Registration No. 333-
As filed with the Securities and Exchange Commission on August 17, 1999
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
F&M NATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
VIRGINIA 54-0857462
(State of Incorporation) (I.R.S. Employer Identification No.)
9 COURT SQUARE
WINCHESTER, VIRGINIA 22601
(540) 655-4200
(Address of principal executive office, including zip code)
F&M NATIONAL CORPORATION
401(K) PLAN
(Full Title of the Plan)
ALFRED B. WHITT
PRESIDENT AND CHIEF FINANCIAL OFFICER
F&M NATIONAL CORPORATION
9 COURT SQUARE, WINCHESTER, VIRGINIA 22601
(540) 655-4200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
GEORGE P. WHITLEY, ESQ.
SCOTT H. RICHTER, ESQ.
LECLAIR RYAN, A PROFESSIONAL CORPORATION
707 EAST MAIN STREET, ELEVENTH FLOOR
RICHMOND, VIRGINIA 23219
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered(1) offering price per share aggregate offering price(3) registration fee
- ----------------- ------------- ------------------------ ----------------------------------------------
<S> <C>
Common Stock
($2.00 par value) 60,000 (2) $30.594 $1,835,640 $510
- ----------
</TABLE>
(1) Together with an indeterminate number of additional shares of Common Stock
of the Registrant as may be issuable as a result of a stock dividend, stock
split, split-up, recapitalization or similar event.
(2) Represents an estimate of such presently undeterminable number of shares as
may be purchased with employee contributions pursuant to the F&M National
Corporation 401(k) Plan (the "Plan"). In addition, pursuant to Rule 416(c)
under the Securities Act of 1933, this Registration Statement also covers
an indeterminable amount of interests to be offered or sold pursuant to the
Plan.
(3) Estimated solely for the purpose of calculating the registration fee. Based
on the average of the high and low prices of the Registrant's Common Stock
on the New York Stock Exchange on August 10, 1999.
---------------------------
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE AUTOMATICALLY UPON
THE DATE OF FILING IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF
1933, AS AMENDED, AND 17 C.F.R. SECTION 230.462.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1 PLAN INFORMATION.
Not required to be filed.
ITEM 2 REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 INCORPORATION OF DOCUMENTS BY REFERENCE.
F&M National Corporation (the "Company") hereby incorporates by
reference into this registration statement the documents listed below which have
been filed with the Securities and Exchange Commission (the Commission").
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") since
the end of the fiscal year covered by the Annual Report
referred to in (a) above.
(c) The description of the Company's Common Stock contained in its
registration statement filed under the Exchange Act with
respect to the Common Stock, including all amendments and
reports filed with the purpose of updating such description.
All annual reports of the Company's 401(k) Plan (the "Plan") to be
filed pursuant to Section 13(a) or 15(d) of the Exchange Act, and all documents
subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference into this registration statement and shall be deemed to be part of
this registration statement from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modified or superseded such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this prospectus.
<PAGE>
ITEM 4 DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The laws of the Commonwealth of Virginia pursuant to which the Company
is incorporated permit it to indemnify its officers and directors against
certain liabilities with the approval of its shareholders. The articles of
incorporation of the Company, which have been approved by its shareholders,
provide for the indemnification of each director and officer (including former
directors and officers and each person who may have served at the request of the
Company as a director or officer of any other legal entity and, in all such
cases, his or her heirs, executors and administrators) against liabilities
(including expenses) reasonably incurred by him or her in connection with any
actual or threatened action, suit or proceeding to which he or she may be made
party by reason of his or her being or having been a director or officer of the
Company, except in relation to any action, suit or proceeding in which he or she
has been adjudged liable because of willful misconduct or a knowing violation of
the criminal law.
The Company has purchased officers' and directors' liability insurance
policies. Within the limits of their coverage, the policies insure (1) the
directors and officers of the Company against certain losses resulting from
claims against them in their capacities as directors and officers to the extent
that such losses are not indemnified by the Company and (2) the Company to the
extent that it indemnifies such directors and officers for losses as permitted
under the laws of Virginia.
ITEM 7 EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8 EXHIBITS
23.0 Consent of Yount, Hyde & Barbour, P.C., as accountants for F&M.
24.0 Powers of Attorney (included in Part II of this Registration
Statement).
99.0 F&M National Corporation 401(k) Plan.
The Company will submit the Plan to the Internal Revenue Service
("IRS") in order to receive a determination letter that the Plan is qualified
under Section 401 of the Internal Revenue Code, as amended, and will submit any
amendments to the Plan to the IRS in a timely manner, and will make all changes
required by the IRS in order to qualify, or continue the qualification of, the
Plan.
<PAGE>
ITEM 9 UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective
date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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 therein,
and the offering of such securities at the 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 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 Winchester, Commonwealth of Virginia, on August
10, 1999.
F&M NATIONAL CORPORATION
By: /s/ Alfred B. Whitt
--------------------------------------
Alfred B. Whitt
President and Chief Executive 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
Alfred B. Whitt and Charles E. Curtis, and each of them singly, as his or her
true and lawful attorneys-in-fact and agents, with full power of substitution,
and for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all registration statements or applications to the
Securities and Exchange Commission, the regulatory authorities of any state in
the United States or any other regulatory authorities as may be necessary to
permit up to [#] shares of Common Stock of the Company to be offered in the
United States under the F&M National Corporation 401(k) Plan, including without
limitation any and all amendments or post-effective amendments to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission or any other such regulatory authority, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite or necessary to be done to enable F&M National
Corporation to comply with the provisions of the Securities Act of 1933, and all
requirements of the Securities and Exchange Commission as well as all other
laws, rules and regulations relating to the offer and sale of securities, 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
their or his or her substitute may lawfully do or cause to be done by virtue
hereof.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S><C>
/s/ W. M. Feltner Chairman of the Board, Chief August 10,1999
- ---------------------------- Executive Officer and
W. M. Feltner
/s/ Alfred B. Whitt Vice Chairman, President, Chief August 10, 1999
- ---------------------------- Financial Officer and Director
Alfred B. Whitt (Principal Financial Officer)
/s/ Charles E. Curtis Vice Chairman, Chief Administrative August 10, 1999
- ---------------------------- Officer and Director
Charles E. Curtis
/s/ Frank Armstrong, III Director August 10, 1999
- ---------------------------
Frank Armstrong, III
/s/ William H. Clement Director August 10, 1999
- ---------------------------
William H. Clement
/s/ John R. Fernstrom Director August 10, 1999
- ----------------------------
John R. Fernstrom
/s/ William R. Harris Director August 10, 1999
- -----------------------------
William R. Harris
/s/ L. David Horner, III Director August 10, 1999
- ------------------------------
L. David Horner, III
/s/ Jack R. Huyett Director August 10, 1999
- ------------------------------
Jack R. Huyett
/s/ George L. Romine Director August 10, 1999
- ------------------------------
George L. Romine
/s/ J. D. Shockey, Jr. Director August 10, 1999
- ------------------------------
J. D. Shockey, Jr.
/s/ Ronald W. Tydings Director August 10, 1999
- ------------------------------
Ronald W. Tydings
/s/ Fred G. Wayland, Jr. Director August 10, 1999
- ------------------------------
Fred G. Wayland, Jr.
</TABLE>
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the trustee of the Plan has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Winchester, Commonwealth of Virginia, on August 10, 1999.
F&M NATIONAL CORPORATION 401(K) PLAN
By: F&M TRUST COMPANY, AS TRUSTEE
By: /s/ F. Dixon Whitworth, Jr.
--------------------------------
F. Dixon Whitworth, Jr.
President
EXHIBIT 23.0
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated January 27, 1999, on the consolidated financial
statements of F & M National Corporation and Subsidiaries as of December 31,
1998, and for the period ended December 31, 1998, which appears in the annual
report on Form 10-K of F & M National Corporation and Subsidiaries for the year
ended December 31, 1998.
Winchester, Virginia
August 11, 1999
F & M NATIONAL CORPORATION
401(K) RETIREMENT PLAN
AS AMENDED AND RESTATED EFFECTIVE AS OF
JANUARY 1, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION I - DEFINITIONS..........................................................................................
1.1 Account or Accounts............................................................................
1.2 Affiliated Employer............................................................................
1.3 Alternate Payee................................................................................
1.4 Beneficiary....................................................................................
1.5 Board..........................................................................................
1.6 Code...........................................................................................
1.7 Committee......................................................................................
1.8 Company........................................................................................
1.9 Company Stock..................................................................................
1.10 Company Stock Fund.............................................................................
1.11 Compensation...................................................................................
1.12 Disability.....................................................................................
1.13 Early Retirement Date..........................................................................
1.14 Effective Date.................................................................................
1.15 Eligibility Computation Period.................................................................
1.16 Eligible Employee..............................................................................
1.17 Employee.......................................................................................
1.18 Employer.......................................................................................
1.19 Employer Annual Contributions..................................................................
1.20 Employer Matching Contributions................................................................
1.21 Entry Date.....................................................................................
1.22 ERISA..........................................................................................
1.23 5% Owner.......................................................................................
1.24 Highly Compensated Employee....................................................................
1.25 Insider........................................................................................
1.26 Investment Manager.............................................................................
1.27 Normal Retirement Date.........................................................................
1.28 Participant....................................................................................
1.29 Plan...........................................................................................
1.30 Plan Year......................................................................................
1.31 Qualified Domestic Relations Order.............................................................
1.32 Rule 16b-3.....................................................................................
1.33 Salary Deferral Contributions..................................................................
1.34 Section 415 Compensation.......................................................................
1.35 Service........................................................................................
1.36 Spouse.........................................................................................
1.37 Terminated Participant.........................................................................
1.38 Trust or Trust Fund............................................................................
1.39 Trustee........................................................................................
</TABLE>
(i)
<PAGE>
<TABLE>
<S> <C>
1.40 Valuation Date.................................................................................
SECTION II - PARTICIPATION.......................................................................................
2.1 Eligibility....................................................................................
2.2 Determination of Eligibility...................................................................
2.3 Duration of Participation; Reemployment........................................................
2.4 Cessation of Participation with Continued Employment...........................................
SECTION III - CONTRIBUTIONS......................................................................................
3.1 Salary Deferral Contributions..................................................................
3.2 Employer Contributions.........................................................................
3.3 No Right or Duty of Inquiry....................................................................
3.4 Time and Manner of Payment of Contributions....................................................
3.5 Non-Reversion..................................................................................
SECTION IV - ACCOUNTS AND ALLOCATIONS............................................................................
4.1 Participants'Accounts..........................................................................
4.2 Allocation of Contributions and Earnings.......................................................
4.3 Allocation of Forfeitures......................................................................
4.4 Annual Addition................................................................................
4.5 Benefit Limitations - Multiple Plans...........................................................
4.6 Anti-Discrimination Test for Salary Deferral Contributions.....................................
4.7 Anti-Discrimination Test for Employer Matching Contributions...................................
4.8 Distribution of Excess Contributions...........................................................
4.9 Correction of Error............................................................................
4.10 Trust as Single Fund...........................................................................
SECTION V - BENEFITS AND WITHDRAWALS.............................................................................
5.1 Vesting........................................................................................
5.2 Retirement; Termination of Employment..........................................................
5.3 Death Benefits.................................................................................
5.4 Disability Benefits............................................................................
5.5 Designation of Beneficiary.....................................................................
5.6 Commencement of Distribution...................................................................
5.7 Form of Benefit................................................................................
5.8 Elections......................................................................................
5.9 Withdrawals During Employment After Age 59 1/2.................................................
5.10 Hardship Withdrawals...........................................................................
5.11 Location of Missing Participants...............................................................
5.12 Benefits to Minors and Incompetents............................................................
5.13 Eligible Rollover Distributions................................................................
5.14 Insiders.......................................................................................
</TABLE>
(ii)
<PAGE>
<TABLE>
<S> <C>
SECTION VI - INVESTMENT OF ACCOUNTS..............................................................................
6.1 Investment Funds...............................................................................
6.2 Directed Investments...........................................................................
6.3 Limitations on Directed Investments............................................................
6.4 Application to Beneficiaries and Alternate Payees..............................................
6.5 Voting, Tender and Exercise of Similar Rights with Respect to
Company Stock..................................................................................
6.6 Management of the Company Stock Fund...........................................................
6.7 Allocation of Income...........................................................................
SECTION VII - PLAN ADMINISTRATION................................................................................
7.1 General Administration.........................................................................
7.2 Powers and Duties..............................................................................
7.3 Meetings and Quorum............................................................................
7.4 Compensation...................................................................................
7.5 Domestic Relations Orders......................................................................
7.6 Claims Procedure...............................................................................
SECTION VIII - DUTIES AND POWERS OF THE TRUSTEE..................................................................
8.1 General........................................................................................
8.2 Investment of the Trust Fund...................................................................
8.3 Payments from the Trust Fund...................................................................
8.4 Powers of the Trustee..........................................................................
8.5 Accounts and Reports...........................................................................
8.6 Limitation of Liability........................................................................
8.7 Power of Trustee to Carry Out the Plan.........................................................
8.8 Investment Manager.............................................................................
8.9 Resignation and Removal; Appointment of Successor..............................................
SECTION IX - TOP HEAVY...........................................................................................
9.1 Top Heavy......................................................................................
9.2 Determination of Top Heavy Status..............................................................
9.3 Minimum Contribution...........................................................................
9.4 Vesting........................................................................................
9.5 Benefit and Contribution Limitations...........................................................
SECTION X - ADOPTION OF PLAN BY AFFILIATED EMPLOYERS.............................................................
