution irrespective of any
other provision under this Plan or under the Code. The Advisory Committee
will reduce the amount of excess deferrals for a calendar year
distributable to the Employee by the amount of excess contributions (as
determined in Section 14.08), if any, previously distributed to the
Employee for the Plan Year beginning in that calendar year.
If an Employee participates in another plan under which he makes
elective deferrals pursuant to a Code Section 401(k) arrangement, elective
deferrals under a Simplified Employee Pension, or salary reduction
contributions to a tax-sheltered annuity, irrespective of whether the
Employer maintains the other plan, he may provide the Advisory Committee a
written claim for excess deferrals made for a calendar year. The Employee
must submit the claim no later than the March 1 following the close of the
particular calendar year and the claim must specify the amount of the
Employee's elective deferrals under this Plan which are excess deferrals.
If the Advisory Committee receives a timely claim, it will distribute the
excess deferral (as adjusted for allocable income) the Employee has
assigned to this Plan, in accordance with the distribution procedure
described in the immediately preceding paragraph.
(B) Allocable income. For purposes of making a distribution of
excess deferrals pursuant to Section 14.07, allocable income means net
income or net loss allocable to the excess deferrals for the calendar year
in which the Employee made the excess deferral, determined in a manner
which is uniform, nondiscriminatory and reasonably reflective of the
manner used by the Plan to allocate income to Participants' Accounts.
14.08 ACTUAL DEFERRAL PERCENTAGE ("ADP") TEST. For each Plan
Year, the Advisory Committee must determine whether the Plan's Code
Section 401(k) arrangement satisfies either of the following ADP tests:
(i) The average ADP for the Highly Compensated Group does not exceed
1.25 times the average of the Nonhighly Compensated Group; or
(ii) The average ADP for the Highly Compensated Group does not exceed
the average ADP for the Nonhighly Compensated Group by more than two
percentage points (or the lesser percentage permitted by the multiple
use limitation in Section 14.10) and the average ADP for the Highly
Compensated Group is not more than twice the average ADP for the
Nonhighly Compensated Group.
(A) Calculation of ADP. The average ADP for a group is the average
of the separate ADPs calculated for each Eligible Employee who is a member
of that group. An Eligible Employee's ADP for a Plan Year is the ratio of
the Eligible Employee's deferral contributions for the Plan Year to the
Employee's Compensation for the Plan Year. For aggregated family members
treated as a single Highly Compensated Employee, the ADP of the family
unit is the ADP determined by combining the deferral contribution and
Compensation of all aggregated family members. A Nonhighly Compensated
Employee's ADP does not include elective deferrals made to this Plan or to
any other Plan maintained by the Employer, to the extent such elective
deferrals exceed the 402(g) limitation described in Section 14.07(A).
The Advisory Committee, in a manner consistent with Treasury
regulations, may determine the ADPs of the Eligible Employees by taking
into account qualified nonelective contributions or qualified matching
contributions, or both, made to this Plan or to any other qualified Plan
maintained by the Employer. The Advisory Committee may not include
qualified nonelective contributions in the ADP test unless the allocation
of nonelective contributions is nondiscriminatory when the Advisory
Committee takes into account all nonelective contributions (including the
qualified nonelective contributions) and also when the Advisory Committee
takes into account only the nonelective contributions not used in either
the ADP test described in this Section 14.08 or the ACP test described in
Section 14.09. For Plan Years beginning after December 31, 1989, the
Advisory Committee may not include in the ADP test any qualified
nonelective contributions or qualified matching contributions under
another qualified plan unless that plan has the same plan year as this
Plan. The Advisory Committee must maintain records to demonstrate
compliance with the ADP test, including the extent to which the Plan used
qualified nonelective contributions or qualified matching contributions to
satisfy the test.
For Plan Years beginning prior to January 1, 1992, the Advisory
Committee may elect to apply a separate ADP test to each component group
under the Plan. Each component group separately must satisfy the
commonality requirement of the Code Section 401(k) regulations and the
minimum coverage requirements of Code Section 410(b). A component group
consists of all the allocations and other benefits, rights and features
provided that group of Employees. An Employee may not be part of more
than one component group. The correction rules described in this Section
14.08 apply separately to each component group.
(B) Special aggregation rule for Highly Compensated Employees. To
determine the ADP of any Highly Compensated Employee, the deferral
contributions taken into account must include any elective deferrals made
by the Highly Compensated Employee under any other Code Section 401(k)
arrangement maintained by the Employer, unless the elective deferrals are
to an ESOP. If the plans containing the Code Section 401(k) arrangements
have different plan years, the Advisory Committee will determine the
combined deferral contributions on the basis of the plan years ending in
the same calendar year.
(C) Aggregation of certain Code Section 401(k) arrangements. If the
Employer treats two plans as a unit for coverage or nondiscrimination
purposes, the Employer must combine the Code Section 401(k) arrangements
under such plans to determine whether either plan satisfies the ADP test.
This aggregation rule applies to the ADP determination for all Eligible
Employees, irrespective of whether an Eligible Employee is a Highly
Compensated Employee or a Nonhighly Compensated Employee. For Plan Years
beginning after December 31, 1989, an aggregation of Code Section 401(k)
arrangements under this paragraph does not apply to plans which have
different plan years and, for Plan Years beginning after December 31,
1988, the Advisory Committee may not aggregate an ESOP (or the ESOP
portion of a plan) with a non-ESOP plan (or non-ESOP portion of a plan).
(D) Characterization of excess contributions. If, pursuant to this
Section 14.08, the Advisory Committee has elected to include qualified
matching contributions in the average ADP, the Advisory Committee will
treat excess contributions as attributable proportionately to deferral
contributions and to qualified matching contributions allocated on the
basis of those deferral contributions. If the total amount of a Highly
Compensated Employee's excess contributions for the Plan Year exceeds his
deferral contributions or qualified matching contributions for the Plan
Year, the Advisory Committee will treat the remaining portion of his
excess contributions as attributable to qualified nonelective
contributions. The Advisory Committee will reduce the amount of excess
contributions for a Plan Year distributable to a Highly Compensated
Employee by the amount of excess deferrals (as determined in Section
14.07), if any, previously distributed to that Employee for the Employee's
taxable year ending in that Plan Year.
(E) Distribution of excess contributions. If the Advisory Committee
determines the Plan fails to satisfy the ADP test for a Plan Year, it must
distribute the excess contributions, as adjusted for allocable income,
during the next Plan Year. However, the Employer will incur an excise tax
equal to 10% of the amount of excess contributions for a Plan Year not
distributed to the appropriate Highly Compensated Employees during the
first 2-1/2 months of that next Plan Year. The excess contributions are the
amount of deferral contributions made by the Highly Compensated Employees
which causes the Plan to fail to satisfy the ADP test. The Advisory
Committee will distribute to each Highly Compensated Employee his
respective share of the excess contributions. The Advisory Committee will
determine the respective shares of excess contributions by starting with
the Highly Compensated Employee(s) who has the greatest ADP, reducing his
ADP (but not below the next highest ADP), then, if necessary, reducing the
ADP of the Highly Compensated Employee(s) at the next highest ADP level
(including the ADP of the Highly Compensated Employee(s) whose ADP the
Advisory Committee already has reduced), and continuing in this manner
until the average ADP for the Highly Compensated Group satisfies the ADP
test. If the Highly Compensated Employee is part of an aggregated family
group, the Advisory Committee, in accordance with the applicable Treasury
regulations, will determine each aggregated family member's allocable
share of the excess contributions assigned to the family unit.
(F) Allocable income. To determine the amount of the corrective
distribution required under this Section 14.08, the Advisory Committee
must calculate the allocable income for the Plan Year in which the excess
contributions arose. "Allocable income" means net income or net loss. To
calculate allocable income for the Plan Year, the Advisory Committee will
use a uniform and nondiscriminatory method which reasonably reflects the
manner used by the Plan to allocate income to Participants' Accounts.
14.09 NONDISCRIMINATION RULES FOR EMPLOYER MATCHING
CONTRIBUTIONS/PARTICIPANT NONDEDUCTIBLE CONTRIBUTIONS. For Plan Years
beginning after December 31, 1986, the Advisory Committee must determine
whether the annual Employer matching contributions (other than qualified
matching contributions used in the ADP under Section 14.08), if any, and
the Employee contributions, if any, satisfy either of the following
average contribution percentage ("ACP") tests:
(i) The ACP for the Highly Compensated Group does not exceed 1.25
times the ACP of the Nonhighly Compensated Group; or
(ii) The ACP for the Highly Compensated Group does not exceed the ACP
for the Nonhighly Compensated Group by the more than two percentage points
(or the lesser percentage permitted by multiple use limitation in Section
14.10) and the ACP for the Highly Compensated Group is not more than twice
the ACP for the Nonhighly Compensated Group.
