<PAGE> 1
As filed with the Securities and Exchange Commission on June 28, 1996
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Trustmark Corporation
(Exact name of registrant as specified in its charter)
Mississippi 64-0471500
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
248 E. Capitol Street, Jackson, Mississippi 39201
(Address of principal executive offices) (Zip Code)
Trustmark National Bank Profit Sharing Plan
(full title of the plan)
LOUIS E. GREER
Controller
Trustmark National Bank
248 E. Capitol Street
Jackson, MS 39201
(601) 949-2310 Fax: (601) 949-6871
(Name, address including zip code and telephone number,
including area code, of agent for service)
Copies of all correspondence to:
Robert D. Drinkwater
Brunini, Grantham, Grower & Hewes, PLLC
Post Office Drawer 119
Jackson, MS 39205
(601) 948-3101 Fax: (601) 960-6902
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registra-
registered(1) registered per share price tion fee(2)
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 250,000 $22.125 $5,531,250 $1,908
$0.00 par value
per share
=================================================================================================
</TABLE>
Includes an estimated number of Trustmark Corporation ("Trustmark") shares to
be acquired in the near future by employees of Trustmark National Bank
("Trustmark Bank") under the Trustmark National Bank Profit Sharing Plan (the
"Plan").
(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 pursuant to the Plan.
================================================================================
<PAGE> 2
(2) Registration Fee has been calculated in accordance with Rule 457(h) under
the Securities Act of 1933 and is based upon the average of the high and low
prices for Trustmark's shares reported on the NASDAQ System on June 24, 1996.
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If any securities being registered on this form are to be offered on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act of 1933,
check the following box. [x]
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Form S-8, Item 1, will
be sent or given to participants in the Plan as specified by Rule 428(b) (1).
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions to Form S-8, such documents
are not being filed with the Commission either as part of this Registration
Statement or as a prospectus or prospectus supplement pursuant to Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
The statement containing the information specified in Form S-8, Item 2, will be
sent or given to participants as specified.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) The Annual Report of Trustmark on Form 10-K for the fiscal year ended
December 31, 1995.
(b) The Plan's Annual Report on Form 11-K for the fiscal year ended December
31, 1995.
(c) All reports filed with the Commission by Trustmark since December 31,
1995 or subsequently filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered herein have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
(d) The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's Registration Statement, and all
amendments thereto, filed pursuant to Section 12(g) of the Securities Exchange
Act of 1934.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
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No expert or counsel was employed on a contingent basis or has
received or is to receive any direct or indirect substantial interest in
Trustmark or any subsidiary thereof in connection with this offering.
Item 6. Indemnification of Directors and Officers.
Pursuant to Article VI, Section 2, of the bylaws of Trustmark, the
corporation may indemnify or reimburse the expenses of any person against all
reasonable expenses incurred in connection with any litigation or proceeding in
which such person may have been involved because he is or was a director
(including honorary or advisory directors) officer or employee of the
corporation or of any other firm, corporation or organization which he served
in any such capacity at the request of the corporation. Provided, such person
shall have no right to indemnification or reimbursement in relation to any
matters in which he is finally adjudged to have been guilty of or liable for
negligence or willful misconduct in the performance of his duties; and,
provided further, that no person shall be so indemnified or reimbursed in
relation to any administrative proceeding or action instituted by any
appropriate bank regulatory agency which proceeding or action results in a
final order assessing civil monetary penalties or requiring affirmative action
by an individual or individuals in the form of payments to the corporation.
In addition, pursuant to the Mississippi Business Corporation Act,
directors and officers are entitled to indemnification in certain events as
summarized below:
Section 79-4-8.50. SUBARTICLE DEFINITIONS.
In this subarticle:
(1) "Corporation" includes any domestic or foreign
predecessor entity of a corporation in a merger or other transaction
in which the predecessor's existence ceased upon consummation of the
transaction.
(2) "Director" means an individual who is or was a
director of a corporation or an individual who, while a director of a
corporation, is or was serving at the corporation's request as a
director, officer, partner, trustee, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise. A director is considered
to be serving an employee benefit plan at the corporation's request if
his duties to the corporation also impose duties on, or otherwise
involve services by, him to the plan or to participants in or
beneficiaries of the plan. "Director" includes, unless the context
requires otherwise, the estate or personal representative of a
director.
(3) "Expenses" include counsel fees.
(4) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses incurred
with respect to a proceeding.
(5) "Official capacity" means: (i) when used with
respect to a director, the office of director in a corporation; and
(ii) when used with respect to an individual other than a director as
contemplated in Section 79-4-8.56, the office in a corporation held
by the officer or the employment or agency relationship undertaken by
the employee or agent on behalf of the corporation. "Official
capacity" does not include service for any other foreign or domestic
corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise.
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(6) "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a proceeding.
(7) "Proceeding" means any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal.
Section 79-4-8.51. AUTHORITY TO INDEMNIFY.
(a) Except as provided in subsection (d), a corporation may
indemnify an individual made a party to a proceeding because
he is or was a director against liability incurred in the
proceeding if:
(1) He conducted himself in good faith; and
(2) He reasonably believed:
(i) In the case of conduct in his official
capacity with the corporation, that his conduct was in its
best interest; and
(ii) In all other cases, that his conduct was at
least not opposed to its best interests; and
(3) In the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan
for a purpose he reasonably believed to be in the interest of the
participants in and beneficiaries of the plan is conduct that
satisfies the requirement of subsection (a)(2)(ii).
(c) The termination of a proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent is not, of itself, determinative that the director did not
meet the standard of conduct described in this section.
(d) A corporation may not indemnify a director under this section:
(1) In connection with a proceeding by or in the right of
the corporation in which the director was adjudged liable to
the corporation; or
(2) In connection with any other proceeding charging
improper personal benefit to him, whether or not involving
action in his official capacity, in which he was adjudged
liable on the basis that personal benefit was improperly
received by him.
(e) Indemnification permitted under this section in connection
with a proceeding by or in the right of the corporation is limited to
reasonable expenses incurred in connection with the proceeding.
Section 79-4-8.52. MANDATORY INDEMNIFICATION.
Unless limited by its articles of incorporation, a corporation shall
indemnify a director who was wholly successful, on the merits or otherwise, in
the defense of any proceeding to which he was a party because he is or was a
director of the corporation against reasonable expenses incurred by him in
connection with the proceeding.
Section 79-4-8.53. ADVANCE FOR EXPENSES.
(a) A corporation may pay for or reimburse the reasonable expenses
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incurred by a director who is a party to a proceeding in advance of final
disposition of the proceeding if:
(1) The director furnishes the corporation a written
affirmation of his good faith belief that he has met the
standard of conduct described in Section 79-4-8.51;
(2) The director furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay
the advance if it is ultimately determined that he did not
meet the standard of conduct; and
(3) A determination is made that the facts then known to
those making the determination would not preclude
indemnification under this subarticle.
(b) The undertaking required by subsection (a)(2) must be an
unlimited general obligation of the director but need not be secured and may be
accepted without reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under this
section shall be made in the manner specified in Section 79-4-8.55.
Section 79-4-8.54. COURT ORDERED INDEMNIFICATION.
Unless a corporation's articles of incorporation provide otherwise, a
director of the corporation who is a party to a proceeding may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction. On receipt of an application, the court after giving
any notice the court considers necessary may order indemnification if it
determines:
(1) The director is entitled to mandatory indemnification
under Section 79-4-8.52, in which case the court shall also
order the corporation to pay the director's reasonable
expenses incurred to obtain court-ordered indemnification; or
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances,
whether or not he met the standard of conduct set forth in
Section 79-4-8.51 or was adjudged liable as described in
Section 79-4-8.51(d), but if he was adjudged so liable his
indemnification is limited to reasonable expenses incurred.
Section 79-4-8.55. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION.
(a) A corporation may not indemnify a director under Section
79-4-8.51 unless authorized in the specific case after a determination has been
made that indemnification of the director is permissible in the circumstances
because he has met the standard of conduct set forth in Section 79-4-8.51.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a
quorum consisting of directors not at the time parties to the
proceeding;
(2) If a quorum cannot be obtained under subdivision (1),
by majority vote of a committee duly designated by the board
of directors (in which designation directors who are parties
may participate), consisting solely of two (2) or more
directors not at the time parties to the proceeding;
(3) By special legal counsel:
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(i) Selected by the board of directors
of its committee in the manner prescribed in
subdivision (1) or (2); or
(ii) If a quorum of the board of
directors cannot be obtained under subdivision (1)
and a committee cannot be designated under
subdivision (2), selected by a majority vote of the
full board of directors (in which selection directors
who are parties may participate); or
(4) By the shareholders, but shares owned by or voted
under the control of directors who are at the time parties to
the proceeding may not be voted on the determination.
(c) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if the
determination is made by special legal counsel, authorization of
indemnification and evaluation as to reasonableness of expenses shall be made
by those entitled under subsection (b)(3) to select counsel.
Section 79-4-8.56. INDEMNIFICATION OF OFFICERS, EMPLOYEES AND AGENTS.
Unless a corporation's articles of incorporation provide otherwise:
(1) An officer of the corporation who is not a director is
entitled to mandatory indemnification under Section 79-4-8.52, and is entitled
to apply for court-ordered indemnification under Section 79-4-8.54, in each
case to the same extent as a director;
(2) The corporation may indemnify and advance expenses under this
subarticle to an officer, employee or agent of the corporation who is not a
director to the same extent as to a director; and
(3) A corporation may also indemnify and advance expenses to an
officer, employee or agent who is not a director to the extent, consistent with
public policy, that may be provided by its articles of incorporation, bylaws,
general or specific action of its board of directors or contract.
Section 79-4-8.57. INSURANCE.
A corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee or agent of the
corporation, or who, while a director, officer, employee or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against liability asserted against or incurred by him in that
capacity or arising from his status as a director, officer, employee or agent,
whether or not the corporation would have power to indemnify him against the
same liability under Section 79-4- 8.51 or 79-4-8.52.
Section 79-4-8.58. APPLICATION OF ARTICLE.
(a) Unless the articles of incorporation or bylaws provide
otherwise, any authorization of indemnification in the articles of
incorporation or bylaws shall not be deemed to prevent the corporation from
providing the indemnification permitted or mandated by this subarticle.
(b) Any corporation shall have power to make any further
indemnity, including advance of expenses, to and to enter contracts of
indemnity with any director, officer, employee or agent that may be authorized
by the articles of
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incorporation or any bylaw made by the shareholders or any resolution adopted,
before or after the event, by the shareholders, except an indemnity against his
gross negligence or willful misconduct. Unless the articles of incorporation,
or any such bylaws or resolution provide otherwise, any determination as to any
further indemnity shall be made in accordance with subsection (b) of Section
79-4-8.55. Each such indemnity may continue as to a person who has ceased to
have the capacity referred to above and may inure to the benefit of the heirs,
executors and administrators of such person.