10.1 Adoption of the Plan...........................................................................
10.2 Withdrawal.....................................................................................
SECTION XI - AMENDMENT AND TERMINATION...........................................................................
11.1 Amendment......................................................................................
11.2 Termination....................................................................................
11.3 Merger.........................................................................................
</TABLE>
(iii)
<PAGE>
<TABLE>
<S> <C>
SECTION XII - MISCELLANEOUS......................................................................................
12.1 Receipt of Rollovers and Trustee-to-Trustee Transfers..........................................
12.2 Indemnification................................................................................
12.3 Exclusive Benefit Rule.........................................................................
12.4 No Right to the Fund...........................................................................
12.5 Rights of the Employer.........................................................................
12.6 Non-Alienation of Benefits.....................................................................
12.7 Construction and Severability..................................................................
12.8 Delegation of Authority........................................................................
</TABLE>
(iv)
<PAGE>
F & M NATIONAL CORPORATION
401(K) RETIREMENT PLAN
BACKGROUND
F & M National Corporation (the "Company") maintains the F & M National
Corporation 401(k) Retirement Plan (the "Plan") for the benefit of its eligible
employees and the eligible employees of its affiliated employers. The Plan was
originally effective as of January 1, 1986, and has been amended and restated
since the original effective date. The Company is the Plan Administrator with
the power to amend the Plan.
The Company now wishes to amend and restate the Plan, generally
effective as of January 1, 1999. This Plan supersedes all prior Plan documents
and amendments. The Plan is intended to be a profit sharing plan with a cash or
deferred arrangement under Internal Revenue Code sections 401(a) and 401(k). The
Plan is also intended to qualify as a Section 404(c) plan for purposes of the
Employee Retirement Income Security Act of 1974, as amended.
F & M Trust Company has agreed to serve as trustee (the "Trustee") of
the Plan.
NOW, THEREFORE, the Company and the Trustee agree as follows:
<PAGE>
SECTION I
DEFINITIONS
1.1 ACCOUNT OR ACCOUNTS: A Participant's interest in the Trust Fund, which shall
consist of one or more Accounts as described in Section 4.1.
1.2 AFFILIATED EMPLOYER: Any organization under common control with the Company
(as determined under Code sections 414(b) and (c)), or that is a member of an
affiliated service group with an Employer (as determined under Code section
414(m)) of which the Company is a member.
1.3 ALTERNATE PAYEE: Any spouse, former spouse, child or other dependent of a
Participant who is recognized by a Qualified Domestic Relations Order as having
a right to all or a portion of the benefits payable under the Plan to the
Participant.
1.4 BENEFICIARY: The person or entity who is to receive, pursuant to Section
5.5, benefits payable from the Plan on account of a Participant's death.
1.5 BOARD: The Board of Directors of the Company.
1.6 CODE: The Internal Revenue Code of 1986, as amended. A reference to a
particular Code section shall include a reference to any regulations issued
under the section.
1.7 COMMITTEE: The Committee appointed by the Company pursuant to Section VII to
be responsible for the general administration of the Plan and supervision of the
Trust Fund.
1.8 COMPANY: F & M National Corporation and any successor by merger,
consolidation or otherwise.
1.9 COMPANY STOCK: Common stock issued by the Company.
1.10 COMPANY STOCK FUND: The investment fund maintained under the Plan for the
investment of Participants' Accounts in shares of Company Stock.
1.11 COMPENSATION: The earnings paid to a Participant by the Employer during a
Plan Year for personal services as reported on Form W-2 including, but not
limited to, overtime pay, incentive payments, holiday, vacation and sick pay.
Compensation shall include Salary Deferral Contributions made on a Participant's
behalf under this Plan and any Plan described under Code Section 125, and any
other type of elective contribution or deferred compensation described in
Regulations section 1.414(s)-l(c)(4). Compensation shall not include the
following items (even if includible in gross income): bonuses, reimbursements or
other expense allowances, moving expenses, fringe benefits (cash and noncash),
deferred compensation, and welfare benefits. In the case of an Employee who is
employed by two or more Employers, the Employee's aggregate Compensation from
all Employers shall be deemed to be his Compensation. Compensation for a
Participant's first year of participation shall mean Compensation earned only
1
<PAGE>
during the period after becoming a Participant. For convenience of
administration, Compensation may be rounded to the nearest $100. The amount of
annual Compensation taken into account under the Plan for a Participant may not
exceed, in the aggregate, $160,000, or an adjusted amount determined pursuant to
Code sections 401(a)(17).
1.12 DISABILITY: The inability, by reason of physical or mental infirmity, or
both, of a Participant to engage in any employment or occupation for
remuneration or profit, determined by the Committee to be permanent or likely to
exist for an indefinite period of years. The Committee shall determine whether a
Participant has incurred a Disability based on the Participant's eligibility for
benefits under the Company's long-term disability plan. If the Company does not
offer a long-term disability plan, then the Committee shall determine whether a
Participant has a Disability based on the Participant's eligibility for
Disability benefits under the Social Security Act.
1.13 EARLY RETIREMENT DATE: The first day of the month coinciding with or next
following the date on which a Participant attains age 55 and has completed at
least ten years of service.
1.14 EFFECTIVE DATE: The original effective date is January 1, 1986. The
effective date of this amendment and restatement is January 1, 1999.
1.15 ELIGIBILITY COMPUTATION PERIOD: A consecutive twelve month period beginning
on the first day the Employee performs an Hour of Service for the Employer and
each anniversary thereafter.
1.16 ELIGIBLE EMPLOYEE: Any Employee of the Company except any person whose
condition of employment is subject to a collective bargaining agreement, unless
such agreement provides for participation in the Plan.
1.17 EMPLOYEE: Any person employed by an Employer or an Affiliated Employer,
other than an independent contractor or a leased employee (within the meaning of
Code section 414(n)).
1.18 EMPLOYER: The Company and any Affiliated Employer that adopts the Plan
with the consent of the Board.
1.19 EMPLOYER ANNUAL CONTRIBUTIONS: Contributions made by an Employer pursuant
to Section 3.2(b).
1.20 EMPLOYER MATCHING CONTRIBUTIONS: Contributions made by an Employer pursuant
to Section 3.2(a).
1.21 ENTRY DATE: The first day of each calendar quarter.
1.22 ERISA: The Employee Retirement Income Security Act of 1974, as amended, and
the regulations issued thereunder.
2
<PAGE>
1.23 5% OWNER: If the Employer or an Affiliated Employer is a corporation, any
person who owns (or is considered as owning within the meaning of Code section
318) more than 5% of the outstanding stock of the Employer or Affiliated
Employer or stock possessing more than 5% of the total combined voting power of
all stock of the Employer or Affiliated Employer. If the Employer or Affiliated
Employer is not a corporation, a 5% owner is any person who owns more than 5% of
the capital or profits interest in the Employer or Affiliated Employer.
1.24 HIGHLY COMPENSATED EMPLOYEE: For purposes of computing the
anti-discrimination tests described in Sections 4.6 and 4.7, a Highly
Compensated Employee is an Employee who during the Plan Year or at any time in
the preceding Plan Year: (a) was a 5% Owner, or (b) received Section 415
Compensation from the Employer in excess of $80,000 during the prior Plan Year
and, to the extent elected by the Committee pursuant to applicable regulations,
was in the top 20% of Employees when ranked on the basis of Section 415
Compensation paid during the prior Plan Year. The $80,000 amount shall be
adjusted pursuant to Code sections 414(g) and 415(d). The determination of
Highly Compensated Employees shall be made in accordance with Code section
414(g).
1.25 INSIDER: A person designated as an insider for purposes of Section 16 of
the Securities Exchange Act of 1934.
1.26 INVESTMENT MANAGER: A person other than the Trustee or the Committee:
(a) Who (i) is registered as an investment advisor under the Investment
Advisors Act of 1940, (ii) is a bank, as defined in that Act, or (iii)
is an insurance company qualified to perform services relating to the
management, acquisition or disposition of assets of a plan under the
laws of more than one state; and
(b) Who has acknowledged in writing that it is a fiduciary with respect to
the Plan.
1.27 NORMAL RETIREMENT DATE: The first day of the month coinciding with or next
following the month in which a Participant attains age 65.
1.28 PARTICIPANT: An Employee who has met the eligibility requirements of the
Plan as set forth in Section II and who continues to be entitled to any benefits
under the Plan.
1.29 PLAN: The F & M National Corporation 401(k) Retirement Plan, as set forth
herein and as amended from time to time.
1.30 PLAN YEAR: The calendar year.
1.31 QUALIFIED DOMESTIC RELATIONS ORDER: A domestic relations order that meets
the requirements set forth in Code section 414(p).
3
<PAGE>
1.32 RULE 16B-3: Rule 16b-3 of the Securities Exchange Act of 1934, including
any correspondence, subsequent rules or amendments.
1.33 SALARY DEFERRAL CONTRIBUTIONS: Contributions made by an Employer pursuant
to Section 3.1.
1.34 SECTION 415 COMPENSATION: An Employee's total annual compensation from an
Employer and Affiliated Employers, as defined in the Treasury Regulations issued
under Code section 415. Section 415 Compensation includes an Employee's wages
(including any elective deferrals as defined in Code section 402(g)(3)),
salaries, fees for professional services and other amounts received for personal
services actually rendered in the course of employment with the Employer and
Affiliated Employers (including, but not limited to, commissions paid to
salesmen, compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips and bonuses). Section 415 Compensation
does not include:
(a) Amounts received from the exercise of a nonqualified stock option or
from restricted property.
(b) Amounts realized from the sale, exchange or other disposition of stock
acquired under a statutory stock option.
(c) Other amounts that 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).
1.35 SERVICE: An Employee shall be credited for Service for purposes of
determining an Employee's right to participate in the Plan, the non-forfeitable
right to the Participant's Account balance derived from Employer Annual
Contributions, the Participant's eligibility to receive a contribution, and the
Participant's eligibility for early retirement. An Employee's Service shall be
computed in accordance with the following rules:
(a) Year of Service. An Employee shall be credited with a Year of Service
for purposes of eligibility to participate for an Eligibility
Computation Period in which the Employee is credited with 1,000 Hours
of Service. An Employee shall be credited with a Year of Service for
purposes of (i) vesting, as provided in Section 5.1 and (ii)
eligibility for early retirement, as provided in Section 5.2, for each
Plan Year in which the Employee is credited with 1,000 Hours of
Service.
(b) Hour of Service. An Employee shall be credited with one Hour of
Service for:
(i) Each hour for which the Employee is directly or indirectly
paid, or entitled to payment, by the Employer or an Affiliated
Employer for the performance of duties. These hours shall be
credited to the Employee for the computation period in which
the duties are performed.
4
<PAGE>
(ii) Each hour (up to a maximum of 501 during a single continuous
period) for which the Employee is paid or entitled to payment
by the Employer or an Affiliated Employer for a period of time
during which no duties are performed (irrespective of whether
the employment relationship has terminated) because of
vacation, holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or leave of absence. These
hours shall be credited to the Employee for the computation
period in which the duties would have been performed. Hours
under this subparagraph shall be calculated and credited
pursuant to Department of Labor Regulations section
2530.200b-2, which is incorporated in the Plan by this
reference.
(iii) Each hour for which back pay, irrespective of mitigation of
damages, has been either awarded or agreed to by the Employer
or an Affiliated Employer. The same Hours of Service shall not
be credited both under subparagraphs (a), (b) or (d), as the
case may be, and under this subparagraph (c). These hours
shall be credited to the Employee for the computation period
to which the award or agreement pertains, rather than the
computation period in which the award, agreement or payment is
made.
(iv) If the Employer leases employees, Hours of Service with the
Employer and Affiliated Employers shall be credited for any
leased employee who is to be considered an Employee for
purposes of the Plan under Code sections 414(n) and 414(o) and
the regulations thereunder.
(v) In any case in which employment records do not accurately
reflect hours worked, Hours of Service shall be credited at
the rate of 45 hours per calendar week.
(vi) Notwithstanding the foregoing, the Plan will be administered
in accordance with the service crediting requirements of the
Unformed Services Employment and Reemployment Rights Act of
1994 and Code section 414(a).
(c) One-Year Break in Service.
(i) A "One-Year Break in Service" occurs in an Eligibility
Computation Period (for purposes of eligibility to participate
in the Plan) or Plan Year (for all other purposes) in which an
Employee is not credited with more than 500 Hours of Service.
(ii) For purposes of determining whether a One-Year Break in
Service has occurred in an Eligibility Computation Period or,
if applicable, in a Plan Year, an Employee who is absent from
work for maternity or paternity reasons shall receive credit
for the Hours of Service which would otherwise have been
5
<PAGE>
credited to such Employee but for such absence, or in any case
in which such hours cannot be determined, eight Hours of
Service per day for such absence. For this purpose, an absence
from work for maternity or paternity reasons means an absence
(A) by reason of the pregnancy of the individual, (B) by
reason of the birth of a child of the individual, (C) by
reason of the placement of a child with the individual in
connection with the adoption of such child by such individual,
or (D) for purposes of caring for such child, for a period
beginning immediately following such birth or placement. The
Hours of Service credited under this paragraph shall be
credited (X) in the Eligibility Computation Period or, if
applicable, in the Plan Year, in which the absence begins if
the crediting is necessary to prevent a One-Year Break in
Service in that period, or (Y) in all other cases, in the
following Eligibility Computation Period or, if applicable,
Plan Year.