(A) Calculation of ACP. The average contribution percentage for a group
is the average of the separate contribution percentages calculated for
each Eligible Employee who is a member of that group. An Eligible
Employee's contribution percentage for a Plan Year is the ratio of the
Eligible Employee's aggregate contributions for the Plan Year to the
Employee's Compensation for the Plan Year. "Aggregate contributions" are
Employer matching contributions (other than qualified matching
contributions used in the ADP test under Section 14.08) and employee
contributions (as defined in Section 14.03). For aggregated family
members treated as a single Highly Compensated Employee, the contribution
percentage of the family unit is the contribution percentage determined by
combining the aggregate contributions and Compensation of all aggregated
family members.
The Advisory Committee, in a manner consistent with Treasury
regulations, may determine the contribution percentages of the Eligible
Employees by taking into account qualified nonelective contributions
(other than qualified nonelective contributions used in the ADP test under
Section 14.08) or elective deferrals, or both, made to this Plan or to any
other qualified Plan maintained by the Employer. The Advisory Committee
may not include qualified nonelective contributions in the ACP test unless
the allocation of nonelective contributions is nondiscriminatory when the
Advisory Committee takes into account all nonelective contributions
(including the qualified nonelective contributions) and also when the
Advisory Committee takes into account only the nonelective contributions
not used in either the ADP test described in Section 14.08 or the ACP test
described in this Section 14.09. The Advisory Committee may not include
elective deferrals in the ACP test, unless the Plan which includes the
elective deferrals satisfies the ADP test both with and without the
elective deferral included in this ACP test. For Plan Years beginning
after December 31, 1989, the Advisory Committee may not include in the ACP
test any qualified nonelective contributions or elective deferrals under
another qualified plan unless that plan has the same plan year as this
Plan. The Advisory Committee must maintain records to demonstrate
compliance with the ACP test, including the extent to which the Plan used
qualified nonelective contributions or elective deferrals to satisfy the
test. For Plan Years beginning prior to January 1, 1992, the component
group testing rule permitted under Section 14.08(A) also applies to the
ACP test under this Section 14.09.
(B) Special aggregation rule for Highly Compensated Employees. To
determine the contribution percentage of any Highly Compensated Employee,
the aggregate contributions taken into account must include any matching
contributions (other than qualified matching contributions used in the ADP
test) and any Employee contributions made on his behalf to any other plan
maintained by the Employer, unless the other plan is an ESOP. If the
plans have different plan years, the Advisory Committee will determine the
combined aggregate contributions on the basis of the plan years ending in
the same calendar year.
(C) Aggregation of certain plans. If the Employer treats two plans as a
unit for coverage or nondiscrimination purposes, the Employer must combine
the plans to determine whether either plan satisfies the ACP test. This
aggregation rule applies to the contribution percentage determination for
all Eligible Employees, irrespective of whether an Eligible Employee is a
Highly Compensated Employee or a Nonhighly Compensated Employee. For Plan
Years beginning after December 31, 1989, an aggregation of plans under
this paragraph does not apply to plans which have different plan years
and, for Plan Years beginning after December 31, 1988, the Advisory
Committee may not aggregate an ESOP (or the ESOP portion of a plan) with a
non-ESOP plan (or non-ESOP portion of a plan).
(D) Distribution of excess aggregate contributions. The Advisory
Committee will determine excess aggregate contributions after determining
excess deferrals under Section 14.07 and excess contributions under
Section 14.08. If the Advisory Committee determines the Plan fails to
satisfy the ACP test for a Plan Year, it must distribute the excess
aggregate contributions, as adjusted for allocable income, during the next
Plan Year. However, the Employer will incur an excise tax equal to 10% of
the amount of excess aggregate contributions for a Plan Year not
distributed to the appropriate Highly Compensated Employees during the
first 2-1/2 months of that next Plan Year. The excess aggregate
contributions are the amount of aggregate contributions allocated on
behalf of the Highly Compensated Employees which causes the Plan to fail
to satisfy the ACP test. The Advisory Committee will distribute to each
Highly Compensated Employee his respective share of the excess aggregate
contributions. The Advisory Committee will determine the respective
shares of excess aggregate contributions by starting with the Highly
Compensated Employee(s) who has the greatest contribution percentage,
reducing his contribution percentage (but not below the next highest
contribution percentage), then, if necessary, reducing the contribution
percentage of the Highly Compensated Employee(s) at the next highest
contribution percentage level (including the contribution percentage of
the Highly Compensated Employee(s) whose contribution percentage the
Advisory Committee already has reduced), and continuing in this manner
until the ACP for the Highly Compensated Group satisfies the ACP test. If
the Highly Compensated Employee is part of an aggregated family group, the
Advisory Committee, in accordance with the applicable Treasury
regulations, will determine each aggregated family member's allocable
share of the excess aggregate contributions assigned to the family unit.
(E) Allocable income. To determine the amount of the corrective
distribution required under this Section 14.09, the Advisory Committee
must calculate the allocable income for the Plan Year in which the excess
aggregate contributions arose. "Allocable income" means net income or net
loss. The Advisory Committee will determine allocable income in the same
manner as described in Section 14.08(F) for excess contributions.
(F) Characterization of excess aggregate contributions. The Advisory
Committee will treat a Highly Compensated Employee's allocable share of
excess aggregate contributions in the following priority: (1) first as
attributable to his Employee contributions which are voluntary
contributions, if any; (2) then as matching contributions allocable with
respect to excess contributions determined under the ADP test described in
Section 14.08; (3) then on a pro rata basis to matching contributions and
to the deferral contributions relating to those matching contributions
which the Advisory Committee has included in the ACP test; (4) then on a
pro rata basis to Employee contributions which are mandatory
contributions, if any, and to the matching contributions allocated on the
basis of those mandatory contributions; and (5) last to qualified
nonelective contributions used in the ACP test. To the extent the Highly
Compensated Employee's excess aggregate contributions are attributable to
matching contributions, and he is not 100% vested in his Accrued Benefit
attributable to matching contributions, the Advisory Committee will
distribute only the vested portion and forfeit the nonvested portion. The
vested portion of the Highly Compensated Employee's excess aggregate
contributions attributable to Employer matching contributions is the total
amount of such excess aggregate contributions (as adjusted for allocable
income) multiplied by his vested percentage (determined as of the last day
of the Plan Year for which the Employer made the matching contribution).
The Employer will specify in Adoption Agreement Section 3.05 the manner in
which the Plan will allocate forfeited excess aggregate contributions.
14.10 MULTIPLE USE LIMITATION. For Plan Years beginning after
December 31, 1988, if at least one Highly Compensated Employee is
includible in the ADP test under Section 14.08 and in the ACP test under
Section 14.09, the sum of the Highly Compensated Group's ADP and ACP may
not exceed the multiple use limitation.
The multiple use limitation is the sum of (i) and (ii):
(i) 125% of the greater of: (a) the ADP of the Nonhighly
Compensated Group under the Code Section 401(k) arrangement; or (b) the
ACP of the Nonhighly Compensated Group for the Plan Year beginning with or
within the Plan Year of the Code Section 401(k) arrangement.
(ii) 2% plus the lesser of (i)(a) or (i)(b), but no more than twice
the lesser of (i)(a) or (i)(b).
The Advisory Committee, in lieu of determining the multiple use
limitation as the sum of (i) and (ii), may elect to determine the multiple
use limitation as the sum of (iii) and (iv):
(iii) 125% of the lesser of: (a) the ADP of the Nonhighly
Compensated Group under the Code Section 401(k) arrangement; or (b) the
ACP of the Nonhighly Compensated Group for the Plan Year beginning with or
within the Plan Year of the Code Section 401(k) arrangement.
(iv) 2% plus the greater of (iii)(a) or (iii)(b), but no more than
twice the greater of (iii)(a) or (iii)(b).
The Advisory Committee will determine whether the Plan satisfies the
multiple use limitation after applying the ADP test under Section 14.08
and the ACP test under Section 14.09 and after making any corrective
distributions required by those Sections. If, after applying this Section
14.10, the Advisory Committee determines the Plan has failed to satisfy
the multiple use limitation, the Advisory Committee will correct the
failure by treating the excess amount as excess contributions under
Section 14.08 or as excess aggregate contributions under Section 14.09, as
it determines in its sole discretion. This Section 14.10 does not apply
unless, prior to application of the multiple use limitation, the ADP and
the ACP of the Highly Compensated Group each exceeds 125% of the
respective percentages for the Nonhighly Compensated Group.
