<PAGE> 1
As filed with the Securities and Exchange Commission on November 10, 1994
Registration No. 33- ________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
The Securities Act of 1933
DREYER'S GRAND ICE CREAM, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware No. 94-2967523
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
5929 College Avenue
Oakland, CA 94618
(Address of Principal Executive Offices - Zip Code)
Dreyer's Grand Ice Cream, Inc. Savings Plan
(Full Title of the Plan)
Edmund R. Manwell
Manwell & Milton
101 California Street, Suite 3750
San Francisco, CA 94111
(Name and Address of Agent for Service)
(415) 362-2375
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
===================================================================================================================
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered(1) Registered Per Share (2) Price (2) Fee (2)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$1.00 par value 300,000 $25.375 $7,612,500 $2,624.79
Rights to Purchase Series A
Participating Preferred Stock 300,000 (3) (3) (3)
- -------------------------------------------------------------------------------------------------------------------
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated pursuant to Rule 457(h) of the Securities Act of 1933 solely for
the purpose of calculating the registration fee, and computed based upon the
average of the high and low prices reported on the National Market List of the
National Association of Securities Dealers for the Common Stock as of November
7, 1994.
(3) The Company's Rights to Purchase Series A Participating Preferred Stock
initially are carried and traded with the shares of Common Stock of the Company
being registered hereunder. Value attributable to such Rights, if any, is
reflected in the market price of the Common Stock.
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
Dreyer's Grand Ice Cream, Inc. (the "Company" or "Registrant") and the
Dreyer's Grand Ice Cream, Inc. Savings Plan (the "Plan") hereby incorporate by
reference in this Registration Statement the following documents filed with the
Securities and Exchange Commission (the "Commission"):
a. The Company's Annual Report on Form 10-K filed on March 24,
1994 for the fiscal year ended December 25, 1993;
b. The Company's Quarterly Report on Form 10-Q filed on May 10,
1994 for the quarter ended March 26, 1994;
c. The Company's Current Report on Form 8-K filed on May 6, 1994
(Commission File No. 0-14190);
d. The Company's Quarterly Report on Form 10-Q filed on August 9,
1994 for the quarter ended June 25, 1994;
e. The Company's Quarterly Report on Form 10-Q filed on November
8, 1994 for the quarter ended September 24, 1994;
f. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A for such Common Stock (effective
March 29, 1982) filed pursuant to Section 12(g) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), including any subsequent amendment or
any report or other filing filed with the Commission updating such description;
g. The description of the Company's Rights to Purchase Series A
Participating Preferred Stock set forth in Form 8-K, dated March 20, 1991, File
No. 0-10259, as amended by the First Amendment to Amended and Restated Rights
Agreement dated as of June 14, 1994 as set forth in Exhibit 4.1 to the
Company's Quarterly Report on Form 10-Q filed on August 9, 1994, for the
quarter ended June 25, 1994, including any subsequent amendment or any report
or other filing filed with the Commission updating such description; and
h. The Annual Report on Form 11-K of the Plan, for the year ended
December 31, 1993.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act and all documents filed by the
Plan pursuant to Section 15(d) of the Exchange Act after the filing of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents.
ITEM 4. Description of Securities.
Not Applicable.
1
<PAGE> 3
ITEM 5. Interests of Named Experts and Counsel.
Edmund R. Manwell, who serves both as Secretary of the Company and as
a member of the Board of Directors of the Company, is a partner in the law firm
of Manwell & Milton which acts as general counsel to the Company. Mr. Manwell
owns 24,000 shares of the Common Stock of the Company and has been granted
options pursuant to the Company's Stock Option Plan (1993) to purchase 5,000
shares of the Company's Common Stock at an exercise price of $21.75 per share.
Denise B. Milton, who is also a partner in the law firm of Manwell & Milton,
owns 5,325 shares of the Common Stock of the Company.
ITEM 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware permits
indemnification of directors, officers and employees of corporations under
certain conditions and subject to certain limitations. Section 6.10 of the
Bylaws of the Company requires indemnification of directors, officers and
employees within the limitations permitted by Section 145. The Company's
officers and directors are indemnified against certain liabilities under an
insurance policy maintained by the Company. Additionally, the Company has
entered into Indemnification Agreements with each of its directors and
executive officers which provide for the payment of amounts an indemnitee is
legally obligated to pay because of claims which may be based on any act or
omission, or neglect or breach of duty, including any error, misstatement or
misleading statement made, suffered or permitted by such executive officer or
director. The obligation of the Company to indemnify directors and officers
under the Indemnification Agreements is broader than that otherwise afforded by
Delaware Law.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
provides that a certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
Article Thirteenth of the Certificate of Incorporation of the Company
provides that directors and officers of the Company shall be indemnified to the
fullest extent permitted by the Delaware General Corporation Law. Article
Thirteenth of the Certificate of Incorporation of the Company provides that
directors of the Company shall not be personally liable for monetary damages to
the Company for breaches of their fiduciary duty as directors, except to the
extent that the elimination or limitation of liability is not permitted by the
Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"), may be permitted to
directors, officers or persons controlling the Company pursuant to the
foregoing provisions, the Securities and Exchange Commission has expressed its
opinion that such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
2
<PAGE> 4
ITEM 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
------- --------------------------------------------------------------
<S> <C>
4.1 Dreyer's Grand Ice Cream, Inc. Savings Plan, as amended.
4.2 Certificate of Incorporation of the Company, as amended,
including the Certificate of Designation of Series A
Convertible Preferred Stock setting forth the Powers,
Preferences, Rights, Qualifications, Limitations and
Restrictions of such series of Preferred Stock and the
Certificate of Designation of Series B Convertible Preferred
Stock, as amended, setting forth the Powers, Preferences,
Rights, Qualifications, Limitations and Restrictions of such
series of Preferred Stock. Incorporated by reference to
Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 25, 1994.
4.3 By-laws of the Company, as amended. Incorporated by reference
to Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 25, 1994.
4.4 Amended and Restated Rights Agreement between the Company and
Bank of America, National Trust & Savings Association dated
March 4, 1991. Incorporated by reference to the designated
Exhibit to the Company's Current Report on Form 8-K filed
under Commission File No. 0-10259 on March 20, 1991.
4.5 First Amendment to Amended and Restated Rights Agreement,
dated as of June 14, 1994 between the Company and First
Interstate Bank of California (as successor Rights Agent to
Bank of America NT & SA). Incorporated by reference to
Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 25, 1994.
23 Consent of Price Waterhouse.
24 Power of Attorney (included on page 5).
</TABLE>
The Company has submitted the Plan, and hereby undertakes to submit
any amendment thereto, to the Internal Revenue Service ("IRS") in a timely
manner and has made or will make all changes required by the IRS in order to
qualify the Plan.
ITEM 9. Undertakings.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(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 this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represents a
fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement.
3
<PAGE> 5
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered 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 final adjudication of such issue.
4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Oakland, State of California on November 10,
1994.
DREYER'S GRAND ICE CREAM, INC.
By: /s/ Paul R. Woodland
---------------------------------
(Paul R. Woodland, Vice President
- Finance and Administration)
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints T. Gary Rogers, William F. Cronk, III
and Edmund R. Manwell, jointly and severally his attorneys-in-fact, each with
the power of substitution, for him in any and all capacities, to sign any
amendments to this Registration Statement, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ T. Gary Rogers Chairman of the Board and November 10, 1994
- ------------------------------ Chief Executive Officer
(T. Gary Rogers) and Director (Principal
Executive Officer)
/s/ William F. Cronk, III President and Director November 10, 1994
- ------------------------------
(William F. Cronk, III)
/s/ Edmund R. Manwell Secretary and Director November 10, 1994
- ------------------------------
(Edmund R. Manwell)
/s/ Paul R. Woodland Vice President - Finance November 10, 1994
- ------------------------------ and Administration,
(Paul R. Woodland) Chief Financial Officer
and Assistant Secretary
(Principal Financial Officer)
/s/ Jeffrey P. Porter Corporate Controller November 10, 1994
- ------------------------------ (Principal Accounting Officer)
(Jeffrey P. Porter)
/s/ Merril M. Halpern Director November 10, 1994
- ------------------------------
(Merril M. Halpern)
/s/ Jerome L. Katz Director November 10, 1994
- ------------------------------
(Jerome L. Katz)
</TABLE>
5
<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ John W. Larson Director November 10, 1994
------------------------------
(John W. Larson)
/s/ Jack O. Peiffer Director November 10, 1994
------------------------------
(Jack O. Peiffer)
/s/ Anthony J. Martino
------------------------------
(Anthony J. Martino) Director November 10, 1994
</TABLE>
6
<PAGE> 8
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Administrative Committee of the Plan has duly caused this Registration
Statement to be signed on its behalf by the undersigned members of such
committee, thereunto duly authorized, in the City of Oakland, State of
California on November 10, 1994.
DREYER'S GRAND ICE CREAM, INC. SAVINGS PLAN
By: /s/ William C. Collett
-------------------------------------------
William C. Collett
Dreyer's Grand Ice Cream, Inc. Savings Plan
Administrative Committee Member
By: /s/ Jeffrey R. Shields
-------------------------------------------
Jeffrey R. Shields
Dreyer's Grand Ice Cream, Inc. Savings Plan
Administrative Committee Member
By: /s/ Robert W. Wilson
-------------------------------------------
Robert W. Wilson
Dreyer's Grand Ice Cream, Inc. Savings Plan
Administrative Committee Member
7
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------- ---------------------------------------------------------------
<S> <C>
4.1 Dreyer's Grand Ice Cream, Inc. Savings Plan, as amended.
4.2 Certificate of Incorporation of the Company, as amended, including the
Certificate of Designation of Series A Convertible Preferred Stock setting
forth the Powers, Preferences, Rights, Qualifications, Limitations and
Restrictions of such series of Preferred Stock and the Certificate of
Designation of Series B Convertible Preferred Stock, as amended, setting
forth the Powers, Preferences, Rights, Qualifications, Limitations and
Restrictions of such series of Preferred Stock. Incorporated by reference
to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 25, 1994.
4.3 By-laws of the Company, as amended. Incorporated by reference to Exhibit
3.2 to the Company's Quarterly Report on Form 10-Q for the quarter ended
June 25, 1994.
4.4 Amended and Restated Rights Agreement between the Company and Bank of
America, National Trust & Savings Association dated March 4, 1991.
Incorporated by reference to the designated Exhibit to the Company's Current
Report on Form 8-K filed under Commission File No. 0-10259 on March 20,
1991.
4.5 First Amendment to Amended and Restated Rights Agreement, dated as of June
14, 1994 between the Company and First Interstate Bank of California (as
successor Rights Agent to Bank of America NT & SA). Incorporated by
reference to Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 25, 1994.
23 Consent of Price Waterhouse.
24 Power of Attorney (included on page 5).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
DREYER'S GRAND ICE CREAM, INC. SAVINGS PLAN
(As Amended and Restated Effective January 1, 1989)
<TABLE>
<CAPTION>
Article Commencing
Number Description on Page
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1. NAME, EFFECTIVE DATE, PURPOSE AND CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1
1.1 Plan Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Purpose and History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Employment Relationship Not Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Terminated Participants Not Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-1
3. ELIGIBILITY, PARTICIPATION AND BENEFICIARY DESIGNATION . . . . . . . . . . . . . . . . . . . . . . . . 3-1
3.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.2 Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.3 Beneficiary Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.4 Change from Ineligible to Eligible Employee . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.5 Former Employee Rehired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.6 Committee Determines Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-1
4.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4.2 Employer Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.3 Timing of, Limitations on and Return of Employer Contributions . . . . . . . . . . . . . . . . 4
4.4 Salary Deferral Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.5 Nondiscrimination Tests For Employer Matching Contributions . . . . . . . . . . . . . . . . . 7
4.6 Adjustment to Corrective Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.7 Overriding Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.8 Record Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.9 Rollover Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5. ALLOCATIONS OF CONTRIBUTIONS AND FORFEITURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-1
5.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5.2 Allocation Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5.3 Limitations on Annual Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5.4 Restoration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6. VESTING OF ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-1
6.1 Automatic Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
6.2 Vesting Based on Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
6.3 Top-Heavy Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
6.4 Years of Service for Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6.5 Forfeitures and Restorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6.6 No Divestment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6.7 Amendment to Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
</TABLE>
i
<PAGE> 2
<TABLE>
<CAPTION>
Article Commencing
Number Description on Page
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
6.8 Lost Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7. ALLOCATION OF TRUST INCOME OR LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-1
7.1 Determination of Net Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
7.2 Valuation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
7.3 Valuation Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
7.4 Special Valuation Dates at Committee Discretion . . . . . . . . . . . . . . . . . . . 1
8. PARTICIPANTS' ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-1
8.1 Separate Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
8.2 Statement of Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
8.3 Valuation of Account When Payment Due . . . . . . . . . . . . . . . . . . . . . . . . 1
9. DISTRIBUTIONS AND WITHDRAWALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-1
9.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
9.2 Administrative Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
9.3 Timing of Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
9.4 Treatment of Deferred Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
9.5 Methods of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
9.6 Distribution in Periodic Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 3
9.7 Annuity Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
9.8 Distribution Upon Death of Participant . . . . . . . . . . . . . . . . . . . . . . . . 5
9.9 Distributions to Minors or Legally Incompetents . . . . . . . . . . . . . . . . . . . 6
9.10 Tax Information To Be Provided . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.11 In Service Withdrawals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.12 Limitations on Distributions Upon Plan Termination . . . . . . . . . . . . . . . . . . 9
10. SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-1
10.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
10.2 Crediting of Hours Subject to DOL Regulation . . . . . . . . . . . . . . . . . . . . . 3
10.3 Hours of Service Equivalency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
11. FIDUCIARY RESPONSIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-1
11.1 Named Fiduciaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
11.2 Fiduciary Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
11.3 Fiduciaries Liable for Breach of Duty . . . . . . . . . . . . . . . . . . . . . . . . 1
11.4 Fiduciary May Employ Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
11.5 Authority Outlined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
11.6 Fiduciaries Not to Engage in Prohibited Transactions . . . . . . . . . . . . . . . . . 2
12. ADMINISTRATIVE COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.1 Appointment of Administrative Committee . . . . . . . . . . . . . . . . . . . . . . . 1
12.2 Committee Operating Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
12.3 Duties of Plan Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
12.4 Duties of the Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
12.5 Committee Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
</TABLE>
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<TABLE>
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12.6 Committee to Establish Funding Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
12.7 Committee May Retain Advisors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
12.8 Claims Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
12.9 Committee Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
13. INVESTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-1
13.1 Investment Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
13.2 Use of Mutual or Commingled Funds Permitted . . . . . . . . . . . . . . . . . . . . . . . . 1
13.3 Trustee May Hold Necessary Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
13.4 Trustee to Act Upon Committee Instruction . . . . . . . . . . . . . . . . . . . . . . . . . 1
13.5 Appointment of Investment Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
13.6 No Loans Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
13.7 Separate Investment Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
14. TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-1
14.1 Trustee Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
14.2 Indicia of Ownership Must Be in United States . . . . . . . . . . . . . . . . . . . . . . . 1
14.3 Permissible Trustee Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
14.4 Trustee's Fees For Services and Advisors Retained . . . . . . . . . . . . . . . . . . . . . 2
14.5 Annual Accounting and Asset Valuation . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
14.6 Trustee Removal or Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
14.7 Approval of Trustee Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
14.8 Trust Not Terminated Upon Trustee Removal or Resignation . . . . . . . . . . . . . . . . . . 3
14.9 Trustee May Consult With Legal Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
14.10 Trustee Not Required to Verify Identification or Addresses . . . . . . . . . . . . . . . . . 3
14.11 Indemnification of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
14.12 Income Tax Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
15. AMENDMENT, TERMINATION AND MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-1
15.1 Trust is Irrevocable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
15.2 Employer May Amend Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
15.3 Employer May Terminate Plan or Discontinue Matching Contributions . . . . . . . . . . . . . 1
15.4 Timing of Plan Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
15.5 Action Required Upon Plan Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
15.6 Nonreversion of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
15.7 Merger or Consolidation Cannot Reduce Benefits . . . . . . . . . . . . . . . . . . . . . . . 2
15.8 Employer Contributions Conditioned Upon Initial Plan Approval . . . . . . . . . . . . . . . 3
16. ASSIGNMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-1
16.1 No Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
16.2 Qualified Domestic Relations Order Permitted . . . . . . . . . . . . . . . . . . . . . . . . 1
17. ADOPTION OF THE PLAN BY AFFILIATED EMPLOYERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-1
17.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
17.2 Written Consent Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
17.3 Rights of Member Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
</TABLE>
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<TABLE>
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Article Commencing
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17.4 Member Employer May Terminate Participation . . . . . . . . . . . . . . . . . . . . . . . . . . 2
17.5 Member Employer Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
</TABLE>
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<PAGE> 5
DREYER'S GRAND ICE CREAM, INC. SAVINGS PLAN
(As Amended and Restated Effective January 1, 1989)
THIS TRUST AGREEMENT is made and entered into by and between
DREYER'S GRAND ICE CREAM, INC. (Employer) and IMPERIAL TRUST COMPANY (Trustee).
ARTICLE 1
NAME, EFFECTIVE DATE, PURPOSE AND CONSTRUCTION
1.1 Plan Name
The Plan set forth in this Agreement shall be
designated as the DREYER'S GRAND ICE CREAM, INC. SAVINGS PLAN.
1.2 Effective Date
(a) In General
The Effective Date of this amended and
restated Plan and Trust Agreement shall be January 1, 1989.
(b) Specific Articles
Notwithstanding the above, the following
Article has the following specific
Effective Date:
(i) Article 4.1, 4.4, 4.5,
4.6, 4.7, and 4.8 shall be effective January 1, 1987.
1.3 Purpose and History
(a) Purpose
The Plan and Trust are intended to qualify
as a Profit Sharing and 401(k) Plan under Code Sections 401(a) and 501(a) and
are created and maintained for the exclusive benefit of Eligible Employees of
the Employer and their Beneficiaries to enable them to share in Employer
profits, to provide Eligible Employees with a means to accumulate retirement
savings, to provide retirement funds, and to provide benefits in the event of
the death or Disability of the Employee.
(b) Purposes of Restatement
The principal purpose of this amendment and
restatement is to comply with the requirements of TRA '86 and all regulations
in effect by the time of this amendment and restatement.
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<PAGE> 6
1.4 Construction
The following miscellaneous provisions shall apply in
the construction of this Trust Agreement:
(a) State Jurisdiction
All matters respecting the validity,
effect, interpretation and administration of this Plan shall be determined in
accordance with the laws of the State of California except where preempted by
ERISA or other federal statutes.
(b) Gender
Wherever appropriate, words used in the
singular may include the plural or the plural may be read as the singular, the
masculine may include the feminine, and the neuter may include both the
masculine and the feminine.
(c) Application of ERISA and Code References
All references to sections of ERISA or the
Code, or any regulations or rulings thereunder, shall be deemed to refer to
such sections as they may subsequently be modified, amended, replaced or
amplified by any federal statutes, regulations or rulings of similar
application and import enacted by the Government of the United States or any
duly authorized agency of the Government.