(d) Break in Service. A "Break in Service" shall mean five (5)
consecutive One-Year Breaks in Service.
(e) Disregard of Service. In the event an Employee incurs one or
more One-Year Breaks in Service, Service prior to such breaks
may be disregarded as follows:
(i) If a Participant incurs a Break in Service at a time when
he has no nonforfeitable right to his Account balance
derived from Employer Annual Contributions, Service
accrued prior to the Break in Service will not be taken
into account if the number of consecutive One-Year Breaks
in Service equals or exceeds the greater of (i) 5 or (ii)
the Participant's aggregate number of Years of Service.
Aggregate Years of Service will not include any Years of
Service disregarded under this Section by reason of a
prior Break in Service.
(ii) If a Participant incurs a Break in Service, Service
accrued after the Break in Service will not be taken into
account when determining the nonforfeitable right to any
Employer Annual Contributions made before the Break in
Service.
(iii) In all other cases, Service accrued prior to a
Participant's Break in Service will be taken
into account.
1.36 SPOUSE: The person to whom a Participant is legally married on the earlier
of (a) the date benefits commence, or (b) the date of the Participant's death. A
former spouse will be treated as the Spouse to the extent provided under a
Qualified Domestic Relations Order.
1.37 TERMINATED PARTICIPANT: A person who has been a Participant, but whose
employment has been terminated other than by death, retirement or Disability.
1.38 TRUST OR TRUST FUND: The Plan assets held by the Trustee under the Plan.
1.39 TRUSTEE: F & M Trust Company and any successor trustee appointed by the
Company and accepting the Trust.
6
<PAGE>
1.40 VALUATION DATE: December 31. The Company may establish more frequent
Valuation Dates.
7
<PAGE>
SECTION II
PARTICIPATION
2.1 ELIGIBILITY:
(a) Each Eligible Employee who was a Participant in the Plan immediately
prior to January 1, 1999 shall continue to be a Participant in the Plan
as of January 1, 1999.
(b) Each Eligible Employee who is not already a Participant pursuant to
subsection (a) shall be eligible to become a Participant on the first
Entry Date after he has attained age 18 and completed one Eligibility
Computation Period in which he performed 1,000 Hours of Service,
provided he is an Employee on such Entry Date.
2.2 DETERMINATION OF ELIGIBILITY: The Committee shall determine the eligibility
of each Employee for participation in the Plan based upon information furnished
by the Employer.
2.3 DURATION OF PARTICIPATION; REEMPLOYMENT: A Participant shall continue to be
a Participant until he no longer has assets credited to his Account. If a
Participant or a person who was formerly a Participant terminates employment and
then is reemployed by an Employer, he shall be eligible to be a Participant as
of the first Entry Date following the date of his reemployment.
If an Employee terminates employment before meeting the eligibility
requirements of Section 2.1, and then is reemployed by an Employer, he shall
have to satisfy such eligibility requirements before becoming a Participant.
2.4 CESSATION OF PARTICIPATION WITH CONTINUED EMPLOYMENT: If a Participant
ceases to be eligible to participate, but continues in the employ of an
Employer, the Account of such Participant shall continue to be held in the Plan
and to receive allocations of Trust Fund earnings pursuant to Section 4.2, but
shall not receive allocations of contributions. The Participant's Account
balance shall be distributed upon his termination of employment, pursuant to
Section V.
8
<PAGE>
SECTION III
CONTRIBUTIONS
3.1 SALARY DEFERRAL CONTRIBUTIONS:
(a) A Participant may elect to have Salary Deferral Contributions made on
his behalf by filing an appropriate election with the Committee before
the payroll period as of which the Participant wishes such
contributions to begin. A Participant may change the amount of his
Salary Deferral Contributions prospectively, or request a suspension or
resumption of contributions, by filing an appropriate application,
election or request with the Committee at such time as the Committee
shall designate. All elections made by a Participant shall continue in
force until they are changed or until the Participant ceases to be
eligible to participate.
(b) A Participant electing to have Salary Deferral Contributions made on
his behalf shall direct his Employer to reduce his Compensation, when
the election becomes effective, by a designated percentage and to
contribute that designated percentage to the Plan for the benefit of
the Participant. The designated percentage may be from 1% to 10% of the
Compensation that is otherwise payable to the Participant during the
Plan Year, provided that:
(i) At any time during the Plan Year, the Committee may limit the
percentage of Compensation that may be contributed for the
benefit of Highly Compensated Employees.
(ii) For each calendar year, the maximum amount of Salary Deferral
Contributions that may be made on behalf of a Participant
under this Plan and all other plans, contracts, or
arrangements described in Code section 402(g)(3) may not
exceed $10,000 (or the amount described in Code section
402(g)(1)). The $10,000 limitation shall be adjusted at the
same time and in the same manner as under Code section 415(d).
(iii) If a Participant participates in another plan that is subject
to the $10,000 limit of subsection (b)(ii), the Participant
may allocate any contributions in excess of $10,000 among the
plans in which he participates. The Committee shall determine
the amount of excess Salary Deferral Contributions
attributable to this Plan and will distribute any excess
Salary Deferral Contributions to Participants in accordance
with Section IV.
(c) If a Participant makes a hardship withdrawal pursuant to Section 5.10,
the Participant's Salary Deferral Contributions will be suspended until
the first Entry Date following the date that is 12 consecutive calendar
months from the date of the hardship withdrawal.
9
<PAGE>
3.2 EMPLOYER CONTRIBUTIONS:
(a) Employer Matching Contributions: For each Plan Year, an Employer may,
but shall not be required to, contribute an Employer Matching
Contribution for each Participant who made Salary Deferral
Contributions. The amount of the Employer Matching Contribution will be
determined by the Board in a uniform percentage applicable to all
Participants.
(b) Employer Annual Contributions: For each Plan Year, an Employer may, but
shall not be required to, contribute an Employer Annual Contribution to
the Plan in such amount as the Board shall determine.
3.3 NO RIGHT OR DUTY OF INQUIRY: No party shall have any right or duty to
inquire into the amount of an Employer's annual contribution or the method used
in determining the amount of the Employer's contribution. The Trustee shall be
accountable only for funds actually received by him.
3.4 TIME AND MANNER OF PAYMENT OF CONTRIBUTIONS:
(a) Salary Deferral Contributions shall be paid by the Employer to the
Trust as soon as practicable after such contributions have been
withheld from the Participant's Compensation, but in no event later
than is required under regulations issued by the Department of Labor.
Until transmitted to the Trust, such amounts may be held with the
general funds of the Employer.
(b) Employer Annual Contributions and Employer Matching Contributions for
any Plan Year shall be paid at least annually in one or more payments
at any time; provided that the total amount of the Employer
Contributions for any Plan Year shall be paid to the Trust not later
than the date on which the Employer's income tax return is required to
be filed, including any extensions for filing obtained.
3.5 NON-REVERSION: It shall be impossible, at any time before satisfaction of
all liabilities with respect to Participants and their Beneficiaries, for any
part of the principal or income of the Trust Fund to be used for, or diverted
to, purposes other than for the exclusive benefit of such Participants and their
Beneficiaries. However, the Employer's contribution under the Plan for any Plan
Year shall be conditioned upon: (a) the Plan initially being a qualified plan
under Code section 401(a) for such Plan Year, and (b) the contribution being
deductible under Code section 404. If, after the Employer's contribution has
been made, it is determined that a condition described in (a) or (b) was not
satisfied with respect to such contribution, or that all or a portion of such
contribution was made under a mistake of fact, the Trustee shall refund to the
Employer, within one year of the date the contribution is remitted to the Trust,
if such contribution is made by reason of a mistake of fact, or within one year
of the denial of qualification or disallowance of the deduction, the amount of
the contribution that was affected by the mistake of fact, or by a condition
described in (a) or (b) not being satisfied, subject to the following rules:
10
<PAGE>
(a) The Trustee shall be under no obligation to make such refund unless a
written direction to make the refund, signed by an authorized
representative of the Employer, is submitted to the Trustee.
(b) Earnings attributable to the refundable amount shall not be refunded,
but the refundable amount shall be reduced by a proportionate share of
any losses of the Trust from the date of crediting by the Trustee to
the date of segregation.
(c) The Trustee shall be under no obligation to verify that the refund is
allowable or timely and shall be entitled to rely on the Employer's
written direction to act.
11
<PAGE>
SECTION IV
ACCOUNTS AND ALLOCATIONS
4.1 PARTICIPANTS' ACCOUNTS: The following Accounts shall be maintained for
each Participant:
(a) A Salary Deferral Account, to which shall be allocated Salary Deferral
Contributions made pursuant to Section 3.1 and earnings thereon.
(b) An Employer Matching Contribution Account, to which shall be allocated
Employer Matching Contributions made pursuant to Section 3.2(a) and
earnings thereon.
(c) An Employer Annual Contribution Account, to which shall be allocated
the Participant's share of Annual Employer Contributions made pursuant
to Section 3.2(b), and earnings thereon.
(d) A Rollover Account, to which shall be credited amounts transferred
pursuant to Section XII, and earnings thereon.
4.2 ALLOCATION OF CONTRIBUTIONS AND EARNINGS:
(a) Salary Deferral Contributions shall be allocated to a Participant's
Account no later than fifteen (15) business days following the last day
of the month in which such contributions are received by the Trust.
(b) If the Employer decides to make Employer Matching Contributions for the
Plan Year, the Committee shall allocate the Employer Matching
Contributions to the Accounts of Participants who made Salary Deferral
Contributions during the Plan Year. The allocation shall be made as of
the last day of the Plan Year or as of each Entry Date if the Committee
so determines.
(c) As of the last day of each Plan Year, the Committee shall allocate the
Employer Annual Contributions to the Accounts of Participants (i) who
are Employees of the Employer on the last day of the Plan Year, and
(ii) to any Participant who has assets credited to his Account and who
retired, died or became Disabled during the Plan Year. The allocation
shall be made in the same proportion that each Participant's
Compensation for the Plan Year bears to all Participants' Compensation
for the Plan Year.
(d) As of each Valuation Date, the Trustee shall determine the fair market
value of each Participant's Account and any increase or decrease in the
value of the Trust Fund since the last Valuation Date. Before crediting
the contributions allocated pursuant to subsections (a), (b), and (c)
above, the Committee shall proportionately allocate the net income or
losses since the last Valuation Date on the basis of the balance in
each Participant's Account as of the last preceding Valuation Date
adjusted by subtracting any withdrawals or distributions since the last
Valuation Date.
12
<PAGE>
(e) The Accounts of Participants adjusted in accordance with this Section
shall be determinative of the value of the interest of each Participant
in the Trust Fund for all purposes until a subsequent determination is
made by the Trustee.
4.3 ALLOCATION OF FORFEITURES:
(a) As of each Valuation Date, any amounts of Employer Annual Contributions
which became Forfeitures since the last Valuation Date shall first be
made available to reinstate previously forfeited Employer Annual
Contributions of Terminated Participants in accordance with Section
5.1(f). The remaining Forfeitures, if any, shall be used to reduce the
Employer Matching Contributions or Employer Annual Contributions, if
any.
(b) If the Employer does not make an Employer Annual Contribution for a
Plan Year, the remaining Forfeitures shall be held in a Forfeiture
account which shall be allocated pursuant to subsection (a) for
subsequent Plan Years.
4.4 ANNUAL ADDITION:
(a) Notwithstanding any other provision of this Plan to the contrary, the
total amount of the Annual Addition (defined below) that may be
allocated to the Accounts of any Participant for any Limitation Year
shall not exceed the lesser of (i) $30,000, or (ii) 25% of the
Participant's Section 415 Compensation. The $30,000 amount referred to
in (i) shall be adjusted from time to time to correspond to the amount
prescribed by law under Code section 415(c)(1)(A) or by the Secretary
of the Treasury pursuant to Code section 415(d), determined as of the
Valuation Date of the Plan Year to which the limitation applies.
Limitation Year shall be the Plan Year.
(b) For purposes of this Section, the term "Annual Addition" means the
total of the following amounts credited to the Participant's Accounts:
(i) the Employer Matching Contributions for the Plan Year, (ii) the
Annual Employer Contributions for the Plan Year, (iii) the Salary
Deferral Contributions for the Plan Year, and (iv) amounts described in
Code sections 415(l)(1) and 419A(d)(2).
(c) In the event the Annual Additions to all the Accounts of a Participant
would exceed the limitations set forth in this Section, they shall be
reduced in the following priority: (1) reduction of the Salary Deferral
Contributions under Section 3.1; (2) reduction of the Employer Matching
Contributions under Section 3.2(a); and then reduction of the Employer
Annual Contributions under Section 3.2(b).
13
<PAGE>
(d) If the Employer and Affiliated Employers maintain more than one defined
contribution plan qualified under Code section 401, then this Section
shall be applied in such a way that the total Annual Addition under all
such plans shall not exceed the amount specified in subsection (a). For
purposes of applying the limitations set forth in this Section, Code
sections 414(b) and 414(c) shall be applied as modified by Code section
415(h).