(c) This subarticle does not limit a corporation's power to pay or
reimburse expenses incurred by a director in connection with his appearance as
a witness in a proceeding at a time when he has not been made a named defendant
or respondent to the proceeding.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
4.1. Profit Sharing Plan, dated as of January 1, 1989, and Amendments
No. 1, 2 and 3, thereto. The Registrant represents and undertakes
that the Plan and all amendments thereto (including future
amendments) have been, or will be, as the case may be, submitted
to the Internal Revenue Service ("IRS") in a timely manner and has
made and will make all changes required by the IRS in order to
qualify the Plan.
23.1. Consent of Arthur Andersen LLP
23.2. Consent of Arthur Andersen LLP
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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8 and 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(a) or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post- effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona
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fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (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 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 connected with the securities being registered) the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
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 Jackson and State of Mississippi on the 26th day of
June, 1996.
TRUSTMARK CORPORATION
/s/Frank R. Day
-----------------------------------
By: Frank R. Day
Chairman of the Board,
President and
Chief Executive Officer
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>
/s/Frank R. Day Chairman of the Board 6/26/96
- -------------------------- ---------
Frank R. Day, President and
Chief Executive Officer
(Principal Executive Officer)
/s/Gerard R. Host Treasurer 6/26/96
- -------------------------- ---------
Gerard R. Host, Treasurer
(Principal Financial and
Accounting Officer)
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C>
/s/J. Kelly Allgood Director 6/27/96
- ------------------------- ---------
J. Kelly Allgood
/s/Reuben V. Anderson Director 6/28/96
- ------------------------- ---------
Reuben V. Anderson
Director
- ------------------------- ---------
John L. Black, Jr.
Director
- -------------------------- ---------
Harry H. Bush
Director
- -------------------------- ---------
Robert P. Cooke III
/s/Frank R. Day Chairman of the Board 6/26/96
- -------------------------- ---------
Frank R. Day
/s/William C. Deviney, Jr. Director 6/28/96
- -------------------------- ---------
William C. Deviney, Jr.
/s/D.G. Fountain, Jr Director 6/28/96
- -------------------------- ---------
D.G. Fountain, Jr.
Director
- -------------------------- ---------
C. Gerald Garnett
/s/Matthew L. Holleman III Director 6/28/96
- -------------------------- ---------
Matthew L. Holleman III
Director
- -------------------------- ---------
Fred A. Jones
/s/T.H. Kendall III Director 6/27/96
- -------------------------- ---------
T.H. Kendall III
Director
- -------------------------- ---------
Larry L. Lambiotte
Director
- -------------------------- ---------
Robert V. Massengill
/s/Donald E. Meiners Director 6/27/96
- -------------------------- ---------
Donald E. Meiners
/s/William Neville III Director 6/26/96
- -------------------------- ---------
William Neville III
/s/Richard H. Puckett Director 6/28/96
- -------------------------- ---------
Richard H. Puckett
/s/Charles W. Renfrow Director 6/27/96
- -------------------------- ---------
Charles W. Renfrow
Director
- -------------------------- ---------
Clyda S. Rent
Director
- -------------------------- ---------
William Thomas Shows
/s/Harry M. Walker Director 6/26/96
- -------------------------- ---------
Harry M. Walker
/s/LeRoy G. Walker, Jr. Director 6/27/96
- -------------------------- ---------
LeRoy G. Walker, Jr.
Director
- ------------------------- ---------
Paul H. Watson, Jr.
Director
- ------------------------- ---------
John C. Wheeless, Jr.
Director
- ------------------------- ---------
Allen Wood, Jr.
</TABLE>
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Pursuant to the requirements of the Securities Act of 1933, the Plan
Administrator has duly caused this Registration Statement to be signed on its
behalf by the undersigned thereunto duly authorized in the City of Jackson,
State of Mississippi, on the 28th day of June, 1996.
Trustmark National Bank Profit Sharing Plan
Trustmark National Bank, Plan Administrator
/s/Robert G. Spring
-------------------------------------------
By: Robert G. Spring
Its: Senior Vice President
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4.1 Trustmark Profit Sharing Plan
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Arthur Andersen LLP
</TABLE>
<PAGE> 1
EXHIBIT 4.1
TRUSTMARK NATIONAL BANK
PROFIT SHARING PLAN
Amended and Restated Effective
January 1 , 1989
(except as otherwise indicated)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
INTRODUCTION i
DEFINITIONS 1-1
1.01 Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1
1.02 Adopting Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1
1.03 Allocation Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1
1.04 Annuity Starting Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1
1.05 Annuity Transfer Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1
1.06 Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1
1.07 Break in Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1
1.08 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
1.09 Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
1.10 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
1.11 Controlled Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-4
1.12 Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-4
1.13 Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-4
1.14 Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5
1.15 Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5
1.16 Employer Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5
1.17 Entry Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5
1.18 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5
1.19 Fiduciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5
1.20 Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-6
1.21 Highly Compensated Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-6
1.22 Hours of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-8
1.23 Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-8
1.24 Investment Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-8
1.25 Leased Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-9
1.26 Leave of Absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-9
1.27 Non-highly Compensated Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-10
1.28 Normal Retirement Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-10
1.29 Normal Retirement Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-10
1.30 Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-10
1.31 Personal Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-10
1.32 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-10
1.33 Plan Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-11
1.34 Plan Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-11
1.35 Qualified Joint and Survivor Annuity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-11
1.36 Retired Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-11
1.37 Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-11
1.38 Sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-11
1.39 Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-11
1.40 Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-12
1.41 Trust Fund or Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-12
1.42 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-12
1.43 Vesting Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-12
1.44 Year of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-12
</TABLE>
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<TABLE>
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PARTICIPATION IN THE PLAN 2-1
2.01 Eligibility Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-1
2.02 Eligibility Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-1
2.03 Participation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-2
2.04 Participation Following Reemployment or Break in Service . . . . . . . . . . . . . . . . . . . . . . 2-2
2.05 Participation Following Change in Classification . . . . . . . . . . . . . . . . . . . . . . . . . . 2-2
2.06 Family and Medical Leave Act Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3
CONTRIBUTIONS TO THE PLAN 3-1
3.01 Employer Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-1
3.02 Contributions By, or On Behalf of, Participants . . . . . . . . . . . . . . . . . . . . . . . . . . 3-2
3.03 Coverage and Discrimination Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5
3.04 Discrimination Requirements for Other Contributions . . . . . . . . . . . . . . . . . . . . . . . . 3-7
3.05 Multiple Use of Alternative Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-9
3.06 Medium of Financing the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-9
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS 4-1
4.01 Allocation of Employer Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-1
4.02 Allocation of Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-2
4.03 Adjustment to Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-2
4.04 Maximum Annual Additions to Participants' Accounts . . . . . . . . . . . . . . . . . . . . . . . . . 4-3
4.05 Separation of Forfeitures and Accounts by Employer . . . . . . . . . . . . . . . . . . . . . . . . . 4-5
4.06 Fair Market Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6
4.07 Interim Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6
4.08 Election of Investment Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6
4.09 Units Accounting for Investment Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6
IN-SERVICE WITHDRAWALS AND LOANS 5-1
5.01 Withdrawals from Participants' Employer Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . 5-1
5.02 Withdrawals from Part I of Participants' Personal Accounts . . . . . . . . . . . . . . . . . . . . . 5-1
5.03 Withdrawals from Part II of Participant's Personal Accounts . . . . . . . . . . . . . . . . . . . . 5-2
5.04 Withdrawals from Part III of Participant's Personal Accounts . . . . . . . . . . . . . . . . . . . . 5-2
5.05 Withdrawals from Part IV of Participant's Personal Accounts . . . . . . . . . . . . . . . . . . . . 5-2
5.06 Loans to Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-2
GENERAL BENEFIT PROVISIONS 6-1
6.01 Form of Benefit Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-1
6.02 General Commencement of Benefits Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-3
6.03 Special Commencement and Distribution of Benefits Rules . . . . . . . . . . . . . . . . . . . . . . 6-4
6.04 Limitations on Distribution of Salary Deferrals . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7
6.05 Single Sum Distribution of Small Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7
6.06 Direct Rollover of Eligible Rollover Distributions . . . . . . . . . . . . . . . . . . . . . . . . . 6-8
6.07 Purchase of Annuities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-9
RETIREMENT, DEATH AND DISABILITY BENEFITS 7-1
7.01 Benefits Upon Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-1
7.02 Death Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-1
7.03 Payment of Death Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-1
7.04 Designation of Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-3
7.05 Disability Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-4
</TABLE>
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<TABLE>
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TERMINATION BENEFITS 8-1
8.01 Benefits Upon Termination of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-1
8.02 Forfeitures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-1
8.03 Payment of Benefits Upon Termination of Service . . . . . . . . . . . . . . . . . . . . . . . . . . 8-2
8.04 Special Vesting Due to Re-Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-3
PLAN ADMINISTRATION 9-1
9.01 Plan Administrator and Appointment of Committee . . . . . . . . . . . . . . . . . . . . . . . . . . 9-1
9.02 Powers and Duties of the Plan Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-1
9.03 Plan Administrator Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-2
9.04 Committee Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-2
9.05 Claims and Review Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-2
THE TRUST AND THE TRUSTEE 10-1
10.01 The Trust; General Duties of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-1
10.02 General Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-1
10.03 Reliance on Plan Administrator and Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-4
10.04 Accounts and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-5
10.05 Disbursements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-5
10.06 Payment in Kind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-5
10.07 Authority of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-6
10.08 Removal or Resignation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-6
10.09 Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-6
10.10 Trust Funding Policy; Parties in Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-7
10.11 Trustee to Trustee Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-7
10.12 Investment Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-7
AMENDMENT AND TERMINATION OF THE PLAN 11-1
11.01 Amendment of Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-1
11.02 Intent to Continue the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-2
11.03 Termination of the Plan by the Sponsor; Partial Termination . . . . . . . . . . . . . . . . . . . 11-2
11.04 Termination of the Plan Upon Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-2
11.05 Distribution of Trust Fund Upon Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-2
11.06 Termination of Plan With Respect to an Adopting Employer . . . . . . . . . . . . . . . . . . . . . 11-3
CERTAIN PROVISIONS AFFECTING THE EMPLOYER 12-1
12.01 Duties of the Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.02 Right of Employer to Discharge Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.03 Information to be Furnished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.04 Communications from Sponsor to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.05 No Reversion to Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.06 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-2
12.07 Adoption of Plan by Adopting Employers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-2
PROVISIONS APPLICABLE TO A TOP HEAVY PLAN 13-1
13.01 Top Heavy Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-1
13.02 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-1
13.03 Minimum Allocations in Single Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-4
13.04 Minimum Vesting Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-5
13.05 Special Limitations and Allocation in Multiple Plans . . . . . . . . . . . . . . . . . . . . . . . 13-6
</TABLE>
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MISCELLANEOUS PROVISIONS 14-1
14.01 Allocation of Responsibility among Fiduciaries for Plan and Trust Administration . . . . . . . . . 14-1
14.02 Alienation or Assignment of Benefits (QDRO's) . . . . . . . . . . . . . . . . . . . . . . . . . . 14-1
14.03 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-2
14.04 Construction of the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-2
14.05 Correction of Errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-2
14.06 Legally Incompetent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-2
14.07 Successor Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-2
14.08 Minimum Benefit in Successor Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-3
14.09 Application of Plan Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-3
14.10 Qualification of the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-3
14.11 Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-4
14.12 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-4
14.13 Nonassignability of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-4
14.14 Entire Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-4
</TABLE>
<PAGE> 6
INTRODUCTION
Effective January 1, 1964, First National Bank of Jackson, whose name
has since been changed to Trustmark National Bank, and which bank is
hereinafter referred to as "Sponsor," adopted a retirement plan to provide
retirement benefits for its eligible Employees. Thereafter, in order to comply
with the Employee Retirement Income Security Act of 1974, and to effect certain
changes in the Plan, the Sponsor amended, restated and continued the Plan
effective January 1, 1976. The plan was amended, restated and continued again,
effective January 1, 1984, to comply with the Tax Equity and Fiscal
Responsibility Act of 1982, the Deficit Reduction Act of 1984 and the
Retirement Equity Act of 1984. Following that amendment, restatement and
continuation, the Plan has further been amended from time to time.