14.11 DISTRIBUTION RESTRICTIONS. The Employer must elect in
Section 6.03 the Adoption Agreement the distribution events permitted
under the Plan. The distribution events applicable to the Participant's
Deferral Contributions Account, Qualified Nonelective Contributions
Accounts and Qualified Matching Contributions Account must satisfy the
distribution restrictions described in paragraph (m) of Section 14.03.
(A) Hardship distributions from Deferral Contributions Account. The
Employer must elect in Adoption Agreement Section 6.03 whether a
Participant may receive hardship distributions from his Deferral
Contributions Account prior to the Participant's Separation from Service.
Hardship distributions from the Deferral Contributions Account must
satisfy the requirements of this Section 14.11. A hardship distribution
option may not apply to the Participant's Qualified Nonelective
Contributions Account or Qualified Matching Contributions Account, except
as provided in paragraph (3).
(1) Definition of hardship. A hardship distribution under this
Section 14.11 must be on account of one or more of the following immediate
and heavy financial needs: (1) medical care described in Code Section
213(d) incurred by the Participant, by the Participant's spouse, or by any
of the Participant's dependents, or necessary to obtain such medical care;
(2) the purchase (excluding mortgage payments) of a principal residence
for the Participant; (3) the payment of post-secondary education tuition
and related educational fees, for the next 12-month period, for the
Participant, for the Participant's spouse, or for any of Participant's
dependents (as defined in Code Section 152); (4) to prevent the eviction
of the Participant from his principal residence or the foreclosure on the
mortgage of the Participant's principal residence; or (5) any need
prescribed by the Revenue Service in a revenue ruling, notice or other
document of general applicability which satisfies the safe harbor
definition of hardship.
(2) Restrictions. The following restrictions apply to a Participant
who receives a hardship distribution: (a) the Participant may not make
elective deferrals or employee contributions to the Plan for the 12-month
period following the date of his hardship distribution; (b) the
distribution is not in excess of the amount of the immediate and heavy
financial need (including any amounts necessary to pay any federal, state
or local income taxes or penalties reasonably anticipated to result from
the distribution); (c) the Participant must have obtained all
distributions, other than hardship distributions, and all nontaxable loans
(determined at the time of the loan) currently available under this Plan
and all other qualified plans maintained by the Employer; and (d) the
Participant agrees to limit elective deferrals under this Plan and under
any other qualified Plan maintained by the Employer, for the Participant's
taxable year immediately following the taxable year of the hardship
distribution, to the 402(g) limitation (as described in Section 14.07),
reduced by the amount of the Participant's elective deferrals made in the
taxable year of the hardship distribution. The suspension of elective
deferrals and employee contributions described in clause (a) also must
apply to all other qualified plans and to all nonqualified plans of
deferred compensation maintained by the Employer, other than any mandatory
employee contribution portion of a defined benefit plan, including stock
option, stock purchase and other similar plans, but not including health
or welfare benefit plans (other than the cash or deferred arrangement
portion of a cafeteria plan).
(3) Earnings. For Plan Years beginning after December 31, 1988, a
hardship distribution under this Section 14.11 may not include earnings on
an Employee's elective deferrals credited after December 31, 1988.
Qualified matching contributions and qualified nonelective contributions,
and any earnings on such contributions, credited as of December 31, 1988,
are subject to the hardship withdrawal only if the Employer specifies in
an addendum to this Section 4.11. The addendum may modify the December
31, 1988, date for purposes of determining credited amounts provided the
date is not later than the end of the last Plan Year ending before July 1,
1989.
(B) Distributions after Separation from Service. Following the
Participant's Separation from Service, the distribution events applicable
to the Participant apply equally to all of the Participant's Accounts,
except as elected in Section 6.03 of the Employer's Adoption Agreement.
(C) Correction of Annual Additions Limitation. If, as a result of a
reasonable error in determining the amount of elective deferrals and
Employee may make without violating the limitations of Part 2 of Article
III, an Excess Amount results, the Advisory Committee will return the
Excess Amount (as adjusted for allocable income) attributable to the
elective deferrals. The Advisory Committee will make this distribution
before taking any corrective steps pursuant to Section 3.10 or to Section
3.16. The Advisory Committee will disregard any elective deferrals
returned under this Section 14.11(C) for purposes of Sections 14.07, 14.08
and 14.09.
14.12 SPECIAL ALLOCATION RULES. If the Code Section 401(k)
arrangement provides for salary reduction contributions, if the Plan
accepts Employee contributions, pursuant to Adoption Agreement Section
4.01, or if the Plan allocates matching contributions as of any date other
than the last day of the Plan Year, the Employer must elect in Adoption
Agreement 9.11 whether any special allocation provisions will apply under
Section 9.11 of the Plan. For purposes of the elections:
(a) A "segregated Account" direction means the Advisory Committee
will establish a segregated Account for the applicable contributions made
on the Participant's behalf during the Plan Year. The Trustee must invest
the segregated Account in Federally insured interest bearing savings
account(s) or time deposits, or a combination of both, or in any other
fixed income investments, unless otherwise specified in the Employer's
Adoption Agreement. As of the last day of each Plan Year (or, if earlier,
an allocation date coinciding with a valuation date described in Section
9.11), the Advisory Committee will reallocate the segregated Account to
the Participant's appropriate Account, in accordance with Section 3.04 or
Section 4.06, whichever applies to the contributions.
(b) A "weighted average allocation" method will treat a weight
portion of the applicable contributions as if includible in the
Participant's Account as of the beginning of the valuation period. The
weighted portion is a fraction, the numerator of which is the number of
months in the valuation period, excluding each month in the valuation
period which begins prior to the contribution date of the applicable
contributions, and the denominator of which is the number of months in the
valuation period. The Employer may elect in its Adoption Agreement to
substitute a weighting period other than months for purposes of this
weighted average allocation.
* * * * * * * * * * * * * * *
Defined Contribution Master Plan
ARTICLE A
APPENDIX TO BASIC PLAN DOCUMENT
This Article is necessary to comply with the Unemployment
Compensation Amendments Act of 1992 and is an integral part of the basic
plan document. Section 12.08 applies to any modification or amendment of
this Article.
A-1 APPLICATIONS. This Article applies to distributions made on or
after January 1, 1993. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election under this
Article, a distributee may elect, at the time and in the manner prescribed
by the Plan 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.
A-2 DEFINITIONS
(a) "Eligible rollover distribution." An eligible rollover
distribution is any distribution of all or any portion of the balance to
the credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a series
of substantially equal period payments (not less frequently than annually)
made for the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's design beneficiary, or for a specified period of ten years
or more; any distribution to the extent such distribution is required
under Code Section 401(a)(9); and the portion of any distribution that is
not includible in gross income (determined without regard to the exclusion
of net unrealized appreciation with respect to employer securities).
(b) "Eligible retirement plan." An eligible retirement plan is an
individual retirement account described in Code Section 408(a), an
individual retirement annuity described in Code Section 408(b), an annuity
plan described in Code Section 403(a), or a qualified trust described in
Code Section 401(a), that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover distribution
to the surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(c) "Distributee." A distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's surviving
spouse and the employee's or former Employee's spouse or former spouse who
is the alternate payee under a qualified domestic relations order, as
defined in Code Section 414(p), are distributees with regard to the
interest of the spouse or former spouse.
(d) "Direct rollover." A direct rollover is a payment by the Plan
to the eligible retirement plan specified by the distributee.
Defined Contribution Master Plan
ARTICLE B
APPENDIX TO BASIC PLAN DOCUMENT
This Article is necessary to comply with the Omnibus Budget
Reconciliation Act of 1993 (OBRA '93) and is an integral part of the basic
plan document. Section 12.08 applies to any modification or amendment of
this Article.
In addition to other applicable limitations set forth in the plan,
and notwithstanding any other provision of the plan to the contrary, for
plan years beginning on or after January 1, 1994, the annual compensation
of each employee taken into account under the plan shall not exceed the
OBRA '93 annual compensation limit. The OBRA '93 annual compensation
limit is $150,000, as adjusted by the Commissioner for increases in the
cost of living in accordance with Section 401(a)(17)(B) of the Internal
Revenue Code. The cost-of-living adjustment in effect for a calendar year
applies to any period, not exceeding 12 months, over which compensation is
determined (determination period) beginning in such calendar year. If a
determination period consists of fewer than 12 months, the OBRA '93 annual
compensation limit will be multiplied by a fraction, the numerator of
which is the number of months in the determination period, and the
denominator or which is 12.