(d) Enforceable Provisions Remain Effective
If any provision of this Plan and Trust
shall be held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions of the Plan shall continue to be fully
effective.
(e) Headings
Headings are inserted for reference only
and constitute no part of the construction of this Agreement.
1.5 Employment Relationship Not Affected
Nothing in the Plan or Trust shall be deemed a contract
between the Employer and any Employee, nor shall the rights or obligations of
the Employer or any Employee to continue or terminate employment at any time be
affected hereby.
1.6 Terminated Participants Not Affected
Notwithstanding anything to the contrary contained
herein, any person who was a Participant under the Plan prior to the effective
date of this amendment and restatement and who is not both a Participant and an
Eligible Employee under the amended and restated Plan document, as it is made
effective, will have his rights and remedies, if any,
1-2
<PAGE> 7
determined by the terms and conditions of the Plan in effect as of the date his
participation ceased or the date he ceased to be an Eligible Employee,
whichever has occurred first.
1-3
<PAGE> 8
ARTICLE 2
DEFINITIONS
Definitions
Terms which are used only in a single Article are generally defined
at the beginning of that Article. Article 2.57 lists the terms so defined.
The following words and phrases are used throughout this Trust Agreement and
are defined below:
2.1 "Account" means the aggregate of all records maintained
by the Committee for purposes of determining a Participant's or Beneficiary's
interest in the Trust Fund and shall include the Employer Account and Employee
Account, as adjusted by such other amounts properly credited or debited to such
Account. Each sub-account is defined alphabetically in Article 2.
2.2 "Adjustment Factor" means the cost of living factor
prescribed by the Secretary of the Treasury under Code Section 415(d) for years
beginning after December 31, 1987, as applied to such items and in such manner
as the Secretary shall provide.
2.3 "Affiliated Employer" means any corporation which is a
member of a controlled group of corporations (as defined in Code Section
414(b)) which includes the Employer, any trade or business (whether or not
incorporated) which is under common control (as defined in Code Section 414(c))
with the Employer, any organization (whether or not incorporated) which is a
member of an affiliated service group (as defined in Code Section 414(m)) which
includes the Employer, and any other entity required to be aggregated with the
Employer pursuant to regulations under Code Section 414(o).
2.4 "Allowable Compensation" for purposes of determining
whether an Employee is a Key Employee, for purposes of determining the
Top-Heavy minimum contributions, and for purposes of determining the
limitations on allocations pursuant to Article 5, means the total of all wages,
salaries, fees for professional services and other amounts paid by the Employer
or an Affiliated Employer during a Limitation Year to a Participant for
services actually rendered in the course of employment including (but not
limited to) bonuses, overtime, commissions and incentive compensation, but
excluding amounts which are contributed to a retirement plan, deferred
compensation plan or other plan and which are not included as taxable income
for such year, or amounts which are not deemed to be income for current
services rendered such as amounts realized from the sale, exercise or exchange
of Employer stock or stock options. For purposes of the Plan, Allowable
Compensation shall not
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<PAGE> 9
include amounts which a Participant elected to have the
Employer contribute on his behalf for the Fiscal Year as a salary deferral
contribution under Article 4.4. Allowable Compensation means all net earnings
from self-employment which constitute remuneration for personal services
rendered during the Fiscal Year to the Employer, reduced by all contributions
made on his behalf to this Plan or any other benefit plans maintained by the
Employer. Allowable Compensation shall not exceed $200,000 (multiplied by the
Adjustment Factor). The total of the Allowable Compensation received by (1) a
5% Owner and/or one of the 10 most highly compensated employees of the Employer
and (2) his spouse, and (3) his children who have not attained the age of 19 by
the end of the Fiscal Year, shall not exceed $200,000 (multiplied by the
Adjustment Factor).
2.5 "Alternate Payee" means any spouse, former spouse,
child or other dependent of a Participant recognized by a domestic relations
order as having a right to receive all, or a portion of, a Participant's
benefits under the Plan.
2.6 "Annuity Starting Date" means the first day of the
first period for which an amount is payable as an annuity, or in the case of a
benefit not payable in the form of an annuity, the first day on which all
events have occurred which entitle the Participant to such benefit. In the
case of a benefit payable as a disability benefit, that is not an auxiliary
benefit, it shall be the first day of the first period for which a benefit is
to be received by reason of the disability.
2.7 "Beneficiary" means any person designated by a
Participant to receive benefits upon the death of such Participant, subject to
the limitations of Article 3.3.
2.8 "Break in Service" means a 12 month period ending on
the last day of a Fiscal Year in which an Employee is credited with no Hours of
Service.
2.9 "Code" means the Internal Revenue Code of 1986, as
amended (and regulations issued thereunder).
2.10 "Committee" means the Administrative Committee
designated under Article 12.
2.11 "Compensation" for any Fiscal Year, for purposes of
Article 5.2 and Article 4.4 means all amounts paid or accrued by the Employer
to an Eligible Employee while a Participant with respect to services rendered
during such Fiscal Year including all amounts which a Participant elected to
have the Employer contribute on his behalf for the Fiscal Year as a salary
deferral contribution. Notwithstanding the above, Compensation shall not
exceed $200,000 (multiplied by the Adjustment Factor). The total of the
Compensation received by (1) a 5% Owner and/or one of the 10 most highly
compensated employees of the Employer, (2)
2-2
<PAGE> 10
his spouse, and (3) his children who have not attained the age of 19 by the
end of the Fiscal Year, shall not exceed $200,000 (multiplied by the
Adjustment Factor).
2.12 "Date of Hire" means the date on which an Employee
first performs an Hour of Service for the Employer.
2.13 "Deferred Retirement Date" means the date of actual
retirement from the Employer by a Participant who remains in the employ of the
Employer after attaining his Normal Retirement Date.
2.14 "Determination Date" means, with respect to any Fiscal
Year, the last day of the preceding Fiscal Year.
2.15 "Disability" means the permanent incapacity of a
Participant, by reason of physical or mental illness, to perform his usual
duties for the Employer, resulting in termination of his service with the
Employer. Disability shall be determined by the Committee in a uniform and
nondiscriminatory manner after consideration of such evidence as it may
require, which shall include a report of such physician or physicians as it may
designate.
2.16 "Eligible Employee" has the meaning set forth in
Article 3.1.
2.17 "Eligible Participant" means:
(a) An Eligible Employee who completed at least
1,000 Hours of Service in the Fiscal Year and who is an Employee and a
Participant on the last day of the Fiscal Year, or
(b) A Participant who was an Eligible Employee
and who terminated employment during the Fiscal Year due to death or
Disability, or after having reached his Normal Retirement Date, or
(c) Solely for purposes of Articles 4.1.(a) and
4.1.(b), Suspended Participants and Participants who were Eligible Employees at
any time during the Fiscal Year but did not meet the requirements of (a) or (b)
above.
2.18 "Employee" means any person in the Service of the
Employer including Leased Employees and officers, but excluding directors who
are not in the Employer's employ in any other capacity. Sub-categories of
"Employee" are defined alphabetically in Article 2.
2.19 "Employee Account" means that portion of an Account
attributable to a Participant's Salary Deferral Account and Rollover Account.
2.20 "Employer" means DREYER'S GRAND ICE CREAM, INC., and
such of its successors or assigns as may expressly adopt this Plan and Trust
Agreement and agree in writing to continue this Plan and Trust. "Member
Employer" shall mean any Affiliated
2-3
<PAGE> 11
Employer which has adopted this Plan in accordance with the terms and
conditions set forth herein.
2.21 "Employer Account" means that portion of an Account
attributable to Employer contributions and Forfeitures. A Participant's
Employer Account shall include such Participant's Matching Contribution
Account.
2.22 "Entry Date" means January 1, 1989 and each succeeding
July 1 and January 1.
2.23 "ERISA" means the Employee Retirement Income Security
Act of 1974.
2.24 "Fiscal Year" means the accounting year of the Plan and
Trust, which is the 12-month period ending December 31.
2.25 "Forfeiture" is described in Article 6.5.
2.26 "General Trust Fund" means that portion of the Trust
Fund other than property and income held as or for segregated Accounts or under
separate investment funds under the provisions of this Trust Agreement.
2.27 "Hour of Service" has the meaning set forth in Article
10.1.(b).
2.28 "Inactive Participant" means a Participant who remains
an Employee, but who ceases to be an Eligible Employee because of a change in
employment status. Accounts of Inactive Participants shall share in
allocations of contributions and Forfeitures to the extent provided in Article
5, and such Accounts shall continue to be adjusted by other amounts properly
credited or debited to such Accounts pursuant to Article 7. Inactive
Participants shall not be permitted to have salary deferral contributions made
on their behalf.
2.29 "Key Employee" means, with respect to a Fiscal Year,
any Employee or former Employee (including any deceased Employees) who at any
time during the "testing period", consisting of the Fiscal Year containing the
Determination Date and the four preceding Fiscal Years.
(a) Officers
An officer, or an Employee with the
authority of an officer, of the Employer with Allowable Compensation of more
than 50% of the applicable dollar limit under Code Section 415(b)(1)(A) for the
applicable Fiscal Year. However, no more than 50 Employees (or if less, the
greater of 3 Employees or 10% of the total number of Employees, who performed
services for the Employer at any time during the "testing period") shall be
treated as officers. In addition, such Employees who meet the requirements of
this paragraph and who had the largest annual Allowable Compensation from the
Employer in any Fiscal Year during
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<PAGE> 12
the "testing period" shall first be counted as officers, without regard to
whether the Employee is a Key Employee for any other reason; or
(b) Certain Owners
(i) One of the 10 Employees who (1)
are 1/2% Owners with the largest interests in the value of the Employer and (2)
have annual Allowable Compensation from the Employer greater than the dollar
limitation under Code Section 415(c)(1)(A) for the applicable Fiscal Year.
However, if two Employees have the same ownership interest in the Employer
during the "testing period", then the Employee with the greater annual
Allowable Compensation from the Employer for the Fiscal Year during which the
ownership interest existed shall be considered to have a larger ownership
interest in the Employer; or
(ii) A 5% Owner; or
(iii) A 1% Owner with annual
Allowable Compensation from the Employer for the applicable Fiscal Year of more
than $150,000.
(c) Beneficiaries
A Beneficiary of a Key Employee shall be
considered to be a Key Employee, and a Beneficiary of a Non-Key Employee shall
be considered a Non-Key Employee. Notwithstanding the above, the Committee
shall be guided by the Code in determining Key Employees for any Fiscal Year
and shall maintain records adequate to determine Key Employees for any Fiscal
Year.
2.30 "Leased Employee" means any individual who would not
otherwise be considered an Employee but who has provided services to the
Employer of a type historically performed by employees in the Employer's field
of business, pursuant to an agreement between the Employer and any other
entity, on a substantially full-time basis for a period of at least one year.
However, effective January 1, 1987, Leased Employees will not be considered
Employees if they constitute less than 20% of the Employer's Non-Highly
Compensated Employees and if they are covered by a plan described in Code
Section 414(n)(5).
2.31 "Matching Account" means that portion of an Account
attributable to Employer matching contributions and attributable Forfeitures.
2.32 "Non-Key Employee" means any Employee who is not a Key
Employee, including Employees who are former Key Employees.
2.33 "Normal Retirement Date" means the date of a
Participant's 65th birthday.
2.34 "Owner" means any person who owns (within the meaning
of Code Sections 318 and 416(i)(1)(B)), or has owned within the four Fiscal
Years prior to the Fiscal Year under consideration, a portion of the
outstanding stock or voting power of the Employer. The owner-
2-5
<PAGE> 13
ship percentage of a "5%" Owner means greater than a 5% interest, that of a "1%"
Owner means greater than a 1% interest and that of a "1/2%" Owner means greater
than a 1/2% interest.
2.35 "Participant" means any Employee or former Employee who
has entered the Plan in accordance with Article 3, and whose Account, if any,
hereunder has not subsequently been liquidated.
2.36 "Pension Account" means that portion of an Account
attributable to Employer pension contributions and attributable Forfeitures.
2.37 "Plan" means the Plan created by this Trust Agreement.
2.38 "Plan Administrator" means the Administrative Committee.
2.39 "Qualified Domestic Relations Order" ("QDRO")" has the
meaning set forth in Code Section 414(p).
2.40 "Qualified Joint and 50% Survivor Annuity ("QJSA")" has
the meaning described in Article 9.7.(b).
2.41 "Qualified Pre-Retirement Survivor Annuity ("QPSA")"
has the meaning described in Article 9.8.(c).
2.42 "REA" means the Retirement Equity Act of 1984.
2.43 "Rollover Account" means that portion of an Account
attributable to an Employee's rollover contributions and to the direct transfer
of benefits to this Plan from another qualified plan on an Employee's behalf.
2.44 "Salary Deferral Account" means that portion of an
Account attributable to salary deferral contributions.
2.45 "Service" has the meaning set forth in Article 10.
2.46 "Spousal Consent" means the revocable written consent
of the Participant's spouse witnessed by a Plan representative or a notary
public provided that such written consent shall not be required if it is
established to the satisfaction of a Plan representative that such consent
cannot be obtained because (1) there is no spouse, or (2) the spouse cannot be
located, or (3) such other circumstances exist as may be prescribed by
applicable regulation, including but not limited to Code Section 417(a)(4).
Any such written Spousal Consent or establishment that consent cannot be
obtained shall be effective only with respect to that spouse. Such consent
shall acknowledge the designated Beneficiary and the specific form of any
benefit paid under the Plan (including any remaining benefits that a
designated Beneficiary may receive) and any change in Beneficiary or benefit
elected at a later time shall require a new Spousal Consent. Such consent
shall acknowledge the effect of such consent.
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<PAGE> 14
2.47 "Suspended Participant" means a Participant who has
been suspended from deferring amounts to his Salary Deferral Account because he
made a hardship withdrawal under the provisions of Article 9.
2.48 "Suspense Account" means an account established in
accordance with the provisions of Article 6.5.
2.49 "TEFRA" means the Tax Equity and Fiscal Responsibility
Act of 1982.
2.50 "Top-Heavy Plan" means the Plan during a Fiscal Year in
which the aggregate value of the Accounts of Key Employees exceeds 60% of the
aggregate value of all Accounts under the Plan as of the Determination Date for
such Fiscal Year. For purposes of determining the value of Employees' Accounts
in the Plan, the following shall be excluded: (1) rollover contributions from
a non-related employer made after December 31, 1983; (2) the Accounts of
Participants who have not performed any services for the Employer within the
five year period ending on the Determination Date; and (3) the Account of any
individual who was a Key Employee with respect to the Plan for any prior Fiscal
Year but is not a Key Employee with respect to the Plan for the applicable
Fiscal Year. For purposes of determining the aggregate value of Accounts
and/or accrued benefits under this Article, distributions made within a 5 year
period ending on the Determination Date shall be included to the extent
required by applicable law and regulation.
(a) Required Aggregation To Determine
Top-Heaviness
If (1) a Key Employee is a Participant in
this Plan for any Fiscal Year and the Employer maintains or has maintained any
other plans (including terminated plans) in which a Key Employee is a
participant within the 5 years period ending on the Determination Date (or any
of the 4 preceding Fiscal Years of such plans), or (2) the Employer maintains
or has maintained during this period any other plans (including terminated
plans) which must be combined with this Plan in order to meet the requirements
of Code Sections 401(a)(4) or 410 for any Fiscal Year, then this Plan's
top-heaviness shall be determined for such Fiscal Year by aggregating the
Accounts and/or present value of accrued benefits of participants in this Plan
and all other such plans.
(b) Permissive Aggregation To Determine
Top-Heaviness
If the Employer maintains or has maintained
any plans (including terminated plans) other than one described in (a) above,
the Committee may aggregate the accounts and/or present value of accrued
benefits of participants in any such plan with those of this Plan to determine
whether this Plan is a Top-Heavy Plan for any Fiscal Year, provided that the
requirements of Code Sections 401(a)(4) and 410 would continue to be met by
treating
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<PAGE> 15
this Plan, any plan that must be aggregated with the Plan under (a)
above and any other plan referred to in this sentence as one unit. In
determining top-heaviness and the aggregate value of Accounts and/or accrued
benefits under this Article, the Committee shall be guided by the provisions of
the Code, including but not limited to Code Section 416(g).
2.51 "TRA '86" means the Tax Reform Act of 1986.
2.52 "Trust" means the legal entity created by this Trust
Agreement as part of the Plan.
2.53 "Trust Agreement" means this Agreement.
2.54 "Trust Fund" means all property and income held by the
Trustee under the Trust Agreement.
2.55 "Trustee" means IMPERIAL TRUST COMPANY and any duly
appointed successor, as provided in Article 14.
2.56 "Valuation Date" means the last day of each Fiscal Year
and such other date as may be designated as provided in Article 7 for the
revaluation of Participants' Accounts.
2.57 List of Terms Defined Elsewhere: Article
(a) "Annual Addition" 5.1
(b) "Annual Amount" 5.1
(c) "Average Contribution Percentage" 4.1
(d) "Average Deferral Percentage" 4.1
(e) "Contribution Percentage" 4.1
(f) "Deferral Percentage" 4.1
(g) "Eligible Employee" 3.1
(h) "Excess Contribution" 4.1
(i) "Excess Deferral Amount" 4.1
(j) "Family Group" 4.1
(k) "Highly Compensated Employee" 4.1
(l) "Limitation Account" 5.1
(m) "Limitation Year" 5.1
(n) "Non-Highly Compensated Employee" 4.1
(o) "Super Top-Heavy" 5.1
(p) "Testing Compensation" 4.1
2-8
<PAGE> 16
ARTICLE 3
ELIGIBILITY, PARTICIPATION AND BENEFICIARY DESIGNATION
3.1 Definitions
Eligible Employee: means any Employee, except:
(a) An Employee whose Compensation and
conditions of employment are established by the terms of a collective
bargaining agreement to which the Employer is a party and which does not
specifically provide for coverage of such Employee under the Plan.
(b) An Employee who is hired on or after
January 1, 1985 and who is classified by management as a part time permanent
Employee or a part time temporary Employee and who is not eligible for any
other employee benefits provided by the Employer.
3.2 Participation
(a) Continuing Plan Participation
Each individual who was an Eligible
Employee and a Participant in the Plan immediately preceding the effective date
of this amendment and restatement shall continue to be a Participant on such
effective date.
(b) Plan Entry
Each other Eligible Employee shall become a
Participant in the Plan on the Entry Date coinciding with or next following his
Date of Hire.
3.3 Beneficiary Designation
(a) Designation Procedure
Each Eligible Employee, upon becoming a
Participant, shall designate a Beneficiary or Beneficiaries to receive benefits
under the Plan after his death. A Participant may change his Beneficiary
designation at any time, and Spousal Consent (as defined in Article 2) shall be
required each time a married Participant changes his Beneficiary designation to
name a non-spousal Beneficiary. Each Beneficiary designation shall be in a
form prescribed by the Committee and will be effective only when filed with the
Committee during the Participant's lifetime. Each Beneficiary designation 3-1
filed with the Committee will cancel all previously filed Beneficiary
designations.