4.5 BENEFIT LIMITATIONS - MULTIPLE PLANS: For Limitation Years beginning before
January 1, 2000, if an Employee is a Participant in one or more defined benefit
plans and/or one or more defined contribution plans maintained by the Employer
or an Affiliated Employer, then the sum of his "defined benefit plan fraction"
(defined below) and his "defined contribution plan fraction" (defined below) for
any Limitation Year as applied to the plans shall not exceed 1.0. Either the
benefits provided under the defined benefit plans or the contributions made to
the defined contribution plans shall be reduced to the extent necessary to
comply with this limitation. For purposes of this Section:
(a) The "defined benefit plan fraction" for any Limitation Year is a
fraction, the numerator of which is the Participant's projected annual
benefit under this Plan and all other defined benefit plans of the
Employer and Affiliated Employers (determined as of the close of the
Limitation Year), and the denominator of which is the lesser of:
(i) The product of 1.25 multiplied by $90,000 (or such other
amount as is permitted or required to be used under Code
section 415(e)); or
(ii) The product of 1.4 multiplied by 100% of the Participant's
average Section 415 Compensation from the Employer for the
three consecutive years that will produce the highest average.
The $90,000 amount referenced above shall be adjusted at the same time
and in the same manner as required by Code section 415(e).
(b) The "defined contribution plan fraction" for any Limitation Year is a
fraction, the numerator of which is the sum of the "annual additions"
(defined below) to the Participant's accounts as of the close of the
Limitation Year under all defined contribution plans of the Employer
and Affiliated Employers and the denominator of which is the sum of the
lesser of the following amounts determined for the Limitation Year and
for each previous year of service with the Employer and Affiliated
Employers:
(i) The product of 1.25 multiplied by the dollar limitation in effect
under Code section 415(c)(1)(A); or
(ii) The product of 1.4 multiplied by 25% of the Participant's Section
415 Compensation for the Plan Year.
14
<PAGE>
(c) As an alternative to the foregoing, in determining the limits of this
Section, the Committee may use any method permissible under Code
section 415.
4.6 ANTI-DISCRIMINATION TEST FOR SALARY DEFERRAL CONTRIBUTIONS:
(a) Each Plan Year, the Actual Deferral Percentage of eligible Highly
Compensated Employees shall not exceed the greater of:
(i) The Actual Deferral Percentage of all other eligible Employees
multiplied by 1.25; or
(ii) The lesser of the Actual Deferral Percentage of all other
eligible Employees multiplied by 2, or the Actual Deferral
Percentage of all other eligible Employees plus 2 percentage
points.
(b) The Actual Deferral Percentage for a group of Employees is the average
of the ratios, calculated separately for each Employee in the group, of
the amount of Salary Deferral Contributions that are credited under the
Plan on behalf of each Employee for the Plan Year, to the Employee's
Compensation for the Plan Year. In order for Salary Deferral
Contributions to be included in the Actual Deferral Percentage for the
Plan Year, such contributions must be attributable to compensation that
otherwise would have been paid to the Participant during the Plan Year,
must be allocated to the Participant's Accounts during the Plan Year,
and must be paid to the Trust within 12 months following the close of
the Plan Year. The Committee may elect in accordance with Code section
401(k)(3)(A) to apply the Actual Deferral Percentage of all other
eligible Employees for the current Plan Year instead of the Actual
Deferral Percentage for such Employees for the immediately preceding
Plan Year in performing the tests described above.
(c) Notwithstanding the foregoing provisions of the Plan, the Plan shall
meet the anti-discrimination test of Code section 401(k), described in
subsection (a) and applicable regulations, for each Plan Year. In order
to meet the anti-discrimination test, any or all of the following steps
may be taken:
(i) At any time during the Plan Year, the Committee may limit the
amount of Salary Deferral Contributions that may be made on
behalf of Highly Compensated Employees.
(ii) The Committee may reduce the Salary Deferral Contributions
made for the Plan Year to the extent necessary to meet the
requirements of Code section 401(k), in the manner described
in Section 4.8.
(iii) The Committee may recommend that the Employer make an
additional Employer contribution to the Plan for the benefit
of Participants who are not Highly Compensated Employees. This
additional contribution may be allocated based on
15
<PAGE>
Participants' Compensation and shall be allocated to the
Participants' Salary Deferral Contributions Accounts.
(iv) If the test described in subsection (a) is not satisfied for a
Plan Year, the Committee may use any other test permitted
under Code section 401(k) to determine whether the Plan meets
the anti-discrimination requirements of Code section 401(k).
The limitations of Section 4.5(a)(ii) shall be used only to
the extent permitted by applicable Treasury regulations.
(v) The Committee may take any other steps that the Committee deems
appropriate.
(d) If the Employer maintains more than one plan qualified under Code
section 401(a), and if the plans are aggregated for purposes of
satisfying Code section 401(a)(4) or 410(b)(1)(A) or (B), all qualified
cash or deferred arrangements contained in such plans shall be
aggregated for purposes of performing the anti-discrimination test for
Salary Deferral Contributions. If a Highly Compensated Employee
participates in more than one plan of the Employer, all salary
reduction contributions made by the Highly Compensated Employee under
all such plans shall be aggregated for purposes of performing the test
outlined above.
4.7 ANTI-DISCRIMINATION TEST FOR EMPLOYER MATCHING CONTRIBUTIONS:
(a) For each Plan Year, the contribution percentage will be tested in
accordance with Code section 401(m)(2) and Treasury regulation
1.401(m)-1.
(b) The Plan shall meet the anti-discrimination test of Code section
401(m), described in subsection (a) and applicable regulations, for
each Plan Year. In order to meet the anti-discrimination test, any or
all of the following steps may be taken:
(i) At any time during the Plan Year, the Committee may limit the
amount of Employer Matching Contributions that may be made on
behalf of Highly Compensated Employees.
(ii) The Committee may reduce the Employer Matching Contributions
made for the Plan Year to the extent necessary to meet the
requirements of Code section 401(m), in the manner described
in Section 4.8.
(iii) The Committee may recommend that the Employer make an
additional Employer contribution to the Plan for the benefit
of Participants who are not Highly Compensated Employees. This
additional contribution may be allocated based on
Participants' Compensation.
(iv) The Committee may take any other steps that the Committee deems
appropriate.
16
<PAGE>
The Committee may elect in accordance with Code section 404(m)(2)(A) to
apply the Employer matching percentage of all other Eligible Employees
for the current Plan Year instead of the Employer matching percentage
for such employees for the immediately preceding Plan Year in
performing the tests described above.
(c) If the Employer maintains more than one plan qualified under Code
section 401(a), and if the plans are aggregated for purposes of
satisfying Code section 401(a)(4) or 410(b)(1)(A) or (B), all Employer
Matching Contributions made to such plans will be aggregated-for
purposes of performing the anti-discrimination test. If a Highly
Compensated Employee is eligible to participate in more than one plan
maintained by the Employer, the Employer Matching Contributions made on
behalf of the Highly Compensated Employee under all such plans will be
aggregated for purposes of performing the anti-discrimination test
described above.
(d) Notwithstanding any other provision in the Plan, the sum of the actual
deferral percentage and the contribution percentage on behalf of Highly
Compensated Employees may not exceed the "aggregate limit" permitted
under the multiple use test, as set forth in Code section 401(m)(9) and
Treasury regulations section 1.401(m)-2. If the aggregate limit is
exceeded, the Employer Matching Contributions and Salary Deferral
Contributions of those Highly Compensated Employees who participate in
the Plan will be reduced, beginning with such Highly Compensated
Employees whose dollar contribution is the highest, until the limit is
not exceeded. The amount by which each Highly Compensated Employee's
dollar contribution is reduced shall be treated as an Excess
Contribution under Section 4.7(b). The actual deferral percentage and
the contribution percentage of the Highly Compensated Employees are
determined after any correction required to be made under this
subsection (d). Multiple use does not occur if both the actual
deferral percentage and the contribution percentage of the Highly
Compensated Employees does not exceed 1.25 multiplied by the actual
deferral percentage and the contribution percentage of the non-Highly
Compensated Employees.
4.8 DISTRIBUTION OF EXCESS CONTRIBUTIONS:
(a) If a Participant's Salary Deferral Contributions exceed the $10,000
limitation (as adjusted pursuant to Code section 415(d)) described in
Section 3.1(b) for a calendar year, the amount of Salary Deferral
Contributions in excess of the limit and income attributable to those
contributions shall be distributed to the Participant by the April 15
following the close of the calendar year in which the Salary Deferral
Contributions were made.
(b) For purposes of this Section, "Excess Contributions" means, for a Plan
Year, the excess of Salary Deferral Contributions of Highly Compensated
Employees over the maximum amount of such contributions permitted under
the anti-discrimination tests described in Section 4.6. For purposes of
this Section, "Excess Aggregate Contributions" means, for a Plan Year,
the excess of Employer Matching Contributions of Highly Compensated
Employees over the maximum amount of such contributions permitted
under the anti-discrimination tests described in Section 4.7. Any
17
<PAGE>
Excess Contributions and any Excess Aggregate Contributions and income
attributable to those contributions shall be distributed to the Highly
Compensated Employees after the close of the Plan Year (but within
2 1/2 months after the close of the Plan Year) to which the Salary
Deferral Contributions, Employer Matching Contributions relate. In
determining the amount of the distributions under this Section, the
Committee shall use the leveling method described in applicable
Treasury regulations or any other method allowed by the Internal
Revenue Service.
(c) The amount of income attributable to Excess Contributions or Excess
Aggregate Contributions is that portion of the income on the
Participant's Account to which the contributions were allocated for the
Plan Year that bears the same ratio as the amount of Excess
Contributions or Excess Aggregate Contributions for the Plan Year bears
to the total balance of that Account. Such calculations shall be made
in accordance with Treasury Regulations sections 1.401(k)-l(f)(4) and
1.401(m)-l(e)(3). Income shall not include earnings for the period from
the end of the Plan Year for which the contributions were allocated to
the date of distribution.
(d) The distributions required under this Section may be made without the
consent of the Participant or his Spouse and may be made without regard
to any Qualified Domestic Relations Order.
(e) The amount of Excess Contributions determined under Section 4.8 shall
be reduced by Salary Deferral Contributions exceeding the $10,000
limitation described in Section 3.1(b), which were previously
distributed for the taxable year ending in the same Plan Year.
4.9 CORRECTION OF ERROR: If an error is made in the adjustment of a
Participant's Accounts, the error shall be corrected by the Committee, and any
gain or loss resulting from the correction shall be credited to the income or
charged as an expense of the Trust Fund for the Plan Year in which the
correction is made. In no event shall the Accounts of other Participants be
adjusted because of the error.
4.10 TRUST AS SINGLE FUND: The creation of separate Accounts for accounting and
bookkeeping purposes shall not restrict the Trustee in operating the Trust as a
single Fund. Allocations to the Accounts of Participants in accordance with
this Section IV shall not vest any right or title to any part of the assets of
the Fund in such Participants, except as provided in Section V.
18
<PAGE>
SECTION V
BENEFITS AND WITHDRAWALS
5.1 VESTING:
(a) A Participant shall vest in his Employer Annual Contribution Account on
the basis of his number of Years of Service according to the following
schedule:
----------------------------------------- -----------------------------------
YEARS OF SERVICE VESTED PERCENTAGE
----------------------------------------- -----------------------------------
Less than 5 0%
----------------------------------------- -----------------------------------
5 or more 100%
----------------------------------------- -----------------------------------
(b) A Participant shall be 100% vested at all times in his Salary Deferral
Contributions and the Employer Matching Contributions.
(c) A Participant shall be 100% vested in the Employer Annual Contribution
Account upon:
(i) his death;
(ii) Disability;
(iii) attaining age 65.
(d) A Participant will forfeit the non-vested portion of his Account on the
earlier of:
(i) The distribution of the entire vested portion of a Terminated
Participant's Accounts, or
(ii) The last day of the Plan Year in which the Participant
incurs a One-Year Break in Service.
For purposes of paragraph (i) above, in the case of a Terminated Participant
whose vested benefit is zero, such Terminated Participant shall be deemed to
have received a distribution of his vested benefit upon his termination of
employment. Restoration of such amounts shall occur pursuant to Section 5.1(g).
(e) Notwithstanding the Vesting schedule above, upon any full or partial
termination of the Plan, all amounts credited to the Account of any
affected Participant shall become 100% vested and shall not thereafter
be subject to forfeiture.
19
<PAGE>
(f) The computation of a Participant's nonforfeitable percentage of his
interest in the Plan shall not be reduced as the result of any direct
or indirect amendment to the Plan. In the event that the Plan is
amended to change or modify any Vesting schedule, a Participant with at
least three (3) Years of Service may elect to have his nonforfeitable
percentage computed under the Plan without regard to such amendment.
(g) If any Terminated Participant shall be reemployed by the Employer
before five (5) consecutive One-Year Breaks in Service, and such
Terminated Participant had received, or was deemed to have received, a
distribution of his entire vested interest prior to his reemployment,
his forfeited Account shall be reinstated only if he repays the full
amount distributed to him before the earlier of five (5) years after
the first date on which the Participant is subsequently reemployed by
the Employer or the close of the first period of five (5) consecutive
One-Year Breaks in Service commencing after the distribution, or in the
event of a deemed distribution, upon the reemployment of such
Terminated Participant. In the event the Terminated Participant does
repay the full amount distributed to him, or in the event of a deemed
distribution, the undistributed portion of the Participant's Account
must be restored in full, readjusted by any gains or losses occurring
subsequent to the Valuation Date coinciding with or preceding his
termination.
5.2 RETIREMENT; TERMINATION OF EMPLOYMENT: If a Participant terminates
employment for any reason including retirement on or after his Early Retirement
Date, Normal Retirement Date, or Disability, the Participant's Account shall be
paid to him as soon as practicable thereafter, pursuant to Section 5.6. The
Participant's Account shall be distributed in accordance with Sections 5.6 and
5.7.