For plan years beginning on or after January 1, 1994, any reference
in this plan to the limitation under Section 401(a)(17) of the Code shall
mean the OBRA '93 annual compensation limit set forth in this provision.
If compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the current plan
year, the compensation for that prior determination period is subject to
the OBRA '93 annual compensation limit in effect for that prior
determination period. For this purpose, for determination periods
beginning before the first day of the first plan year beginning on or
after January 1, 1994, the OBRA '93 annual compensation limit is $150,000.
Defined Contribution Master Plan
ARTICLE C
APPENDIX TO BASIC PLAN DOCUMENT
Rev. Rul. 94-76 Model Amendment
This amendment is effective on the first day of the first Plan Year
beginning on or after December 12, 1994, or, if later, March 12, 1995.
Notwithstanding any provision of this Plan to the contrary, to the
extent that any optional form of benefit under this Plan permits a
distribution prior to the Employee's retirement, death, disability, or
severance from employment, and prior to plan termination, the optional
form of benefits is not available with respect to benefits attributable to
assets (including the post-transfer earnings thereon) and liabilities that
are transferred, within the meaning of Code Section 414(l), to this Plan
from a money purchase pension plan qualified under Code Section 401(a)
(other than any portion of those assets and liabilities attributable to
voluntary Employee contributions).
ARTICLE D
APPENDIX TO BASIC PLAN DOCUMENT
USERRA Model Amendment
This amendment is effective as of December 12, 1994.
Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to qualified
military service will be provided in accordance with Code Section 414(u).
Loan repayments will be suspended under this Plan as permitted under Code
Section 414(u)(4).
* * * * * * * * * * * * * * *
<PAGE>
INVESTMENT ELECTION POLICY
Each Participant shall initially direct, in writing in a manner and form
established by the Plan Administrator and acceptable to the
Custodian/Trustee, how the balance of the Participant's Account shall be
invested. Such written election shall name the Investment Alternative and
direct the Plan Administrator to direct the Custodian/Trustee to invest
the balance of the Participant's Account in one or more corresponding
funds.
The Participant's election under this Section 8.10 shall remain in effect
until changed by the Participant by filing another direction as permitted
by the Plan Administrator. Effective January 1, 1998 a participant's
election hereunder may be changed daily by providing a new election using
the telephone voice response system to the Custodian/Trustee prior to
12:00 PM Pacific Time of the effective date of the new election.
Transaction requests logged by the Custodian/Trustee after 12:00 PM Pacific
Time will be held over for processing until the next business day. The
Custodian/Trustee is not liable for any loss, nor is liable for any breach
resulting from a Participant's election of the investment of any portion
of his Account under this Policy.
Participant elections must be specified in increments of one per cent
(1%), but not less than five dollars ($5), among the following Employer
selected Investment Alternatives:
WICOR, Inc. Company Stock Fund
PBHG Emerging Growth Fund
Capital Guardian International Fund
Strong Common Stock Fund
Chancellor Large-Cap Equity Fund
Dodge & Cox Balanced Fund
Strong Government Securities Fund
American Express Trust Income Fund I
In the event that a new Participant shall fail, for any reason, to provide
any initial valid direction pursuant to this Policy, the Plan
Administrator shall, in its sole discretion, direct the Custodian/Trustee
to invest contributions made on behalf of such Participant in the American
Express Trust Income Fund I.
The Company Stock Fund invests in the stock of WICOR, Inc. The exercise
of voting and tender rights with respect to WICOR stock is as follows:
1. Voting of WICOR Stock
A Participant may direct the voting at each annual meeting and at each
special meeting of the stockholders of WICOR, Inc. of that number of whole
shares of WICOR Stock attributable to his balance in the Company Stock
Fund, as of the Valuation Date preceding the record date for such meeting.
Each such Participant will be provided with copies of any pertinent
material together with a request for the Participant's confidential
instructions as to how such shares are to be voted. The Administrator
shall direct the Trustee to vote such shares in accordance with such
instructions. Any shares of WICOR Stock allocated to Participant accounts
for which the Administrator has not received, or is not subject to
receiving, shall be voted by the Trustee in its absolute discretion in
accordance with ERISA.
2. Tender Offers for WICOR Stock
In the event that WICOR Stock becomes the subject of a tender offer, each
participant shall have the sole and exclusive right to decide whether to
direct the Trustee to tender up to the number of whole and fractional
shares of WICOR Stock attributable to his balance in the WICOR Stock Fund
as of the Valuation Date preceding the date of the tender offer. Each
Participant shall have the right, to the extent the terms of the tender
offer so permit, to direct the withdrawal of such shares from tender. A
Participant shall not be limited as to the number of instructions to
tender or to withdraw from same which he can give, provided, however, that
the Participant shall not have the right to give such instructions outside
a reasonable time period established by the Trustee. Said reasonable time
period shall be based on the ability of the Trustee to comply with the
offer. Each such Participant will be provided, by the Administrator,
within a reasonable time of the commencement of a tender offer, with
copies of any pertinent material supplied by the tender offerer or WICOR,
Inc., together with a request for the Participant's instructions
pertaining to tender of the applicable shares.
Such pertinent written materials shall include:
(i) the offer to purchase as distributed by the offerer to the
shareholders of the Company;
(ii) a statement of the shares representing his interest in the Company
Stock Fund as of the most recent information available to the
Administrator; and
(iii) directions as to the means by which a Participant can give
instructions with respect to the tender.
The Trustee shall aggregate numbers representing each Participant's
instructions and shall tender such shares in accordance with such
instructions. Any shares of WICOR Stock allocated to a Participant for
which the Administrator has not received such tender offer instructions
shall be tendered by the Trustee in its absolute discretion in accordance
with ERISA. The proceeds of any shares of WICOR Stock tendered in
accordance with this Section which are purchased and paid for by the
tender offerer shall be credited to the investment fund or funds elected
by the Participant pursuant to rules established by the Administrator. In
the event all shares of WICOR Stock tendered by Participants are not
purchased pursuant to the tender offer, the Administrator is authorized to
allocate the proceeds of the whole and fractional shares purchased from
all such Participants pro-rata, based upon the aggregate shares tendered
by each Participant.
This Plan is intended to constitute a plan described in Section 404(c) of
the Employee Retirement Income Security Act (ERISA) and Title 29 of the
Code of Federal Regulations Section 2550.404c-1. The plan fiduciaries may
be relieved of liability for losses resulting from the participant's
investment decisions.
Prior to a participant's initial investment in the funds, each participant
will receive a copy of the most recent prospectus which details the fund's
annual operating expenses. The investment alternatives do not have any
commissions, sales loads, deferred sales charges, redemption or exchange
fees not disclosed in the prospectus. Upon request, a participant is
entitled to receive other information including:
1. A description of each fund's annual operating expenses, investment
management fees, administrative fees, transaction costs and the
percentage by which these reduce the rate of return;
2. Copies of any prospectuses, financial statements and reports, and
other materials available for each fund;
3. A list of the assets compromising each fund;
4. Information including the past and current investment performance
after the deduction of fund expenses;
5. Information on their account value.
To receive any of the information listed above, a participant should
contact Kathleen Robe, 12650 Westminster Avenue, Santa Ana, CA 92706-2139,
714-554-7709. Kathleen Robe has been designated to assist the company,
the fiduciary responsible for the plan's compliance with Section 404(c) of
ERISA, in providing such information.
Dated: , 1997.
ADVISORY COMMITTEE
______________________________ ________________________________
______________________________ ________________________________
______________________________ ________________________________
WICOR, INC.
MASTER SAVINGS TRUST
AGREEMENT
This agreement made as of October 1, 1996, between WICOR, Inc. a
corporation (hereinafter referred to as the "Company") and MARSHALL &
ILSLEY TRUST COMPANY, a Wisconsin banking corporation (hereinafter
referred to as the "Trustee").