(b) Spousal Consent
Designations of non-spousal Beneficiaries
made by married Participants shall be made only in accordance with the
provisions set forth in Article 9.8.(c) regarding the QPSA. If a designation
of a non-spousal Beneficiary by a married Participant
3-1
<PAGE> 17
does not meet the requirements of such Article, then such designation shall be
invalid to the extent that a QPSA is required. The Participant's spouse shall
then be his Beneficiary for 50% of his account balance, and the balance shall
be paid in accordance with the Participant's designation.
(c) Lack of Designation
In the absence of a valid designation by a
married or unmarried Participant, or if no designated Beneficiary survives a
married or unmarried Participant, his interest shall be distributed pursuant to
the provisions set forth in Article 9.8, if applicable, and the balance shall
be distributed to his estate.
3.4 Change from Ineligible to Eligible Employee
An Employee who is excluded under Article 3.1 for any
period shall be eligible to participate on the first date he is no longer
excluded, but not earlier than the Entry Date on which he would have entered
the Plan had he not been excluded under Article 3.1.
3.5 Former Employee Rehired
A former Employee who had completed the eligibility
requirements of Article 3.2 with the Employer and who is reemployed by the
Employer shall become a Participant as of the date of reemployment as an
Eligible Employee, but not earlier than the Entry Date on which he would have
entered the Plan had his employment not terminated.
3.6 Committee Determines Eligibility
Compliance with the eligibility requirements shall be
determined by the Committee, which shall also inform each Employee of his
becoming a Participant. The Committee shall provide each Participant with a
summary plan description not later than 90 days following the date he enters
the Plan or within such other period as may be prescribed by applicable law or
regulation.
3-2
<PAGE> 18
ARTICLE 4
CONTRIBUTIONS
4.1 Definitions
(a) "Average Contribution Percentage" ("ACP")
means the average of the Contribution Percentages of a group of Eligible
Participants.
(b) "Average Deferral Percentage" ("ADP") means
the average of the Deferral Percentages of a group of Eligible Participants.
(c) "Contribution Percentage" means the ratio
of (i) the matching contributions allocated to a Participant's Accounts for
such Fiscal Year, to (ii) his Testing Compensation for such Fiscal Year. The
determination and treatment of the Contribution Percentage of any Participant
shall satisfy such other requirements as may be prescribed by the Secretary of
the Treasury.
(d) "Deferral Percentage" means the ratio
(expressed as a percentage) of (i) the amount of contribution made under the
Plan to a Participant's Salary Deferral Account for such Fiscal Year, including
Excess Deferral Amounts, to (ii) such Participant's Testing Compensation for
such Fiscal Year. The determination and treatment of the Deferral Percentage
of any Participant shall also satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(e) "Excess Contributions" mean salary deferral
contributions that exceed those permitted by the non-discrimination tests in
Article 4.4(c).
(f) "Excess Deferral Amount" means the amount
of salary deferral contributions made on behalf of a Participant for a calendar
year that exceeds the dollar limit provided under Article 4.4(a). If salary
deferral contributions were made on behalf of a Participant under two or more
plans during a calendar year and the sum of these amounts exceeded the dollar
limit in Article 4.4(a), then the Committee shall establish a claims procedure
so that the Participant can designate the amounts and the plans from which such
Excess Deferral Amounts shall be returned. The Participant's claim shall be in
writing; shall be submitted to the Plan Administrator not later than the
following April 15th; shall specify the amount of the Participant's Excess
Deferral Amount for the preceding calendar year; and shall be accompanied by
the Participant's written statement that if such amounts are not distributed,
such Excess Deferral Amounts, when added to the amounts deferred under other
4-1
<PAGE> 19
plans or arrangements described in Code Sections 401(k), 408(k), or 403(b),
will exceed the limit imposed on the Participant by Code Section 402(g) for the
year in which the deferral occurred.
(g) "Family Group" means a group of two or more
Participants which includes a 5% Owner and/or one of the 10 most Highly
Compensated Employees, and one or more of his family members. For this
purpose, a Participant's family members include his spouse, his lineal
ascendants and descendants and spouses of such lineal ascendants and
descendants.
(h) "Highly Compensated Employee ("HCE")" for a
Fiscal Year includes:
(1) A 5% Owner in the current or
prior Fiscal Year;
(2) An Employee whose Compensation
exceeds $75,000 (multiplied by the Adjustment Factor) in the
current or prior Fiscal Year;
(3) An Employee (A) whose
Compensation exceeds $50,000 (multiplied by the Adjustment Factor)
in the current Fiscal Year, and (B) who is currently a member of
the Top Paid Group, or (C) who met both of the requirements of (A)
and (B) in the prior Fiscal Year;
(4) An officer described in Article
2.29(a).
Notwithstanding the foregoing, an Employee who is not a 5% Owner in the current
or prior year, who is not in the top 100 Employees of the Employer when ranked
by Compensation in the current Fiscal Year and who was not a HCE in the prior
Fiscal Year will not be considered a HCE in the current year.
Notwithstanding the foregoing, for Fiscal Years beginning in 1987 and 1988,
HCE(s) shall include only those who (1) are 5% owners during such Fiscal Year
and/or (2) have Compensation in excess of $50,000 for such Fiscal Year. "Top
Paid Group" for a Fiscal Year is equal to 20% of the total number of active
employees of the Employer for the Fiscal Year. In determining the total
number of active employees for such year, the following employees are excluded:
(1) Those who have not completed six months of
service at the end of such year;
(2) Those who normally work less than 17 1/2
hours per week;
(3) Those who normally work less than six
months per year;
(4) Those who have not reached their 21st
birthday;
(5) Non-resident aliens; and
4-2
<PAGE> 20
(6) Collectively bargained employees, provided
that this exclusion may be used only if at least 90% of the
employees of the Employer are covered by bona fide collective
bargaining agreements. The Top Paid Group will be determined by
listing all of the active Employees of the Employer (including
those excluded above) in descending order by Compensation and
selecting the 20% of the total number of active Employees as
determined above who are the highest paid. An Employee may be in
the Top Paid Group even though he falls in one of the groups which
have been excluded in determining the number of active employees.
The resolution of any ambiguity relating to the
determination of HCE(s) shall be based on IRS regulation 1.414(q).
(i) "Non-Highly Compensated Employee"
("Non-HCE)" means an Employee who is not a Highly-Compensated Employee.
(j) "Testing Compensation" means Allowable
Compensation, provided such Testing Compensation may include any amounts which
are contributed by the Employer pursuant to a salary reduction agreement and
which are not includible in the Employee's gross income under Code Sections
125, 402(a)(8), 402(h) or 403(b).
4.2 Employer Contributions
(a) Employer Matching Contributions
As of the last day of each Fiscal Year, the
Employer may make a matching contribution to the Trust in such amount as is
determined by the Employer. The matching contribution shall be reduced, if
necessary by any amounts in Limitation Accounts under Article 5 and Forfeitures
under Article 6 attributable to matching contributions. If a matching
contribution is made, an amount shall be contributed such that a percentage of
each Eligible Participant's Salary Deferral Contributions is matched. The
percentage of the Salary Deferral Contributions which are matched for Eligible
Participants who have 10 Years of Service or more (pursuant to Article 6) as of
the last day of the Fiscal Year shall be twice the percentage of the Salary
Deferral Contributions which are matched for Eligible Participants who have
fewer than 10 Years of Service (pursuant to Article 6) as of the last day of
the Fiscal Year.
(b) Restoration Contributions
The Employer shall make the contributions
required to restore the Accounts of Participants as described in Article 5.4
and Article 6. These contributions will be allocated in accordance with their
purpose.
(c) Top-Heavy Minimum Contributions
4-3
<PAGE> 21
For any Fiscal Year during which the Plan
is a Top-Heavy Plan, the sum of:
(i) The Employer's pension,
matching contributions, and
(ii) pension and profit sharing
Forfeitures allocated, on behalf of each Participant who is a
Non-Key Employee but is employed by the Employer at any time during
on the last day of the Fiscal Year shall not be less than the
lesser of:
(1) 3% of the Allowable
Compensation paid or accrued to such Employee during the calendar
year ending within the Fiscal Year; or
(2) The highest percentage of
Allowable Compensation which is allocated during the Fiscal Year on
behalf of any Key Employee in the aggregate:
(A) To his Employer Account
under Article 4.2 of this Plan; and
(B) To his Salary Deferral
Account under this Plan; and
(C) From contributions by the
Employer to his account in any other defined
contribution plan; or
(3) Such other amount as may be
prescribed by regulations under Code Section 416.
The Employer shall make a minimum contribution in an
amount which is determined to meet the requirements of this Article 4.1.(f),
which shall be allocated to the Accounts of Participants who are Non-Key
Employees to carry out the purpose of this Article.
4.3 Timing of, Limitations on and Return of Employer
Contributions
(a) Amount and Timing of Contributions
Employer contributions shall not exceed an
amount which is estimated to constitute an allowable deduction under Code
Section 404(a). Employer contributions shall be paid to the Trustee on or
prior to the last day for filing the Employer's federal income tax return for
such year, including any extensions of time granted for such filing.
Contributions shall be made in cash.
(b) Return of Employer Contributions
If an amount is contributed by the Employer
due to a mistake of fact, the Employer shall be entitled to recover such amount
within one year of the date such
4-4
<PAGE> 22
contribution is made. If an amount is contributed by the Employer
which is disallowed as a deduction under Code Section 404, the Employer shall
be entitled to recover such amount within one year of the date such deduction
is disallowed. Trust income attributable to the amount to be recovered shall
not be paid to the Employer, but Trust loss attributable thereto shall reduce
such amount.
4.4 Salary Deferral Contributions
(a) General Rules
Each Participant may elect in writing to
have the Employer make salary deferral contributions on his behalf in an amount
from 2% to 10% of such Participant's Compensation. Notwithstanding the
foregoing, no more than $7,000 (multiplied by the Adjustment Factor) of salary
deferral contributions may be made on behalf of any Participant during any
calendar year.
(b) Administrative Guidelines
The Committee has the power to establish
uniform and nondiscriminatory rules and from time to time to modify or change
such rules governing the manner and method by which salary deferral
contributions shall be made, as well as the manner and method by which salary
deferral contributions may be changed or discontinued temporarily or
permanently. All salary deferral contributions shall be authorized by the
Participant in writing, made by payroll deduction, deducted from the
Participant's Compensation without reduction for any taxes or withholding
(except to the extent required by law or the regulations) and paid over to the
Trust by the Employer within a reasonable period following the date of
deduction, but in no event later than 90 days after the date on which such
salary would otherwise have been paid. All salary deferral contributions shall
be credited to such Participant's Salary Deferral Account and shall be treated
as Employer profit sharing contributions for purposes of their deductibility
and tax treatment under the Code.
(c) Nondiscrimination Tests For Elective
Deferrals
The Deferral Percentages for any Fiscal
Year shall satisfy the table below:
4-5
<PAGE> 23
<TABLE>
<CAPTION>
If ADP of Then, ADP of
Eligible Participants Eligible Participants
Who Are NON-HCE(s) Who Are HCE(s)
is: Cannot Exceed
_____________________ _____________________
(1) (2)
<S> <C>
Less than 2% Two times column (1) ADP
2% but less than 8% Column (1) ADP plus 2%
1.25 times column (1)
Greater than 8% ADP
</TABLE>
provided that:
(i) A single Deferral Percentage
shall apply to all members of a Family Group and shall be the
greater of:
(1) A Deferral Percentage
determined by totalling the amounts credited to the Salary Deferral
Accounts of all members of the Family Group who are HCE(s) and
dividing by the sum of the Testing Compensation received by such
members, or
(2) A Deferral Percentage
determined as in (1) but based on all members of the Family Group.
(ii) Amounts added to a
Participant's Employer Matching Account which meet the requirements
of Code Section 401(k)(2)(B) and (C) may be included in computing
his Deferral Percentage.
(iii) The Deferral Percentage for any
Employee who is a Participant under two or more Code Section 401(k)
arrangements of the Employer shall be the sum of the Deferral
Percentages for such Employee under each of such arrangements.
(d) Corrective Actions
(i) If the salary deferral
contributions for any Fiscal Year would otherwise cause the Plan to fail to
meet the nondiscrimination tests of this Article 4.4, then the Committee at its
discretion may within the period permitted by applicable law or regulation:
4-6
<PAGE> 24
(1) Reduce as necessary salary
deferral contributions made on behalf of Participants who are
HCE(s) for the remainder of the Fiscal Year; or
(2) Return Excess Contributions
to the affected Participants in accordance with Article 4.4(f).
(e) Determination of Excess Contributions
(i) The maximum Deferral Percentage
for a Participant who is a HCE is calculated by reducing the Deferral
Percentage of the HCE with the highest Deferral Percentage to the extent
required to (1) enable the Plan to satisfy the non-discrimination test in
Article 4.4(c), or (2) cause such HCE's Deferral Percentage to equal the
Deferral Percentage of the HCE with the next highest Deferral Percentage. This
process will be repeated as necessary until the Plan satisfies the non-
discrimination test in Article 4.4(c).
(ii) The maximum Deferral Percentage
of members of a Family Group shall be determined using the provisions of IRS
regulation 1.401(k)-(f)(5)(iii).
(iii) A HCE's Excess Contribution is
equal to the difference between (1) the amount of contribution actually made
under the Plan to his Salary Deferral and Cash Option Account for such Fiscal
Year, and (2) the amount determined by multiplying the maximum Deferral
Percentage calculated in (i) by such HCE's Testing Compensation.
(f) Corrective Payments
(i) Payment of Excess Deferral
Amounts
Notwithstanding any other provision of
the Plan, Excess Deferral Amounts plus any income or less any loss allocable
thereto, as determined under Article 4.6, may be paid to Participants who have
such Excess Deferral Amounts for a calendar year no later than the following
April 15th. If not paid by such date, these amounts must remain in the
Participant's Account until otherwise withdrawable or payable under the terms
of the Plan. Because of the double income tax treatment that a Participant
will encounter if these amounts are not returned to him by the following April
15th, the Committee shall make every effort to meet this deadline.
(ii) Payment of Excess Contributions
Notwithstanding any other provision of
the Plan, Excess Contributions, plus any income or less any loss allocable
thereto, as determined in Article 4.6, shall be paid in accordance with the
following procedures:
4-7
<PAGE> 25
(1) Excess Contributions for a
Fiscal Year shall be paid to Participants on whose behalf such
Excess Contributions were made, no later than the last day of
the succeeding Fiscal Year.
(2) The Excess Contributions
which would otherwise be paid shall be reduced, in accordance with
regulations, by any Excess Deferral Amounts paid to the
Participant.
(3) Payments under this Article
4.4(f) shall be made from the Participant's Salary Deferral
Account.
4.5 Nondiscrimination Tests For Employer Matching
Contributions
(a) General Rule
Participant Employer matching contributions
for any Fiscal Year shall satisfy below:
<TABLE>
<CAPTION>
If ACP of Then, ACP of
Eligible Eligible
Participants Participants
Who are Non- Who Are HCE(s)
HCE(s) Cannot Exceed
is: __________________
__________________ (2)
(1)
<S> <C>
Less than 2% Two times column
(1) ACP
Column (1) ACP
2% but less than 8% plus 2%
Greater than 8% 1.25 times column (1)
ACP
</TABLE>
provided that:
(i) A single Contribution
Percentage shall apply to all members of a Family Group and shall
be the greater of:
(1) A Contribution Percentage
determined by totalling the amounts credited to the Matching
Accounts of all members of the Family Group who are HCE(s) and
dividing by the total of the Testing Compensation received by such
members, or
(2) A Contribution Percentage
determined as in (1) but based on all members of the Family Group.
4-8
<PAGE> 26
(ii) Any matching contributions
which have been used to meet the tests in Article 4.4 must be
subtracted from the matching contributions used to determine the
Contribution Percentage.
(b) Multiple Use of Alternative Limitation
(i) If the provisions of Articles
4.4 and 4.5 apply to one or more HCE(s) and if both the ADP and the ACP of
HCE(s) exceed the corresponding ADP and ACP of Non-HCE(s) multiplied by 1.25,
then an additional non-discrimination test must be met, as follows:
(1) The sum of the ADP and ACP
of Eligible Participants who are HCE(s) shall not exceed the sum of
A & B; where A = 1.25 times the greater of the ADP or the ACP of
Eligible Participants who are Non-HCE(s), and B = two times the
smaller of the ADP or ACP of Eligible Participants who are
Non-HCE(s) or, if less, two percent plus such smaller percentage.
(2) The ACP(s) and ADP(s) used
in this Article 4.5.(b) shall be determined after any corrective
distributions have been made of Excess Deferral Amounts and Excess
Contributions and after any recharacterization of Excess
Contributions required without regard to this Article 4.5.(b).
(c) Corrective Actions
(i) If the matching contributions
for any Fiscal Year would otherwise cause the Plan to fail to meet
the nondiscrimination tests of this Article 4.5, the Committee at
its discretion shall within the period permitted by applicable law
or regulation:
(1) Reduce as necessary the
matching contribution to be made for by Participants who are HCE(s)
for the remainder of the Fiscal Year.
(2) Pay as necessary any fully
vested matching contributions to the affected HCE(s), as provided
in Article 4.5.(e).
(3) Forfeit as necessary any
non-vested matching contributions that were made on behalf of the
affected HCE(s).
(ii) If salary deferral
contributions for any year would otherwise cause the Plan to fail
to meet the multiple use of alternative limitation provisions of
(i) above, procedures similar to those detailed in Article 4.4(d),
(e) and (f) shall be used to bring the Plan into compliance with
such provisions; provided that recharacterization shall not be
permitted. Any salary deferral contributions
4-9
<PAGE> 27
which must be returned to Participants pursuant to this Article 4.5
(c) shall be considered Excess Contributions for purposes of this
Plan.
(d) Determination of the Amount of Excess
Matching Contributions.
(i) The maximum Contribution
Percentage for a Participant who is a HCE is calculated by reducing
the Contribution Percentage of the HCE with the highest
Contribution Percentage to the extent required to (1) enable the
Plan to satisfy the non-discrimination tests in Articles 4.5(a) and
(b), or (2) cause such HCE's Contribution Percentage to equal the
Contribution Percentage of the HCE with the next highest
Contribution Percentage. This process will be repeated, as
necessary, until the Plan satisfies the non-discrimination tests in
Articles 4.5(a) and (b).
(ii) The maximum Contribution
Percentage of members of a Family Group shall be determined using
the provisions of IRS Regulation 1.401(m)-1(e)(4)(iii).
(iii) A HCE's excess matching
contribution is equal to the difference between (1) the amount of
matching contribution actually made to his Account under the Plan
for such Fiscal Year and (2) the amount determined by multiplying
the maximum Contribution Percentage calculated in (i) by such HCE's
Testing Compensation.
(e) Corrective Payments
Notwithstanding any other provisions of the
Plan, excess matching contributions, plus any income and less any loss
allocable thereto, as determined under Article 4.6, shall be paid or forfeited
in a nondiscriminatory manner and in accordance with the following procedures:
(i) Excess matching contributions
shall be paid, if appropriate, to Participants for whom such
contributions have been made during a Fiscal Year, or forfeited, if
appropriate, no later than the last day of the succeeding Fiscal
Year. If such matching contributions are not vested, they will be
forfeited. If such matching contributions are vested, they will be
paid to the Participant.