5.3 DEATH BENEFITS:
(a) If a Participant dies before his interest in his Account has been
distributed, and if the Participant's Account balance exceeds $5,000 at
the time of distribution, the Participant's interest remaining in his
Account will be paid to the Participant's Beneficiary in a single sum
cash payment or in a form selected by the Beneficiary pursuant to
Section 5.7, provided that the Account must begin to be distributed
within five years after the Participant's death. If the value of the
Participant's Account does not exceed $5,000 at the time of
distribution, the Account will be paid to the Participant's Beneficiary
in a single sum cash payment.
(b) If a Participant dies after payments have begun, then his remaining
Account balance, if any, must be distributed to his Beneficiary at
least as rapidly as under the method of distribution elected by the
Participant.
5.4 DISABILITY BENEFITS: In the event of a Participant's Disability prior to his
Normal Retirement Date, or termination of employment, all amounts credited to
such Participant's Accounts shall become 100% vested. In the event of a
Participant's Disability, the Trustee, in accordance with the provisions of
Sections 5.6 and 5.7, shall distribute to such Participant all amounts credited
to such Participant's Account as though he had retired.
20
<PAGE>
5.5 DESIGNATION OF BENEFICIARY: If the Participant is not married, the
Beneficiary is the person or entity designated by the Participant to receive
benefits payable from the Plan as a result of the Participant's death. If the
Participant is married, the Beneficiary is automatically the Participant's
surviving Spouse and no written designation is required. If the Participant is
married and the Participant wishes to designate a Beneficiary other than his
Spouse, the Spouse must consent to the designation of another person who will
become the designated Beneficiary to receive benefits under the Plan. If at the
time of his death, the Participant has no surviving Spouse or designated
Beneficiary, the Beneficiary is the Participant's estate. A Participant may
designate a person or entity to be his Beneficiary by filing a properly
completed and executed form provided by the Committee. A Participant may change
a Beneficiary designation by submitting such change on a form provided by the
Committee, or, if no such form is available, by a handwritten change witnessed
by a third party. If a married Participant wishes to designate a Beneficiary
other than his Spouse, the Beneficiary designation must be witnessed by a notary
public or a member of the Committee (or a person authorized by the Committee)
and the Spouse must (a) consent to the designation in writing, and (b)
acknowledge the effect of such designation. A Participant's Beneficiary is bound
by the terms of the Plan.
5.6 COMMENCEMENT OF DISTRIBUTION:
(a) A Participant's Account balance shall be distributed (or shall begin to
be distributed) as soon as practicable following the date the
Participant terminates employment, retires, or dies, subject to
subsection (b). The Account balance shall be valued as of the Valuation
Date on or immediately preceding the date the distribution is made.
(b) If a Participant's vested Account balance exceeds $5,000 and the
distribution is to be made before the Participant's Normal Retirement
Date, the Participant (and his Spouse, if any) or his Beneficiary must
consent to the distribution before it may be made. In this event, the
procedures of Section 5.7 shall apply. If a Participant and his Spouse,
if any, does not consent to the distribution, the Participant's
interest in his Accounts will be held in the Trust Fund until the
earlier of (i) the date the Participant consents to the distribution,
(ii) the Participant's Normal Retirement Date, or (iii) the
Participant's death.
(c) If a Participant's vested Account balance exceeds $5,000, such
Participant's vested Account shall become payable after a One-Year
Break in Service.
(d) If the Participant's vested Account balance does not exceed $5,000 at
the time of distribution, the Account will be distributed in a single
sum cash payment without the Participant's or the Beneficiary's
consent.
(e) Each Participant's Account must begin to be distributed in accordance
with the following rules, except as otherwise permitted by law:
21
<PAGE>
(i) If the Participant is not a 5% Owner and attains age 70 1/2 on
or after January 1, 1998, the Participant's Account must be
distributed (or must begin to be distributed) by the later of
(x) the April 1 following the calendar year in which the
Participant attains age 70 1/2, or (y) the date the
Participant retires.
(ii) To the extent required under Code sections 401(a)(9) and
411(d)(6), a Participant who has attained age 70 1/2 on or
after January 1, 1996 may elect to receive distribution of his
Account as of the April 1 following the calendar year in which
the Participant attains age 70 1/2, or may elect to defer
distribution of his Account until no later than the April 1
following the calendar year in which the Participant retires.
(iii) If the Participant is a 5% Owner, the Participant's Account
must be distributed (or must begin to be distributed) not
later than the April 1 following the calendar year in which
the Participant attains age 70 1/2.
These rules apply notwithstanding any other provision in the Plan to the
contrary. Distributions under this Section shall be made in accordance with Code
section 401(a)(9) and any Treasury Regulations issued thereunder.
(f) Notwithstanding the foregoing, and unless the Participant otherwise
consents, distributions must generally commence not later than 60 days
following the close of the Plan Year in which occurs the latest of:
(i) The date the Participant attains age 65;
(ii) The 10th anniversary of the date on which the Participant first
commenced participation in the Plan; or
(iii) The date on which the Participant separates from service.
(g) Notwithstanding anything in the Plan to the contrary, in no event may a
Participant's Salary Deferral Account be distributed before:
(i) The Participant incurs a Disability, dies, terminates
employment, attains age 59 1/2, or incurs a financial hardship
as described in Section 5.10(c); or
(ii) The Plan is terminated and the Employer does not maintain another
defined contribution plan.
(h) An Alternate Payee shall be entitled to receive a distribution from a
Participant's Account pursuant to a Qualified Domestic Relations Order,
notwithstanding the fact that the Participant is not currently eligible
to receive a distribution from the Plan. If an Alternate Payee elects
to maintain an Account in the Plan instead of receiving a distribution,
22
<PAGE>
the provisions of subsections 5.6(e) and (f) with respect to required
beginning dates shall apply to the Alternate Payee as if he were a
Participant.
5.7 FORM OF BENEFIT:
(a) If a Participant's vested Account balance does not exceed $5,000 at the
time of distribution, his benefit will be paid in the form of a single
sum cash payment.
(b) If a Participant's vested Account balance exceeds $5,000 at the time of
distribution, a Participant's or his Beneficiary's benefit will be paid
in one of the following forms of payment, as selected by the
Participant or Beneficiary:
(i) A single sum cash payment;
(ii) Payments over a period certain in monthly, quarterly,
semiannual, or annual cash installments. In order to provide
such installment payments, the Committee may:
(A) Segregate the vested Account in a separate, federally
insured savings account, certificate of deposit in a
bank or savings and loan association, money market
certificate or other liquid short-term security, or,
(B) Purchase a nontransferable annuity contract for a
term certain (with no life contingencies) providing
for such payment. The period over which such payments
is to be made shall not extend beyond the
Participant's life expectancy (or the life expectancy
of the Participant and his designated Beneficiary).
(iii) A direct trustee-to-trustee transfer to another employer's
plan, provided that such plan is qualified under Code section
401(a) or 403(a); or
(iv) A direct rollover to another employer's plan or individual
retirement arrangement pursuant to the terms of Section 5.13,
to the extent permitted by law.
(c) A Participant may elect to have the portion of his Account that is
invested in the Company Stock Fund paid in whole shares of Company
Stock, with the value of fractional shares paid in cash, or entirely in
cash. For purposes of determining the amount of a cash distribution,
Company Stock will be valued as soon as practicable following receipt
by the Committee of all information necessary to process the
distribution.
(d) The distribution of a benefit to a Participant, Spouse or Beneficiary
shall be a complete discharge of the Plan, the Trustee, the Committee
and the Employer with respect to the amount so distributed.
23
<PAGE>
5.8 ELECTIONS: The Committee will provide the written election forms and a
notice that explains the optional forms of benefit available under the Plan no
less than 30 days and no more than 90 days before the date on which the benefits
become payable. Notwithstanding the foregoing, a distribution may commence less
than 30 days after the date on which the written election forms are delivered to
the Participant or Beneficiary provided that:
[zz]
(a) The Participant is electing to receive his benefits in a form of
payment other than an annuity;
(b) the Committee clearly informs the Participant that the Participant has
a right to a period of at least 30 days after receiving the notice to
consider the decision of whether or not to elect a distribution (and,
if applicable, a particular distribution option);
(c) distribution does not begin before the expiration of the (seven) day
period that begins the day after the election of the qualified joint
and survivor annuity or single life annuity is provided to the
participants;
(d) the Participant is permitted to revoke an affirmative distribution
election at least until the date on which the benefits become payable;
and
(e) the Participant, after receiving the notice, affirmatively elects a
distribution.
5.9 WITHDRAWALS DURING EMPLOYMENT AFTER AGE 59 1/2: Upon reaching age 59 1/2, a
Participant may request a withdrawal of all or a portion of his Salary Deferral
Account. A withdrawal request shall be given to the Committee (in such form as
the Committee may prescribe), at least 30 days prior to the Valuation Date as of
which the Participant wishes to receive the withdrawal.
5.10 HARDSHIP WITHDRAWALS:
(a) A Participant may request a withdrawal from his Salary Deferral Account
if the Participant has incurred financial hardship, as described below.
A Participant may not withdraw from his Salary Deferral Account due to
financial Hardship any funds in excess of the actual Salary Deferral
Contributions made to the Account, excluding earnings, and reduced by
any prior Hardship Withdrawals.
(b) No more than one request for withdrawals pursuant to this Section 5.10
shall be permitted in any Plan Year.
(c) A Participant will be considered to have incurred a financial hardship
if the Participant has immediate and heavy financial needs that cannot
be fulfilled through other reasonably available financial resources of
the Participant. Immediate and heavy financial needs shall mean:
24
<PAGE>
(i) Expenses incurred for or necessary to obtain medical care (as
described in Code section 213(d)) by the Participant, the
Participant's Spouse or any dependents of the Participant (as
defined in Code section 152);
(ii) Purchase (excluding mortgage payments) of a principal residence for
the Participant;
(iii) Payment of tuition and related educational fees (including
room and board) for the next 12 months of post-secondary
education for the Participant, his Spouse, children or
dependents (as defined in Code section 152); or
(iv) Funds needed to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage of the
Participant's principal residence.
(d) The determination of financial hardship shall be made by the Committee
in a uniform and nondiscriminatory manner in accordance with such
standards as may be promulgated from time to time by the Internal
Revenue Service. The Committee may rely on the Participant's
representation that the financial hardship cannot be relieved:
(i) Through reimbursement or compensation by insurance or otherwise;
(ii) By reasonable liquidation of the Participant's assets, to the
extent such liquidation would not itself cause an immediate
and heavy financial need; or
(iii) By borrowing from commercial sources on reasonable commercial
terms.
(e) A distribution will be deemed necessary to satisfy an immediate and
heavy financial need of the Participant if all of the following
requirements are met:
(i) The distribution is not in excess of the amount of the immediate
and heavy financial need of the Participant;
(ii) The Participant's Salary Deferral Contributions are suspended
until the first Entry Date following the date that is 12
months after receipt of the withdrawal; and
(iii) The Participant may not make Salary Deferral Contributions for
the calendar year that immediately follows the year of the
withdrawal in excess of the $10,000 limit (as adjusted under
Code section 402(g)) under Section 3.1(b) for that year, minus
the amount of the Participant's Salary Deferral Contributions
for the year in which the withdrawal is made.
25
<PAGE>
(f) A Participant who wishes to make a withdrawal shall apply in writing to
the Committee, on a form provided by the Committee. Such form must be
submitted at least 30 days before the date which the Participant wishes
to receive the withdrawal. The Participant must furnish such
information in support of his application as may be requested by the
Committee. The Committee shall determine the amount of withdrawal, if
any, that shall be made and may direct distribution of as much of the
Participant's Account as it deems necessary to alleviate or to help
alleviate the financial hardship. The Participant's Account may be
charged with any expenses necessary to implement the withdrawal. The
Committee may not authorize a hardship withdrawal in excess of the
amount deemed necessary to alleviate the financial hardship, plus
amounts necessary to pay federal, state or local income taxes or
penalties incurred as a result of the distribution.
(g) All withdrawals made pursuant to this Section shall be made as soon as
practicable after the Committee approves the withdrawal. All
withdrawals shall be based on Account values as of the Valuation Date
immediately preceding the date the Committee authorizes the withdrawal.
(h) The Committee may adopt additional policies and procedures regarding
hardship withdrawals, which are incorporated in this Plan by reference.
5.11 LOCATION OF MISSING PARTICIPANTS: If a Participant who is entitled to a
distribution cannot be located and the Committee has made reasonable efforts to
locate the Participant, then the Participant's vested interest in his Account
shall be forfeited. The Committee will be deemed to have made reasonable efforts
to locate the Participant if the Committee is unable to locate the Participant
(or, in the case of a deceased Participant, his Beneficiary) after having made
two successive certified or similar mailings to the last address on file with
the Committee. The Participant's Account shall be forfeited as of the last day
of the Plan Year in which occurs the close of the 12 consecutive calendar month
period following the last of the location attempts. If the Participant or
Beneficiary makes a written claim for the vested interest after it has been
forfeited, the Committee shall cause the vested interest to be reinstated.
5.12 BENEFITS TO MINORS AND INCOMPETENTS:
(a) If any person entitled to receive payment under the Plan is a minor,
the Committee shall pay the amount in a lump sum directly to the minor,
to a guardian of the minor, or to a custodian selected by the Committee
under the appropriate Uniform Transfers to Minors Act.