Now, in order to comply with changes in the law caused by the Tax
Reform Act of 1986, the Omnibus Budget Reconciliation Act of 1986, the Omnibus
Budget Reconciliation Act of 1987, the Technical and Miscellaneous Revenue Act
of 1988, the Omnibus Budget Reconciliation Act of 1989, the Unemployment
Compensation Amendments of 1992, the Omnibus Budget Reconciliation Act of 1993,
and various regulations, the Sponsor hereby amends, restates and continues the
Plan effective January 1, 1989 (except as otherwise indicated herein for
specified provisions or as required by applicable law or regulations).
The Plan and incorporated Trust shall continue to be designated as the
Trustmark National Bank Profit Sharing Plan. The Plan is adopted as an
amendment to, and restatement of, the Trustmark National Bank Profit Sharing
Plan, as it was in effect on the day preceding the effective date of adoption
of this amendment.
The purposes of the Plan are to provide the Employees who qualify to
participate in the Plan and their Beneficiaries certain benefits as stipulated
herein in the event of retirement, death or termination of Service prior to
retirement, and to provide such Employees the opportunity to save for such
events on a tax-deferred incentive basis pursuant to the provisions of section
401(k) of the Code. The Plan is intended to be qualified under section 401(a)
of the Code as a profit sharing plan and its incorporated Trust is intended to
qualify as a tax-exempt trust under section 501(a) of the Code.
Unless specifically otherwise provided in the Plan, the provisions of
the restated Plan shall apply only to Employees who have Service with the
Employer on or after January 1, 1989. The rights and benefits, if any, of
former Employees shall be determined in accordance with the provisions of the
Plan as in effect on the respective dates of termination of Service of such
former Employees.
<PAGE> 7
ARTICLE 1
DEFINITIONS
The following terms when used herein, unless the context
clearly indicates otherwise, shall have the meanings set forth
hereinafter.
1.01 "ACCOUNT" shall mean the Employer Account and the Personal Account
maintained on behalf of a Participant.
1.02 "ADOPTING EMPLOYER" shall mean any business organization or
corporation affiliated with the Sponsor through complete or partial
ownership by the Sponsor or by any owner therein, or which is
otherwise cooperating with the Sponsor for purposes of establishing
and maintaining a qualified plan, which is authorized by the Board of
Directors of the Sponsor to adopt the Plan, and which subsequently
adopts the Plan.
The term shall also include any business organization or corporation
into which the Adopting Employer may be merged or consolidated or by
which it may be succeeded.
1.03 "ALLOCATION DATE" shall mean December 31 of each Plan Year, or such
other date as of which assets are valued for purposes of an interim
allocation pursuant to the provisions of Section 4.07 hereof.
Effective January 1, 1995, Allocation Date shall mean June 30 and
December 31 of each Plan Year, or such other date as of which assets
are valued for purposes of an interim allocation pursuant to the
provisions of Section 4.07 hereof.
1.04 "ANNUITY STARTING DATE" shall mean the first day of the first period
for which an amount is paid as an annuity or any other form.
1.05 "ANNUITY TRANSFER PLAN" shall mean, with respect to a Participant, a
defined benefit pension plan, a money purchase pension plan, a target
benefit pension plan, a stock bonus plan, or another profit sharing
plan which provided for an annuity normal form of benefit payment to
such Participant and which transfers to this Plan, on or after the
first day of the Plan Year beginning after December 31, 1984, assets
which are attributable to benefits for the Participant.
1.06 "BENEFICIARY" shall mean the person, persons or legal entity last
designated in accordance with Section 7.04 hereof, who shall receive
any death benefits that may be payable under the Plan after the death
of a Participant or Retired Participant.
1.07 "BREAK IN SERVICE" shall mean a consecutive twelve (12) month period
during which the Employee does not perform more than five hundred
(500) Hours of Service. For purposes of determining eligibility to
participate in the Plan, pursuant to Article 2 hereof, the initial
twelve (12) month period shall commence on the date the Employee first
1 - 1
<PAGE> 8
performs an Hour of Service, and each subsequent twelve (12) month
period shall be the Plan Year, beginning with the Plan Year which
commences prior to the end of the initial twelve (12) month period.
For purposes of determining Vesting Service, the consecutive twelve
(12) month period shall be the Plan Year.
For purposes of determining whether a Break in Service has occurred,
Hours of Service shall include any period in which the Employee is
absent from work for maternity or paternity reasons for any of the
following:
(a) by reason of the pregnancy of the Employee,
(b) by reason of the birth of a child of the Employee,
(c) by reason of the placement of a child with the Employee in
connection with the adoption of such child by such Employee,
or
(d) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
Provided, however, that Hours of Service credited for such absence
from work shall not exceed the Hours which would normally have been
credited to such individual but for such absence. Such Hours of
Service shall be credited in the Plan Year in which the absence from
work begins if an Employee would be prevented from incurring a Break
in Service in such Plan Year solely because the period of absence is
treated as Hours of Service or, in any other case, in the immediately
following Plan Year. No credit for Hours of Service for absence by
reason of such pregnancy or placement shall be given hereunder unless
an Employee furnishes to the Committee such timely information as the
Plan Administrator may reasonably require to establish that the
absence from work is for a reason set forth in (a) through (d).
1.08 "CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and as in effect on the relevant date to be interpreted
hereunder.
1.09 "COMMITTEE" shall mean the committee as provided in Article 9 hereof
appointed with respect to the administration of the Plan.
1.10 "COMPENSATION" shall mean, except as otherwise provided herein,
compensation which is paid to the Employee by the Employer, as defined
in (a) or (b) below, subject to (c), (d) and (e) below.
(a) Compensation means wages pursuant to Code section 3401(a) and
all other payments of compensation to an Employee by his
Employer (in the course of the Employer's trade or business)
for which the Employer is required to furnish the Employee a
written statement under Code Sections 6041(d), 6051(a)(3), and
6052. Compensation shall be determined without regard to any
rules under Code section 3401(a) that limit the remuneration
included in wages based on the nature or location of the
1 - 2
<PAGE> 9
employment or the services performed. However, compensation
shall exclude amounts paid or reimbursed by the employer for
moving expenses, automobile allowance, imputed income from
excess group term life insurance and severance pay. Only
Compensation for the portion of any Plan Year during which an
Employee is a Participant shall be taken into account for
purposes of the Plan.
(b) For purposes of Section 1.21 and Sections 3.03 and 3.04
hereof, Compensation shall mean the total compensation for
Service by an Employee for the Employer that is includable in
gross income as provided in Section 414(s) of the Code for the
period during the Plan Year in which he is a Participant or
for the entire Plan Year, as determined by the Plan
Administrator.
(c) Compensation shall include any contributions made by the
Employer on behalf of an Employee to a plan qualified under
section 125 or section 401(k) of the Code, but shall not
include any other contribution made by the Employer under this
Plan or under any pension plan or other employee benefit plan
or insurance plan maintained by the Employer for the benefit
of such Employee.
(d) For any Plan Year beginning after December 31, 1988 and before
January 1, 1994, the annual compensation of each Participant
taken into account for determining all benefits provided under
the Plan for any such year shall not exceed two hundred
thousand dollars ($200,000). This limitation shall be
adjusted by the Secretary at the same time and in the same
manner as under section 415(d) of the Code, except that the
dollar increase on January 1 of any calendar year is effective
for years beginning in such calendar year and the first
adjustment to the two hundred thousand dollar ($200,000)
limitation is effective on January 1, 1990. In determining
the compensation of a Participant for purposes of this
limitation, the rules of section 414(q)(6) of the Code shall
apply, except in applying such rules, the term "family" shall
include only the spouse of the Participant and any lineal
descendants of the Participant who have not attained age
nineteen (19) before the close of the year. If, as a result
of the application of such rules, the adjusted two hundred
thousand dollars ($200,000) limitation is exceeded, then
(except for purposes of determining the portion of
compensation up to the integration level if this plan provides
for permitted disparity), the limitation shall be prorated
among the affected individuals in proportion to each such
individual's compensation as determined under this section
prior to the application of this limitation. The application
of this provision shall be subject to such rules as may be
prescribed by the Secretary of the Treasury.
(e) Section 401(a)(17) Limitation. In addition to other
applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the
contrary, for Plan Years beginning on or after January 1,
1994, the annual compensation of each Employee taken into
account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is
one hundred fifty thousand dollars ($150,000), as adjusted by
the Commissioner for increases in the cost of living in
accordance with section 401(a)(17)(B) of the Code. The
cost-of-
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<PAGE> 10
living adjustment in effect for a calendar year applies to any
period, not exceeding twelve (12) months, over which
compensation is determined (determination period) beginning in
such calendar year. If a determination period consists of
fewer than twelve (12) months, the OBRA '93 annual
compensation limit will be multiplied by a fraction, the
numerator of which is the number of months in the
determination period, and the denominator of which is twelve
(12).
For Plan Years beginning on or after January 1, 1994, any
reference in this Plan to the limitation under section
401(a)(17) of the Code shall mean the OBRA '93 annual
compensation limit set forth in this provision.
If compensation for any prior determination period is taken
into account in determining an Employee's benefits accruing in
the current plan year, the compensation for that prior
determination period is subject to the OBRA '93 annual
compensation limit in effect for that prior determination
period. For this purpose, for determination periods beginning
before the first day of the first Plan Year beginning on or
after January 1, 1994, the OBRA '93 annual compensation limit
is one hundred fifty thousand dollars ($150,000).