4.6 Adjustment to Corrective Payments
Excess Deferral Amounts, Excess Contributions and
matching contributions shall all be paid to the appropriate Participants,
together with an adjustment, computed as follows:
4-10
<PAGE> 28
(1) The total income or loss for the Fiscal
Year in which the deferral or contribution has been made, which is
attributable to the Account or Accounts to which such deferral or
contribution has been added shall be determined and shall be I.
(2) The excess deferral or contribution shall
be E.
(3) The value of such account or accounts shall
be determined as of the end of such Fiscal Year and shall be V.
(4) The income or loss on the excess deferral
or contribution for such Fiscal Year shall
be:
E
----- X I
V -I
(5) The amount of income or loss in (4) shall
be adjusted for the period from the end of such Fiscal Year up to
the date of payment as follows:
Amount in (4) x 10% x Number of elapsed months
In determining the number of months that have elapsed between the
end of such Fiscal Year and the date of payment, sixteen days or
more shall be considered an elapsed month.
4.7 Overriding Limitations
(a) Excess Deferral Amounts
When Excess Deferral Amounts (as defined in
Article 4.1) are paid to a Participant, any matching contributions that are
attributable to such Excess Deferrals shall be forfeited.
(b) Excess Contributions
When Excess Contributions (as defined under
Article 4.1) are paid to a Participant, any matching contributions that are
attributable to such Excess Contributions shall be (i) paid to the Participant
to the extent that they are vested and (ii) forfeited to the extent that they
are not vested.
4.8 Record Requirements
The Employer shall maintain such records as may be
needed to prove that for each Fiscal Year, commencing with January 1, 1987, the
requirements of Article 4.4(c) and Article 4.5 are met.
4.9 Rollover Contributions
(a) Rollover Contributions Permitted
4-11
<PAGE> 29
The Committee may authorize the Trustee to
accept a rollover contribution from an Employee who is or is to become a
Participant, in accordance with and subject to the limitations of applicable
sections of the Code.
(b) General Rules
A rollover contribution shall be made
within 60 days of the Participant's receipt of the distribution and shall not
include any amounts contributed by the Employee, except to the extent permitted
by the Code and applicable regulations. An Employee may be required to furnish
evidence satisfactory to the Committee that the amount to be transferred meets
all of the foregoing requirements.
(c) Rollovers Credited to Rollover Account
A rollover contribution may be made in cash
and shall be credited to such Rollover Account as of the date such contribution
is received. Such Rollover Account shall be fully vested and shall share in
Trust gains or losses pursuant to Article 7.
(d) Investment of Rollover Contributions
If a Participant makes a rollover
contribution to the Trust in cash, the Trustee shall invest the contributions
as part of the Trust Fund.
(e) Direct Transfer From Another Trust
The Committee may instruct the Trustee to
accept on behalf of any Participant, or Employee who is to become a
Participant, the direct transfer of amounts from any other trust qualified
under Code Section 501(a), which is part of any plan qualified under Code
Section 401(a). In no event, however, may the Committee authorize a direct
transfer from (i) a defined benefit pension plan, (ii) a defined contribution
plan subject to the minimum funding standards of Code Section 412, or (iii) any
other defined contribution plan to which the requirements of Code Section
401(a)(11)(A) apply with respect to such Participant or Employee, unless such a
direct transfer may be made under applicable law and regulation without
jeopardizing this Plan's exempt status under Code Section 401(a)(11)(B). After
receipt, the Trustee shall treat such amounts as a rollover contribution
otherwise meeting the requirements above.
4-12
<PAGE> 30
ARTICLE 5
ALLOCATION OF CONTRIBUTIONS AND FORFEITURES
5.1 Definitions
(a) "Annual Addition" means the sum for the
Limitation Year to which the allocation pertains (whether or not allocated in
such year) of all Employer and Employee contributions and Forfeitures allocated
to the Participant's Account for such year from this Plan and any other similar
contributions to any other defined contribution plan maintained by the
Employer, including Excess Deferral Amounts.
(b) "Limitation Account" means an account
expressly set up and maintained to hold excess Annual Addition amounts
contributed in error pursuant to Article 5.3.(b).
(c) "Limitation Year" means the Fiscal Year.
(d) "Super Top-Heavy" means a Plan which is
Top-Heavy after substituting 90% for 60% in the definition for Top-Heavy in
Article 2.
5.2 Allocation Methods
(a) Salary Deferral, Employer Matching,
Top-Heavy Minimum, and Restoration Contributions
Salary Deferral, Employer Matching,
Top-Heavy Minimum and Restoration contributions are allocated as provided in
Article 4.
(b) Additional Employer Matching Contributions
If any additional Employer Matching
Contributions, Forfeitures, or amounts in Limitation Accounts for any Fiscal
Year remain after the Employer Matching Contributions have been allocated per
Article 4.2, they shall be allocated to each Eligible Participant's Matching
Account in the same ratio as such Eligible Participant's Salary Deferral
Contributions for the Fiscal Year bear to the total Salary Deferral
Contributions for all Eligible Participants for the Fiscal Year.
5.3 Limitations on Annual Allocations
(a) Limitation Amount
Notwithstanding any other provision of this
Plan to the contrary, the Annual Addition to a Participant's Account for any
Limitation Year shall not exceed the lesser of 25% of the Employee's
Allowable Compensation (as defined in Article 2) or $30,000 (or, if greater,
1/4 of the dollar limitation in effect under Code Section 415(b)(1)(A), (or
such
5-1
<PAGE> 31
other amount for the Limitation Year as may be established by regulations
under Code Section 415(d)).
(b) Treatment of Excess Annual Addition Made in
Error
In the event that (as a result of a
reasonable error in estimating a Participant's compensation or other limited
facts and circumstances which the Internal Revenue Service finds to be
applicable) an amount would otherwise be allocated which would result in the
Annual Addition limitation being exceeded with respect to any Participant, the
excess amount shall be eliminated:
(i) By holding any excess matching
and pension amounts in a Limitation Account and if the limitation
is still exceeded with respect to the Participant, a separate
Limitation Account shall be maintained with respect to the matching
and pension portions of any remaining excess. Any amounts in the
Limitation Accounts shall be reallocated among the appropriate
Accounts of Eligible Participants pursuant to Article 4.2 as of the
last day of each succeeding Fiscal Year until the excess is
exhausted, provided that the Annual Addition limitation with
respect to any Participant may not be exceeded in any Limitation
Year. No allocation of Employer or Employee contributions may be
credited to the Accounts of Eligible Participants in succeeding
years until such excess has been exhausted.
5.4 Restoration Procedures
(a) Computing Amounts
In the event that a Participant's Account
was improperly excluded in any year from an allocation of Employer
contributions and Forfeitures pursuant to Article 4.2, such Participant's
Account shall be restored to its correct status by the addition of amounts that
are determined as follows:
(i) First, an amount will be
computed on the same basis as Employer contributions and
Forfeitures that were allocated to the Accounts of other
Eligible Participants under Article 5.2 in each year for which
restoration is necessary, and
(ii) Second, Trust Fund income, gain
or loss attributable to amounts that should have been allocated
under (i) above will be computed on the same basis as Trust Fund
income, gain or loss was allocated to other Participants' Accounts
under Article 7.1 in each year for which restoration is necessary.
(b) Income, Gain or Loss
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<PAGE> 32
In the event that a Participant's Account
was improperly excluded in any year from an allocation of Trust Fund income,
gain or loss pursuant to Article 7.2, such Participant's Account shall be
restored to its correct status by the addition or subtraction of amounts that
should have been allocated under Article 7.2 in each year for which restoration
is necessary.
(c) Source of Amounts
The Employer shall contribute an amount
which is necessary to fully restore each improperly excluded Account. No
Employer contributions or Forfeitures shall be allocated pursuant to Article
5.2 to the Account of any Participant until each improperly excluded Account
has been fully restored.
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<PAGE> 33
ARTICLE 6
VESTING OF ACCOUNTS
6.1 Automatic Vesting
(a) Retirement or Death
The value of a Participant's Employer
Account shall become fully vested when the Participant attains his Normal
Retirement Date while an Employee, or upon his termination of employment by
reason of death.
(b) Accident and Sickness Benefit
The value of a Participant's Account shall
become fully vested upon his termination of employment by Disability, and shall
become payable under Article 9 as an accident and sickness benefit as permitted
by the applicable sections of the Code and regulations.
(c) Employee Account
A Participant's Employee Account shall be
fully vested at all times.
6.2 Vesting Based on Service
Except as otherwise provided in this Article 6, a
Participant's Employer Account shall become vested in accordance with the
following schedule:
<TABLE>
<CAPTION>
Years of Service Vested Percentage
---------------- -----------------
<S> <C>
Less than 2 years 0%
2 years 20%
3 years 35%
4 years 50%
5 years 65%
6 years 80%
7 years or more 100%
</TABLE>
6.3 Top-Heavy Vesting
(a) Vesting Changes if Plan Becomes Top-Heavy
Except as otherwise provided in this
Article 6, for any Fiscal Year in which the Plan is a Top-Heavy Plan, a
Participant's Employer Account shall be vested in accordance with the
following vesting schedule if such schedule results in a greater vested
percentage than the percentage otherwise applicable under Article 6.2 at any
relevant time:
6-1
<PAGE> 34
<TABLE>
<CAPTION>
Years of Service Vested Percentage
---------------- -----------------
<S> <C>
Less than 2 years 0%
2 year 20%
3 years 40%
4 years 60%
5 years 80%
6 years or more 100%
</TABLE>
(b) Top-Heavy Vesting Schedule Continues for
Plan
In the event that the Plan ceases to be a
Top-Heavy Plan in any subsequent Fiscal Year, the vesting schedule in Article
6.3.(a) shall continue to apply.
6.4 Years of Service for Vesting
(a) Year of Service
An Employee shall be credited with one year
of Service for each 12-month period ending on the last day of the Fiscal Year
in which he has at least 1,000 Hours of Service. Prior to January 1, 1976 an
Employee shall be credited with one year of Service for each year of continuous
employment, from such Employee's most recent Date of Hire to such date.
(b) Termination Prior to Vesting
If an Employee's Service terminates prior
to his earning any vested percentage, his Service prior to such termination
shall be disregarded for vesting purposes if he is reemployed after he has
incurred 5 consecutive Breaks in Service.
(c) Service Prior to Break in Service
If an Employee is reemployed after a Break
in Service, Service prior to a Break in Service which is eligible to be
credited to the Employee upon reemployment shall not be credited for
purposes of vesting until he has completed one year of Service after renewal of
Service.
6.5 Forfeitures and Restorations
(a) Suspense Accounts
Any remainder of a terminating
Participant's Account which is not vested shall be transferred to a Suspense
Account.
(b) Timing of Forfeitures
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<PAGE> 35
The balance in the Suspense Account shall
be forfeited as of the last day of the Fiscal Year in which the Participant
terminates, provided the Participant has not been reemployed by that date.
(c) Matching Contribution Forfeitures Reduce
Employer Contribution
Forfeitures attributable to Matching
Accounts during a Fiscal Year which are not used to restore Participant's
Accounts as of the last day of such Fiscal Year shall reduce the matching
contribution for such year and allocated as of the last day of the Fiscal Year
to the Matching Accounts of then Eligible Participants as provided in Article
4. Forfeitures of excess matching contributions pursuant to Article 4.5.(c)
will reduce the matching contribution for the year.
(d) No Income or Loss on Suspense Accounts
Suspense Accounts shall not share in the
allocation of Trust income or loss on any Valuation Date.
(e) Reemployment
If the Participant is reemployed before
incurring 5 consecutive Breaks in Service, the following rules shall apply:
(i) Restoration If No Distribution.
In the event the Participant did not receive a distribution of his
vested interest, his Account shall be fully restored as provided in
(iv) below and shall be recredited as of his reemployment date.
(ii) Restoration If Total
Distribution Repaid. In the event a distribution of his entire
vested interest was made to the Participant, his Account shall be
fully restored as of his date of reemployment as provided in (iv)
below if he repays the full amount of the prior distribution before
the date which is 5 years after he is reemployed by the Employer
or before the date on which he incurs 5 consecutive Breaks in
Service, if earlier. If the Participant does not make full
repayment of the prior distribution by that date, his Account will
not be restored.
(iii) Full or Partial Restoration in
Event of Partial Distribution. In the event a distribution was
made to the Participant of less than his entire vested interest,
his Account shall, as of his date of reemployment, be fully
restored if he repays the full amount of the prior distribution
before the date which is 5 years after he is reemployed by the
Employer or before the date on which he incurs 5 consecutive Breaks
in Service, if earlier.
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<PAGE> 36
(iv) Treatment of Restored Amounts
If a Participant has his previously
forfeited account balance restored, it shall be held in a separate
Account. A Participant's vested interest in such separate Account
as of any date of determination shall be determined by applying the
following formula.
Vested interest = P x (AB + (R x D) minus (R x D)
For purposes of applying the formula, P
is the vested percentage at the date of determination; AB is the
Account balance at the date of determination; D is the amount of
the distribution previously made; and R is the ratio of the
Account balance at the date of determination to the Account
balance immediately following the preceding distribution.
(v) Source of Restored Amounts
(A) If the Suspense Account
established for a Participant has not yet been forfeited, such
Suspense Account shall be used to restore the Participant's
Account.
(B) Otherwise, amounts to be
restored for any Fiscal Year may be restored from Forfeitures as of
the last day of a Fiscal Year, from additional Employer
contributions for such Fiscal Year or from Trust income, as
determined by the Committee.
(f) No Partial Repayments Permitted
A Participant shall not be permitted to
repay part of a distribution.
(g) No Restoration After 5 Consecutive Breaks
in Service
If a Participant is reemployed after 5
consecutive Breaks in Service, no portion of his non-vested Account shall be
restored and any undistributed vested interest shall be maintained as a
separate fully vested Account.
6.6 No Divestment
Except as provided under Articles 4.3, 6.8 and 15.8, a
Participant's vested rights shall not be subject to divestment for any reason.
6.7 Amendment to Vesting
Notwithstanding any other provisions of this Article 6,
an individual who was a Participant immediately preceding the effective date of
any amendment to the Plan has his vested percentage determined by the
provisions of the Plan existing immediately prior to such amendment if such
provisions provide a greater vested percentage at any relevant time.
6-4
<PAGE> 37
6.8 Lost Participants
(a) Participant's Account
If all or a portion of a Participant's
Account becomes payable under Article 9 and the Committee, after a reasonable
search, cannot locate the Participant or his Beneficiary (if such Beneficiary
is entitled to payment), the vested Account shall:
(i) be used to establish an
Individual Retirement Account in the Participant's name; or
(ii) remain in the Plan for a
sufficient period of time so that under state law the Account would
escheat, at which point the Account shall be forfeited and
reallocated, in accordance with Articles 4 and 5 as of the day the
Participant incurred a Break in Service, or such later date as the
Committee may decide.
(b) Search for Participants
The Committee shall make a reasonable
attempt to find such Participants, including securing any assistance available
from the Internal Revenue Service.
(c) Restoration
If an Account is forfeited under this
Article 6.8, and the Participant or his Beneficiary subsequently presents a
valid claim for benefits to the Committee, the Committee shall cause the vested
Account, equal to the amount that was forfeited under this Article 6, to be
restored.
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<PAGE> 38
ARTICLE 7
ALLOCATION OF TRUST INCOME OR LOSS
7.1 Determination of Net Income
As of each Valuation Date, the Committee shall
determine the net income or loss of the General Trust Fund based on a statement
from the Trustee of the receipts and disbursements of the Trust Fund since the
immediately preceding Valuation Date and of the fair market value of the Fund
as of the Valuation Date. If one or more separate investment funds have been
established as provided in Article 13, each fund shall be valued separately on
each Valuation Date and the net income or loss of each fund shall be allocated
to each Account invested in such investment fund.
7.2 Valuation
As of each Valuation Date and prior to any allocation
of contributions and Forfeitures to be made as of such date, the net income or
loss of the General Trust Fund since the immediately preceding Valuation Date,
including net appreciation or depreciation and any expenses paid by the Trust,
shall be allocated to each Account in the ratio that the value, as of the
immediately preceding Valuation Date, of each such Account invested in the
General Trust Fund bears to the value, as of the immediately preceding
Valuation Date, of all Accounts invested in the General Trust Fund. If one or
more separate investment funds have been established, the net income or loss of
each fund shall be allocated to each Account invested in such investment fund
in proportion to the value of each Account invested in such funds as of the
immediately preceding Valuation Date. The Committee shall adopt equitable
procedures to establish a proportionate crediting of Trust income or loss to
those portions of Participants' Accounts in the case of contributions,
transfers, loans, rollovers or withdrawals that have occurred in the interim
period since the immediately preceding Valuation Date. Amounts held in
Limitation or Suspense Accounts established pursuant to Articles 5.3 and 6.5
shall not share in Trust Fund income or loss.
7.3 Valuation Dates
The General Trust Fund, any separate investment funds
and any segregated account shall be valued as of the last day of each Fiscal
Year and as of any other date the Committee directs the Trustee to value the
Trust Fund, as provided in Article 7.4.
7.4 Special Valuation Dates at Committee Discretion
7-1
<PAGE> 39
The Committee may direct the Trustee to determine the
fair market value of the Trust Fund and may make a determination of Trust
income or loss as of any date other than the last day of a Fiscal Year. If the
allocation of such Trust income or loss will produce a significant change in
the value of Participants' Accounts, and if such valuation shall affect a
distribution, then such date shall thereupon be deemed a Valuation Date, and
Trust income or loss shall be allocated to Participant's Accounts in accordance
with the provisions of Article 7.2.
7-2
<PAGE> 40
ARTICLE 8
PARTICIPANTS' ACCOUNTS
8.1 Separate Accounts
The Committee shall open and maintain a separate
Account for each Participant. Each Participant's Account shall reflect the
amounts allocated thereto and distributed therefrom and such other information
as affects the value of such Account pursuant to this Agreement. The Committee
may maintain records of Accounts to the nearest whole dollar.
8.2 Statement of Accounts
As soon as practicable after the end of each Fiscal
Year, the Committee shall furnish to each Participant a statement of his
Account, determined as of the end of such Fiscal Year. Upon the discovery of
any error or miscalculation in an Account, the Committee shall correct it, to
the extent correction is practically feasible. Statements to Participants are
for reporting purposes only, and no allocation, valuation or statement shall
vest any right or title in any part of the Trust Fund, nor require any
segregation of Trust assets, except as is specifically provided in this
Agreement.
8.3 Valuation of Account When Payment Due
(a) Accounts Which Are Not Segregated
(i) When employment is terminating
and payment is not deferred:
(1) The amount of the payment
shall be based on the value of the Participant's
Account as of the Valuation Date immediately preceding
his termination date plus any contributions
subsequently credited to such Account and less any
distributions subsequently made from the Account.