(b) If a person who is entitled to receive payment under the Plan is
physically or mentally incapable of personally receiving and giving a
valid receipt for any payment due (unless a previous claim has been
made by a duly qualified committee or other legal representative), the
payment may be made to the person's spouse, son, daughter, parent,
brother, sister or other person deemed by the Committee to have
incurred expense for the person otherwise entitled to payment. The
Committee may not be compelled to select any method that it does not
deem to be in the best interest of the distributees.
26
<PAGE>
5.13 ELIGIBLE ROLLOVER DISTRIBUTIONS:
(a) Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Section, a
distributee may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the
distributee in a direct rollover.
(b) Definitions.
(i) Eligible rollover distribution: An eligible rollover distribution
is any distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a
series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of
the distributee or the joint lives (or joint life expectancies) of
the distributee and the distributee's designated beneficiary, or
for a specified period of ten years or more; any distribution to
the extent such distribution is required under Code section
401(a)(9); any amounts withdrawn because of a hardship withdrawal;
and the portion of any distribution that is not includible in gross
income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(ii) 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.
(iii) Distributee: A distributee includes an employee or former
employee. In addition, the employee's or former employee's
surviving spouse and the employee's or former employee's
spouse or former spouse who is the alternate payee under a
Qualified Domestic Relations Order are distributees with
regard to the interest of the spouse or former spouse.
(iv) Direct rollover: A direct rollover is a payment by the Plan to the
eligible retirement plan specified by the distributee.
5.14 INSIDERS: The Committee may impose on Insiders such restrictions and
requirements regarding participation, contributions, investments, distributions
and other matters as the Committee deems appropriate to comply with Rule 16b-3
or other applicable laws relating to Company Stock.
27
<PAGE>
SECTION VI
INVESTMENT OF ACCOUNTS
6.1 INVESTMENT FUNDS:
(a) The following investment funds shall be established for
purposes of the Plan:
(i) Company Stock Fund. The Company Stock Fund shall be invested
primarily in Company Stock. The Trustee may purchase and sell
Company Stock on the open market, from and to the Company, and
in any other manner as the Trustee deems appropriate,
consistent with applicable securities laws, ERISA and the
Internal Revenue Code.
(ii) Other Investment Funds. The Committee shall designate other
investment funds from time to time for investment of
Participants' Accounts. The Committee shall select the
investment funds in accordance with Section 404(c) of ERISA
and the regulations thereunder.
(b) Plan assets may be invested in a short term investment fund or in any
other manner deemed appropriate by the Trustee, pending investment in
the appropriate investment fund.
(c) The Committee may impose upon any investment fund such restrictions as
may be necessary or appropriate. For example, the Committee may
restrict transfers to or from an investment fund, and the Committee may
limit the amount of a Participant's Account that may be transferred to
or from an investment fund during a specified period of time.
6.2 DIRECTED INVESTMENTS: Investments may be directed by the Participant in
accordance with regulations issued under the Internal Revenue Code and ERISA, as
follows:
(a) A Participant may make investment directions in such form and at such
time as the Committee shall designate. Investment directions shall
specify the investment funds in which the Participant's Accounts are to
be invested. Investment directions may be made at least quarterly, and
more frequently if the Committee so determines, in whole percentages.
Investment directions shall be submitted to such person as the
Committee designates to implement Participants' directions. A
Participant's investment directions shall be implemented as soon as is
administratively feasible, consistent with applicable law and the
Trustee's fiduciary responsibilities. An investment direction shall
continue to apply until a subsequent direction is properly submitted.
A Participant's Accounts may be charged for the reasonable expenses of
carrying out investment directions.
(b) To the extent required by applicable law or regulations, each
Participant shall be provided the following information for each
investment fund:
28
<PAGE>
(i) An explanation that the Plan is intended to constitute a plan
described in Section 404(c) of ERISA and the corresponding
regulations, and that the fiduciaries of the Plan may be
relieved of liability for any losses which are the direct and
necessary result of investment instructions given by such
Participant;
(ii) A description of the investment fund and its investment
objectives and risk and return characteristics, including the
type and diversification of assets in the investment;
(iii) An identification of any designated investment managers;
(iv) An explanation of the circumstances under which the
Participant may give instructions and limitations thereon;
(v) A description of any fees and expenses which may be charged to
the Participant's Account in connection with purchases or
sales of interests in the investment fund;
(vi) The name, address and telephone number of the Plan fiduciary
(or his designee) responsible for providing the information
required under this Section;
(vii) Any materials relating to the exercise of voting or similar
rights incidental to the Participant's ownership interest in
the investment fund, to the extent that such rights are passed
through to Participants under the terms of the Plan;
(viii) If the investment fund is subject to the Securities Exchange
Act of 1934 a copy of the most recent prospectus immediately
prior to the Participant's initial investment in the
investment fund; and
(ix) With respect to the Company Stock Fund, Participants shall be
provided with all information generally required to be
provided to shareholders of the Company.
(c) To the extent required by applicable law or regulations, upon request,
each Participant shall also be provided the following information for
each investment fund:
(i) A description of the annual operating expenses and the total
expenses, expressed as a percentage of average net assets;
(ii) Copies of any prospectuses, financial statements and reports,
and any other materials that are available to the Plan;
29
<PAGE>
(iii) A list of the assets comprising the portfolio, together with
the value of each asset and, if the asset is a fixed rate
contract issued by a bank, savings and loan association, or
insurance company, the name of the issuer, the term, and the
rate of return on the contract;
(iv) Information concerning the value of shares or units in
investment funds available to Participants under the Plan, as
well as the past and current investment performance of such
funds (determined, net of expenses, on a reasonable and
consistent basis); and
(v) Information concerning the value of shares or units held in the
Account of the Participant.
6.3 LIMITATIONS ON DIRECTED INVESTMENTS: The Trustee may decline to implement
a Participant's investment directions if such directions would:
(a) Result in a prohibited transaction as described in ERISA section 406 or
Section 4976 of the Internal Revenue Code;
(b) Generate taxable income to the Plan or jeopardize its tax qualified
status;
(c) Not be in accordance with the documents and instruments governing the
Plan;
(d) Cause a fiduciary to maintain the indicia of ownership in an asset
outside jurisdiction of the United States district courts;
(e) Result in a loss greater than the balance in the Participant's Account;
or
(f) Result in certain transactions between the Plan and the Employer or an
affiliate of the Employer.
Any investment direction made by an Insider that involves the Company
Stock Fund that is not exempt from the liability provisions of Section 16 under
the Securities Exchange Act of 1934 shall be automatically void and of no
effect, and the Trustee shall not implement any such investment direction.
6.4 APPLICATION TO BENEFICIARIES AND ALTERNATE PAYEES: All Beneficiaries of
deceased Participants who have Account balances in the Plan may direct the
investment of their Accounts into any one or more of the investment funds
offered pursuant to Section 6.2. After an Alternate Payee's interest in a
Participant's Accounts has been finally determined pursuant to Section 7.5, the
Alternate Payee may direct the investment of the Alternate Payee's Accounts into
one or more of the investment funds offered pursuant to Section 6.2, to the same
extent that the Participant could have directed the investment of the Accounts.
30
<PAGE>
6.5 VOTING, TENDER AND EXERCISE OF SIMILAR RIGHTS WITH RESPECT TO COMPANY
STOCK:
(a) A Participant may instruct the Trustee how to vote, tender, or exercise
similar rights with respect to the shares of Company Stock allocable to
the Participant's Account. The Trustee shall hold any voting, tender,
or similar instructions it receives from a Participant in the strictest
confidence and shall implement and follow procedures sufficient to
safeguard the confidentiality of such instructions, except to the
extent necessary to comply with Federal or state laws not preempted by
ERISA.
(b) The Trustee shall vote, tender, or exercise similar rights with respect
to Company Stock for which timely instructions are received according
to the Participants' instructions. The Trustee shall vote, tender, or
exercise similar rights with respect to shares of Company Stock for
which timely instructions are not received from Participants in such
manner as the Trustee deems appropriate.
(c) The Committee (or its agent) shall ensure that all notices, forms, and
other information regarding the exercise of voting, tender, or similar
rights are distributed to Participants within a reasonable time before
voting, tender, or similar rights are to be exercised. Instructions
from a Participant must be received by the Trustee in time for the
Trustee to act with respect to them.
6.6 MANAGEMENT OF THE COMPANY STOCK FUND:
(a) The Plan Administrator shall implement and follow procedures sufficient
to safeguard the confidentiality of information relating to the
purchase, holding, and sale of Company Stock by Participants, except to
the extent necessary to comply with Federal or state laws not preempted
by ERISA.
(b) If required by law, the Committee shall appoint an independent
fiduciary (within the meaning of applicable Department of Labor
regulations) to perform certain functions with respect to the Company
Stock Fund if the Committee determines that appointment of an
independent fiduciary is necessary because of a potential for undue
Employer influence upon Participants with regard to the direct or
indirect exercise of their shareholder rights.
(c) The Trustee shall manage the Company Stock Fund in a manner consistent
with ERISA, the Internal Revenue Code and applicable securities laws.
Consistent with these laws, the Trustee shall implement appropriate
procedures, restrictions and limitations with respect to the purchase
and sale of Company Stock. If the Trustee is not able to execute fully
Participants' investment directions at a particular time, the Trustee
shall execute the instructions to the extent possible, in a pro rata
manner.
6.7 ALLOCATION OF INCOME: All net income that is earned on investments in an
investment fund described in Section 6.1 shall be reinvested by the Trustee in
that investment fund. As of each Valuation Date, the Trustee shall determine the
31
<PAGE>
current fair market value of each investment fund. As of each Valuation Date,
before making adjustments for withdrawals, loans and transfers, the Plan
Administrator shall adjust the Account invested in that investment fund to
reflect the value of the investment fund as of that date. The adjustments shall
be based on each Participant's Account balance invested in the investment fund
as of the preceding Valuation Date.
32
<PAGE>
SECTION VII
PLAN ADMINISTRATION
7.1 GENERAL ADMINISTRATION: The Company is the Plan Administrator and is
responsible for the general administration and interpretation of the Plan and
for carrying out its provisions. The Company may delegate certain of its duties
to the Committee, who shall be responsible for discharging and carrying out such
delegated duties. The members of the Committee shall consist of one or more
persons. A person shall be eligible to be a member of the Committee whether or
not he is or may be a Participant in the Plan. The Company and each member of
the Committee shall be indemnified by the Employer against any and all
liabilities incurred by reason of any action taken in good faith pursuant to the
provisions of the Plan.
7.2 POWERS AND DUTIES:
(a) The Committee shall have such powers as may be necessary to discharge
its duties, including, but not in any way of limitation, the following
powers and duties:
(i) To construe and interpret the Plan and to decide all questions
relating to eligibility and payment of benefits;
(ii) To prescribe procedures to be followed by Employees in filing
applications for benefits;
(iii) To request and receive from the Employer and from Employees
such information as shall be necessary for the proper
administration of the Plan, including, but not limited to,
such information as the Committee may reasonably require to
determine each Employee's eligibility to participate in the
Plan and the benefits payable to each Participant upon his
death, retirement, attainment of age 59 1/2 or termination of
employment;
(iv) To prepare and distribute, in such manner as it determines to be
appropriate, information explaining the Plan;
(v) To furnish the Employer, upon request, with such annual
reports with respect to the administration of the Plan as are
reasonable and appropriate;
(vi) To direct the Trustee as to the method in which and persons to
whom Plan assets will be distributed;
(vii) To delegate any of its responsibilities to an employee or
committee of employees to assist it in carrying out its duties;
and
(viii) To employ counsel and agents and such clerical and other
services as the Committee shall deem necessary or desirable in
carrying out the provisions of the Plan.
33
<PAGE>
The Committee shall be fully protected in relying on data, information
or statistics furnished it by persons performing ministerial and
limited discretionary functions as long as the Committee has had no
reason to doubt the competence, integrity or responsibility of such
persons. The Committee shall not have the power to (x) add to, subtract
from or modify any of the terms of the Plan; (y) change or add to any
benefits provided by the Plan; or (z) waive or fail to apply any
requirement for eligibility for the receipt of benefits under the Plan.
(b) The Committee may adopt such rules and procedures and may make such
decisions as it deems necessary or desirable for the proper
administration of the Plan. All rules and decisions of the Committee
shall be uniformly and consistently applied to all Participants in
similar circumstances. The determinations of the Committee shall be
conclusive and binding on all persons for all purposes, and there shall
be no appeal from any ruling of the Committee that is within its
authority, except as provided in Section 7.6. When making a
determination or calculation, the Committee shall be entitled to rely
upon information furnished by an Employer or anyone acting on behalf of
an Employer.
(c) The Company (or the Committee, if so authorized by the Company) shall
have the power to (i) establish a funding policy and select investment
funds for the Trust Fund; (ii) receive and review reports on the
financial condition of the Trust Fund and statements of the receipts
and disbursements of the Trust Fund from the Trustee; and (iii) appoint
or employ one or more Investment Managers to manage any part or all of
the assets of the Plan.
7.3 MEETINGS AND QUORUM: The Committee shall hold meetings upon such notice, at
such places, and at such intervals as it may from time to time determine. A
majority of the members of the Committee shall constitute a quorum for the
transaction of business. All resolutions or other actions taken by the Committee
at any meeting shall be by the vote of a majority of those present at any such
meeting. Action may be taken by the Committee without a meeting by a written
consent signed by a majority of the members of the Committee.