1.11 "CONTROLLED GROUP" shall mean, except as modified by section 415(h) of
the Code for purposes of determining limitations under section 415 of
the Code pursuant to Section 4.04 hereof, any corporation which is a
member of a controlled group of corporations (as defined by section
414(b) of the Code) of which the Employer is a member, any other trade
or business (whether or not incorporated) which is under common
control (as defined by section 414(c) of the Code) with respect to the
Employer or any organization which is a member of an affiliated
service group (as defined by section 414(m) of the Code) of which the
Employer is a member and any other entity required to be aggregated
with the Employer pursuant to regulations under section 414(o) of the
Code, but only for the period during which such other corporation,
trade or business or organization and the Employer are members of such
controlled group of corporations, are under such common control or are
serving as members of such an affiliated service group. All employees
of members of a Controlled Group shall be treated as employed by a
single employer for purposes of determining compliance with sections
401, 410, 411, 415 and 416 of the Code.
1.12 "DISABILITY" shall mean a physical or mental condition which totally
and permanently prevents the Participant from engaging in his usual
occupation or employment for remuneration or profit, except for the
purpose of rehabilitation not incompatible with a finding of total and
permanent disability. The determination by the Committee as to
whether a Participant is totally and permanently disabled shall be
made on the basis of medical evidence by a licensed physician
designated by the Committee.
1.13 "EFFECTIVE DATE" shall mean January 1, 1964, the date the Plan was
established; provided, however, that the term shall mean, for an
Employee, the effective date of adoption of the Plan by his Employer
if such date is later than January 1, 1964.
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<PAGE> 11
The effective date of this amendment, restatement and continuation of
the Plan shall be January 1, 1989, except as otherwise specifically
indicated for provisions herein or as otherwise required by applicable
law or regulation.
1.14 "EMPLOYEE" shall mean either (a) a person, other than an independent
contractor, who is receiving remuneration from the Employer for
services rendered to, or labor performed for, the Employer (or who
would be receiving such remuneration except for an authorized Leave of
Absence), or (b) a Leased Employee.
1.15 "EMPLOYER" shall mean the Sponsor or an Adopting Employer, or both, as
required by the context of this Plan; provided, however, that if an
Employee is simultaneously employed by the Sponsor and one (1) or more
Adopting Employers or by two (2) or more Adopting Employers, the term
shall mean all such employers.
1.16 "EMPLOYER ACCOUNT" shall mean the account maintained on behalf of a
Participant to which shall be credited the Participant's share of
Employer contributions, except those attributable to salary deferrals,
and reallocated Forfeitures, together with the Participant's share of
the Income of the Trust Fund allocable to this account.
For purposes of administrative convenience, each Participant's
Employer Account shall be divided into the following parts:
Part I attributable to Employer basic contributions made pursuant
to Section 3.01(a) hereof;
Part II attributable to Employer matching contributions made
pursuant to Section 3.01(b) hereof;
Part III attributable to Qualified Matching Contributions made
pursuant to Section 3.01(c) hereof.
1.17 "ENTRY DATE" shall mean a date upon which an Employee is eligible to
become a Participant in the Plan, following his satisfaction of the
eligibility requirements pursuant to Section 2.01 hereof. January 1
and July 1 shall be Entry Dates each Plan Year. Provided, however,
that, only with respect to individuals who become Employees as a
result of the merger or consolidation of their employing organization
into the Employer, or the acquisition of their employing organization
by the Employer, an additional Entry Date may be named by the Sponsor
for the Plan Year in which such merger, consolidation or acquisition
occurs.
1.18 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and as in effect on the relevant
date to be interpreted hereunder.
1.19 "FIDUCIARY" shall mean the Employer, the Committee, the Trustee, the
Investment Manager, if any, and any other business organization or
corporation designated by such a
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<PAGE> 12
fiduciary to carry out fiduciary responsibilities under the Plan,
which accepts such designation, but only with respect to the specific
responsibilities for each such fiduciary described herein.
1.20 "FORFEITURE" shall mean the portion of a Participant's Employer
Account which is forfeited before full vesting occurs or because of
the operation of Sections 4.04 or 8.02 hereof.
1.21 "HIGHLY COMPENSATED EMPLOYEE" shall mean a person who is either a
"highly compensated active employee" as defined in subsection (a)
hereof or a "highly compensated former employee" as defined in
subsection (b) hereof.
(a) A "highly compensated active employee" is any employee who
performs service for the Employer during the determination
year and who, during the look-back year:
(1) received compensation from the Employer in excess of
seventy-five thousand dollars ($75,000) (as adjusted
pursuant to section 415(d) of the Code);
(2) received compensation from the Employer in excess of
fifty thousand dollars ($50,000) (as adjusted
pursuant to section 415(d) of the Code) and was a
member of the top-paid group for such year; or
(3) was an officer of the Employer and received
compensation during such year that is greater than
fifty percent (50%) of the dollar limitation in
effect under section 415(b)(1)(A) of the Code. The
term "highly compensated active employee" also
includes:
(4) An employee (i) who is described in the preceding
sentence if the term "determination year" is
substituted for the term "look-back year" and (ii)
who is one of the one hundred (100) employees who
received the most compensation from the Employer
during the determination year; and
(5) An employee who is a five percent (5%) owner at any
time during the look-back year or the determination
year.
If no officer has satisfied the compensation requirement of
(3) above during either a determination year or look-back
year, the highest paid officer for such year shall be treated
as a Highly Compensated Employee.
(b) A "highly compensated former employee" is any employee who
separated from service (or was deemed to have separated) prior
to the determination year, performs no service for the
Employer during the determination year, and was a highly
compensated active employee for either the separation year or
any determination year ending on or after the employee's
fifty-fifth (55th) birthday.
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<PAGE> 13
For purposes of this Section, the determination year would normally be
the Plan Year, and the look-back year would normally be the twelve
(12)-month period immediately preceding the determination year.
However, the Plan Administrator has elected to make the calendar year
calculation, provided in Section 1.414(q)-1T, Q&A 14(b), of the
Treasury Regulations, with respect to the Plan for all Plan Years.
Pursuant to this election and for this purpose, both the determination
year and the look-back year are the Plan Year.
If an employee is, during a determination year or look-back year, a
family member of either a five percent (5%) owner who is an active or
former employee or a Highly Compensated Employee who is one of the ten
(10) most highly compensated employees ranked on the basis of
compensation paid by the Employer during such year, then the family
member and five percent (5%) owner or top ten (10) Highly Compensated
Employee shall be treated as a single employee receiving compensation
and Plan contributions or benefits equal to the sum of such
compensation and contributions or benefits of the family member and
five (5%) percent owner or top ten (10) Highly Compensated Employee.
For purposes of this section, family member includes the spouse,
lineal ascendants and descendants of the employee or former employee
and the spouses of such lineal ascendants and descendants.
In determining who is a Highly Compensated Employee, employees who are
non-resident aliens and who received no earned income (within the
meaning of Code section 911(d)(2)) from the Employer constituting
United States source income within the meaning of Code section
861(a)(3) shall not be treated as Employees. Additionally, all
employers in the Controlled Group shall be taken into account as a
single employer and Leased Employees shall be considered employees
unless such Leased Employees are covered by a plan described in Code
section 414(n)(5) and are not covered in any qualified plan maintained
by the Employer. The exclusion of Leased Employees for this purpose
shall be applied on a uniform and consistent basis for all of the
Employer's retirement plans. Highly Compensated Former Employees
shall be treated as Highly Compensated Employees without regard to
whether they performed services during the determination year.
The determination of who is a Highly Compensated Employee, including
but not limited to the determinations of the number and identity of
Employees in the top-paid group, the top one hundred (100) Employees,
the number of Employees treated as officers and the compensation that
is considered, will be made in accordance with Section 414(q) of the
Code and the regulations thereunder. Such determination may also take
into account other rulings and pronouncements issued by the Secretary
of the Treasury or the Internal Revenue Service.
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<PAGE> 14
1.22 "HOURS OF SERVICE" shall mean the aggregate of the following:
(a) Hours of Service shall include each actual hour for which an
Employee is paid, or entitled to payment, for the performance
of duties for the Employer. These hours shall be credited to
the Employee for the Plan Year in which the duties are
performed.
(b) Hours of Service shall include 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
(irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty or
authorized leave of absence. No more than five hundred and
one (501) Hours of Service shall be credited under this
subsection for any single continuous period (whether or not
such period occurs in a single Plan Year). Hours under this
subsection shall be calculated and credited pursuant to
Section 2530.200b-2 of the Department of Labor Regulations,
which are incorporated herein by this reference as if fully
set forth.
(c) Hours of Service shall include each hour for which back pay,
irrespective of mitigation of damages, has been either awarded
or agreed to by the Employer. These hours shall be credited
to the Employee for the Plan Year to which the award or
agreement pertains rather than the Plan Year in which the
award, agreement or payment is made. Hours shall not be
credited under both this and either of the two (2) preceding
subsections of this section.
(d) Hours of Service, however, shall not be credited for payments
made solely to comply with workers' or unemployment
compensation or disability insurance laws or as reimbursement
for medical expenses.
Hours of Service shall be credited for employment with other members
of a Controlled Group of which the Employer is a member. Hours of
Service shall also be credited for any individual considered an
Employee for purposes of the Plan under section 414(n) of the Code or
section 414(o) of the Code and the regulations thereunder.
1.23 "INCOME" shall mean the net gain or loss of the Trust Fund from
investments, as reflected by interest payments, dividends, realized
and unrealized gains and losses on securities, other investment
transactions, and expenses paid from the Trust Fund which are not
reimbursed by the Employer. In determining the Income of the Trust
Fund for any period, assets shall be valued on the basis of fair
market value.
If any portion of the Trust Fund is segregated into one (1) or more
separate accounts on behalf of a Participant, Income shall be
determined with respect to each such account.
1.24 "INVESTMENT MANAGER" shall mean any Fiduciary, other than the Trustee,
who
(a) has the power to manage, acquire, or dispose of any asset of
the Plan;
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<PAGE> 15
(b) (i) is registered as an investment advisor under the
Investment Advisers Act of 1940; (ii) is a bank, as defined in
that Act; or (iii) is an insurance company qualified to
perform services described in subsection (a) under the laws of
more than one (1) state; and
(c) has acknowledged in writing that he is a Fiduciary with
respect to the Plan.
1.25 "LEASED EMPLOYEE" shall mean any person, other than a common law
employee of the Employer, who provides services for the Employer if
the following conditions are met:
(a) such services are provided pursuant to an agreement between
the Employer and a leasing organization,
(b) such person has performed services for the Employer (or the
Employer and a "related person" as that term is defined in
section 414(n)(6) of the Code) on a substantially full-time
basis for a period of at least one (1) year, and
(c) such services are of a type historically performed, in the
business field of the Employer, by employees.