(ii) When employment is not
terminating, the amount of the payment shall be based on the value
of the Participant's Account as of the Valuation Date immediately
preceding the date of request for payment plus any contributions
subsequently credited to such Account and less any distributions
subsequently made from the Account.
8-1
<PAGE> 41
ARTICLE 9
DISTRIBUTIONS AND WITHDRAWALS
9.1 General
Benefits under the Plan shall be distributed solely
from the Trust. The Employer has no liability or responsibility for Plan
benefits or for the Trust. No distribution shall be made or commenced prior to
the Participant's termination of employment, except as required under Articles
9.3 and 16.2 and except for withdrawals in accordance with Article 9.11.
Distributions can also be made upon termination of the Plan subject to the
provisions of Article 9.12.
9.2 Administrative Rules
(a) Authority
Distributions shall be made by the Trustee
only in accordance with the directions of the Committee. The Committee has the
authority to direct the distributions in accordance with the terms and
conditions of the Plan, but the Committee shall have no power of discretion or
consent with regard to a Participant's or Beneficiary's choice of the form or
timing of a distribution, except as specifically stated herein or to the extent
that the Committee is constrained by the options available under the Plan or by
the requirements of law or regulation.
(b) Claims
A Participant, Beneficiary or Alternate
Payee has the right to file a claim for benefits as set forth in Article 12.8.
9.3 Timing of Distributions
(a) Amounts Under $3,500
If the Participant's vested Account does
not exceed $3,500, distribution shall be made in a lump sum as soon as
practicable after the amount can be determined in accordance with Article 8.3.
(b) Amounts Over $3,500
If the Participant's vested Account exceeds
$3,500, the Participant may elect with Spousal Consent, if married, to:
(i) Commence distributions as soon
as practicable after the amount can be determined, or
9-1
<PAGE> 42
(ii) Defer receipt of payments until
his Normal Retirement Date or his 62nd birthday, whichever is
later, or
(iii) Defer receipt of payments as
provided in (c) below. Notwithstanding the foregoing, no payments may be made
to a Participant prior to his Normal Retirement Date or his 62nd birthday,
whichever is later, if his vested Account, exceeds $3,500, unless the written
consent of the Participant with Spousal Consent, if married, is obtained by the
Committee within the 90-day period prior to commencement of the distribution.
(c) Deferring Distributions
A Participant who meets the requirements of
Article 9.3.(b) may defer the commencement of a distribution by providing the
Committee with a written, signed notice specifying the date on which the
distribution is to commence and the distribution method to be used, provided
that:
(i) No distribution method chosen
by the Participant shall provide any payment in an amount less than
that required under Article 9.6; and
(ii) Distributions shall commence no
later than the April 1 following the last day of the calendar year
in which a Participant attains age 70 1/2 even though such
Participant may still be an Employee; provided that this
requirement shall not apply in the case of a Participant who is not
a 5% Owner and who attained age 70 1/2 before January 1, 1988, or
in the case of a Participant who made a written designation, prior
to January 1, 1984, to defer commencement of his distribution in a
manner consistent with the requirements of applicable law,
regulation and guidelines as they existed prior to the enactment of
TEFRA.
9.4 Treatment of Deferred Amounts
(a) In Cash
Where the distribution of all or any
portion of a Participant's Account is to be deferred in the form of cash, the
vested portion shall continue to be held and invested as an unsegregated
Account of the Trust subject to revaluation as provided in Article 7. However,
at the written request of a Participant or his Beneficiary, such Account shall
be transferred to an insured savings account, to a certificate of deposit or to
other similar instrument, which shall be part of this Trust and shall be
subject to all the provisions hereof. Interest earned by any such insured
savings account, certificate of deposit or similar instrument shall be credited
to such Participant's Account.
9.5 Methods of Distribution
(a) Methods
9-2
<PAGE> 43
Distribution to any Participant or
Beneficiary shall be made, in whole or in part:
(i) In a lump sum;
(ii) In cash installments, payable
at least annually, over a period of years meeting the requirements
of Article 9.6;
(iii) In the form of a
nontransferable annuity contract providing for a monthly guaranteed
income for a period certain;
(iv) In the form of a life annuity
for an unmarried Participant (only to the extent required by
Article 9.7) and only if required by regulations;
(v) In the form of a QJSA for a
married Participant and his spouse (only to the extent required by
Article 9.7);
(vi) In the form of a life annuity
for a deceased Participant's surviving spouse (only to the extent
required by Article 9.8);
(vii) In any combination of the
foregoing methods of distribution.
(b) Participant Choice
The Participant with Spousal Consent, if
married, may choose any of the methods described in (a); provided that in the
event that the Participant's vested Account does not exceed $3,500, payment
will be made in a lump sum.
(c) Equal Value
All methods of distribution with respect to
a Participant or Beneficiary shall be of equal value as of the date payments
are to commence.
(d) Timing
If the amount of a distribution cannot be
determined by the date specified under Article 9.3, payment of benefits,
retroactive to such date, shall be made or shall begin no later than 60 days
after the earliest date on which the amount of the distribution can be
determined.
9.6 Distribution in Periodic Payments
(a) Minimum Distributions
If the distribution to a Participant
includes periodic payments, the amounts shall be calculated in accordance with
the life expectancy of the Participant or life expectancies of the Participant
and his Beneficiary, except as provided in (b) below. The requirements of
current law or subsequent superseding law shall govern the amount of
9-3
<PAGE> 44
minimum distributions payable. For purposes of the computation of
minimum distributions, the life expectancy of a Participant and his spouse may
be redetermined annually, to the extent permitted by applicable law and
regulation.
(b) Pre-TEFRA Designation
The provisions of (a) above shall not apply
in the case of a Participant who has made a written designation, prior to
January 1, 1984, to receive distributions in periodic payments in a manner
consistent with the requirements of applicable law, regulations and guidelines
as they existed prior to the enactment of TEFRA.
9.7 Annuity Required
(a) General
If the Service of a married or an unmarried
Participant with at least one Hour of Service after August 22, 1984, terminates
when such Participant has a vested Account balance greater than $3,500, then
the Participant's vested Account balance attributable to the assets transferred
after December 31, 1984, shall be paid in the form of a QJSA (for a married
participant) or an annuity for the lifetime of the Participant (for an
unmarried Participant), except as provided in (c) below.
(b) Qualified Annuities
The QJSA shall be purchased from an
insurance company with the amount of the Participant's vested Account balance,
and shall be payable for the life of the Participant with a survivor annuity
for the life of his surviving spouse equal to 50% of the amount payable to the
Participant. The annuity for the lifetime of the Participant shall be
purchased from an insurance company with the amount of the Participant's vested
Account balance. Such lifetime or QJSA contract shall satisfy the requirements
of Code Section 417 and of REA and may either be held by the Trustee as owner
or as a transferable annuity contract which may be distributed to the
Participant or to his surviving spouse in complete satisfaction of the benefits
provided under the Plan and in full discharge of all liability of the Employer
and Trustee hereunder. Any amounts payable under a QDRO, shall be taken into
account in determining the amount of the QJSA.
(c) Information and Rights
If the provisions of (a) above apply to any
married or unmarried Participant, he shall be given the following rights and
information:
(i) The Participant has the right
to elect to waive the QJSA or the life annuity form of payment,
whichever applies, within 90 days before benefits commence or to
revoke such waiver at any time before benefits commence.
9-4
<PAGE> 45
(ii) In the event that a married
Participant wishes to waive receipt of benefits in the form of the
QJSA, such waiver shall include Spousal Consent.
(iii) The Committee shall provide the
Participant with a written explanation of the (1) the terms and
conditions of the QJSA or the life annuity, as appropriate; (2)
Participant's right to waive, or to revoke the waiver of, the QJSA
or the life annuity and the effect of such a waiver or revocation,
and (3) rights of the Participant's spouse under (ii) above. Such
written explanation shall be provided within a reasonable period
of time before benefits commence (as determined pursuant to
applicable regulations).
9.8 Distribution Upon Death of Participant
(a) Distribution Made to Participant's
Beneficiary
The portion of any Participant's Account
which remains undistributed at his death shall be distributed to the
Participant's Beneficiary in accordance with the provisions of this Article
9.8.
(b) General Rules
(i) If distribution to the
Participant has commenced as periodic payments and such Participant
dies before receiving his entire vested interest, then the
remaining undistributed vested interest shall continue to be
distributed at least as rapidly as the schedule being used at the
Participant's date of death, and
(ii) If a Participant dies before
distributions have commenced, his Account shall be distributed
within 5 years after the death of the Participant. However, the
prior sentence shall not apply with respect to such portion of the
Participant's Account as is payable to his designated Beneficiary
over a period not exceeding the life or life expectancy of such
Beneficiary beginning not later than 1 year after the Participant's
death (or such later date as prescribed by applicable regulation).
In addition:
(1) If the Beneficiary is the
deceased Participant's surviving spouse, distributions
may be deferred until the date on which the Participant
would have attained age 70 1/2, and
(2) If such surviving spouse
dies before receiving any distributions, the provisions
of this Article 9.8 shall be applied as if such spouse
were the Participant.
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<PAGE> 46
(c) Qualified Pre-Retirement Survivor Annuity
(QPSA) Required
(i) If a married Participant who
had at least one Hour of Service after August 22, 1984, dies before
he has received any benefits, regardless of whether he had
separated from Service before his death, his surviving spouse
shall be entitled to receive a QPSA. A Participant's designation
of a Beneficiary other than his surviving spouse, if any, shall be
applicable only to that portion of the Participant's Account which
is not payable to his surviving spouse under the provisions of (ii)
below. Notwithstanding the foregoing, (1) the Committee shall
distribute the amount due to the surviving spouse in a lump sum if
the amount does not exceed $3,500 and it is paid before the Annuity
Starting Date; (2) the Participant can waive the QPSA in accordance
with (iii) below; and (3) the spouse who is entitled to a QPSA can
elect a different form of payment under (ii) below.
(ii) The QPSA shall be the annuity
for the life of the surviving spouse which can be purchased from an
insurance company with 50% of the Participant's Account balance at
his date of death. Any amounts payable under a QDRO, shall be
taken into account in determining the amount of the QPSA. The
surviving spouse may (1) direct the commencement of payments under
a QPSA within a reasonable time after the Participant's death,
subject to applicable law, regulations and guidelines, and (2)
elect to receive any other equivalent form of payment which is
otherwise permitted by the Plan in lieu of the QPSA.
(iii) The following rules shall apply
to all married Participants:
(1) The Participant has the
right to elect to waive the QPSA or to revoke such
waiver within the period beginning on the earlier of
(A) the first day of the Fiscal Year in which the
Participant attains age 35, or (B) the Participant's
date of termination of Service, and ending on his date
of death.
(2) Any Participant election to
waive the QPSA shall not be effective unless such
waiver includes Spousal Consent (as defined in Article
2).
(3) The Committee shall provide
the Participant with a written explanation of (A) the
terms and conditions of the QPSA; (B) the Participant's
right to waive, or to revoke the waiver of, the QPSA
9-6
<PAGE> 47
and the effect of such a waiver or revocation; and
(C) the rights of the Participant's spouse under
(2) above. Such written explanation shall be provided
within the period beginning on the first day of the
Fiscal Year in which the Participant attains age 32 and
ending with the last day of the Fiscal Year before the
Fiscal Year in which the Participant attains age 35
(and consistent with applicable regulations). If an
individual becomes a Participant after age 32, the
explanation shall be provided within a reasonable
period after the individual becomes a Participant. If
a Participant separates from Service prior to attaining
age 35, the explanation shall be provided within a
reasonable period after the Participant's separation
from Service.
(4) The notices and elections
to be provided under this paragraph (iii) shall be
provided to all Participants, including those
Participants who do not have any vested Account
balance.
9.9 Distributions to Minors or Legally Incompetents
In case of any distribution to a minor or to a legally
incompetent person, the Committee may (1) direct the Trustee to make the
distribution to his legal representative, to a designated relative, or directly
to such person for his benefit; or (2) instruct the Trustee to use the
distribution directly for his support, maintenance, or education. The Trustee
shall not be required to oversee the application, by any third party, of any
distributions made pursuant to this Article 9.9.
9.10 Tax Information To Be Provided
The Committee shall provide to each Participant,
Beneficiary or Alternate Payee who receives an eligible rollover distribution
(as defined in Code Section 402(f)), at the time such distribution is made, a
written explanation of the (1) provisions under which the distribution will not
be subject to tax if timely transferred to an eligible retirement plan and, if
applicable; (2) provisions regarding the availability of capital gains and
10-year averaging or 5-year averaging tax treatment of the distribution.
9.11 In Service Withdrawals
(a) Committee Establishes Rules
The Committee has the power to establish
uniform and non-discriminatory rules and from time to time to modify or change
such rules governing the manner and method by which Participant withdrawals may
be made.
(b) Consent Required
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<PAGE> 48
All withdrawals are subject to written
Participant and Spousal Consent to the extent required by applicable law and
regulation.
(c) Withdrawal Charged to Participant's Account
The Committee shall direct the Trustee to
make a distribution to a Participant of the amount which such Participant is
eligible to withdraw, and the amount of such withdrawal shall be charged by the
Committee against the Salary Deferral or Rollover Accounts of the Participant.
Withdrawals under this Article 9.11 will be charged against the Participant's
Account as of the specified date of withdrawal, but no interest or other income
credit shall accrue with respect to such amounts to be withdrawn on account of
any period elapsing between the withdrawal date and the actual date of payment.
(d) Withdrawals From Salary Deferral Permitted
for Hardship
(i) At the request of a
Participant, the Committee shall authorize a withdrawal at any time from his
Salary Deferral, provided that authorization for such withdrawal and the amount
thereof shall be given only on account of hardship incurred by the Participant
which imposes immediate and heavy financial needs which may not reasonably be
met by the Participant's other resources. Such withdrawal shall not exceed the
amount required to meet the immediate financial need created by the hardship.
The amount which may be withdrawn from such Participant's Salary Deferral
Account shall not exceed the lesser of:
(1) The value of his Salary
Deferral Account; or
(2) The value of his Salary
Deferral Account as of December 31, 1988, plus the
total of the Salary Deferrals made for the Participant
since December 31, 1988, less any amounts withdrawn
after such date.
(ii) A distribution shall be deemed
to be due to an immediate and heavy financial need if it is on account of:
(1) Medical expenses incurred
by the Employee or his spouse or other dependent;
(2) Purchase of the Employee's
principal residence;
(3) Payment of tuition for the
next semester or quarter of post-secondary education for the
Employee or his spouse or other dependents;
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(4) The need to prevent the
eviction from or the foreclosure on the mortgage of the Employee's
principal residence;
(iii) A distribution shall be treated
as necessary to satisfy a financial need if:
(1) The Employee has obtained
all distributions, other than for hardship, and all non-taxable
loans currently available under the Plan and any other plan
maintained by the Employer;
(2) No contributions shall be
added to the Employee's Salary Deferral Account and no elective
contributions shall be made by such Participant to any other plan
sponsored by the Employer for a period of 12 months after receipt
of the hardship distribution. Such an Employee shall be a
Suspended Participant during this 12-month period; and
(3) The maximum amount of
salary deferrals that the Employee can make in the calendar year
immediately following the year in which the hardship distribution
is received is equal to the applicable maximum amount for such
calendar year less the salary deferrals made by the Employee in the
calendar year in which the distribution was received.
(e) Withdrawals From Rollover Account Permitted
for Hardship
(i) At the request of a
Participant, the Committee shall authorize a withdrawal at any time from his
Rollover Account, provided that authorization for such withdrawal and the
amount thereof shall be given only on account of hardship incurred by the
Participant which imposes immediate and heavy financial needs which may not
reasonably be met by the Participant's other resources. Such withdrawal shall
not exceed the amount required to meet the immediate financial need created by
the hardship. The amount which may be withdrawn from such Participant's
Rollover Account shall not exceed the value of his Rollover Account.
(ii) A distribution shall be deemed
to be due to an immediate and heavy financial need if it is on account of:
(1) Medical expenses incurred
by the Employee or his spouse or other dependent;
(2) Purchase of the Employee's
principal residence;
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(3) Payment of tuition for the
next semester or quarter of post-secondary education for the
Employee or his spouse or other dependents;
(4) The need to prevent the
eviction from or the foreclosure on the mortgage of the Employee's
principal residence.
9.12 Limitations on Distributions Upon Plan Termination
Distributions of a Participant's Salary Deferral
Accounts upon termination of the Plan shall not commence prior to the
Participant's termination of employment or his attainment of age 59 1/2 except
for hardship withdrawals in accordance with Article 9.11, unless payment is
made in a lump sum and (i) no successor plan is adopted; (ii) the only
successor plan is an ESOP as defined in Code Section 4975(e)(7); or (iii) the
distribution is:
(1) After the date of sale of all
Employer assets used in its trade or business to a non-Affiliated
Employer by whom the Participant is still employed;
(2) After the date of sale of an
incorporated Affiliated Employer's interest in a subsidiary by whom
the Participant is employed; or
(3) Otherwise permitted by
applicable law and regulations.
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ARTICLE 10
SERVICE
10.1 Definitions
(a) "Service" means an Employee's total period
of employment with the Employer, including service with a predecessor entity or
an Affiliated Employer.
(b) "Hour of Service" means:
(i) Each hour for which an Employee
is paid, or entitled to payment, for the performance of duties for
the Employer.
(ii) Each hour for which an Employee
is paid, or entitled to payment, by the Employer on account of a
period of time during which no duties are performed (regardless of
whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or leave of absence; provided that
no Hours of Service shall be credited to an Employee:
(1) For a period during which
no duties are performed if payment is made or due under a plan
maintained solely for purpose of complying with applicable worker's
compensation, unemployment compensation, or disability insurance
laws;
(2) On account of any payment
made or due an Employee solely as reimbursement for medical or
medically related expenses incurred by the Employee.
(iii) Each hour not otherwise
credited under the Plan for which back pay, irrespective of
mitigation of damages, has either been awarded or agreed to by the
Employer. Such hours are to be credited to the period or periods
to which the award or agreement pertains. If this provision
results in an Employee becoming an Eligible Participant for a
Fiscal Year in which he was not otherwise an Eligible Participant
under Article 5 or if this provision results in an increase in the
vested percentage applicable to a Participant's Suspense Account
which has been forfeited under Article 6, the Committee shall
establish equitable procedures for determining and allocating any
resulting amounts to such Employee's Account.
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(iv) Solely for purposes of
determining whether a Break in Service has occurred, each hour not
otherwise credited under the Plan that would have been credited if
the Employee had not been absent:
(1) By reason of pregnancy or
the birth of a child of the
Employee;
(2) By reason of the placement
of a child with the Employee in connection with his adoption of
such child; or
(3) For purposes of caring for
any such child for a period beginning immediately following such
birth or placement;
In any case in which the Employer is unable to determine the number of hours
which would otherwise normally have been credited to such Employee (but for
such absence), such individual shall be credited with 8 Hours of Service for
each day of such absence. The hours described in this Article 10.1.(b)(iv)
shall be treated as Hours of Service only in the Fiscal Year in which the
absence from work begins if the Employee would thereby be prevented from
incurring a Break in Service in such Fiscal Year or, in any other case, in the
next following Fiscal Year.