WITNESSETH:
WHEREAS, the Company and certain of its affiliated subsidiary
corporations (listed in Appendix A attached hereto and hereinafter
collectively referred to as the "Corporation" or "Corporations"), have
established certain pension, retirement and other employee benefit plans
(the "Separate Plans," also listed in Appendix A) for the exclusive
benefit of their respective eligible employees and their beneficiaries,
such of which of the Separate Plans constitute a qualified and tax exempt
pension plan within the meaning of Sections 401(a) and 501(a) of the
Internal Revenue Code, as amended; and
WHEREAS, pursuant to the terms of each of the Separate Plans, the
Company and the Corporations have made provisions to enter into agreements
establishing certain separate trusts, and now desire to form a master
trust to encompass all the Separate Plans by amending and restating the
present Wisconsin Gas Company Employee Savings Master Trust Agreement made
on August 1, 1995 between said Wisconsin Gas Company (one of the
corporations) and the Trustee; and
WHEREAS, said Master Trust, as restated, is intended to be exempt
from tax under Section 501(a) of the Internal Revenue Code, as amended, by
reason of its forming a part of plans qualified under Section 401(a) of
the Internal Revenue Code, as amended;
NOW THEREFORE, is consideration of the premises and of the
mutual covenants herein contained, the Company and the Trustee do hereby
convenant and agree to the amendment restatement of this Master Trust
Agreement in its entirety to read and continue as follows:
ARTICLE ONE
1.01 The Company hereby establishes with the Trustee a Master Trust
consisting of such sums of money and such property acceptable to the
Trustee as shall from time to time be paid or delivered to the Trustee and
the earnings and profits thereon. All such money and property, all
investments made therewith and proceeds thereof and all earnings and
profit thereon, less the payments or other distributions which, at the
time of reference, shall have been made by the Trustee, as authorized
herein, and referred to herein as the "Master Fund," or the "Fund," and
shall be held by the Trustee, in trust, and dealt with in accordance with
the provision of the Agreement.
1.02 When the assets of each Separate Trust are transferred to the
Trustee, the Separate Trusts shall cease to exist as separate trusts and
shall be considered to continue hereafter as a single trust hereunder.
ARTICLE TWO
2.01 Each of the Separate Plans shall be a Participating Plan
hereunder.
2.02 Any other Plan may be funded in whole or in part through the
Master Trust and become a Participating Plan thereby only if all of the
following conditions have been met:
a. The Company, or a Corporation has established the Plan;
b. The Plan is qualified under Section 401(a) of the Internal
Revenue Code of 1986, as amended;
c. The Master Trust is exempt from taxation under Section
501(a) of the Internal Revenue Code of 1986, as amended;
d. The Master Trust (as then in effect and as the same may be
amended from time to time) has been duly adopted as a trust under the
Plan and in the case of a Corporation, the Company has consented
thereto;
e. The Master Trust is maintained at all times as a domestic
trust in the United States; and
f. The Company is duly authorized under the Plan to exercise
on behalf of such Plan all of the authority vested in it by the terms
of this Master Trust.
2.03 When the Master Trust is adopted as a trust under the Plan of
any Corporation, such Corporation shall be bound by the decisions,
instructions, actions and directions of the Company under this Agreement
and the Trustee shall be fully protected by the Company and such
Corporation in relying upon such decisions, instructions, actions and
directions of the Company. The Trustee shall not be required to give
notice to or obtain the consent of any such Corporation with respect to
any action which is taken by the Trustee pursuant to this Agreement, and
the Company shall have the sole authority to enforce this Agreement on
behalf of any such Corporation.
2.04 Responsibility for the management and control of the assets of
Plans utilizing the Master Trust as a funding medium (including the power
to acquire or dispose of such assets) may be vested at the discretion of
the Company in the Trustee and/or in one or more Investment Managers
appointed by the Company. That portion of the fund for which the Trustee
shall have such responsibility is hereinafter referred to as the
"Discretionary Fund." Any portion of the Master Fund over which an
Investment Manager shall have such responsibility is hereinafter referred
to as a "Directed Fund." Allocation of assets of the Fund between or
among any Discretionary or Directed Funds shall be determined by the
Company. Further, the Company, being a named fiduciary for this purpose,
reserves the right to itself to direct the Trustee respecting the
management and control of certain assets of specified Plans (including the
power to acquire or dispose of such assets) and such portion of the Master
Fund over which the Company shall have such responsibility is hereinafter
referred to as the "Company Directed Fund." The Company may direct the
Trustee to hold all or any part of the assets from time to time
constituting the Company Directed Fund separate and apart from the assets
of the Master Fund. For efficiency or convenience of investment or
administration, the Master Fund or the Discretionary, Directed or Company
Directed Fund may be divided into such one or more sub-funds as the
Company or the Trustee may deem advisable.
For the purpose of this Agreement, "Investment Manager" shall mean an
investment adviser registered under the Investment Advisers Act of 1940, a
bank (other than the Trustee) as defined in the Act, or an insurance
company qualified to perform investment management services under the laws
of more than one State, which shall have acknowledged in writing to the
Company that it is a fiduciary with respect to all Participating Plans,
and which shall have the power to manage, acquire and dispose of Plan
assets.
2.05 The Trustee shall maintain a separate account reflecting the
equitable share in the Master Fund of each Participating Plan. The
equitable shares in the Master Fund of the respective present
Participating Plans as of December 31, 1995 shall be proportionate to the
fair market values of the assets allocable to such Plans under the
Separate Trusts, as certified by the Company to the Trustee. Thereafter,
for the purpose of determining the equitable shares of Participating
Plans, the Trustee shall determine the value of the assets of the Master
Fund as of the last day of each month and as of such other dates as the
Trustee may deem appropriate or the Company may direct. In addition, for
the convenience of the company, the Company may request the Trustee to
include in such account assets which do not constitute part of the Master
Fund or are held by the Trustee in a segregated Company Directed Fund, for
the purposes of determining the value of all of the assets of such
Participating Plans. Assets shall be valued at their market values at the
close of business on the date of valuation, or, in the absence of readily
ascertainable market values, at such values as the Trustee shall determine
in accordance with methods consistently followed and uniformly applied.
Anything herein to the contrary notwithstanding, with respect to assets
constituting part of a Directed Fund hereunder or in the event that assets
which do not constitute part of the Master Fund or which are held by the
Trustee in a segregated Company Directed Fund are included in such
valuation or account at the request of the Company, the Trustee may rely
for all purposes of this Agreement, including for the purpose of
determining the value of such assets as of any monthly or other valuation
date, on any certified appraisal or other form of valuation submitted to
it by the Investment Manager, the Company, or by the person or persons
controlling such assets.
2.06 Except as provided in Section 3.01(c), the Trustee shall not be
required to maintain any separate records or accounts with respect to any
participant in (or beneficiary of) any Participating Plan which is of the
defined benefit type, and any such records or accounts required to be
maintained pursuant to the terms of any such Plan shall be maintained by
the Company or by the appropriate committee, entity or person(s) directly
charged with such responsibility under the individual Participating Plan.
2.07 By entering into this Agreement, the Trustee does not assume any
responsibility or undertake any duty to enforce payment of any
contribution to any Participating Plan, any responsibility for the
adequacy of the Fund or the funding standards adopted by the sponsor of
any Participating Plan to meet or discharge any pension or other
liabilities under such Plan, or (except as otherwise required by law) any
responsibility under the terms of this Agreement for the management or
control of any Directed Funds or Company Directed Funds. No duties or
obligations shall be imposed upon the Trustee unless they have been
specifically undertaken by the express terms of this Agreement.
2.08 Except as may otherwise be permitted by law, at no time prior to
the satisfaction of all liabilities with respect to participants and their
beneficiaries under any Participating Plan shall any part of the equitable
share of such Participating Plan in the Master Fund be used for, or
diverted to, any purposes other than for the exclusive benefit of such
participants and their beneficiaries, and for defraying reasonable
expenses of administering such Plans.
ARTICLE THREE
3.01 The Trustee shall:
a. hold, invest and reinvest the Discretionary Fund as
provided in Article Four in accordance with the powers and discretion
contained in or referred to in Article Seven;
b. settle purchases and sales for any Directed Fund upon the
instructions of the Investment Manager as provided in Article Five or
in the case of a Company Directed Fund, upon the instructions of the
Company;
c. pay moneys on the order of the Company, including when the
Company shall so order, payments directly to or for the benefit of
the participants and their beneficiaries, or to an insurance company
to provide, by the purchase of an annuity contract, or otherwise, for
the payment of benefits and the Trustee shall keep records of any and
all such payments so directed and provide such tax advices or
governmental forms and reports as shall from time to time be agreed
upon between the Company and the Trustee; and
d. transfer any portion of the Master Fund on the order of the
Company to any insurance company or other trustee to provide an
alternative or additional funding medium or investment vehicle for
the management and/or control of Participating Plan assets.