Notwithstanding the foregoing, a Leased Employee shall not be
considered an Employee of the Employer as to services performed after
December 31, 1986 if:
(d) such person is covered by a money purchase pension plan
providing:
(1) a nonintegrated employer contribution rate of at
least ten percent (10%) of compensation, as defined
in section 415(c)(3) of the Code, but including
amounts contributed pursuant to a salary reduction
agreement which are excludable from the employee's
gross income under a 401(k) plan, a cafeteria plan
pursuant to Code section 125, a simplified employee
pension (SEP) pursuant to Code section 402(h) or a
tax sheltered annuity pursuant to Code section
403(b),
(2) immediate participation, and
(3) full and immediate vesting; and
(e) Leased Employees do not constitute more than twenty percent
(20%) of the recipient's nonhighly compensated workforce.
For purposes of this Plan, contributions or benefits provided to a
Leased Employee by the leasing organization which are attributable to
services performed for the Employer shall be treated as provided by
the Employer.
1.26 "LEAVE OF ABSENCE" shall mean any unpaid absence authorized by the
Employer under the Employer's standard personnel practices; provided
that all persons under similar circumstances shall be treated alike in
the granting of such Leaves of Absence; and provided, further, that
the Participant returns within the period of authorized absence. An
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<PAGE> 16
absence due to service in the Armed Forces of the United States shall
be considered a Leave of Absence if the absence is caused by war or
other emergency, or the Employee is required to serve under the laws
of conscription in time of peace; and if, further, the Employee
returns to Service within the period during which his employment
rights are protected by law. Individuals on Leave of Absence shall be
treated under the Plan as if they were Employees according to the
terms hereof. Failure to return to Service with the Employer by the
date on which a Leave of Absence expires shall be considered to be a
termination of Service as of the date of such expiration.
1.27 "NON-HIGHLY COMPENSATED EMPLOYEE" shall mean an Employee of the
Employer who is neither a Highly Compensated Employee nor a "family
member" (as defined in section 414(q)(6)(B) of the Code).
1.28 "NORMAL RETIREMENT AGE" shall mean for a Participant the date the
Participant attains sixty-five (65) years of age.
1.29 "NORMAL RETIREMENT DATE" shall mean for a Participant the first day of
the month coincident with or next following the date on which he
attains his Normal Retirement Age.
1.30 "PARTICIPANT" shall mean an Employee participating in the Plan in
accordance with the provisions of Article 2 hereof.
1.31 "PERSONAL ACCOUNT" shall mean the account maintained on behalf of a
Participant to which shall be credited the amount of any salary
deferral contributions, voluntary Participant contributions,
Participant rollover contributions or trustee to trustee transfers,
together with the Participant's share of the Income of the Trust Fund
allocable to this account. For purposes of reference in this Plan,
each Participant's Personal Account shall be divided into the
following parts:
Part I attributable to pre-tax salary deferral
contributions, if any, made pursuant to Section
3.02(a) hereof;
Part II attributable to voluntary after-tax Participant
contributions, if any, made pursuant to Section
3.02(b) hereof.
Part III attributable to Participant rollover contributions,
if any, made pursuant to Section 3.02(c) hereof.
Part IV attributable to trustee to trustee transfers, if any,
made with respect to a Participant's benefits
pursuant to Section 10.11 hereof.
1.32 "PLAN" shall mean this Plan, entitled the "Trustmark National Bank
Profit Sharing Plan," as it may be amended from time to time, and as
in effect on the relevant date to be interpreted hereunder.
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<PAGE> 17
1.33 "PLAN ADMINISTRATOR" shall mean Trustmark National Bank, the entity
designated as the Plan Administrator pursuant to Section 9.01 of the
Plan to administer the Plan.
1.34 "PLAN YEAR" shall mean the twelve (12) consecutive month period from
January 1 through the following December 31.
1.35 "QUALIFIED JOINT AND SURVIVOR ANNUITY" shall mean an annuity for the
life of the Participant with a survivor annuity for the life of the
Spouse of the Participant which is equal to fifty percent (50%) of the
amount of the annuity payable during the joint lives of the
Participant and the Participant's Spouse.
1.36 "RETIRED PARTICIPANT" shall mean a former Participant whose
participation in the Plan has terminated and who is entitled to
receive benefits provided by the Plan.
1.37 "SERVICE" shall mean employment of an Employee by the Employer and
shall be measured in Hours of Service. In determining Service for an
Employee, the following periods shall be considered employment with
the Employer:
(a) the Employee's employment with any members of a Controlled
Group while such employers are members of the Controlled
Group;
(b) with respect only to individuals employed on the merger or
acquisition date, any periods of employment with any
predecessor organization to the Employer which ended on the
date the predecessor organization is merged or consolidated
with the Employer or is acquired by the Employer, except to
the extent otherwise resolved by the Sponsor within six (6)
months of the effective date of such merger, consolidation or
acquisition; and
(c) for purposes of determining eligibility to participate and for
the computation of Vesting Service, the Employee's employment
in an excluded classification of employees of the Employer.
In no event shall Service include any period of time during which the
Employee was not a common-law employee, but rather a partner or a
proprietor or an independent contractor.
1.38 "SPONSOR" shall mean Trustmark National Bank, a National Banking
Association with principal offices in Jackson, Mississippi, and any
business organization or corporation into which Trustmark National
Bank may be merged or consolidated or by which it may be succeeded.
1.39 "SPOUSE" shall mean the actual spouse or surviving spouse of a
Participant or a former spouse of a Participant, if and to the extent
such former spouse is to be treated as a spouse or surviving spouse of
the Participant under a qualified domestic relations order described
in section 414(p) of the Code.
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<PAGE> 18
1.40 "TRUST" shall mean the trust continued pursuant to Article 10 hereof
by the Sponsor under which the Employer contributions and any
contributions by Participants shall be received, held, invested and
disbursed by the Trustee to, or for the benefit of, Participants,
Retired Participants and their Beneficiaries.
1.41 "TRUST FUND" OR "FUND" shall mean any and all cash, securities, real
estate and other property held by the Trustee pursuant to the terms of
the Plan.
1.42 "TRUSTEE" shall mean Trustmark National Bank or any individual,
individuals or financial institution as shall have accepted the
appointment by the Sponsor as successor Trustee under the Plan.
1.43 "VESTING SERVICE" shall mean for an Employee his period of Service for
purposes of determining his vested percentage, and shall equal the
number of Plan Years during which the Employee completes at least one
thousand (1,000) Hours of Service. Provided, however, that Service
during any period for which the Employer did not maintain the Plan or
a predecessor plan of which this Plan is a continuation, shall be
disregarded.
1.44 "YEAR OF SERVICE" shall mean the Service of an Employee that is
credited for purposes of determining eligibility to participate in the
Plan and shall equal the number of twelve (12) consecutive month
periods during which an Employee completes at least one thousand
(1,000) Hours of Service. The initial twelve (12) consecutive month
period shall commence on the date the Employee first performs an Hour
of Service, and each subsequent twelve (12) month period shall be the
Plan Year, beginning with the Plan Year which commences prior to the
end of the initial twelve (12) month period.
For purposes of this Section only, an Employee who first performs an
Hour of Service on the first working day of a Plan Year shall be
considered to have first performed an Hour of Service on the first day
of that Plan Year.
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<PAGE> 19
ARTICLE 2
PARTICIPATION IN THE PLAN
2.01 ELIGIBILITY DATE.
Each Employee on December 31, 1988, who is a Participant in the Plan
on that date and who continues to be an Employee on January 1, 1989,
shall without further requirements, continue as a Participant
hereunder.
Each other Employee on January 1, 1989, and each person who becomes an
Employee after January 1, 1989, shall, subject to the overriding
provisions of the following paragraphs, be eligible to become a
Participant on the first Entry Date coincident with or next following
the date such person completes one (1) Year of Service, provided he is
still an Employee on such Entry Date.
Provided, however, that no Employee shall become a Participant prior
to the effective date of adoption of the Plan by the Employee's
Employer.
Notwithstanding the above, the following classes of Employees shall be
considered as excluded classes for purposes of the Plan, and Employees
who are members of such classes shall not be eligible to participate
in the plan:
(a) Employees who are active participants in the Trustmark
National Bank Pension Plan who were also participants in the
Canton Exchange Bank Employees Retirement Plan prior to its
merger into the Trustmark National Bank Pension Plan;
(b) Employees who are active participants in the Rankin County
Bank 401K plan;
(c) Leased Employees.
2.02 ELIGIBILITY DETERMINATION.
Within a reasonable time prior to the date on which an Employee will
become eligible, if the Employee continues employment with the
Employer, to participate in the Plan, the Plan Administrator shall
forward to the Employee a salary deferral agreement and such
application for participation as the Plan Administrator shall require
and shall notify him of the requirements to become a Participant.
Should any question arise as to eligibility, the Plan Administrator
shall decide such question, and such determination, if made in good
faith and in accordance with the terms of the Plan, shall be final.
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2.03 PARTICIPATION.
An Employee shall become a Participant on the first day on which he is
eligible to become a Participant and has filed with the Plan
Administrator such written application as the Plan Administrator may
require for participation in the Plan, in which the Employee has
agreed to abide by all the provisions hereof and has specified the
amount of the Employee's salary deferral, if any, pursuant to Section
3.02 hereof.
Once an Employee has become a Participant he shall continue to be a
Participant until his Service terminates or he dies, sustains
Disability, incurs a Break in Service or retires. In the event that a
Participant's Service terminates or he dies, sustains Disability, or
retires in accordance with the provisions of the Plan, he shall
thereupon cease to be a Participant. A Participant who ceases to be
eligible for the Plan because of a change in his classification of
employment shall not be entitled to receive benefits solely by reason
of such change in classification, but rather his eligibility for
benefits shall be determined in accordance with the provisions of the
Plan; provided, however, that employment of the Participant in such an
excluded class shall be deemed Service for participation and vesting
purposes.
2.04 PARTICIPATION FOLLOWING REEMPLOYMENT OR BREAK IN SERVICE.
Except as otherwise provided in the following sentence, a former
Participant whose Service has terminated or who has incurred a Break
in Service, shall be eligible to participate immediately upon again
being credited with Service. Such an individual who is re-employed in
an excluded class of employees, as described in Section 2.01, shall
not be eligible to participate while in such excluded class.
Employees who were formerly participants in the Rankin County Bank
401K Plan but who ceased to be participants in such plan due to
termination of employment, and who have since been re-employed, shall
not be eligible to re-enter the Rankin County Bank 401K Plan but shall
be eligible to participate in this Plan immediately upon their
re-employment date.