7.4 COMPENSATION: The members of the Committee shall not be entitled to any
compensation for their services with respect to the Plan, but each Committee
member shall be entitled to reimbursement for any and all necessary expenses
that he may incur in connection with the administration of the Plan. The
expenses shall be paid by the Employer or from the Trust Fund. Any payments from
the Trust Fund shall be deemed to be for the exclusive benefit of Participants.
7.5 DOMESTIC RELATIONS ORDERS:
(a) If the Trustee or the Committee receives a domestic relations order
that purports to require the payment of a Participant's benefits to a
person other than the Participant, the Committee shall take the
following steps:
34
<PAGE>
(i) If benefits are in pay status, the Committee shall direct the
Trustee to withhold payment and to account separately for the
amounts that will be payable to the Alternate Payee if the
order is a Qualified Domestic Relations Order.
(ii) The Committee shall promptly notify the named Participant and
the Alternate Payee of the receipt of the domestic relations
order and of the Committee's procedures for determining if the
order is a Qualified Domestic Relations Order.
(iii) The Committee shall determine whether the order is a Qualified
Domestic Relations order under the provisions of Code section
414(p) and in accordance with the procedures established for
such purpose.
(iv) The Committee shall notify the named Participant and the
Alternate Payee of its determination as to whether the order
meets the requirements of a Qualified Domestic Relations Order
within 18 months beginning on the date the first payment would
be made under the domestic relations order (the "18-month
period").
(b) If the order is determined to be a Qualified Domestic Relations Order
within the 18-month period, the Committee shall direct the Trustee to
pay the specified amounts to the persons entitled to receive the
amounts pursuant to the order.
(c) If the order is determined not to be a Qualified Domestic Relations
Order within the 18-month period, or the issue as to whether the order
is a Qualified Domestic Relations Order has not been resolved, the
Committee shall direct the Trustee to pay the amounts (and any interest
thereon) to the Participant or other person who would have been
entitled to such amounts if there had been no order.
(d) If an order is determined to be a Qualified Domestic Relations Order
after the end of the 18-Month Period, the determination shall be
applied prospectively only.
(e) Distributions shall be made to an Alternate Payee in accordance with
the Plan, the Qualified Domestic Relations Order and applicable law. If
the Qualified Domestic Relations Order provides, a distribution may be
made to the Alternate Payee as soon as practicable following the date
the order is determined to be a Qualified Domestic Relations Order. A
Qualified Domestic Relations Order shall not give an Alternate Payee
any greater rights with respect to the form of distributions,
investments or other matters than a Participant would have with respect
to the Account.
7.6 CLAIMS PROCEDURE:
(a) Right to File Claim: A Participant or Beneficiary shall be entitled to
file with the Committee a claim for benefits under the Plan. The claim
is required to be in writing.
35
<PAGE>
(b) Denial of Claim: If the claim is denied by the Committee, in whole or
in part, the claimant shall be furnished within 90 days after the
Committee's receipt of the claim (or within 180 days after such receipt
if special circumstances require an extension of time) a written notice
of denial of the claim containing the following:
(i) Specific reason or reasons for denial;
(ii) Specific reference to pertinent Plan provisions on which the
denial is based;
(iii) A description of any additional material necessary for the
claimant to perfect the claim, and an explanation of why the
material is necessary; and
(iv) An explanation of the claims review procedure.
(c) Claims Review Procedure:
(i) Review may be requested at any time within 60 days following the date
the claimant received written notice of the denial of his claim. For
purposes of this Section, any action required or authorized to be
taken by the claimant may be taken by a representative authorized in
writing by the claimant to represent him. The Committee shall afford
the claimant a full and fair review of the decision denying the claim
and, if so requested, shall (x) permit the claimant to review any
documents that are pertinent to the claim, and (y) permit the
claimant to submit to the Committee issues and comments in writing.
(ii) The decision on review by the Committee shall be in writing
and shall be issued within 60 days following receipt of the
request for review. The period for decision may be extended to
a date not later than 120 days after such receipt if the
Committee determines that special circumstances require
extension. The decision on review shall include specific
reasons for the decision and specific references to the
pertinent Plan provisions on which the decision of the
Committee is based.
36
<PAGE>
SECTION VIII
DUTIES AND POWERS OF THE TRUSTEE
8.1 GENERAL: The Trustee shall receive, hold, manage, convert, sell, exchange,
invest, disburse and otherwise deal with such contributions as may from time to
time be made to the Trust Fund and the income and profits therefrom, in the
manner and for the uses and purposes of the Plan. If an Investment Manager is
appointed, the Investment Manager shall manage all or a portion of the assets of
the Trust in accordance with instructions given by the Committee.
8.2 INVESTMENT OF THE TRUST FUND: The Trustee shall invest, reinvest and hold
the assets of the Trust Fund in whatever form of investment as directed by the
Committee and pursuant to Section VIII. The Trustee shall follow the Committee's
instructions regarding how contributions are to be allocated among the
investment funds and regarding transfers of accounts between the funds. The
Trustee may hold any part of the Trust Fund uninvested or in cash without
liability for interest for a reasonable period of time pending the investment of
assets or the payment of costs, expenses or benefits payable under the Plan. The
Trustee shall act at all times with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of like character and with like aims.
8.3 PAYMENTS FROM THE TRUST FUND:
(a) Payments shall be made form the Trust Fund by the Trustee to or for the
account of such persons, in such manner, at such times, and in such
amounts as the Committee may from time to time direct. The Trustee
shall be fully protected in making payments from the Trust Fund in
accordance with such directions and shall have no responsibility to see
to the application of such payments or to ascertain whether such
directions comply with the terms of the Plan. The Trustee shall not be
liable for its acts with respect to payments from the Trust when
following such directions, or for its failure to actin the absence of
such directions. The Trustee shall not be liable or responsible for
any payment made by it in good faith and in the exercise of reasonable
care without knowledge of the changed conditions or status of the
payee.
(b) Except to the extent that such amounts are promptly paid by the
Company, the Trustee shall also pay out of the Trust Fund: (i) all
brokerage fees, transfer tax expenses and other expenses incurred in
connection with the sale or purchase of investments; (ii) all real and
personal property taxes, income taxes and other taxes at any time
levied or assessed on, or with respect to, the Trust Fund or any
property included in the Trust Fund; (iii) all applicable federal or
state income taxes required to be withheld on distributions to a
Participant or Beneficiary; and (iv) any Investment Manager's
compensation, if any, and all other expenses of administering the
Trust, unless paid by the Company.
(c) The Trustee may withhold all or part of any payment required to be made
as it may deem necessary and proper to protect the Trustee or the Trust
37
<PAGE>
Fund against any liability or claim on account of any estate,
inheritance, income or other tax, and the Trustee may discharge any
such liability with part or all of the payment so withheld, provided
that at least ten days before discharging a liability with any amount
so withheld, the Trustee shall notify the Committee in writing of its
intent to do so.
(d) If any check for a payment made form the Trust Fund that has been
mailed by regular United States mail to the last address of the payee
is returned to the Trustee unclaimed, the Trustee shall cancel the
check and notify the Committee. The Trustee shall not make any further
payments to the payee until it receives further instructions from the
Committee.
8.4 POWERS OF THE TRUSTEE: In addition to the powers and discretion conferred
upon the Trustee by any other provision of this Plan, but subject to the
requirements of applicable law, the Trustee shall have all the usual powers
conferred by law on trustees and shall also have the following express powers
with respect to the Trust Fund:
(a) To employ agents, experts and counsel, to delegate discretionary powers
to, and reasonably rely upon, information and advice furnished by
agents, experts and counsel, and to compensate such agents and counsel
out of the Trust Fund;
(b) From time to time to register any property in the name of its nominee
or in its own name or to hold it unregistered or in such form as title
shall pass by delivery, provided that the records of the Trustee shall
at all times indicate the trust ownership of such securities.
(c) To retain, to exchange for any property, to sell in any manner and at
any time, to divide, subdivide, partition, mortgage, improve, alter,
remodel, repair and develop in any manner any property, real or
personal; to lease property for any period of time; and to grant
options to sell or lease property.
(d) To vote stock held in the Trust Fund personally or by proxy and to
delegate the Trustee's powers with respect to stock to a proxy.
(e) To exercise subscription, conversion and other rights and options and
to make payments from the Trust Fund in connection therewith.
(f) To take any action and to abstain form taking any action with respect
to any reorganization, consolidation, merger, dissolution,
recapitalization, refinancing and any other change affecting any
property held as part of the Trust Fund;
(g) Upon direction by the Committee, to purchase contracts from any
licensed insurance company;
8.5 ACCOUNTS AND REPORTS: The Trustee shall keep accurate and detailed accounts
of all investments, receipts, disbursements, distributions and other
38
<PAGE>
transactions of the Trust Fund. Within a reasonable time after receipt by the
Trustee of the final Employer Annual Contribution and Employer Matching
Contribution to the Trust for the Plan Year (or notice that no such Employer
Contribution shall be made for the Plan Year), the Trustee shall deliver an
account to the Company listing the fair market value of the assets of the Trust
Fund as of the last day of the Plan Year and setting forth all receipts,
disbursements, distributions and other transactions that were not included in a
previous account. When approved by the Employer, the Trustee's account shall be
binding on the Employer, and the Trustee will be released and discharged from
any liability or accountability to the Employer with respect to all matters set
forth therein. Failure by the Employer to object in writing to any specific
items in an account within 30 days after its delivery to the Employer will
constitute approval of the account by the Employer. No Plan Participant or
Beneficiary shall have any right to compel any accounting, judicial or
otherwise, by the Trustee.
8.6 LIMITATION OF LIABILITY: The Trustee shall hold in trust and administer the
Trust Fund subject to all the terms and conditions of this Plan. The Trustee
shall not be responsible for the administration of the Plan unless employed by
the Company to serve in such capacity. The Trustee's responsibility shall be
limited to holding, investing and reinvesting the assets of the Trust Fund from
time to time in its possession or under its control as Trustee and to disbursing
funds as shall be directed by the Committee. The Trustee shall not be
responsible for the correctness of any payment or disbursement or action if made
in accordance with the instructions of the Committee. If an Investment Manager
is appointed, the Trustee's liability and responsibility with regard to holding,
investing and reinvesting the assets shall be limited as provided in Section
8.8.
8.7 POWER OF TRUSTEE TO CARRY OUT THE PLAN: If, at any time, the Company, the
Board, or the Committee shall be incapable, for any reason, of giving
directions, instructions or authorizations to the Trustee, the Trustee may act,
without such directions, instructions or authorizations, as it, in its
discretion, shall deem appropriate and advisable under the circumstances for
carrying out the provisions of the Plan.
8.8 INVESTMENT MANAGER: The Company (or the Committee, if so authorized by the
Company) shall have the power to appoint an Investment Manager and to remove an
Investment Manager that it has previously appointed. The appointment or removal
of an Investment Manager shall be in writing. The Investment Manager must
acknowledge in writing to the Trustee and to the Committee that the appointment
is accepted and that it is a fiduciary with respect to the Plan. Unless
otherwise specified, the appointment will be effective when the acknowledgment
is made. Unless otherwise agreed to, removal of an Investment Manager or
resignation of an Investment Manager shall be effective 60 days following the
date written notice is received by the Investment Manager and the Trustee, in
the case of removal, or the Committee and the Trustee, in the case of
resignation. If an Investment Manager is appointed, the Investment Manager shall
be solely responsible for the acquisition, disposition and management of the
assets of the Plan, and the Trustee shall accept the written orders and
instructions of the Investment Manager for the acquisition, disposition and
management of the assets of the Plan. If an Investment Manager is appointed in
accordance with this Section, then neither the Company, the Committee, nor the
Trustee shall be liable for the acts or omissions of the Investment Manager.
39
<PAGE>
8.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR: A Trustee may be removed
by the Board at any time upon 30 days notice to the Trustee in writing. A
Trustee may resign as Trustee by filing with the Board a written resignation,
which shall take effect 30 days after the date of the filing. On removal or
resignation of a Trustee, the Board may, but is not required to, appoint a
successor Trustee. All of the provisions of the Trust with respect to the
Trustee shall apply to each successor Trustee with the same force and effect as
if the successor Trustee were the original Trustee. If more than on person is
acting as Trustee, the Board may remove any one of such persons. Any successor
Trustee shall not be accountable for the actions or omissions of any prior
Trustee.
40
<PAGE>
SECTION IX
TOP HEAVY
9.1 TOP HEAVY: If the Plan is "Top Heavy" for any Plan Year, as determined under
Section 9.2, the provisions of this Section IX shall apply, notwithstanding
anything in the Plan to the contrary.
9.2 DETERMINATION OF TOP HEAVY STATUS: The determination of Top
Heavy status shall be made as follows:
(a) Determination Date. The Administrator will determine if the Plan is
Top Heavy as of the last day of the preceding Plan Year.
(b) Top Heavy Status. This Plan and any other plan maintained by the
Company shall be Top Heavy if the sum of (1) the present value of
accrued benefits of Key Employees under defined benefit plans and (2)
account balances of Key Employees under this Plan and all defined
contribution plans exceeds 60% of the sum of the present value of
accrued benefits and the account balances of all employees in all such
plans.
(c) Aggregation of Plans. If the Employer and Affiliated Employers
maintain more than one plan qualified under Code section 401(a), then
(i) each such plan in which a Key Employee is a participant, and (ii)
each such plan that must be taken into account in order for a plan
described in the Section 9.2(b) to meet the requirements of Code
section 401(a)(4) or Code section 410 shall be aggregated with this
Plan to determine whether the plans, as a group, are Top Heavy. For
purposes of the preceding sentence, a plan includes a terminated plan
that was maintained by the Employer within the last five years ending
on the determination date. The Employer and Affiliated Employers may,
in their discretion, aggregate any other qualified plans with the Plan
to the extent such aggregation is permitted by Code section 416(g).