3.02 Any orders pursuant to subparagraphs (c) and (d) of Section 3.01
may, but need not specify the application to be made of moneys so ordered,
and the Trustee may charge such distribution against any portion of the
Master Fund, as the Company may direct. The Trustee may assume that any
such orders are not contrary to any applicable law. The Trustee shall not
be responsible in any way respecting the determination, computation,
payment or application of any benefit or payment which it is ordered to
make, or for the form, terms or issuer of any insurance contract which it
is directed to purchase with assets of the Fund (whether or not such
contract is purchased to provide primarily for the payment of benefits
under any Participating Plan or primary as an investment vehicle or
funding medium), for performing any functions under any insurance contract
which it may be directed to purchase and hold as Contract Holder
thereunder (other than the execution of any documents incidental thereto
on the instruction of the Company), or for the terms of any trust
agreement under which any trustee to which it shall deliver any assets of
the Fund on the order of the Company is acting, or for any other matter
affecting the administration of a Plan by the Company, or any other person
or persons to whom responsibility for Plan administration is allocated or
delegated pursuant to the terms of a Participating Plan.
3.03 Any power or duty of the Company hereunder shall be exercised by
the Board of Directors of the Company or by such other person or persons
as are authorized to exercise such powers or duties as certified by the
Company in writing to the Trustee. The Trustee shall be entitled to rely
upon any such certification by the Company. The Trustee shall be fully
protected in continuing to rely on such certification until a subsequent
certification is filed with the Trustee.
ARTICLE FOUR
4.01 The Trustee shall invest and reinvest the Discretionary Fund as
a single fund without distinction between principal and income in such
investments and at such time or times and in such shares and proportions
as it, in its absolute discretion, shall deem advisable; except that, the
Trustee is authorized to hold in the Discretionary Fund uninvested cash
awaiting investment and such additional cash balances as it shall deem
reasonable or necessary to meet anticipated distributions from or
administrative costs of any Participating Plan or the Fund, without
incurring any liability for the payment of interest on such cash,
notwithstanding that the Trustee or an affiliate thereof may accrue
interest on such cash balances.
The Trustee shall discharge the foregoing powers and discretion
in accordance with the funding policy and guidelines established by the
Company from time to time and communicated in writing to the Trustee. The
Trustee shall have no responsibility with respect to the formulation of
any funding, investment or diversification policy embodied in any such
direction.
If the Company has exercised its discretion to vest
responsibility for the management and control of any portion of the Master
Fund in one or more Investment Managers or in itself as to a Company
Directed Fund, or if the Master Fund is not the only funding medium under
a Participating Plan, any trustee (including the Trustee), Investment
Manager or other person in whom fiduciary responsibility is vested for the
management and control of any Plan assets shall exercise its fiduciary
responsibilities with respect to such Plan assets, including without
limitation any responsibility of diversification imposed by Section
404(a)(1)(c) of the Employee Retirement Income Security Act of 1974
("ERISA"), as if the assets allocated to it constituted the entirety of
the Plan assets. The Company or some other fiduciary named by it shall be
responsible for the overall diversification of the entire Master Fund.
4.02 The Trustee may in its discretion invest and reinvest in either
(i) any fund created and administered by it, as the trustee thereof, for
the collective investment of the assets of employee benefit trusts or
otherwise, as long as such collective investment fund is a qualified trust
under the applicable provisions of the Internal Revenue Code (and while
any portion of the Fund is so invested such collective investment fund
shall constitute part of the Participating Plans, and the instrument
creating such fund shall constitute part of this Master Trust Agreement)
or (ii) the shares of any mutual fund including any such fund from which
the Trustee or any affiliate thereof receives an investment management fee
or any other fee.
ARTICLE FIVE
5.01 The investment and reinvestment of any Directed Fund established
under this Agreement shall be under the exclusive management and control
of the Investment Manager appointed by the Company. The Trustee shall not
be a party to any agreement with the Investment Manager, and the terms and
conditions of appointment, authority and retention of the Investment
Manager shall be the sole responsibility of the Company.
The Company shall certify in writing to the Trustee:
a. that it has appointed an Investment Manager with respect to
each Participating Plan; and
b. the assets of the fund to be allocated to the Directed Fund
for which such Investment Manager shall have responsibility.
The Company shall also furnish to the Trustee a certification by
such Investment Manager that it is an "Investment Manager" as such term is
defined in Section 2.04 of this Agreement.
The Investment Manager shall furnish the Trustee from time to
time with the names and signatures of those persons authorized to direct
the Trustee on its behalf hereunder. The Trustee shall be fully protected
in continuing on its behalf hereunder. The Trustee shall be fully
protected in continuing to rely on the certification provided by an
Investment Manager as to such authorized persons until a subsequent
certification is filed with the Trustee. The Trustee shall have the right
to request that all directions by an Investment Manager pursuant to this
Agreement be in writing and shall assume no liability hereunder for
failure to act pursuant to such directions unless and until it shall
receive directions in a form satisfactory to it.
5.02 All transactions in or from a Directed Fund related to the
acquisition or disposal of assets, as well as all purchases and sales of
assets, shall be made upon such terms and conditions and from or through
such principals and agents, as the Investment Manager shall direct. No
directed transactions shall be executed through the facilities of the
Trustee except in those instances where the Trustee shall make available
its facilities solely for the purposes of temporary investment of cash
reserves of a Directed Fund. (However, nothing herein shall confer any
authority or obligation upon the Trustee to invest or reinvest the cash
balances of any Directed Fund unless and until it receives directions from
the Investment Manager.)
5.03 Supervision of the Investment Manager shall be the exclusive
responsibility of the Company. Therefore, the Trustee shall have no duty
to review any direction or any securities or other property held in any
Directed Fund or to make suggestions to the Investment Manager or the
Company with respect to the exercise or non-exercise of any power by the
Investment Manager. The Trustee shall be fully protected in acting or
omitting to act in accordance with or in the absence of the written
directions of the Investment Manager or of the Company respecting any
Company Directed Fund and shall be under no liability for any loss of any
kind which may result by reason of any action taken or omitted by it in
good faith in accordance with any such direction or by reason of inaction
in the absence of such written directions.
5.04 The Trustee shall not be deemed to have any responsibility to
manage and control any asset held in a Directed Fund or Company Directed
Fund upon the resignation or removal of an Investment Manager or
withdrawal by the Company of its control as to a Company Directed Fund
unless and until it has been notified in writing by the Company of its
withdrawals of control as to a Company Directed Fund or that the
Investment Manager's authority has terminated and that such Directed Fund
or Company Directed Fund assets are to be integrated with the
Discretionary Fund. Such notice shall not be deemed effective until a
reasonable period after it has been received by the Trustee. In the event
that the assets of a Directed Fund or Company Directed Fund shall become
integrated at any time with the Discretionary Fund, the Trustee shall not
be liable for any losses to the Master Retirement Fund resulting from the
disposition of any investment made by an Investment Manager or the Company
or for the holding for any illiquid or unmarketable securities or the
holding of any other asset acquired by the Investment Manager or the
Company if the Trustee is unable to dispose of such investments because of
any Securities Laws restrictions or if any orderly liquidation of such
investment is impractical under prevailing conditions, or for failure to
comply with any investment or diversification limitations imposed by the
Company pursuant to the power reserved to it under Section 4.01 or for any
other violation of the terms of this Agreement, the Participating Plans or
applicable law or laws as a result of the addition of Directed Fund or
Company Directed Fund assets to the Discretionary Fund.
5.05 The Trustee shall not be liable for the acts or omissions of any
Investment Manager constituting a breach of the latter's duties unless it
shall have been judicially determined that the Trustee knowingly
participated in, or knowingly undertook to conceal, such act or omission,
knowing such act or omission constituted a breach of the Investment
Manager's duties hereunder.
ARTICLE SIX
6.01 Without in any way limiting the powers and discretions conferred
upon the Investment Manager by the other provisions of this Agreement or
by law, any Investment Manager appointed hereunder shall have the
following powers and discretions with respect to the Directed Fund subject
to its management and control, and, upon the directions of such Investment
Manager, the Trustee shall make, execute, acknowledge and deliver any and
all documents of transfer and conveyance and any and all other instruments
that may be necessary or appropriate to carry out such powers and
discretions:
a. to sell, exchange, convey, transfer or otherwise dispose of
any property constituting the Directed Fund by private contract or at
public auction, and no person dealing with the Investment Managers or
the Trustee shall be bound to see to the application of the purchase
money or to inquire into the validity, expediency or propriety of any
such sale or other disposition;
b. to enter into contracts or to make commitments either alone
or in concert with others to sell at any future date any property
acquired for the Directed Fund or to purchase at any future date any
property which it may be authorized to acquire under this Agreement;
c. to purchase part interests in real property or in mortgages
on real property, wherever such real property may be situated;
d. to lease to others for any term without regard to the
duration of this Trust any real property or part interest in real
property held in the Directed Fund;
e. to delegate to a manager or the holder or holders of a
majority interest in any real property or mortgage on real property
at any time constituting a part of the Directed Fund, the management
and operation of any part interest in such real property or mortgage
and the authority to sell such real property or mortgage or otherwise
carry out the decisions of such manager or holder or holders of such
majority interest;
f. to vote upon any stocks, bonds or other securities; to give
general or special proxies or powers of attorney with or without
power of substitution; to exercise any conversion privileges,
subscription rights or other options and to make any payments
incidental thereto; to consent to or otherwise participate in
corporate reorganizations or other changes affecting corporate
securities and to delegate discretionary powers and to pay any
assessments or charges in connection therewith; and generally to
exercise any of the powers of an owner with respect to stock, bonds,
securities or other property held in the Directed Fund.