2.05 PARTICIPATION FOLLOWING CHANGE IN CLASSIFICATION.
In the event a Participant becomes ineligible to participate because
he is no longer a member of an eligible class of Employees, but his
Service has not terminated, such Employee shall be eligible to
participate immediately upon his return to an eligible class of
Employees. If such participant's Service is terminated, his
eligibility to participate shall be determined as a former Participant
pursuant to Section 2.04 hereof.
In the event an Employee who is not a member of the eligible class of
Employees becomes a member of the eligible class, such Employee then
shall participate immediately if such Employee has satisfied the
minimum age and Service requirements and would have previously become
eligible to participate had he been in the eligible class. If such an
Employee has not satisfied the minimum age and Service requirements
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<PAGE> 21
when he becomes a member of the eligible class, he shall participate
as provided in Section 2.03 hereof, and his employment in the excluded
class shall be treated as Service in determining his eligibility to
participate.
2.06 FAMILY AND MEDICAL LEAVE ACT REQUIREMENTS.
Notwithstanding any other provisions of the Plan, in the case of an
Employee who takes family or medical leave as an eligible employee of
a covered employer under the provisions of the Family and Medical
Leave Act of 1993 (FMLA), any period of FMLA leave shall be treated as
continued service for purposes of eligibility to participate and
Vesting Service to the extent required by applicable law.
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<PAGE> 22
ARTICLE 3
CONTRIBUTIONS TO THE PLAN
3.01 EMPLOYER CONTRIBUTIONS.
Each Plan Year ending after the Effective Date and during the
continuance of the Plan, the Employer may, at its discretion, make
contributions to the Plan as described below.
(a) Employer Basic Contribution - The Employer may contribute a
basic contribution on behalf of Participants entitled to share
in the allocation of such contribution, pursuant to Section
4.01(a) hereof. Such basic contribution shall be subject to
the vesting schedule provided in Section 8.01 hereof and shall
be credited to Part I of the Participant's Employer Account.
(b) Employer Matching Contribution - The Employer may contribute
on behalf of each Participant an amount equal to a matching
percentage of all or a portion of such Participant's salary
deferral contributions during a payroll period. For any Plan
Year in which the Employer decides to make an Employer
matching contribution, the Committee shall designate in
writing both the matching percentage and the portion of salary
deferral contributions to be matched. Provided, however, the
Employer shall not contribute amounts which (i) would, if
allocated to the Employer Account of Highly Compensated
Employees pursuant to Section 4.01(b), create excess aggregate
contributions (as defined in Section 3.04) or (ii) are
attributable to contributions which pursuant to Sections
3.02(a), 3.03 or 3.04 are to be distributed to Employees. The
Employer matching contribution shall be subject to the vesting
schedule provided in Section 8.01 hereof and shall be credited
to Part II of the Participant's Employer Account.
(c) Qualified Matching Contribution - The Employer may, in order
to preserve the qualified status of the Plan, contribute a
Qualified Matching Contribution based on the salary deferral
contributions of Non- highly Compensated Employees. Qualified
Matching Contributions shall be fully vested at all times,
shall be subject to the distribution provisions that are
applicable to salary deferral contributions and shall be
credited to Part III of the Participant's Employer Account.
Employer contributions shall be made as soon as practicable on or
before the due date (including extensions) for filing the federal
income tax return for the year for which such contributions are made.
In satisfaction of its contribution obligations under this Section
3.01, the Employer may, at its option, deliver or cause to be
delivered either cash or such other property as is acceptable to the
Trustee.
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Contributions made to the Plan by the Employer shall be made on the
condition that they are deductible under section 404 of the Code.
3.02 CONTRIBUTIONS BY, OR ON BEHALF OF, PARTICIPANTS.
A Participant may elect contributions to the Plan, as described below.
Such amounts shall be fully vested at all times.
(a) Salary Deferral Contributions. Effective with any payroll
period beginning on or after the date on which he becomes a
Participant, a Participant may voluntarily elect to enter into
a salary deferral agreement with the Employer. Such salary
deferral agreement shall serve to direct the Employer to
contribute to the Participant's Personal Account, as salary
deferral contributions, a portion of the amount which would
otherwise be paid to the Participant as direct Compensation.
Salary deferral contributions shall be subject to the
following restrictions:
(1) the amount of such contributions for any single pay
period may not exceed two hundred eight dollars and
thirty-three cents ($208.33) or fifteen percent of
Compensation for the pay period, whichever is less;
(2) the amount of such contributions for any Plan Year
may not exceed five thousand dollars;
(3) if the Participant elects to make salary deferral
contributions, such election must result in salary
deferral contributions of at least ten dollars ($10)
per pay period.
Provided, further, that such amount shall be subject also to
the limitations on annual additions for the limitation year
under Section 4.04 hereof.
A Participant's aggregate elective salary deferral
contributions in any taxable year of the Participant shall not
be greater than seven thousand dollars ($7,000), or such
increased amount pursuant to section 402(g) of the Code for
any taxable year as determined by the Commissioner of Internal
Revenue and effective on January 1 of the taxable year.
Elective salary deferral contributions in excess of the
preceding limit occurring in any Plan Year (together with any
Income allocable to such amount, if required by law or
regulations to be distributed) shall be distributed not later
than the first April 15th following the close of the Plan Year
in which such excess deferral contributions occurred, to the
Participant on whose behalf the excess was contributed.
If the Participant makes "elective deferrals," as defined in
regulations issued pursuant to section 402(g) of the Code, to
more than one plan, which exceed the limit described above in
the aggregate, such Participant may elect a distribution of a
part or all of such excess amount which has been contributed
to this Plan. An election to receive a distribution of such
excess deferrals must be in writing and must include the
Employee's certification that the specified amount is an
excess deferral. Such election must be made not later than
the first March 15th following the close of the Plan Year
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<PAGE> 24
in which such excess deferrals occurred. Upon such election,
the excess amount specified by the Participant shall be
distributed to the Participant not later than the first April
15th following the close of the Plan Year in which such excess
deferrals occurred. The amount of such excess to be
distributed shall be reduced by the amount of any excess
contributions previously distributed pursuant to Section 3.03
hereof for the Plan Year beginning within the taxable year for
which the excess under this Section 3.02 is distributed.
Such excess deferrals shall, if required by law or
regulations, be adjusted for any Income allocable to such
excess deferrals up to the date of distribution. The Income
allocable to such excess deferrals shall be equal to the sum
of (i) Income allocable to Part I of the Participant's
Personal Account for the taxable year multiplied by a
fraction, the numerator of which is the excess deferrals for
the Participant for the year and the denominator of which is
the total account balance of the Employee attributable to
elective salary deferrals without regard to any Income
occurring during the taxable year; and (ii) the Income
allocable to Part I of the Participant's Personal Account for
the period between the end of the taxable year and the
distribution date multiplied by a fraction determined under
the method described in (i) of this sentence.
The determination of whether a Participant's elective
deferrals with respect to any taxable year shall exceed the
limitations of Code section 402(g) shall be the sole
responsibility of the Participant, and neither the Employer,
the Committee nor the Trustee shall have any obligations with
respect to such determination.
Salary deferral contributions shall be made by payroll
deduction and shall be considered to be salary deferral
contributions for the Plan Year in which they are actually
made.
The direction and agreement by the Participant to defer a
portion of his Compensation as a salary deferral contribution
rather than receive it as a cash benefit shall be in the form
of a salary deferral agreement as set forth in Section 2.03
hereof. A Participant's salary deferral agreement may be
prospectively amended to change the percentage of the salary
deferral, either increasing, decreasing, starting or stopping
the percentage of salary deferral, as of any payroll period.
Such change shall be effective as of the first pay period
following receipt by the Committee of written notice of the
change, provided such written notice is received in time to
allow normal processing of the paperwork involved in
instituting the change. The Committee may establish
additional procedures for the renewal, amendment, termination,
or revocation of salary deferral agreements which shall be
uniform and nondiscriminatory. Provided, however, that the
requirement of uniformity (but not nondiscrimination) may be
suspended, and such differences in procedure (provided such
differences are merely procedural) may be permitted between
Highly Compensated Employees and Non-highly Compensated
Employees as are necessary, proper and convenient in order to
bring the Plan into compliance with the coverage and
discrimination requirements of Section 3.03 and thereby
preserve, or assure the preservation of, the qualified status
of
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<PAGE> 25
the Plan. As a condition precedent for accepting a
Participant's salary deferral agreement, the Employer also
may, at any time, as of any time, and from time to time,
amend, terminate or revoke the salary deferral agreement of a
Participant who is a Highly Compensated Employee in order to
comply with the coverage and discrimination requirements of
Section 3.03 hereof.
The Employer shall contribute to Part I of the Personal
Account of each Participant an amount equal to the reduction
in such Participant's Compensation pursuant to his salary
deferral agreement. The contribution to be made as a result
of such reduction in Compensation shall be paid to the Trustee
as soon as practicable, but no later than the month following
the month for which the reduction in Compensation was made;
provided, that if a Participant has executed a salary deferral
agreement pending the adoption of the Plan by the Employer or
pending a determination by the Committee whether contributions
on his behalf under such agreement would cause the Plan not to
qualify under section 401(k) of the Code, such contributions
may be paid to the Trustee during the month following the
month in which such adoption or determination is made,
whichever is applicable, but in no event later than thirty
(30) days after the end of the Plan Year. Such salary
deferral contributions shall be considered to be Employer
contributions under the Plan and shall be nonforfeitable when
made.
If the Committee shall determine that the salary deferral
contributions provided for in this Section 3.02 would exceed
the limitations of Section 3.03 hereof, the Committee shall,
before the end of the Plan Year following the Plan Year during
which such excess contribution occurs, distribute the amount
of such excess to the Participant on whose behalf the
contribution was made.
(b) Voluntary After-Tax Contributions. Voluntary after-tax
contributions may not be made to the Plan. In the past, such
contributions were permitted, and any such amounts still in
the Plan shall be maintained in Part II of the Participant's
Personal Account.
(c) Rollover Contributions. Rollover contributions by a
Participant (or by an Employee expected to become a
Participant) to his Personal Account in cash or in other
property acceptable to the Trustee shall be allowed from
individual retirement accounts, within the meaning of section
408(a) of the Code, which have been established as conduits
for other qualified plan distributions pursuant to section 402
or section 403 of the Code or from another qualified plan;
provided that no portion of any such rollover is attributable
to nondeductible employee contributions and provided further
that acceptance of such rollover contributions shall be
subject to any procedures governing acceptance of such
rollover contributions which may be established by the Plan
Administrator or Trustee. Direct rollover of an eligible
rollover contribution as described in Code sections 401(a)(31)
and 402 and regulations thereunder elected by a Participant
(or by an Employee expected to become a Participant) shall be
allowed from another qualified plan, provided that such direct
rollover shall be made only in
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<PAGE> 26
cash or its equivalent in cash or in other property
acceptable to the Trustee and provided further that
acceptance of such rollover contributions shall be subject to
any procedures governing acceptance of such rollover
contributions which may be established by the Plan
Administrator or Trustee.