(d) Key Employee. An Employee, former Employee, or Beneficiary who, at any
time during the Plan Year or during any of the four preceding Plan
Years, is or was (a) an officer of the Employer or an Affiliated
Employer whose annual Section 415 Compensation from the Employer and
Affiliated Employers exceeds 50% of the amount described in Code
section 415(b)(1)(A), as adjusted; (b) one of the ten Employees who own
(or are considered as owning, within the meaning of Code section 318)
at least 0.5% and the largest interests in an Employer or an Affiliated
Employer and whose annual Section 415 Compensation from the Employer
and Affiliated Employers exceeds $30,000 (as that amount may be
adjusted under Code section 415(c)(1)(A)); (c) a 5% Owner; or (d) a 1%
owner of an Employer or an Affiliated Employer whose annual Section 415
41
<PAGE>
Compensation from the Employer and Affiliated Employers exceeds
$160,000. "Key Employee" shall also include the Beneficiary of a
deceased Key Employee, as described above. The determination of Key
Employee status shall be made in accordance with Code section 416, and
the number of persons who are considered Key Employees shall be limited
as provided under that section. A "non-Key Employee" is any Employee or
former Employee who is not a Key Employee.
(e) Earnings. For any Plan Year in which this Plan is Top Heavy the amount
of a Participant's earnings that may be taken into account under the
Plan shall not exceed $160,000, as adjusted pursuant to Code sections
401(a)(17) and 415(d).
9.3 MINIMUM CONTRIBUTION: For each Plan Year in which the Plan is Top Heavy, the
Employer contributions for each Participant who is an Employee on the last day
of the Plan Year and who is not a Key Employee shall be at least equal to the
lesser of (a) 3% of the Participant's Section 415 Compensation, or (b) the
percentage of the Participant's Section 415 Compensation that is equal to the
highest percentage of Section 415 Compensation at which Employer contributions
are allocated to a Key Employee's Account for such Plan Year. For purposes of
this Section, Employer contributions to a Key Employee's Account include (i)
Employer Matching Contributions, if any, (ii) Employer Annual Contributions, if
any, and (iii) Salary Deferral Contributions, if any. If the Plan is Top Heavy,
a non-Key Employee who is an Employee on the last day of the Plan Year will
receive the minimum required contribution under this Section regardless of (x)
the number of Hours of Service completed during the Plan Year, (y) the amount of
his Section 415 Compensation, or (z) his election to make salary deferrals, if
applicable, for the Plan Year. To the extent this minimum allocation is provided
under any other defined contribution plan maintained by the Employer or an
Affiliated Employer, it shall not be provided under this Plan. The allocation
shall be made in the proportion that each such Participant's Compensation for
the Plan Year bears to all such Participant's Compensation for the Plan Year.
After this allocation is made, the remaining Employer Matching Contributions and
Employer Annual Contributions shall be allocated as described in Section 4.2.
The Employer shall make an additional contribution to the extent necessary to
meet the requirements of this Section.
9.4 VESTING: For Plan Years in which the Plan is Top Heavy, a Participant will
become vested in his Employer Annual Contributions according to the following
schedule:
---------------------------------------- --------------------------------------
YEARS OF SERVICE VESTED PERCENTAGE
---------------------------------------- --------------------------------------
Less than 2 0%
---------------------------------------- --------------------------------------
2 20%
---------------------------------------- --------------------------------------
3 40%
---------------------------------------- --------------------------------------
4 60%
---------------------------------------- --------------------------------------
5 80%
---------------------------------------- --------------------------------------
6 or more 100%
---------------------------------------- --------------------------------------
This subsection shall apply only to Participants who perform an Hour of Service
on or after the first day of the first Plan Year in which the Plan is Top Heavy.
If the Plan becomes Top Heavy and then ceases to be Top Heavy, the vesting
schedule of Section V shall continue to apply to all Participants who have then
completed at least three Years of Service (whether or not consecutive).
42
<PAGE>
9.5 BENEFIT AND CONTRIBUTION LIMITATIONS. For any Plan Year in which the Plan is
Top Heavy, the 1.25 amount of Section 4.5 shall be changed to 1.0 unless:
(a) The sum of the present value of accrued benefits and account balances
of Key Employees under all plans aggregated pursuant to Section 9.2
does not exceed 90% of the sum of the total present value of accrued
benefits and account balances of all employees, former employees and
beneficiaries in the plans; and
(b) The minimum contribution of Section 9.3 is increased to the amount
required by Code section 416(h).
43
<PAGE>
SECTION X
ADOPTION OF PLAN BY AFFILIATED EMPLOYERS
10.1 ADOPTION OF THE PLAN: An Affiliated Employer may become an Employer, with
the approval of the Board, by adopting the Plan for its Employees. An Affiliated
Employer that becomes a party to the Plan shall promptly deliver to the Trustee
a certified copy of the resolutions or other documents evidencing its adoption
of the Plan. Notwithstanding anything in the Plan to the contrary, an Affiliated
Employer adopting the Plan may determine whether and to what extent periods of
employment with the Affiliated Employer before the Affiliated Employer adopted
the Plan shall be included as service under the Plan.
10.2 WITHDRAWAL: An Affiliated Employer may withdraw from the Plan at any time
by giving advance notice in writing to the Committee of its intention to
withdraw. Upon receipt of notice of a withdrawal, the Committee shall certify to
the Trustee the equitable share of the Affiliated Employer in the Trust Fund,
and the Trustee shall thereupon set aside from the Trust Fund such securities
and other property as it shall, in its sole discretion, deem to be equal in
value to the Affiliated Employer's equitable share. If the Plan is to be
terminated with respect to the Affiliated Employer, the amount set aside shall
be administered according to Section 11.2. If the Plan is not to be terminated
with respect to the Affiliated Employer, the Trustee shall turn over the
Affiliated Employer's equitable share to a trustee designated by the Affiliated
Employer, and the securities and other property shall thereafter be held and
invested as a separate trust of the Affiliated Employer. Neither the segregation
of the Trust Fund assets upon the withdrawal of an Affiliated Employer, nor the
execution of a new trust agreement shall operate to permit any assets of the
Trust Fund to be used for or diverted to purposes other than for the exclusive
benefit of Participants and Beneficiaries.
44
<PAGE>
SECTION XI
AMENDMENT AND TERMINATION
11.1 AMENDMENT: This Plan may be amended from time to time by resolution of the
Board. No amendment shall be made to the Plan that (a) would have the effect of
diverting any of the Trust from Participants or their Beneficiaries as provided
in the Plan; (b) would prevent the allowance as a deduction for Federal income
tax purposes, and particularly under Code section 404, of any contribution made
by an Employer to the Trust; (c) would take the Plan and Trust out of the scope
of Code sections 401, 402 and 501(a); (d) would increase the duties of the
Trustee without its consent; (e) would decrease a Participant's vested interest
in his Account in the Trust Fund; or (f) would eliminate an optional form of
benefit in violation of Code section 411(d)(6).
11.2 TERMINATION: This Plan shall be irrevocable and binding as to all
contributions made by the Employer to the Trust, but this Plan may be terminated
at any time by resolution of the Board. If the Plan is terminated, or if a
partial termination occurs (through a complete discontinuance of contributions
or otherwise), each affected Participant shall have a 100% vested interest in
his Account. If the Plan is terminated, the Account of each Participant shall be
distributed to him (or to his Beneficiary, in the event of his death) as soon as
practicable after the termination. An Affiliated Employer that has adopted the
Plan may terminate its participation in the Plan at any time. In the event of
such termination, the Affiliated Employer may adopt a successor plan providing
substantially similar benefits and the interests of each Participant who is an
Employee of the Affiliated Employer shall be transferred to the trustee or other
funding agent for such successor plan. If the Affiliated Employer does not
establish a successor plan within six months of its notice of termination of
participation in the Plan (or gives sooner notice that no successor plan will be
established), then the Plan will be deemed to be terminated with respect to the
Affiliated Employer.
11.3 MERGER: In the event of merger or consolidation with, or transfer of assets
or liabilities to, any other plan, each Participant shall be entitled to a
benefit under such other plan immediately after the merger, consolidation, or
transfer that is equal to or greater than his Account balance determined under
this Plan immediately before the merger, consolidation or transfer.
45
<PAGE>
SECTION XII
MISCELLANEOUS
12.1 RECEIPT OF ROLLOVERS AND TRUSTEE-TO-TRUSTEE TRANSFERS:
(a) The Trustee may receive, with the consent of the Committee, the
transfer of assets previously held under another qualified plan for the
benefit of an individual who is a Participant in this Plan or who is
eligible to be a Participant except for fulfilling the service
requirements for participation. The assets may be received directly
from the trustee of a qualified plan in a trustee-to-trustee transfer,
or they may be received in a Code section 401(a)(31) direct rollover or
a Code section 402(c) rollover from a qualified plan or from an
individual retirement account. Notwithstanding the foregoing, assets
that have at any time been held in any defined benefit plan or defined
contribution plan that is subject to the funding standards of Code
section 412 may not be transferred to this Plan unless such transfer is
on account of a direct rollover pursuant to Code section 401(a)(31) or
a rollover pursuant to Code section 402(c). Any plan from which assets
are received must be a plan qualified under Code section 401 at the
time of the transfer, and any individual retirement account must be an
individual retirement account within the meaning of Code section 408
which consists solely of assets transferred to the individual
retirement account from a qualified retirement plan and earnings
thereon at the time of the rollover ("conduit individual retirement
account").
(b) The Trustee shall invest the transferred assets as part of the Trust
Fund. The transferred assets, and the earnings and losses attributable
to them, shall be held in a separate Rollover Account on the books of
the Trust for the benefit of the Participant. The Account shall share
in allocations and adjustments pursuant to Section 4.2. The interest of
a Participant in his Account attributable to transferred assets shall
be fully vested at all times.
(c) The Company, Committee, and Trustee shall be fully protected in relying
on data, representations, or other information provided by the trustee
or custodian of a qualified plan or individual retirement account for
the purpose of determining that the requirements of subsection (a) have
been satisfied.
12.2 INDEMNIFICATION: The Employer shall indemnify each Committee member and
each other Employee who is involved in the administration of the Plan against
all costs, expenses and liabilities, including attorney's fees, incurred in
connection with any action, suit or proceeding instituted against any of them
alleging any act of omission or commission performed while discharging their
duties with respect to the Plan, other than liability incurred as a result of
that person's gross negligence or willful misconduct. Promptly after receipt by
an indemnified party of notice of the commencement of any action, the
indemnified party shall notify the Employer of the action. The Employer shall be
46
<PAGE>
entitled to participate at its own expense in the defense or to assume the
defense of any action brought against any indemnified party. If the Employer
elects to assume the defense of any such suit, the defense shall be conducted by
counsel chosen by the Employer, and the indemnified party shall bear the fees
and expenses of any additional counsel retained by him.
12.3 EXCLUSIVE BENEFIT RULE: This Plan shall be administered for the exclusive
benefit of the Employees of an Employer and for the payment to Participants out
of the income and principal of the Trust Fund of the benefits provided under the
Plan. No part of the income or principal of the Trust Fund shall be used for or
diverted to purposes other than the exclusive benefit of the Participants or
their Beneficiaries.
12.4 NO RIGHT TO THE FUND: No person shall have any interest in, or right to,
any part of the assets of the Trust Fund or any rights under the Plan, except as
to the extent expressly provided in the Plan.
12.5 RIGHTS OF THE EMPLOYER: The establishment of this Plan shall not be
construed as conferring any legal or other rights upon any Employee or any other
person for continuation of employment, nor shall it interfere with the right of
an Employer to discharge any Employee or to deal with him without regard to the
effect thereof under the Plan.
12.6 NON-ALIENATION OF BENEFITS: No amount payable to or held under the Plan for
the account of any Participant or Beneficiary shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or
charge, and any attempt so to anticipate, alienate, sell, transfer, assign,
pledge, encumber or charge the same shall be void. No amount payable to or held
under the Plan for the account of any Participant or Beneficiary may be in any
manner liable for his debts, contracts, liabilities, engagements or torts, or be
subject to any legal process, levy or attachment. The provisions of this Section
shall not preclude distributions made by the Trustee in accordance with a
Qualified Domestic Relations Order.
12.7 CONSTRUCTION AND SEVERABILITY: Except as otherwise provided by Federal law,
all of the provisions of the Plan shall be construed, administered, and enforced
in accordance with the laws of the Commonwealth of Virginia. For simplicity of
expression, pronouns and other terms are sometimes expressed in a particular
number and gender; however, where appropriate to the context, such terms shall
be deemed to include each of the other numbers and the other gender. Each
provision of this Plan shall be considered to be severable from all other
provisions so that if any provision or any part of a provision shall be declared
void, then the remaining provisions of the Plan that are not declared void shall
continue to be effective.
12.8 DELEGATION OF AUTHORITY: Whenever the Employer, under the terms of this
Plan, is permitted or required to do or perform any act, the act may be done or
performed by any officer of an Employer, and such officer shall be presumed to
be duly authorized by the Board.
47
<PAGE>
IN WITNESS WHEREOF, the Company and the Trustee have caused this Plan
to be executed as of the ___ day of __________________, 1999.
F & M NATIONAL CORPORATION
By: ____________________________________________
TRUSTEE
By: ____________________________________________