g. to convert, redeem, exchange for other securities or other
property any securities or property held by it, or to write covered
call options against securities held by it or other forms of options
directly related to any such call options outstanding; and
h. to invest, in the case of any Investment Manager which is a
bank or trust company, through the medium of any fund created and
administered by such Investment Manager for the collective investment
of the assets of employee benefit trusts or otherwise, or in the case
of any Investment Manager, to invest through the medium of any
similar collective investment fund created and administered by the
Trustee hereof which serves as a vehicle for the temporary investment
of reserves of participating trusts, so long as in either case such
collective investment fund is a qualified trust under the applicable
provisions of the Internal Revenue Code (and while any portion of the
assets of the Participating Plans is so invested, such collective
investment fund shall constitute part of the Separate Plans, and the
instrument creating such fund shall constitute part of this Master
Trust).
6.02 In the event that any investment is made by an Investment
Manager in real property, then the Trustee shall have the right to request
as a condition precedent to its executing any documents or paying over any
trust assets in connection with such transactions, that it received a
certified appraisal that the property has a value at least equal to the
transaction price and that the property is in the form and condition
described in such documents, and, further, that it receive an opinion of
counsel (who may be counsel to the Investment Manager) that such documents
are in proper form for execution by the Trustee, that such deed or
document has been or will be properly recorded under all applicable
Recording Acts, and that appropriate policies adequately insuring the
trust against loss for any reason (including a defect in title) have been
procured in the name of the Trustee. In addition, the Investment Manager
shall provide the Trustee, upon request, with the current appraisals of
such property which shall be relied upon by the Trustee for all valuation
and accounting purposes under this Agreement.
6.03 The Company, as to any Company Directed Fund, shall be vested
with all of the powers and discretion vested in an Investment Manager by
Section 6.01 and, in addition, may specifically direct the acquisition,
holding or sale of employer securities or employer real property which are
"qualifying" within the meaning of the subject to all the limitations of
ERISA, except that employer securities or employer real property may be
held to the extent permitted under Section 414(c)(2) or any other
transitional rule or applicable exemption under ERISA.
ARTICLE SEVEN
7.01 The Trustee, with respect to the Discretionary Fund, shall be
vested with all of the powers and discretions vested in the Investment
Manager by Section 6.01.
7.02 In addition, the Trustee is hereby authorized respecting the
Master Fund in its discretion:
a. to register any securities held in the Fund in its own name
or in the name of a nominee and to hold any investment in bearer
form, and to combine certificates representing such investments with
certificates of the same issue held by the Trustee in other fiduciary
capacities or to deposit or to arrange for the deposit of such
securities in any qualified central depository or clearing
corporation even though, when so deposited, such securities may be
merged and held in bulk in the name of the nominee of such depository
with other securities deposited therein by any other person, or to
deposit or arrange for the deposit of any securities issued by the
United States Government, or an agency or instrumentality thereof,
with a federal reserve bank, but the books and records of the Trustee
shall at the times show that all such investments are part of the
Master Fund;
b. to employ suitable agents, depositories and counsel,
domestic or foreign, and to charge their reasonable expenses and
compensation against the fund;
c. to borrow money from any source as may be necessary or
advisable to effectuate the purpose of the Master Fund on such terms
and conditions as the Trustee, in its absolute discretion, may deem
advisable;
d. to deposit any funds of the trust in interest bearing
account deposits maintained by or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee;
e. to comprise or otherwise adjust all claims in favor of or
against the Fund subject to Company approval;
f. to organize corporations under the laws of any state for
the purpose of acquiring or holding title to any property for the
fund or to request the Company to appoint another trustee for such
purpose;
g. to make any distribution or transfer of the Discretionary
Fund assets in cash or in kind as the Trustee and, in furtherance
thereof, to value such assets, which valuation shall be subject to
the approval of the Company.
ARTICLE EIGHT
8.01 The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions hereunder for
the Master Fund (including any Directed Fund or Company Directed Fund) and
all accounts, books and records relating thereto shall be open to
inspection and audit at all reasonable times by any persons designated by
the Company.
In addition, within ninety (90) days following the close of each
fiscal year, and within ninety (90) days after the removal or resignation
of the Trustee, the Trustee shall file with the Company a written
accounting setting forth all receipts and disbursements of the Fund and
all investments and other transactions effected by it upon its own
authority or pursuant to the directions of any Investment Manager or the
Company as herein provided during such fiscal year or during the period
from the close of the last fiscal year to the date of such removal or
resignation. Within sixty (60) days from the date of filing such annual
or other account, the Trustee, if requested by the Company, will also
serve copies of such account upon any persons designated by the Company as
having administrative responsibility with respect to any Participating
Plan. Upon the expiration of two hundred ten (210) days from the date of
filing such account, the Trustee shall be forever released and discharged
from all liability and accountability to the Company or any person upon
whom the Trustee has served a copy of the account with respect to the
accuracy of such accounting, except with respect to any such acts or
transactions as to which the Company or any person upon whom the account
has been served shall within such two hundred ten (210) day period file
with the Trustee specific written objections.
To the extent, if any, that the Trustee shall be required to
value the assets of any Directed Fund or Company Directed Fund for any
purpose, including any accounting as hereinabove provided, the Trustee may
for all purposes of this Agreement on any certified appraisal or other
form of valuation submitted to it by the party responsible for the
management and control of such Fund.
8.02 Except to the extent that Sections 502 and 504 of ERISA, as the
same may be amended from time to time, may provide otherwise, in order to
protect the Master Trust from the expenses which might otherwise be
incurred, no one other than the Company may require the Trustee to account
or may institute an action or preceding against the Trustee or the Fund.
However, nothing herein shall in any way limit the Trustee's right to
bring any action or proceeding to settle its account or for such other
relief as it may deem appropriate.
8.03 The Trustee may from time to time consult with counsel, who may
be counsel to the Company, with respect to any questions arising as to the
construction of this Agreement or any action to be taken hereunder and the
Trustee shall be fully protected, to the extent permitted by law, in
acting in good faith upon the advice of counsel.
ARTICLE NINE
9.01 Any expenses incurred by the Trustee in connection with its
administration of this Trust, including fees for legal services rendered
to the Trustee, provided the Trustee gives written notice served to the
Company prior to the retaining of such legal service, (whether or not
rendered in connection with a judicial or administrative proceeding and
whether or not incurred while it is acting as Trustee), such compensation
to the Trustee as may be agreed upon from time to time between the Trustee
and the Company, and all other proper charges and disbursements of the
Trustee, shall be paid from the Master Fund unless paid by the Company.
The Company shall reimburse the Trustee for any such expenses if for any
reason such expenses cannot be paid out of the Fund. The Company may
direct the Trustee to pay from the Master Fund the fees of any Investment
Manager appointed pursuant to Section 5.01 and other proper administration
expenses of any Participating Plan, including but not limited to actuarial
fees. All taxes of any and all kinds whatsoever that may be levied or
assessed under existing or future laws upon the Master Fund or the income
thereof shall be paid from the Master Fund. Any amount paid from the
Master Fund which is specifically allocable to a particular Participating
Plan or Plans shall be charged against the equitable shares of such
Participating Plan or Plans; any amount paid from the Fund which is
allocable to all of the Participating Plans shall be charged against the
Fund as a whole.
ARTICLE TEN
10.01 Subject to the provisions of Section 3.03, whenever the
provisions of this Agreement require or permit any action to be taken by
the Company or any Corporation, such action may be taken by the Board of
Directors of the entity taking the same or by any person authorized to act
on behalf of such entity by such Board of Directors. Any resolution
adopted by the Board of Directors of any corporation shall be certified to
the Trustee by the Secretary or an Assistant Secretary of such Corporation
under its corporate seal, and the Trustee may rely upon any resolution so
certified until revoked or modified by a further resolution similarly
certified to the Trustee.
10.02 The Company shall furnish the Trustee from time to time
with a certificate of its Secretary or an Assistant Secretary as to the
names and signatures of all persons authorized to issue orders, requests,
instructions and objections to the Trustee pursuant to the provisions of
this Agreement.