Any such rollover contributions shall be remitted to the
Trustee as soon as practicable, shall be credited to Part III
of the Participant's Personal Account and shall be fully
vested at all times. Rollover contributions shall be treated
in the same manner as Participant voluntary after-tax
contributions for purposes of investment and allocation of
Income, and shall be withdrawable from the Participant's
Personal Account to the extent provided in Article 5 or
otherwise shall be distributed as provided in Articles 6, 7
and 8 hereof.
Rollover contributions shall not be considered (i) as
contributions by the Employer under Section 3.01 of this Plan,
(ii) in determining the maximum benefits permissible under the
Plan pursuant to Section 4.04 hereof or (iii) in determining
the Top Heavy Ratio in Section 13.02(j) hereof.
3.03 COVERAGE AND DISCRIMINATION REQUIREMENTS.
Salary deferral contributions for any Plan Year after December 31,
1986 shall satisfy one (1) of the following tests:
(a) the average deferral percentage for the Highly Compensated
Employees who are eligible to participate in the Plan for the
Plan Year shall not be more than the average deferral
percentage of the Non-highly Compensated Employees who are
eligible to participate in the Plan for the Plan Year
multiplied by one and twenty-five hundredths (1.25); or
(b) the excess of the average deferral percentage for the Highly
Compensated Employees who are eligible to participate in the
Plan for the Plan Year over that of the Non-highly Compensated
Employees who are eligible to participate in the Plan for the
Plan Year shall not be more than two percent (2%), nor shall
the average deferral percentage for such Highly Compensated
Employees be more than that of such Non-highly Compensated
Employees multiplied by two (2).
For purposes of this Section, the term "average deferral percentage"
for a group of Employees shall mean the average of the percentages,
calculated separately for each Employee in the group, of the amount of
salary deferral contributions and, if applicable, Qualified Matching
Contributions, made on behalf of the Employee for a Plan Year, to the
amount of the Employee's Compensation for such Plan Year (the
"deferral percentage"). However, for purposes of determining the
deferral percentage of a Participant who is a five percent (5%) owner
of the Employer or one of the top ten (10) highest paid Highly
Compensated Employees, the amount of contributions and Compensation of
such Participant shall include the contributions and Compensation of
family members (as described in Code section 414(q)(6)(B)) to the
extent required by
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<PAGE> 27
regulations. Family members who are required to be aggregated with
respect to such Highly Compensated Employees shall be disregarded as
separate Employees in determining the average deferral percentage both
for eligible Employees who are Highly Compensated Employees and for
eligible Employees who are Non-highly Compensated Employees.
A salary deferral contribution shall be considered to have been made
with respect to a Plan Year if it (i) is allocated to the account of a
Participant as of any date within that Plan Year and (ii) relates to
Compensation that either would have been received by the Participant
in the Plan Year but for the Participant's election to defer under the
arrangement, or is attributable to services performed by the
Participant in the Plan Year and, but for the Participant's election
to defer, would have been received by the Participant within two and
one- half (2-1/2) months after the close of the Plan Year. A
contribution shall be considered allocated as of any date within a
Plan Year if the following conditions are met:
(c) such allocation is not dependent upon participation in the
Plan as of any date subsequent to the allocation date,
(d) the Employer contributions in addition to those attributable
to salary deferral contributions are actually made to the Plan
no later than the end of the period described in Code section
404(a)(6) applicable to the taxable year with or within which
the Plan Year ends, and
(e) the Employer contributions attributable to salary deferrals
are actually made to the Plan no later than the end of the
twelve (12) month period immediately following the end of the
Plan Year to which the contribution relates.
Excess contributions shall mean, with respect to any Plan Year, the
excess of:
(f) The aggregate amount of contributions actually taken into
account in computing the average deferral percentage of Highly
Compensated Employees for such Plan Year as described above,
over
(g) The maximum amount of such contributions permitted by the
average deferral percentage test (determined by reducing
contributions made on behalf of Highly Compensated Employees
in order of the average deferral percentages, beginning with
the highest of such percentages).
Provided, that the amount of any such excess contributions to be
distributed pursuant to this Section 3.03 with respect to a
Participant for a Plan Year shall be reduced by any salary deferral
contributions in excess of the dollar limit specified in Section
3.02(a) hereof which are previously distributed to such Participant
for his taxable year ending with or within such Plan Year. In
addition, the amount of such excess contribution of a Highly
Compensated Employee whose average deferral percentage is determined
under the family aggregation rules, shall be allocated among the
family members in proportion
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<PAGE> 28
to the salary deferral contributions of each family member that are
combined to determine the combined average deferral percentage.
Excess contributions shall, if required by law or regulations, be
adjusted for any Income up to the date of distribution. The Income
allocable to such excess contribution shall be equal to the sum of (i)
the allocable Income for the Plan Year and (ii) the allocable Income
for the period between the end of the Plan Year and the date of
distribution. The Income allocable to excess contributions for such
periods is determined in a manner analogous to the above allocation of
Income to excess deferrals, but basing the allocation on excess
contributions and the Income allocable to salary deferral
contributions.
If, for any Plan Year, salary deferral contributions are made with
respect to the Highly Compensated Employees in excess of that
permissible under subsections (a) and (b) of this Section 3.03, the
Committee shall, before the end of the Plan Year following the Plan
Year during which such excess contribution occurs, distribute the
amount of such excess to the Participant on whose behalf the
contribution was made.
Any distributions made hereunder shall be made to Highly Compensated
Employees on the basis of the respective portions of the excess
contributions attributable to each of such Employees.
The tests described in this Section and the corrective measures for
insuring passage of such tests may be performed in any manner
permitted under section 401(k) of the Code, the regulations thereunder
and any other related rulings or pronouncements issued by the
Secretary of the Treasury or the Internal Revenue Service.
3.04 DISCRIMINATION REQUIREMENTS FOR OTHER CONTRIBUTIONS.
The Plan must satisfy the nondiscrimination requirements of section
401(m) of the Code and the regulations issued thereunder, which are
incorporated herein by reference. The Plan shall satisfy such
requirements if, with respect to any Plan Year, either of the
following alternative conditions are met:
(a) the average contribution percentage for eligible Highly
Compensated Employees is not greater than the average
contribution percentage for eligible Non-highly Compensated
Employees, multiplied by one and twenty-five hundredths
(1.25).
(b) the excess of the average contribution percentage for eligible
Highly Compensated Employees over that of eligible Non-highly
Compensated Employees is not more than two percent (2%), nor
is the average contribution percentage for such Highly
Compensated Employees more than that of such Non-highly
Compensated Employees, multiplied by two (2).
"Eligible Employee" shall mean any Employee who is eligible to make
voluntary after-tax contributions, or a salary deferral contribution
(if the Employer takes such contributions into account in the
calculation of the average contribution percentage). The
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<PAGE> 29
term "average contribution percentage" for a group of Employees shall
mean the average of the ratios, calculated separately for each
Employee in the group, of the amount of voluntary after-tax
contributions and Employer matching contributions made on behalf of an
Employee during the Plan Year to that Employee's Compensation for such
Plan Year (the "contribution percentage"). Provided, that the
Employer may elect to include salary deferral contributions and
Qualified Matching Contributions to the extent such contributions are
not included in the calculation of the tests specified in Section 3.03
hereof, in the calculation of an average contribution percentage.
However, for purposes of determining the contribution percentage of a
Participant who is a five percent (5%) owner of the Employer or one of
the top ten (10) highest paid Highly Compensated Employees, the amount
of voluntary after-tax contributions, Employer matching contributions
and Compensation of such Participant shall include the voluntary
after-tax contributions, Employer matching contributions and
Compensation of family members (as described in Code section
414(q)(6)(B)). Family members, with respect to Highly Compensated
Employees, shall be disregarded as separate Employees in determining
the contribution percentage both for eligible Employees who are
Non-highly Compensated Employees and for eligible Employees who are
Highly Compensated Employees.
"Excess aggregate contributions", plus any Income allocable thereto,
shall be forfeited, if forfeitable, or if not forfeitable, distributed
no later than the last day of each Plan Year to Participants to whose
accounts such excess aggregate contributions were allocated for the
preceding Plan Year. Excess aggregate contributions shall be
allocated to Participants who are subject to the family member
aggregation rules of section 414(q)(6) of the Code in proportion to
the Employee matching contributions of each family member that are
combined to determine the combined average contribution percentage.
Excess aggregate contributions shall be treated as annual additions,
as defined in Section 4.04, hereof.
"Excess aggregate contributions" shall mean, with respect to any Plan
Year, the excess of:
(c) The aggregate contribution percentage amounts taken into
account in computing the numerator of the contribution
percentage actually made on behalf of Highly Compensated
Employees for such Plan Year, over
(d) The maximum contribution percentage amounts permitted by the
average contribution percentage test (determined by reducing
contributions made on behalf of Highly Compensated Employees
in order of their contribution percentages beginning with the
highest of such percentages).
Such determination shall be made after first determining excess
elective deferrals pursuant to Section 3.02 and then determining
excess contributions pursuant to Section 3.03 hereof.
Excess aggregate contributions shall, if required by law or
regulations, be adjusted for any Income up to the date of
distribution. The Income allocable to excess aggregate contributions
for such period is determined in a manner analogous to the above
allocation of Income to excess deferrals, but basing the allocation on
excess aggregate contributions
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<PAGE> 30
and the Income allocable to Employer matching contributions and
Employee voluntary after-tax contributions.
Forfeitures of excess aggregate contributions shall be applied to
reduce Employer contributions.
The tests described in this Section and the corrective measures for
insuring passage of such tests may be performed in any manner
permitted under section 401(m) of the Code, the regulations thereunder
and any other related rulings or pronouncements issued by the
Secretary of the Treasury or the Internal Revenue Service.
3.05 MULTIPLE USE OF ALTERNATIVE LIMITATION.
Compliance with Section 3.03 and Section 3.04 shall not be achieved by
the use of both the limitation in Section 3.03(b) and the limitation
in Section 3.04(b) for the same Plan Year. The determination and
correction of such a multiple use shall be governed by the rules set
forth in section 401(m) of the Code and in regulations, rulings or
other pronouncements interpreting such section, which are incorporated
herein by reference; provided, however, that the multiple use shall be
corrected through reduction of the average contribution percentage of
all Highly Compensated Employees.
3.06 MEDIUM OF FINANCING THE PLAN.
Investment of all contributions made in accordance with the Plan and
provision for payment of benefits to Retired Participants and
Beneficiaries shall be accomplished by a Trust, as it may be amended
from time to time, which shall constitute a part of the Plan.