(v) Each hour for any period during
which an Employee is not paid but is on an approved leave of
absence, military duty or is temporarily laid off, provided that
the Employee:
(1) Returns to the employ of
the Employer immediately after the expiration of the leave or
layoff, or in the case of military duty, within 120 days or such
longer period as may be prescribed by applicable law, after first
becoming eligible for military discharge, and
(2) Remains in the employ of
the Employer for at least 30 days after such return, or
(3) Fails to return or remain
employed as provided above by reason of his death, Disability or
Normal Retirement.
Hours credited for such periods shall be based on a 40-hour week or, if
different, on the Employee's normally scheduled hours per week. However, if
the Employee fails to return to the employ of the Employer or to remain in the
employ of the Employer for at least 30 days after his return for reasons other
than his death, Disability or Normal Retirement, then his original leave date
shall be deemed to be his termination date.
(vi) No more than 501 Hours of
Service shall be credited under Articles 10.1.(b)(ii),
10.1.(b)(iii), 10.1.(b)(iv) or 10.1.(b)(v) to an Employee on
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account of any single continuous period of time during which the
Employee performs no duties for the Employer.
10.2 Crediting of Hours Subject to DOL Regulation
The calculation of the number of Hours of Service to be
credited under Articles 10.1.(b)(ii) and 10.1.(b)(iii) for periods during which
no duties are performed, and the crediting of such Hours of Service to periods
of time for purposes of computations under the Plan, shall be determined by the
Committee in accordance with the rules set forth in the Department of Labor
Regulation Section 2530-200b-2 paragraphs (b) and (c), which rules shall be
consistently applied with respect to all employees within the same job
classifications.
10.3 Hours of Service Equivalency
Hours of Service for Employees under Articles
10.1.(b)(i), 10.1.(b)(ii) and 10.1.(b)(iii) shall be determined by crediting
each Employee with 190 Hours of Service for each month in which the Employee
would have been credited with at least 1 Hour of Service under Articles
10.1.(b)(i), 10.1.(b)(ii) or 10.1.(b)(iii). However, for classes of Employees
paid on an hourly basis and for Employees for whom records of hours are
maintained, Hours of Service under Articles 10.1.(b)(i), 10.1.(b)(ii) and
10.1.(b)(iii) shall be determined on the basis of hours for which Compensation
is paid or due.
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ARTICLE 11
FIDUCIARY RESPONSIBILITY
11.1 Named Fiduciaries
The authority to control and manage the operation and
administration of the Plan shall be allocated as provided in this Trust
Agreement between the Employer, the Committee and the Trustee, all of whom are
named fiduciaries under ERISA.
In addition, procedures for the appointment of another
fiduciary, an investment manager, are set forth in Article 13.5.
11.2 Fiduciary Standards
Each fiduciary shall discharge its duties with respect
to the Plan solely in the interest of the Participants and Beneficiaries as
follows:
(1) For the exclusive purpose of providing
benefits to Participants and their
Beneficiaries;
(2) With the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent man acting in
a like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims;
(3) By diversifying the investments of the
Trust Fund so as to minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so; and
(4) In accordance with this Trust Agreement.
11.3 Fiduciaries Liable for Breach of Duty
A fiduciary shall be liable, as provided in ERISA, for
any breach of his fiduciary responsibilities. In addition, a fiduciary under
this Plan shall be liable for a breach of fiduciary responsibility of another
fiduciary under this Plan as provided under ERISA Section 405.
11.4 Fiduciary May Employ Agents
Any person or group of persons may serve in more than
one fiduciary capacity with regard to the Plan. A fiduciary other than the
Trustee may, with the consent of the Employer, employ one or more persons to
render advice and assistance with regard to any function such fiduciary has
under the Plan. The expenses of such persons shall be paid by the Trust
if not paid by the Employer.
11.5 Authority Outlined
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(a) Employer Authority
The Employer has the authority to amend and
terminate the Plan, to appoint and remove members of the Committee and to
appoint and remove a Trustee.
(b) Committee Authority
The Committee has the authority to:
(i) Allocate the Employer's
Contribution;
(ii) Establish rules pertaining to
salary deferral and their suspension and withdrawals;
(iii) Determine the amount and
allocation of the Trust income or loss;
(iv) Direct the Trustee with respect
to additional valuations;
(v) Maintain separate Accounts for
Participants;
(vi) Furnish, and correct errors in,
statements of Accounts;
(vii) Direct the Trustee with respect
to the method, timing and media of distributions pursuant to
Article 9;
(viii) Direct the segregation of
assets;
(ix) Direct distribution of the
interests of incompetent persons and minors;
(x) Construe the Trust Agreement
and determine questions thereunder;
(xi) Establish a funding policy;
(xii) Appoint and delegate duties to
an investment manager;
(xiii) Employ advisors and assistants;
and
(xiv) Direct the Trustee with respect
to its duties and investments.
(c) Trustee Authority
The Trustee has the authority to establish
the fair market value of the Trust Fund, to value segregated Accounts, to
employ advisors, agents and counsel, to hold the Trust assets and to render
accounts of its administration of the Trust.
11.6 Fiduciaries Not to Engage in Prohibited Transactions
A fiduciary shall not cause the Plan to engage in a
transaction if he knows or should know that such transaction constitutes a
prohibited transaction under ERISA Section
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406 or Code Section 4975, unless
such transaction is exempted under ERISA Section 408 or Code Section 4975.
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ARTICLE 12
ADMINISTRATIVE COMMITTEE
12.1 Appointment of Administrative Committee
The Employer shall appoint an Administrative Committee
to manage and administer this Plan in accordance with the provisions hereof,
each member to serve for such term as the Employer may designate or until a
successor member has been appointed or until removed by the Employer.
Vacancies due to resignation, death, removal or other cause shall be filled by
the Employer. Members shall serve without compensation for committee service.
All reasonable expenses of the Committee shall be paid by the Trust Fund.
12.2 Committee Operating Rules
The Committee shall act by agreement of a majority of
its members, either by vote at a meeting or in writing without a meeting. By
such action, the Committee may authorize one or more members to execute
documents on its behalf and direct the Trustee in the performance of its duties
hereunder. The Trustee, upon written notification of such authorization, shall
accept and rely upon such documents until notified in writing that the
authorization has been revoked by the Committee. The Trustee shall not be
deemed to be on notice of any change in the membership of the Committee unless
notified in writing. A member of the Committee, who is also a Participant
hereunder, shall not vote or act upon any matter relating solely to himself.
In the event of a deadlock or other situation which prevents agreement of a
majority of the Committee members, the matter shall be decided by the Employer.
12.3 Duties of Plan Administrator
The Committee is the Plan Administrator under ERISA and
shall have the duty and authority to comply with those reporting and disclosure
requirements of ERISA and TEFRA which are specifically required of the Plan
Administrator. The Plan Administrator is the agent for the service of legal
process.
12.4 Duties of the Committee
The Committee shall keep on file a copy of this Plan
and Trust Agreement, including any subsequent amendments, all annual and
interim reports of the Trustee and the latest annual report required under
Title I of ERISA for examination by Participants during business hours. The
Committee hereby specifically delegates to the Trustee the responsibility for
income tax withholding, and to withhold the appropriate amount, if any, from
any payment
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made from the Trust to a Participant, Beneficiary or Alternate
Payee under the provisions of applicable law and regulation. The Committee
shall furnish the Trustee with all information necessary to such withholding
function, as set forth in regulations, or, if such information is not provided
the Trustee, the Committee shall assume all relevant liability.
12.5 Committee Powers
The Committee has the power and duty to do all things
necessary or convenient to effect the intent and purpose of this Plan, whether
or not such powers and duties are specifically set forth herein. Not in
limitation but in amplification of the foregoing, the Committee shall have the
power to construe the Trust Agreement and to determine all questions that shall
arise hereunder, including, particularly, directions to and questions submitted
by the Trustee on all matters necessary for it to discharge its power and
duties properly. Decisions of the Committee made in good faith upon any
matters within the scope of its authority shall be final and binding on the
Employer, the Trustee, Participants, their Beneficiaries and all others. The
Committee shall at all times act in a uniform and non-discriminatory manner in
making and carrying out its decisions and directions, and may from time to time
prescribe and modify uniform rules of interpretation and administration.
12.6 Committee to Establish Funding Policy
The Committee shall establish a funding policy for the
Trust Fund bearing in mind both the short-run and long-run needs and goals of
the Plan. The Committee shall review such policy prior to the end of each
Fiscal Year for its appropriateness under the circumstances then prevailing.
The funding policy shall be communicated to the investment manager of the Trust
Fund, if one has been appointed, so that the investment policy of the Trust
Fund can be coordinated with Plan needs.
12.7 Committee May Retain Advisors
With the approval of the Employer, the Committee may
from time to time or on a continuing basis, retain such agents or advisors
including, specifically, attorneys, accountants, actuaries, investment counsel,
consultants and administrative assistants, as it considers necessary to assist
it in the proper performance of its duties. The expenses of such agents or
advisors shall be paid by the Employer, or, if not paid by the Employer, the
Committee may direct that such expenses be paid from the Trust Fund.
12.8 Claims Procedure
(a) Claim Must Be Submitted Within 60 Days
The Committee shall determine
Participants', Alternate Payees' and Beneficiaries' rights to benefits under
the Plan. In the event of a dispute over benefits,
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a Participant, Beneficiary or Alternate Payee may file a written claim for
benefits with the Committee, provided that such claim is filed within 60 days
of the date the Participant, Beneficiary or Alternate Payee receives
notification of the Committee's determination.
(b) Requirements For Notice of Denial
If a claim is wholly or partially denied,
the Committee shall provide the claimant with a notice of denial, written in a
manner calculated to be understood by the claimant, setting forth:
(i) The specific reason for such
denial;
(ii) Specific references to the
pertinent plan provisions on which the denial is based;
(iii) A description of any additional
material or information necessary for the claimant to perfect the
claim with an explanation of why such material or information is
necessary; and
(iv) Appropriate information as to
the steps to be taken if the claimant wishes to submit his or her
claim for review.
The notice of denial shall be given within a reasonable time period but no
later than 90 days after the claim is filed, unless special circumstances
require an extension of time for processing the claim. If such extension is
required, written notice shall be furnished to the claimant within 90 days of
the date the claim was filed stating the special circumstances requiring an
extension of time and the date by which a decision on the claim can be
expected, which shall be no more than 180 days from the date the claim was
filed. If no notice of denial is provided as herein described, the claimant
may appeal the claim as though the claim had been denied.
(c) Claimant's Rights if Claim Denied
The claimant and/or his representative may
appeal the denied claim and may:
(i) Request a review upon written
application to the Committee;
(ii) Review pertinent documents; and
(iii) Submit issues and comments in
writing; provided that such appeal is made within 60 days of the
date the claimant receives notification of the denied claim.
(d) Time Limit on Review of Denied Claim
Upon receipt of a request for review, the
Committee shall provide written notification of its decision to the claimant
stating the specific reasons and referencing
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specific plan provisions on which its decision is based, within a reasonable
time period but not later than 60 days after receiving the request, unless
special circumstances require an extension for processing the review. If such
an extension is required, the Committee shall notify the claimant of such
special circumstances and of the date, no later than 120 days after the
original date the review was requested, on which the Committee will notify the
claimant of its decision.
(e) No Legal Recourse Until Claims Procedure
Exhausted
In the event of any dispute over benefits
under this Plan, all remedies available to the disputing individual under this
Article 12.8 must be exhausted before legal recourse of any type is sought.
12.9 Committee Indemnification
To the fullest extent permitted by law, the Employer
agrees to indemnify, to defend, and hold harmless the members of the Committee,
individually and collectively, against any liability whatsoever for any (1)
action taken or omitted by them in good faith in connection with this Plan and
Trust or their duties hereunder, and (2) expenses or losses for which they may
become liable as a result of any such actions or non-actions, unless
resultant from their own willful misconduct.
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ARTICLE 13
INVESTMENTS
13.1 Investment Authority
The Committee is hereby granted full power and
authority to direct the Trustee to invest and reinvest the Trust Fund or any
part thereof in accordance with the standards set forth in Article 11. Without
limiting the generality of the foregoing, the Committee may direct the Trustee
to invest in bonds, notes, mortgages, commercial or federal paper, preferred
stock, common stock, or other securities, rights, obligations or property, real
or personal, including shares and certificates of participation issued by
investment companies or investment trusts, or shares or certificates of
participation in commingled funds established by the Trustee.
13.2 Use of Mutual or Commingled Funds Permitted
The Committee may direct the Trustee to cause any part
or all of the assets of this Trust to be invested in mutual funds; or
commingled with the assets of similar Trusts qualified under Code Sections
401(a) and 501(a) by causing such assets to be invested as part of a common
fund of the Trustee or other fiduciary. To the extent that Trust assets are
invested in any collective investment fund established and maintained by the
Trustee for which the Trust is eligible, the declaration of trust establishing
such funds is hereby adopted. Any assets of the Trust that are invested in any
such fund will be held and administered by the Trustee under the terms of the
fund's governing instrument.
13.3 Trustee May Hold Necessary Cash
The Committee may authorize the Trustee to hold in a
cash or cash equivalent account such portion of the Trust Fund as may be deemed
necessary for the ordinary administration of the Trust and disbursement of
funds. Such funds may be deposited in any bank or savings and loan institution
subject to the rules and regulations governing such deposits.
13.4 Trustee to Act Upon Committee Instruction
The Trustee shall make investments promptly upon
receiving instructions from the Committee, and shall retain such investment
until instructed differently by the Committee. The Trustee shall comply
promptly with instructions from the Committee to sell, convey, exchange,
transfer, pledge, mortgage or otherwise dispose of or encumber any real or
personal property held by it. To the extent permitted by law, the Trustee
shall not be liable for
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the making of any investment at the direction of the
Committee, for the retention of any such investment in the absence of
directions from the Committee to dispose of it, or for the disposal or
encumbrance of any investment at the direction of the Committee.
13.5 Appointment of Investment Manager
The power of the Committee to direct, control or manage
the investment of the Trust Fund may be delegated to an investment manager
appointed by the Committee. Such investment manager, if appointed, must
acknowledge in writing that he is a fiduciary with respect to the Trust Fund
and shall then have the power to manage, acquire, or dispose of any asset of
the Trust Fund. An investment manager must be a person who is (1) registered
as an investment advisor under the Investment Advisors Act of 1940; (2) a bank,
as defined in that Act; or (3) an insurance company qualified to perform such
services under the laws of more than one state. If an investment manager has
been appointed, the Trustee shall neither be liable for acts or omissions of
such investment manager nor be under any obligation to invest or otherwise
manage any asset of the Trust Fund. The Committee shall not be liable for any
act or omission of the investment manager in carrying out such responsibility
except to the extent that the Committee violated Article 11.2 of this Trust
Agreement with respect to:
(1) Such designation,
(2) The establishment or implementation of the
procedures for the designation of an investment manager, or
(3) Continuing the designation, in which case
the Committee would be liable in accordance with Article 11.3.
13.6 No Loans Permitted
No loans to a Participant or Beneficiary from any
portion of the Participant's Account shall be permitted.
13.7 Separate Investment Funds
(a) Committee May Establish Separate Funds
The Committee may, in its sole discretion,
direct the Trustee to create one or more separate investment funds, having such
different specific investment objectives as the Committee shall from time to
time determine. The Committee shall determine and may from time to time
redetermine the number of investment funds and the specific objectives of said
funds and the investments or kinds of investment which shall be authorized
therefor.
(b) Participant Direction Permitted
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Each Participant has the right to instruct
the Committee to direct the Trustee in writing to invest his Salary Deferral,
Matching, and Rollover Accounts in one or more separate investment funds,
provided, however, that if any Participant fails to make a direction pursuant
to this Article as to all or any part of such Account, the undirected portion
of a Participant's Account shall be invested in the most conservative fund.
Such directed investment Account shall be valued separately by the Trustee
under the provisions of Article 7.
(c) Committee To Establish Rules
The Committee may at any time make such
uniform and non-discriminatory rules as it determines necessary regarding the
administration of this directed investment option. The Committee shall develop
and maintain rules governing the rights of Participants to change their
investment directions and the frequency with which such changes can be made.
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ARTICLE 14
TRUSTEE
14.1 Trustee Duties
The duties of the Trustee shall be confined to
receiving and paying funds of the Trust, safeguarding and valuing Trust assets,
investing and reinvesting the Trust Funds, as provided in Article 13, and
carrying out the directions of the Committee or of the investment manager if
one has been appointed pursuant to Article 13.5. The directions of the
Committee shall be in writing and bear the signature of one or more members
designated as its authorized signator or signators, as provided in Article
12.2. The directions of an investment manager shall be in writing or in such
other form as is acceptable to the Trustee. The Employer may, however, by
resolution, authorize the Trustee to act with respect to any specific matter or
class of matters without direction of the Committee and, in that event,
delivery to the Trustee of a certified copy of such resolution shall authorize
the Trustee so to act.
14.2 Indicia of Ownership Must Be in United States
The Trustee shall not maintain the indicia of ownership
of any Trust assets outside the jurisdiction of the district courts of the
United States, except as authorized by regulations issued by the Department of
Labor.
14.3 Permissible Trustee Action
In the discharge of its duties, the Trustee has all the
powers, authority, rights and privileges of an absolute owner of the Trust Fund
and, not in limitation of but in amplification of the foregoing, may (i)
receive, hold, manage, invest and reinvest, sell, exchange, dispose of,
encumber, hypothecate, pledge, mortgage, lease, grant options respecting,
repair, alter, insure, or distribute any and all property in the Trust Fund;
(ii) borrow money, participate in reorganizations, pay calls and assessments,
vote or execute proxies, exercise subscription or conversion privileges and
register in the name of a nominee any securities in the Trust Fund; (iii)
renew, extend the due date, compromise, arbitrate, adjust, settle, enforce or
foreclose by judicial proceedings or otherwise or defend against the same, any
obligations or claims in favor of or against the Trust Fund; (iv) exercise
options, employ agents; and, (v) whether herein specifically referred to or
not, do all such acts, take all such actions and proceedings and exercise all
such rights and privileges as if the Trustee were the absolute owner of any and
all property in the Trust Fund. The Trustee has no authority or duty to
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determine the amount of the Employer contribution or to enforce the payment of
any Employer contribution to it.
14.4 Trustee's Fees For Services and Advisors Retained
The Trustee's fees for its services as Trustee shall be
an amount mutually agreed upon by the Employer and the Trustee, and such fees
shall be paid by the Trust Fund, with the exception that individual Trustees
shall serve without compensation for their service as such. However, with the
approval of the Employer, the Trustee may from time to time or on a continuing
basis, retain such agents or advisors, including specifically accountants,
attorneys, investment counsel and administrators, as they consider necessary to
assist them in the proper performance of their duties. The expenses of such
agents or advisors and all other expenses of the Trustee shall be paid by the
Employer. If such expenses remain unpaid by the Employer for a period of 60
days after an appropriate billing is mailed by the Trustee to the Employer, the
Trustee shall be entitled to charge such fees and expenses to the Trust Fund.