10.03 All orders, requests, instructions and objections of any of
the persons authorized to act in accordance with the provisions of this
Agreement may be required by the Trustee, to the extent practical, to be
in writing, but the Trustee shall be fully protected in acting in
accordance with either such written instructions or oral instructions
received by the Trustee in good faith.
10.04 The Trustee shall have the right to assume in the absence
of written notice to the contrary, that no event constituting a change in
the authority of any person or terminating any Investment Manager's
authority has occurred.
ARTICLE ELEVEN
11.01 If Marshall & Ilsley Trust Company is at any time acting as
a successor Trustee or succeeds to responsibilities hereunder for
management of plan assets with respect to the Fund (or any portion
thereof), the Company hereby agrees to hold Marshall & Ilsley Trust
Company harmless from and against all taxes, expenses (including counsel
fees), liabilities, claims, damages, actions, suits or other charges
incurred by or assessed against it as successor Trustee, as a direct or
indirect result of any act or omission of a predecessor trustee or any
other person who, prior to Marshall & Ilsley Trust Company's acceptance as
Trustee, was charged under any agreement affecting Fund assets for
investment responsibility with respect to such assets.
ARTICLE TWELVE
12.01 Upon receipt of notice from the Company of the termination,
the disqualification under Section 401(a) of the Code, or the withdrawal
from this Master Trust, of any Participating Plan or any part thereof, the
Trustee shall withdraw and segregate the share of the assets of the Fund
allocable to such Participating Plan or part thereof and shall either
dispose of such segregated share in accordance with the directions of the
Company or continue to hold such segregated share, in trust, as a separate
trust governed by the same provisions as this Agreement, except that if
such segregated share is equal to an entire Participating Plan in the
Fund, the entity or successor thereto which had established such
Participating Plan shall thereafter be deemed to be "the Company" for all
purposes of the Agreement. If such segregated share is less than the
entire equitable share of a Participating Plan in the Fund, the Company
shall certify to the Trustee, that portion of the equitable share of such
Participating Plan attributable to the participants and their
beneficiaries on whose account such assets are to be segregated.
12.02 The Company reserves the right at any time and from time to
time to terminate or to amend, in whole or in part, any or all of the
provisions of this Agreement by notice thereof in writing delivered to the
Trustee; provided that, no such amendment which affects the rights, duties
or responsibilities of the Trustee may be made without its consent, and
provided further that, except as may be otherwise allowed under Section
403(c) of ERISA (it being the Company's intent that all contributions by
it or any Corporation to any Participating Plan be conditioned as allowed
in said Section), no instrument of termination or amendment shall
authorize or permit, at any time prior to the satisfaction of all
liabilities with respect to the participants and their beneficiaries under
the Plans, any part of the corpus or income of the Fund to be used for or
diverted to purposes other than for the exclusive benefit of such
participants and their beneficiaries.
12.03 In the event of the termination of the Trust as above
provided (or of all the Participating Plans), the Trustee shall continue
to administer the Fund as hereinabove provided until all of the purposes
for which it has been established have been accomplished or dispose of the
Fund after the payment or other provision of all expenses incurred in the
administration and termination of the Trust (including any compensation to
which the Trustee may be entitled), all in accordance with the written
order of the Company or any successor thereto. Until the final
distribution of such Fund, the Trustee shall continue to have and may
exercise all of the powers and discretions conferred upon it by this
Agreement.
12.04 The Trustee may be removed by the Company at any time upon
thirty (30) days' notice in writing to the Trustee. The Trustee may
resign at any time upon thirty (30) days' notice in writing to the
Company. Upon such removal or resignation of the Trustee, the Company
shall appoint a successor trustee and, upon acceptance of such appointment
by the successor trustee, the Trustee shall assign, transfer and pay over
to such successor trustee the funds and properties then constituting the
Fund, or the Company shall establish an alternative funding medium and the
Trustee shall assign, transfer and pay over the Fund, as then constituted,
upon the directions of the Company. The Trustee is authorized, however,
to reserve such amount as to it may seem advisable for payments of its
fees and expenses in connection with the settlement of its account or
otherwise, and any balance of such reserve remaining after the payment of
such fees and expenses shall be paid over to the successor trustee or
alternative funding medium, as the case may be. Notwithstanding any
provision of the Plans or this Agreement to the contrary, the Trustee is
hereby authorized to invest and reinvest such reserves in any investment
or investment vehicle (including any collective investment fund described
in Section 4.02) appropriate for the temporary investment of each cash
reserves of trusts.
If for any reason the Company cannot or does not act in the
event of the resignation or removal of the Trustee, as hereinabove
provided, the Trustee may apply to a court of competent jurisdiction for
the appointment of a successor Trustee or for instructions. Any expenses
incurred by the Trustee in connection therewith shall be paid from the
Fund as an expense of administration.
12.05 Anything hereinabove to the contrary notwithstanding, the
Trustee may condition its delivery, transfer or distribution of any asset
under this Article upon the Trustee's receiving assurance satisfactory to
it that the approval of appropriate governmental or other authorities has
been secured and that all notices and other procedures required by
applicable law have been accomplished.
ARTICLE THIRTEEN
13.01 To the extent that State law shall not have been preempted
by the provisions of ERISA or any other laws of the United States
heretofore or hereafter enacted, as the same may be amended from time to
time, this Agreement shall be administered, construed and enforced
according to the laws of the State of Wisconsin.
ARTICLE FOURTEEN
14.01 The Company shall provide the Trustee with copies of all
documents constituting the Participating Plans at the time this Agreement
is executed by the Company or adopted under any other plan, as provided in
Article Two, and all other documents amending or supplementing the
Participating Plan promptly upon their adoption. The Trustee shall be
entitled to rely upon the Company's attention to this obligation and shall
be under no duty to inquire of the Company as to the existence of any
documents not provided by the Company hereunder.
ARTICLE FIFTEEN
15.01 Pursuant to a resolution of its Board of Directors and in
consideration of the Trustee's agreeing to enter into this Agreement, the
Company hereby agrees to hold harmless Marshall & Ilsley Trust Company,
individually and as Trustee under this Agreement, and Marshall & Ilsley
Trust Company directors, officers, and employees from and against all
amounts including without limitation, taxes, expenses (including
reasonable counsel fees), liabilities, claims, damages, actions, suits or
other charges, incurred by or assessed against Marshall & Ilsley Trust
Company, individually or as Trustee, or its directors, officers, or
employees, (i) as a direct or indirect result of anything done in good
faith, or alleged to have been done, by or on behalf of Marshall & Ilsley
Trust Company in reliance upon the directions of the Company, any
Investment Manager appointed by the Company, or any person or committee
authorized to act on behalf of the Company or to appoint such Investment
Manager under any Participating Plan, or anything omitted to be done in
good faith, or alleged to have been omitted, in the absence of such
directions, or (ii) as a direct or indirect result of the failure of the
Company or such person or a committee, as a co-fiduciary under said Plans,
directly or through its agents, to adequately, carefully and diligently
discharge its responsibilities with respect to the selection, supervision
and/or retention of any Investment Manager.
15.02 The Company further agrees that the undertakings made in
this Article of this Agreement shall be binding on its successors or
assigns and shall survive termination, amendment or restatement of this
Agreement, or the resignation or removal of the Trustee, and that this
Article shall be construed as a contract between the Company and the
Trustee according to the laws of the State of Wisconsin in effect from
time to time.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective authorized officers and their corporate
seals to be affixed as of the date first above set forth.
WICOR, INC
BY:
TITLE:
[Corporate Seal]
ATTEST:
TITLE:
MARSHALL & ILSLEY TRUST COMPANY
BY:
TITLE:
[Corporate Seal]
ATTEST:
TITLE:
<PAGE>
Appendix A
Affiliated and Subsidiary Corporations
WICOR, Inc.
Wisconsin Gas Company
WICOR Energy Services
WEXCO of Delaware, Inc.
Sta-Rite Industries, Inc.
HYPRO Corporation
SHURflo, Inc.
Plans
Wisconsin Gas Company Employees Savings Plan
Wisconsin Gas Company Local 6-18-1 Savings Plan
Wisconsin Gas Company Local 6-18 Savings Plan
Hypro Corporation 401(k) and Profit Sharing Plan
Sta-Rite Industries Incentive Savings Plan
SHURflo 401(k) Profit Sharing Plan
CONSENT OF INDEPENDENT PUBLIC ACCOUNTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated January
27, 1997, included in and incorporated by reference in WICOR, Inc.'s Form
10-K for the year ended December 31, 1996 and to all references to our
firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
December 17, 1997