14.5 Annual Accounting and Asset Valuation
Within 60 days or within a reasonable period following
the close of each Fiscal Year, the Trustee shall render to the Employer an
accounting of its administration of the Trust during the preceding year. The
Trustee shall also report to the Committee regarding determinations of the
value of the Trust Fund, as provided in Articles 7.1 and 7.2. Notwithstanding
any other provisions of this Agreement, if the Trustee finds that the Trust
Fund consists, in whole or in part, of property not traded freely on a
recognized market or that information necessary to ascertain the fair market
value thereof is not readily available to the Trustee, the Trustee shall
request the Committee to instruct the Trustee as to the fair market value of
such property for all purposes under the Plan and Trust Agreement. In such
event, the fair market value placed upon such property by the Committee in its
instructions to the Trustee shall be conclusive and binding. If the
Committee shall fail or refuse to instruct the Trustee as to the fair market
value of such property within a reasonable time after receipt of the Trustee's
request so to do, the Trustee shall take such action as is required to
ascertain the fair market value of such property including the retention of
such counsel and independent appraisers as it considers necessary; and in such
event the fair market value so determined shall be conclusive and binding.
14.6 Trustee Removal or Resignation
The Trustee may resign at any time upon 30 days written
notice to the Employer and the Committee or such shorter period as may be
agreeable to the Employer. Upon receipt of instructions or directions from the
Employer or the Committee with which the
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Trustee is unable or unwilling to comply, the Trustee may resign upon written
notice to the Employer and the Committee, given within a reasonable time under
the circumstances then prevailing. After its resignation, the Trustee has no
liability to the Employer, the Committee, or any person interested herein for
failure to comply with any instructions or directions. The Employer may remove
the Trustee without cause at any time upon 30 days written notice. In case of
resignation or removal of the Trustee, the said Trustee shall have the right of
a settlement of its accounts, which may be made at the option of the Trustee,
either by judicial settlement in an action in a court of competent jurisdiction
or by agreement of settlement between the Trustee and the Employer. The
Trustee shall not be required to transfer assets of the Trust Fund to a
successor Trustee under Article 14.8 or otherwise until its accounts have been
settled.
14.7 Approval of Trustee Accounting
The written approval of any Trustee accounting by the
Employer or Committee shall be final as to all matters and transactions stated
or shown therein and binding upon the Employer, Committee, and all persons who
then shall be or thereafter shall become interested in this Trust. Failure of
the Employer or Committee to notify the Trustee within 90 days after receipt of
any accounting of its disapproval of such accounting shall be the equivalent of
written approval.
14.8 Trust Not Terminated Upon Trustee Removal or Resignation
Resignation or removal of the Trustee shall not
terminate the Trust. In the event of a vacancy in the trusteeship of this
Trust occurring at any time, the Employer shall appoint a successor Trustee to
take the place of any Trustee who has died, resigned or been removed. In the
event of the death, resignation or removal of a Trustee and the failure of the
Employer to appoint a successor within 30 days as herein provided, the
remaining Trustees may by unanimous vote either select a successor Trustee or
choose to function without filling such vacancy. Any such successor Trustee
has all the powers and duties herein conferred upon the original Trustee. The
title to all Trust property shall automatically vest in a successor Trustee
without the execution or filing of any instrument or the doing of any act, but
the resigning or removed Trustee shall, nevertheless, execute all instruments
and do all acts which would otherwise be necessary to vest such title in any
successor. The appointment of a successor Trustee may be effected by amendment
to this Trust Agreement or by a board resolution of the Employer, with the
agreement of the successor Trustee to act as such being evidenced by its
execution of such amendment or acceptance of such board resolution.
14.9 Trustee May Consult With Legal Counsel
14-3
<PAGE> 67
The Trustee may consult with legal counsel (who may or
may not be counsel to the Employer) concerning any question which may arise
with reference to its duties under this Agreement.
14.10 Trustee Not Required to Verify Identification or
Addresses
The Trustee shall not be required to make any
investigation to determine the identity or mailing address of any person
entitled to benefits under this Agreement and shall be entitled to withhold
making payments until the identity and mailing address of any person entitled
to benefits are certified by the Committee. In the event that any dispute
shall arise as to the identity or rights of persons entitled to benefits
hereunder, the Trustee may withhold payment of benefits until such dispute has
been determined by a court of competent jurisdiction or shall have been settled
by written stipulation of the parties concerned.
14.11 Indemnification of Trustee
To the fullest extent permitted by law, the Employer
agrees to indemnify, to defend, and to hold harmless the Trustee, individually
and collectively, against any liability whatsoever for any action taken or
omitted by such Trustee in good faith in connection with this Plan and Trust or
duties hereunder and for any expenses or losses for which the Trustee may
become liable as a result of any such actions or non-actions unless resultant
from willful misconduct.
14.12 Income Tax Withholding
In making payments from the Trust, the Trustee shall be
liable for federal income tax withholding, and shall withhold the appropriate
amount of tax, if any, as provided by applicable law and regulation, from any
payment made to a Participant, Beneficiary or Alternate Payee, unless the
Committee does not provide the Trustee with the necessary information as set
forth in regulations, in which case the Committee shall assume all relevant
liability.
14-4
<PAGE> 68
ARTICLE 15
AMENDMENT, TERMINATION AND MERGER
15.1 Trust is Irrevocable
The Trust shall be irrevocable but shall be subject to
amendment and termination as provided in this Article 15.
15.2 Employer May Amend Trust Agreement
The Employer reserves the right to amend this Trust
Agreement to any extent and in any manner that it may deem advisable by action
of the Employer. The Employer, the Trustee, all Participants, their
Beneficiaries and all other persons having any interest hereunder shall be
bound by any such amendment; provided, however, that no amendment shall:
(1) Cause or permit any part of the principal
or income of the Trust to revert to the Employer or to be used for, or be
diverted to, any purpose other than the exclusive benefit of Participants or
their Beneficiaries;
(2) Change the duties or liabilities of the
Trustee without its written assent to such
amendment;
(3) Adversely affect the then accrued benefits
of any Participants; or
(4) Eliminate an optional form of distribution
for Account balances accrued before such amendment, except as allowed under the
Code.
15.3 Employer May Terminate Plan or Discontinue Matching
Contributions
The Employer has established the Plan with the bona
fide intention and expectation that the Plan will continue indefinitely, and
that it will be able to make its matching contributions indefinitely, but the
Employer shall be under no obligation to continue its matching contributions or
to maintain the Plan for any given length of time and may, in its sole
discretion, completely discontinue its matching contributions or terminate the
Plan at any time without any liability whatsoever. In the event of the earlier
of (1) the termination of this Plan, or (2) the complete discontinuance of
matching contributions hereunder, the full value of the applicable Accounts of
all Participants of the terminated Plan shall become fully vested and
nonforfeitable. In the event of partial termination of the Plan, the full
value of the applicable Accounts of the Participants involved in the partial
termination shall become fully vested and nonforfeitable.
15-1
<PAGE> 69
15.4 Timing of Plan Termination
The Plan shall terminate:
(a) By Written Notice
Upon the date specified in a written notice
of such termination, executed by the Employer and delivered to the Trustee; or
(b) Purpose of Trust Accomplished
Upon the earlier of (i) the complete
accomplishment of all purposes for which the Plan was created, or (ii) the
death of the last person entitled to receive any benefits hereunder who is
living at the date of execution of the Trust Agreement. However, if, upon the
death of such last survivor, the Trust may continue for a longer period without
violation of any law of the jurisdiction to which the Trust is subject, the
Trust shall not be terminated upon the death of such last survivor but shall
continue until the complete accomplishment of all the purposes for which the
Plan and Trust are created, unless sooner terminated under the other provisions
hereof.
15.5 Action Required Upon Plan Termination
Upon the termination of this Plan and after payment of
all expenses of the Trust, including any compensation then due the Trustee and
agents of the Committee, the Trust assets and all Participants' Accounts shall
be revalued according to the procedures provided in Article 7. Limitation
Accounts held pursuant to Article 5 shall be allocated as of the date the Plan
is terminated in accordance with Articles 4 and 5. Suspense Accounts will be
allocated to the Accounts of the Participants for whom they were established.
The Trustee shall hold and distribute such Accounts as directed by the
Committee in accordance with the provisions of Article 9. Upon such
termination, if the Employer has ceased to exist, all rights, powers, and
duties to be exercised or performed by the Employer shall thereafter be
exercised or performed by the Committee, including the filling of vacancies on
the Committee and the amending of the Plan. In the event the Committee is
unable to perform, all rights, powers and duties shall be performed by the
Trustee.
15.6 Nonreversion of Assets
Except as provided in Articles 4.3.(b) and 15.8, in no
event shall any part of the principal or income of the Trust revert to the
Employer or be used for or diverted to any purpose other than the exclusive
benefit of Participants or their Beneficiaries.
15.7 Merger or Consolidation Cannot Reduce Benefits
In no event shall this Plan be merged or consolidated
with any other plan, nor shall there be any transfer of assets or liabilities
from this Plan to any other plan unless
15-2
<PAGE> 70
immediately after such merger, consolidation or transfer, each Participant's
benefits, if such other plan were then to terminate, are at least equal to or
greater than the benefits which the Participant would have been entitled to had
this Plan been terminated immediately before such merger, consolidation or
transfer.
15.8 Employer Contributions Conditioned Upon Initial Plan
Approval
Notwithstanding any other provisions of the Agreement
to the contrary, the Employer's obligation to make contributions hereunder is
conditioned upon the Employer receiving an initial notification from the United
States Department of the Treasury that this Plan is considered as being a
qualified Plan under Code Section 401(a) and that this Trust is considered
exempt from taxation under Code Section 501(a). If such initial notification
is not received, the Employer and any Employee who has made contributions
hereunder shall be entitled to recover from the Trustee the full amount of the
then value of such contributions. Prior to the receipt of such initial
notification, no Participant hereunder or his Beneficiary has any vested
interest in, or shall be entitled to, any benefit payments based on Employer
contributions made hereunder; provided, however, that upon receipt of such
notification, such vestings or entitlements shall be retroactive to the date of
their occurrence in accordance with the other provisions of this Plan, and this
Article 15.8 shall be of no further force or effect.
15-3
<PAGE> 71
ARTICLE 16
ASSIGNMENTS
16.1 No Assignment
Except as provided in Article 13.6 regarding loans and
below, the interest herein, whether vested or not, of any Participant, former
Participant or Beneficiary, shall not be subject to alienation, assignment,
pledging, encumbrance, attachment, garnishment, execution, sequestration, or
other legal or equitable process, or transferability by operation of law in the
event of bankruptcy, insolvency or otherwise.
16.2 Qualified Domestic Relations Order Permitted
The provisions of Article 16.1 above shall not prevent
the creation, assignment or recognition of any individual's right to a benefit
payable with respect to a Participant pursuant to a Qualified Domestic
Relations Order (QDRO). The Committee shall direct that payments under a QDRO
be made by the Trustee pursuant to the QDRO.
(a) Not All Domestic Relations Orders Qualify
as QDROs
The Committee shall establish reasonable,
timely procedures to (1) determine whether a domestic relations order is a QDRO
and (2) notify affected parties as specified in Code Section 414(p)(6).
(b) Payments May Occur Before Termination of
Service
The Plan may make benefit payments to an
Alternate Payee under a QDRO before the Participant's termination of Service,
and any such payment shall be made no earlier than the date specified in the
QDRO, or in accordance with Code Section 414(p)(3), (4), and (5).
(c) Separate Accounting of Alternate Payee's
Account
During any period in which the issue of
whether a domestic relations order is a QDRO is being determined by the
Committee, a court of law or otherwise, the Committee shall separately account
for the amounts (with investment income and loss) which are involved.
(d) Consent Requirements
Except as otherwise provided in a QDRO,
payments made to an Alternate Payee shall not be subject to (1) Spousal
Consent, or (2) consent of the Alternate Payee.
(e) Committee Delegates Responsibility to
Trustee
16-1
<PAGE> 72
The Committee shall direct that payments
under a QDRO be made by the Trustee. The Committee may delegate to the Trustee
the responsibility for income tax withholding with regard to an Alternate Payee
pursuant to Article 12.4.
16-2
<PAGE> 73
ARTICLE 17
ADOPTION OF THE PLAN BY AFFILIATED EMPLOYERS
17.1 General
The purpose of this Article 17 is to describe the terms
and conditions under which an Affiliated Employer may adopt and become a Member
Employer under this Plan for the benefit of its Eligible Employees.
17.2 Written Consent Required
Any Affiliated Employer may, with the written consent
of the Employer, become a Member Employer under this Plan by executing a
Subscription Agreement under which it shall agree:
(1) To be bound by all the provisions of the
Plan in the manner set forth herein;
(2) To pay its share of the expenses of the
Plan as they may be determined from time to time in the manner specified in
this Article 17; and
(3) To provide the Employer and the Committee
with full, complete and timely information on all matters necessary to them in
the operation of this Plan.
17.3 Rights of Member Employer
In the event of the adoption of this Plan by an
Affiliated Employer, the following shall apply with respect to the
participation of such Affiliated Employer as a Member Employer hereunder:
(a) All the terms and conditions of the Plan as
set forth in the preceding Articles 1 through 16 shall apply to the
participation of such Affiliated Employer and its Employees in the same manner
as set forth for the Employer and its Employees, except as follows:
(i) The right to designate an
Affiliated Employer is specifically reserved to the Employer.
(ii) The right to appoint the
Administrative Committee is specifically reserved to the Employer
so long as the Employer participates under the Plan; provided that
a Member Employer may appoint an Advisory Committee of such
composition and size as it may determine to advise the
Committee on any matters affecting such member Employer or its
Employees who are Participants under the Plan. The Committee shall
be entitled to rely on any information furnished it by any
17-1
<PAGE> 74
such Advisory Committee in the same manner as if furnished by the
Member Employer appointing such Advisory Committee, but in no event
shall the existence of any such Advisory Committee modify or
otherwise limit any of the powers of duties of the Committee under
the Plan.
(iii) The right to direct, appoint
remove, approve the Accounts of or otherwise deal with the Trustee
is specifically reserved to the Employer so long as the Employer
participates under the Plan.
(iv) The right to amend the Plan is
specifically reserved to the Employer so long as the Employer
participates under the Plan, and any such amendment, unless
otherwise specified therein, shall be fully binding with respect to
the participation of any Member Employer, provided that this
reservation shall in no event be construed to prevent any Member
Employer from terminating at any time its participation as a Member
Employer in this Plan.
(b) In the operation of the Plan with respect
to a Member Employer, the term "effective date" shall mean the effective date
set forth in this Agreement or such other date as specified in such Member
Employer's Subscription Agreement.
17.4 Member Employer May Terminate Participation
Any Member Employer may at any time elect to terminate
its participation in this Plan, or the Employer or any Member Employer may
elect at any time by appropriate amendment or action affecting only its own
status hereunder to disassociate itself from this Plan but to continue the Plan
as it pertains to itself and its Employees as an entity separate and distinct
from this Plan if otherwise permitted by law. Termination of the participation
of any Member Employer and/or the Employer shall not affect the participation
of any other Member Employer and/or the Employer nor terminate the Plan with
respect to them and their Employees; provided that, if the Employer shall
terminate its participation, or disassociate itself, then each remaining
Member Employer shall make such arrangement and take such action as may be
necessary to assume the duties of the Employer in providing for the operation
and continued administration of the Plan and Trust as the same pertains to the
Member Employer.
17.5 Member Employer Liability
Each Member Employer shall be liable for and shall pay
at least annually to the Employer its fair share of the expenses of operating
the Plan. The amount of such charges to each Member Employer shall be
determined by the Committee in its sole discretion; provided that, except with
respect to charges incurred solely on account of a Member
17-2
<PAGE> 75
Employer's segregated
transaction, no Member Employer shall be charged with a greater proportion of
any expenses of Plan operation than the ratio that the number of Participants
who are or were its Employees bears to the total of all Participants.
17-3
<PAGE> 76
IN WITNESS WHEREOF, the Employer, the Member Employers and the Trustee have
caused this Agreement to be executed by their respective duly authorized
parties on this 3d day of October, 1990.
<TABLE>
<S> <C>
DREYER'S GRAND ICE CREAM, INC. EDY'S GRAND ICE CREAM
(Employer) (Member Company)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
------------------------------ ----------------------------
Paul R. Woodland Paul R. Woodland
MIDWEST DISTRIBUTING COMPANY EDY'S OF NEW YORK, INC.
(Member Company) (Member Company)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
------------------------------ ----------------------------
Paul R. Woodland Paul R. Woodland
DREYER'S DISTRIBUTING COMPANY EDY'S OF WASHINGTON D.C., INC.
(Member Company) (Member Company)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
------------------------------ ----------------------------
Paul R. Woodland Paul R. Woodland
TIVOLI DISTRIBUTING COMPANY, INC. EDY'S OF ILLINOIS, INC.
(Member Company) (Member Company)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
------------------------------ ----------------------------
Paul R. Woodland Paul R. Woodland
IMPERIAL TRUST COMPANY
(Trustee)
By
------------------------------
By
------------------------------
APPROVED AS TO FORM:
- -------------------------------------------
Attorney for Dreyer's Grand Ice Cream, Inc.
</TABLE>
<PAGE> 77
AMENDMENT NO. ONE
TO THE
DREYER'S GRAND ICE CREAM, INC. SAVINGS PLAN
WHEREAS, Dreyer's Grand Ice Cream, Inc. (the Employer) approved and
adopted the Dreyer's Grand Ice Cream, Inc. Savings Plan (the Plan) effective as
of January 1, 1989, in compliance with the Internal Revenue Code of 1954, as
amended; and
WHEREAS, the Employer reserved the right to amend the Plan in Article
15.2; and
WHEREAS, the Employer has determined that it is in the best interests
of Plan Participants and their Beneficiaries to amend the Plan with respect to
Participant loans.
NOW, THEREFORE, RESOLVED, that the Dreyer's Grand Ice Cream, Inc.
Savings Plan is hereby amended effective as of January 1, 1991 as follows:
"13.6 Loans to Participants or Beneficiaries
(a) Limit on Amount of Loan
The Trustee shall, when so directed by
the Committee, make a loan or loans to a Participant or Beneficiary
of a deceased Participant (the Borrower) upon such terms as the
Committee may determine in a uniform and nondiscriminatory manner.
Such loan or loans shall be limited to the lesser of (1) 50% of the
Borrower's vested Salary Deferral, Matching Contribution and
Rollover Accounts, or (2) $50,000. However, the amount of any loan
made shall not exceed $50,000, reduced by the highest outstanding
loan balance of the Borrower during the preceding 12 months. In
determining whether the limitations of this
<PAGE> 78
Article have been exceeded at any date, all loans made at any time
from the Plan to the Borrower and still outstanding on such date
shall be aggregated, and the Borrower's vested interest in all
qualified plans maintained by the Employer or an Affiliated
Employer, shall be aggregated.
(b) Terms of Loan
The terms of any loan shall provide
that repayment is to be made within five years of the date of the
loan.
(c) Loan Requirements
All loans shall be secured by the
Borrower's vested Account balance and shall be evidenced by the
Borrower's promissory note. Such note shall provide for repayment
of principal and interest, fully amortized, in level installment
payments made at least quarterly. Loans to Participants shall be
repaid by payroll deduction. The rate of interest shall be a
market rate of interest, determined by the Committee, according to
the procedures set forth in Article 13.6(i)(3).
(d) Loan is Lien on Account
A loan shall be a lien on all interests
of the Borrower in the Trust. If a Borrower's Account becomes
payable under Article 9 prior to repayment in full of any such loan
and interest due thereon, then the full amount of the loan shall be
due and payable pursuant to the terms of the promissory note. In
the event the loan is not repaid in full, the amount to be paid to
the Borrower under Article 9 shall be reduced by the outstanding
balance of any such loan and interest due thereon, provided that
the Borrower's written consent (and if the Borrower is the
Participant, and he is married, Spousal Consent) has been given for
such reduction, either at the time (1) the loan is made, or (2) of
such reduction. All Borrowers shall receive a clear statement of
all charges involved in the loan transaction.
(e) Loan Requires Spousal Consent
Any loan or renegotiation, extension,
renewal or other revision of a loan made to a Borrower shall
require Spousal Consent to the extent required by applicable law
and regulation. Any such Spousal Consent shall acknowledge the
possibility that a
<PAGE> 79
subsequent amount to be paid under Article 9 might be reduced
(pursuant to (d) above) by the amount of the outstanding balance
of the loan and interest due thereon, and such Spousal Consent
shall be given within 90 days before the loan is made. If such
Spousal Consent is given at the time that the loan is made, any
such subsequent reduction of a distribution shall be made (without
any Spousal Consent), even if the Borrower is married to a
different spouse at the time of the subsequent reduction. If an
unmarried Borrower agrees to a subsequent reduction of a
distribution at the time that the loan is made, any such
reduction shall be valid, even if the Borrower is married when
the distribution is reduced.
(f) Loans are Segregated
Any loan under this Article 13.6 shall
be accounted for as a segregated loan Account in the Trust.
Repayments of the principal amount of the loan will (1) reduce the
total amount of principal due in the segregated loan Account by the
amount of such payments, and (2) increase by an equal amount the
restored value of the Borrower's Account in the General Trust Fund.
Payments of interest on such loan will be credited directly to the
Borrower's Account in the General Trust Fund.
(i) Loan Policies and Procedures
The Participant loan program will be
administered in a uniform and nondiscriminatory manner by the
chairman of the Plan Administrative Committee, according to the
following policies and procedures:
(1) Application Procedure. A Borrower
may apply for a loan from the Plan on a form provided
by the Committee. Loan applications will be reviewed
by the Committee and processed on the fifteenth day of
the month after the application is received. The
Committee will approve or deny a loan application based
on creditworthiness of the applicant. The Committee
may reject a loan application if sufficient liquidity
is not available in the Trust to make such loan without
loss to other Plan Participants.
<PAGE> 80
(2) Limitations. Loans are available
for any purpose. No loans will be made in amounts less
than $1,000. A Borrower may have only one loan
outstanding at one time.
(3) Interest Rate. The interest rate
must be comparable to the prevailing interest rate
being charged for similar purpose loans with similar
security by institutional lenders in the geographic
area of the Employer. The formula is currently set
at the prime rate plus 2%. The Committee will review
and revise the formula to be used by the Plan as
necessary to ensure that the interest rate on new
loans meets the requirements of this Article.
(4) Security for Loan. Up to 50% of the
Borrower's vested Account Balance may be used as
security for the loan. No additional collateral or
other form of collateral will be accepted or allowed
to secure the loan.
(5) Default. A loan shall be
in default if the Borrower fails to make principal
and/or interest payments pursuant to the promissory
note for a period of 3 months. The Committee shall
deduct the full unpaid balance of the loan from the
Borrower's Account prior to making any distributions
under Article 9.
(6) Loan Fees. A loan processing fee
of $100 must be paid at the time the loan is made.
The fee will be deducted from the loan proceeds.
<PAGE> 81
IN WITNESS WHEREOF, the Employer, the Affiliated Employers and the Trustee have
caused this Agreement to be executed by their respective duly authorized
parties on this 28th day of December, 1990.
<TABLE>
<S> <C>
DREYER'S GRAND ICE CREAM, INC. EDY'S GRAND ICE CREAM
(Employer) (Member Company)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
------------------------------ ---------------------------
Paul R. Woodland Paul R. Woodland
MIDWEST DISTRIBUTING COMPANY EDY'S OF NEW YORK, INC.
(Member Company) (Member Company)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
------------------------------ ---------------------------
Paul R. Woodland Paul R. Woodland
DREYER'S DISTRIBUTING COMPANY EDY'S OF WASHINGTON D.C., INC.
(Member Company) (Member Company)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
------------------------------ ---------------------------
Paul R. Woodland Paul R. Woodland
TIVOLI DISTRIBUTING COMPANY, INC. EDY'S OF ILLINOIS, INC.
(Member Company) (Member Company)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
------------------------------ ---------------------------
Paul R. Woodland Paul R. Woodland
IMPERIAL TRUST COMPANY
(Trustee)
By
------------------------------
By
------------------------------
</TABLE>
<PAGE> 82
AMENDMENT NUMBER TWO
TO THE
DREYER'S GRAND ICE CREAM, INC. SAVINGS PLAN
WHEREAS, Dreyer's Grand Ice Cream, Inc. (the "Employer") adopted the
Dreyer's Grand Ice Cream, Inc. Savings Plan (the "Plan") effective January 1,
1989, in compliance with the Internal Revenue Code of 1954, as amended; and,
WHEREAS, the Employer reserved the right to amend the Plan and Trust
in Article 15.2; and,
WHEREAS, the Employer has decided it is in the best interests of the
Participants and their Beneficiaries to amend the Plan with respect to the
inclusion of the former employees of Cervelli Distributing, Inc. in the Plan
and hardship withdrawals from the Plan.
NOW, THEREFORE, RESOLVED, that the Dreyer's Grand Ice Cream, Inc.
Savings Plan is hereby amended effective as of December 31, 1991 as follows:
1. Article 3.2(b) shall be deleted and replaced in its entirety
to read as follows:
"3.2(b) Plan Entry
(i) Each other Eligible Employee shall become a Participant
in the Plan on the Entry Date coinciding with or next following his or her
Date of Hire.
(ii) Notwithstanding any other provision of this Article
3.2, each other former Eligible Employee of any predecessor entity shall
become a Participant in the Plan on the Entry Date coinciding with or next
following the date on which such entity was acquired by Dreyer's Grand Ice
Cream, Inc."
2. Article 4.6 shall be deleted in its entirety and replaced as follows:
"Excess Deferrals, Excess Contributions and matching contributions
shall all be paid to the appropriate Participants, together with an investment
adjustment. Such adjustment shall be computed by the Committee based on the
procedures described in Article 7 to establish a proportionate crediting of
Trust income or loss between the excess amounts and the amounts which are not
to be returned for the Fiscal Year in which such excess occurred."
3. Article 5.3(b)(i) shall be renumbered to become Article 5.3(b)(ii).
A new Article 5.3(b)(i) shall read as follows:
"First, by returning to such Participant, to the extent necessary any
Salary Deferral contributions made on his or her behalf. A return of Salary
Deferral contributions shall include investment gains attributable to such
contributions determined as provided in Article 4.6;"
4. Article 9.11(d)(i) shall be amended to add the following phrase to
the second
<PAGE> 83
sentence of this Article:
"...including any taxes or penalties created by such withdrawal."
5. Article 9.11(d)(ii)(1) shall be deleted and replaced as follows:
"Medical expenses incurred by the Employee or his or her spouse or
other dependent or the need of these persons to obtain medical care;"
6. Article 9.11(d)(ii)(3) shall be deleted and replaced as follows:
"Payment of tuition and related educational fees for the next 12
months of post-secondary education for the Employer or his or her spouse or
other dependents;"
7. Article 9.11(e)(iii) shall be deleted and replaced as follows:
"A distribution shall be treated as necessary to satisfy a financial
need if the Employee represents that the need cannot be relieved:
(1) Through reimbursement or compensation by insurance or
otherwise;
(2) By liquidation of the employee's assets to the extent that such
liquidation would not cause an immediate and heavy financial need;
(3) By cessation of elective contributions under the Plan; or
(4) By other distributions or loans from this Plan or any other
plan or by borrowing from commercial sources on reasonable terms unless the
effect of such loan would be to increase the amount of the need."
8. Article 9.11(e)(ii)(1) shall be deleted and replaced as follows:
"Medical expenses incurred by the Employee or his or her spouse or
other dependent or the need of these persons to obtain medical care;"
9. Article 9.11(e)(ii)(3) shall be deleted and replaced as follows:
"Payment of tuition and related educational fees for the next 12 months
of post-secondary education for the Employee or his or her spouse or other
dependents;"
10. Article 10.1(a) shall be amended to add the following sentence to the
end of said Article:
"Throughout this Article 10, Employer shall include Affiliated Employer
and any predecessor entity."
<PAGE> 84
IN WITNESS WHEREOF, the Employer, the Affiliated Employers and the
Trustee have caused this Agreement to be executed by their respective duly
authorized parties on this 27th day of December 1991.
<TABLE>
<S> <C>
DREYER'S GRAND ICE CREAM, INC. EDY'S GRAND ICE CREAM
(Employer) (Member Employer)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
--------------------------------- -------------------------------
Paul R. Woodland Paul R. Woodland
MIDWEST DISTRIBUTING COMPANY EDY'S OF NEW YORK, INC.
(Member Employer) (Member Employer)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
--------------------------------- -------------------------------
Paul R. Woodland Paul R. Woodland
DREYER'S DISTRIBUTING COMPANY EDY'S OF WASHINGTON D.C., INC.
(Member Employer) (Member Employer)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
--------------------------------- -------------------------------
Paul R. Woodland Paul R. Woodland
TIVOLI DISTRIBUTING COMPANY, INC. EDY'S OF ILLINOIS, INC.
(Member Employer) (Member Employer)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
--------------------------------- -------------------------------
Paul R. Woodland Paul R. Woodland
IMPERIAL TRUST COMPANY
(Trustee)
By
---------------------------------
By
---------------------------------
</TABLE>
<PAGE> 85
AMENDMENT NUMBER THREE
TO THE
DREYER'S GRAND ICE CREAM, INC. SAVINGS PLAN
WHEREAS, Dreyer's Grand Ice Cream, Inc. (the "Employer") adopted the
Dreyer's Grand Ice Cream, Inc. Savings Plan (the "Plan") effective January 1,
1989, in compliance with the Internal Revenue Code of 1986, as amended; and,
WHEREAS, the Employer reserved the right to amend the Plan and Trust
in Article 15.2; and,
WHEREAS, the Employer has decided it is in the best interest of the
Participants and their Beneficiaries to amend the Plan with respect to
in-service withdrawals from the Plan by Participants over age sixty-five (65);
NOW, THEREFORE, RESOLVED, that the Dreyer's Grand Ice Cream, Inc.
Savings Plan is hereby amended effective as of January 1, 1994 as follows:
1. Section 9.1 is amended to read as follows:
"9.1 General
Benefits under the Plan shall be distributed solely from the
Trust. The Employer has no liability or responsibility for Plan benefits or
for the Trust. No distribution shall be made or commenced prior to the
Participant's termination of employment, except as required under Articles 9.3
and 16.2 and except for withdrawals in accordance with Article 9.11.
Distributions can also be made upon termination of the Plan subject to the
provisions of Article 9.12 and upon a Participant's Normal Retirement Date as
defined in Article 2.33."
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IN WITNESS WHEREOF, the Employer and the Affiliated Employers
have caused this Amendment to be executed by their respective duly
authorized parties on this __________ day of December, 1994.
<TABLE>
<S> <C>
DREYER'S GRAND ICE CREAM, INC. EDY'S GRAND ICE CREAM
(Employer) (Member Employer)
By /s/ William C. Collett By /s/ William C. Collett
--------------------------- ---------------------------
William C. Collett William C. Collett
</TABLE>
2
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AMENDMENT NUMBER FOUR
TO THE
DREYER'S GRAND ICE CREAM, INC. SAVINGS PLAN
WHEREAS, Dreyer's Grand Ice Cream, Inc. (the "Employer") adopted the
Dreyer's Grand Ice Cream, Inc. Savings Plan (the "Plan") effective January 1,
1989, in compliance with the Internal Revenue Code of 1986, as amended;
WHEREAS, the Employer reserved the right to amend the Plan and Trust
in Article 15.2; and
WHEREAS, the Employer has decided it is in the best interest of the
Participants (as defined in the Plan) and their Beneficiaries (as defined in
the Plan) to amend the Plan to expand investment choices including company
stock and to further enhance operational aspects of the Plan.
NOW, THEREFORE BE IT RESOLVED, that the Dreyer's Grand Ice Cream, Inc.
Savings Plan is hereby amended as set out in the following resolutions;
RESOLVED FURTHER, that, effective as of July 1, 1994, the Plan is
hereby amended to include a new Article 2.58 to read as follows:
"'Dreyer's Stock' means the common stock of Dreyer's Grand Ice Cream,
Inc., a Delaware corporation."
RESOLVED FURTHER, that, effective as of July 1, 1994, Article 4.2(a)
of the Plan is hereby amended to add the following sentence to the end of such
Article:
"In the sole discretion of the Employer, any matching contribution
made pursuant to this Article 4.2(a) may be made in cash or in shares
of Dreyer's Stock."
RESOLVED FURTHER, that, effective as of July 1, 1994, Article
9.5(a)(i) of the Plan is hereby amended to read in its entirety as follows:
"In a lump sum cash payment; provided, however, that a Participant (or
Beneficiary) may elect to receive the portion of his or her Account
that is invested in Dreyer's Stock in
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whole shares of Dreyer's Stock in accordance with Article 9.5(e) of the
Plan. Any balance representing fractional shares will be distributed in cash."
RESOLVED FURTHER, that, effective as of July 1, 1994, a new Article
9.5(e) is hereby added to the Plan to read as follows:
"To the extent that a Participant's Account is invested in Dreyer's
Stock, he may elect to receive a portion of his lump sum in Dreyer's
Stock as follows:
(i) the number of shares of Dreyer's Stock included in the
distribution shall be determined by the Committee using
procedures similar to those described in Article 13 of the
Plan,
(ii) the fair market value of the shares of Dreyer's Stock
distributed shall be determined as of the Valuation Date used
to establish the total amount to be distributed to the
Participant,
(iii) the amount determined in (ii) plus the cash distributed
to the Participant shall be equal to the amount which would
otherwise be distributed to such Participant."
RESOLVED FURTHER, that, effective as of July 1, 1994, Article 13.1 of
the Plan is hereby amended to add the following sentence to the end of such
Article:
"The Committee may direct the Trustee to acquire and hold Dreyer's
Stock."
RESOLVED FURTHER, that, effective as of July 1, 1994, Article 13.7(a)
of the Plan is hereby amended to read in its entirety as follows:
"13.7(a) Committee May Establish Separate Funds
The Committee may, in its sole discretion, direct
the Trustee to create one or more separate investment funds, having
such specific investment objectives as the Committee shall from
time to time determine. The Committee shall determine and may from
time to time redetermine the number of investment funds and the
specific objectives of said funds and the investments or kinds of
investments which shall be authorized thereof, provided that one of
the investment funds may be the Dreyer's Stock Fund whose sole
objective shall be to acquire and hold shares of Dreyer's Stock. The
Committee
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may designate which Accounts may be invested in specific investment
funds."
RESOLVED FURTHER, that, effective as of July 1, 1994, a new Article
13.8 is hereby added to the Plan to read as follows:
"Dreyer's Stock. At the discretion of the Committee, the Plan
may acquire and hold Dreyer's Stock. Participants may elect to invest
amounts held in their Accounts in units of a Dreyer's Stock Fund
established by the Trustee pursuant to Article 13.7 of the Plan
subject to such restrictions and administrative procedures as are
imposed by the Committee, pursuant to its discretionary authority to
administer and interpret the Plan.
(a) Purchase Price
All acquisitions and sales of Dreyer's Stock will be
at the prevailing market price.
(b) Voting of Dreyer's Stock
The Trustee shall be authorized to vote the shares of
Dreyer's Stock held by the Dreyer's Stock Fund.
(c) Procedures
The Committee may establish rules and procedures to
facilitate the right of Participants to invest in and to receive a
portion of their distribution in shares of the Dreyer's Stock."
RESOLVED FURTHER, that it is desirable and in the best interest of
this Corporation that its securities be qualified or registered for sale in
various states; that the President or any Vice President and the Secretary or
an Assistant Secretary hereby are authorized to determine the states in which
appropriate action shall be taken to qualify or register for sale all or such
part of the securities of this Corporation as said officers may deem advisable;
that said officers are hereby authorized to perform on behalf of this
Corporation any and all such acts as they may deem necessary or advisable in
order to comply with the applicable laws of any such states, and in connection
therewith to execute and file all requisite papers and documents, including,
but not limited to, applications, reports, surety bonds, irrevocable consents
and appointments of attorneys for service of process; and the execution by such
officers of any such paper or document of the doing by them of any act in
connection with the foregoing matters shall conclusively establish their
authority therefor from this Corporation and the approval and ratification by
this Corporation of the papers and documents so executed and the action so
taken; and
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RESOLVED FURTHER, that any officer of this Corporation, acting alone,
is hereby authorized and directed to do all things deemed by him necessary or
appropriate to more fully carry out the intentions of the foregoing resolutions.
IN WITNESS WHEREOF, the Employer, the Affiliated Employer and the
Trustee have caused this Amendment to be executed by their respective duly
authorized parties on this 10th day of June, 1994.
<TABLE>
<S> <C>
DREYER'S GRAND ICE CREAM, INC. EDY'S GRAND ICE CREAM
(Employer) (Affiliated Employer)
By /s/ Paul R. Woodland By /s/ Paul R. Woodland
--------------------------- ---------------------------
Paul R. Woodland Paul R. Woodland
IMPERIAL TRUST COMPANY
(Trustee)
By
-------------------------------
By
-------------------------------
</TABLE>
4
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 8, 1994, which appears on
page 18 of the 1993 Annual Report to Stockholders of Dreyer's Grand Ice Cream,
Inc., which is incorporated by reference in Dreyer's Grand Ice Cream, Inc.'s
Annual Report on Form 10-K for the fiscal year ended December 25, 1993. We also
consent to the incorporation by reference of our report on the Financial
Statement Schedules, which appears on page 18 of such Annual Report on Form
10-K. We also consent to the incorporation by reference in this Registration
Statement of our report dated November 10, 1994 appearing on pages 1 and 2
of the Annual Report of the Dreyer's Grand Ice Cream, Inc. Savings Plan on
Form 11-K for the year ended December 31, 1993.
/s/ Price Waterhouse LLP
- ------------------------------
Price Waterhouse LLP
San Francisco, California
November 10, 1994