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<PAGE> 31
ARTICLE 4
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
4.01 ALLOCATION OF EMPLOYER CONTRIBUTIONS.
Employer contributions shall be allocated as follows:
(a) Employer Basic Contributions and Forfeitures. Any Employer
basic contributions made pursuant to Section 3.01(a) hereof
and Forfeitures becoming available during the Plan Year shall
be allocated on the last Allocation Date of the Plan Year to
Part I of the Employer Account of each Participant entitled to
share in such contributions and Forfeitures. Only those
Participants who complete at least one thousand (1,000) Hours
of Service during the Plan Year and who are in one of the
following categories for the Plan Year shall be eligible to
share in the allocation of Employer basic contributions and
Forfeitures:
(1) Participants who are employed on the last day of the
Plan Year or whose employment terminated on the last
day of the Plan Year; or
(2) Participants whose employment terminated during the
Plan Year due to retirement at or after Normal
Retirement Age, death or disability.
Employer basic contributions and Forfeitures for the Plan Year
shall be allocated to Part I of each such Participant's
Employer Account in the proportion that such Participant's
number of units as of the Allocation Date bears to the total
number of units for all such Participants as of the Allocation
Date. For purposes of this allocation, one (1) unit shall be
credited for each year of Vesting Service and one (1) unit
will be credited for each full one hundred dollars ($100) of
Compensation for the Plan Year.
(b) Employer Matching Contributions. Employer matching
contributions pursuant to Section 3.01(b) hereof shall be
allocated to Part II of the respective Employer Accounts of
Participants on whose behalf such contributions were made.
(c) Qualified Matching Contributions. Qualified Matching
Contributions pursuant to Section 3.01(c) hereof shall be
allocated as of the last day of the Plan Year to Part III of
the Employer Account of each Non- highly Compensated Employee
who was credited with an Employer matching contribution for
the Plan Year. Each Participant's share in such Qualified
Matching Contributions shall be that amount which bears the
same ratio to the total Qualified Matching Contributions as
the Participant's salary deferral contributions for the Plan
Year bears to the total salary
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<PAGE> 32
deferral contributions for the Plan Year for all Non-highly
Compensated Employees entitled to share in the allocation.
(d) Salary Deferrals. Salary deferral contributions pursuant to
Section 3.02(a) hereof shall be allocated as of each
Allocation Date to Part I of the Personal Account of each
Participant on whose behalf such contributions were made.
Participant contributions pursuant to Section 3.02 hereof shall be
allocated to the respective Personal Accounts of Participants who
contributed such amounts or on whose behalf such contributions were
made.
4.02 ALLOCATION OF INCOME.
As of each Allocation Date, Income received on investments held by the
Trustee shall be allocated to each Participant's Employer Account and
Personal Account.
The Income of each investment fund of the Trust Fund for the period
ending with such Allocation Date shall be determined as the change in
the fair market value of that investment fund since the last
Allocation Date, after eliminating the effect of all non-investment
transactions.
Income of each investment fund shall be allocated as of each such
Allocation Date as provided hereunder. Income shall be allocated to
each Participant's accounts in the ratio that the value of each such
account as of the last Allocation Date bears to the total value of the
Employer Accounts and Personal Accounts for all such persons as of the
last Allocation Date. These account values shall not include any
accounts forfeited or segregated, or amounts withdrawn since the last
Allocation Date, but may include contributions (adjusted for timing)
since the last Allocation Date.
For purposes of this section only, the term "Participants" shall
include Retired Participants, present and former Employees and
Beneficiaries who have account balances, but who would not otherwise
be considered to be Participants under the Plan.
Should the Plan Administrator determine that the strict application of
the foregoing allocation procedures will not result in an equitable
and non-discriminatory allocation among the accounts of Participants,
it may modify its procedures for the purpose of achieving an equitable
and non-discriminatory allocation in accordance with the general
concepts of the Plan and the provisions of this article.
4.03 ADJUSTMENT TO ACCOUNTS.
As soon as practicable after each Allocation Date, the value of each
Employer Account and each Personal Account shall be determined as
follows:
(a) Each Employer Account shall be equal to the value of such
account as of the last Allocation Date, less any payment or
Forfeiture from the account since the last
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<PAGE> 33
Allocation Date to, or on behalf of, such Participant, plus
the allocations of Employer contributions, Forfeitures and
Income specified in this article and any other adjustments
made to the Account since the last Allocation Date.
(b) Each Personal Account shall be equal to the value of such
account as of the last Allocation Date, plus any contributions
made on behalf of the Participant to the Plan (including
Participant salary deferral contributions) and less any
withdrawals or payments to or on behalf of such Participant
from such account since the last Allocation Date, plus the
allocation of Income specified in this article and any other
adjustments made to the Account since the last Allocation
Date.
4.04 MAXIMUM ANNUAL ADDITIONS TO PARTICIPANTS' ACCOUNTS.
The annual addition to any Participant's accounts for any Plan Year
shall not exceed the lesser of (i) thirty thousand dollars ($30,000),
or, if greater, one-fourth of the defined benefit dollar limitation
set forth in section 415(b)(1) of the Code as in effect for the
limitation year, and (ii) twenty-five percent (25%) of such
Participant's total cash compensation for the Plan Year.
For purposes of this section and of Article 13 hereof, the term
"compensation" shall mean wages within the meaning of Code section
3401(a) and all other payments of compensation to an Employee by his
Employer (in the course of the employer's trade or business) for which
the Employer is required to furnish the Employee a written statement
under Code sections 6041(d), 6051(a)(3), and 6052. Compensation shall
be determined without regard to any rules under Code section 3401(a)
that limit the remuneration included in wages based on the nature or
location of the employment or the services performed (such as the
exception for agricultural labor in Code section 3401(a)(2)).
For any self-employed individual, "Compensation" will mean earned
income.
For limitation years beginning after December 31, 1991, for purposes
of applying the limitations of this section, compensation for a
limitation year is the compensation actually paid or made available
during such limitation year.
The term "annual addition" for a Participant means the sum of the
following for the Plan Year:
(a) contributions made by the Employer on behalf of the
Participant (including salary deferral contributions made
pursuant to Section 3.02(a) hereof); and
(b) Forfeitures allocated to a Participant's Employer Account, if
any;
(c) contributions made by the Participant, if any;
(d) amounts allocated to an individual medical account which is
part of a defined benefit plan, as described in Code section
415(l)(2); and
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<PAGE> 34
(e) amounts attributable to post-retirement medical benefits
allocated to a separate account of a key employee under a
welfare benefit fund as described in Code section 419A(d)(2).
If a Participant is, or was, a participant at any time in both a
qualified defined benefit pension plan and a qualified defined
contribution plan ever maintained by the same employer, the sum of the
defined benefit fraction and the defined contribution fraction in any
limitation year may not exceed one (1).
The term "defined benefit fraction" shall mean, for any Plan Year, a
fraction the numerator of which is the projected annual benefit of the
Participant under all qualified defined benefit pension plans
maintained by the Employer (determined as of the close of the Plan
Year), if any, and the denominator of which is the lesser of the
following:
(i) one and four tenths (1.4) multiplied by one hundred percent
(100%) of the Participant's average total cash compensation
for the three (3) consecutive limitation years in which he
received the highest aggregate total cash compensation; and
(ii) one and twenty-five hundredths (1.25) multiplied by ninety
thousand dollars ($90,000) (or such greater amount as may be
determined by the Secretary of the Treasury).
The term "defined contribution fraction" shall mean, for any Plan
Year, a fraction the numerator of which is the sum of the annual
additions to the Participant's accounts under all qualified defined
contribution plans maintained by the Employer (determined as of the
close of the Plan Year) and the denominator of which is the sum of the
lesser of the following amounts determined for such year and for each
prior year of service with the Employer:
(i) 1.25, multiplied by the dollar limitation in effect under Code
section 415(c)(1)(A) for such year (determined without regard
to Code section 415(c)(6)), or
(ii) 1.4, multiplied by the amount which may be taken into account
under Code section 415(c)(1)(B) (or Code section 415(c)(7), if
applicable) with respect to such individual under such plan
for such year.
For purposes of determining annual additions, the limitation year
shall be the Plan Year.
All qualified defined benefit pension plans (whether or not
terminated) of an employer shall be treated as one (1) qualified
defined benefit pension plan for purposes of applying the limitations
of section 415(b), (c) and (e) of the Code.
All qualified defined contribution plans (whether or not terminated)
of an employer shall be treated as one (1) qualified defined
contribution plan for purposes of applying the limitations of section
415(b), (c) and (e) of the Code.
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<PAGE> 35
In the case of a group of employers which constitutes a Controlled
Group, all such employers shall be considered a single employer for
purposes of applying the limitations of section 415 of the Code.
If as a result of the allocation of Forfeitures, a reasonable error in
estimating the compensation of a Participant, a reasonable error in
determining the amount of elective deferral contributions (within the
meaning of Code section 402(g)(3)) that may be made with respect to
any individual under the limits of Code section 415, or other facts
and circumstances allowed by regulation, the annual additions
limitation is exceeded in any Plan Year, the excess annual addition
shall be charged against the Participant's accounts in the following
order of priority by the amount required to insure compliance with
this Section:
(i) voluntary after-tax contributions;
(ii) salary deferral contributions which are not matchable salary
deferrals pursuant to Section 3.01(b);
(iii) matchable salary deferral contributions pursuant to Section
3.01(b) and Employer matching contributions, on a pro rata
basis;
(iv) all other Employer contributions.
The portion of such excess which consists of voluntary after-tax
contributions and salary deferral contributions shall be returned to
the Participant. The portion of such excess attributable to Employer
contributions shall be treated as a Forfeiture for the Plan Year and
shall be allocated to, and maintained as, a suspense account under the
Plan to which Income is not allocated and which will be used to reduce
Employer contributions along with other Plan Forfeitures as of the
next date on which Employer contributions are allocated. In addition,
no Employer or Employee contributions may be made to the Plan until
any excess maintained in a suspense account is exhausted.
Notwithstanding any provision of the Plan to the contrary, if, in any
limitation year, the sum of the defined benefit fraction and the
defined contribution fraction exceed one (1.0), then the rate of the
annual addition for any Participant shall be automatically reduced to
the level necessary to prevent the limitations of this section from
being exceeded with respect to such Participant.
4.05 SEPARATION OF FORFEITURES AND ACCOUNTS BY EMPLOYER.
All Employers which are members of a Controlled Group shall be
considered a single Employer for purposes of allocating Employer
contributions and Forfeitures. Employer contributions and Forfeitures
for Employers which are not members of the Controlled Group shall be
administered separately.
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<PAGE> 36
Provided, however, that a single Trust Fund may be used for the
investment of the funds of the Plan.
4.06 FAIR MARKET VALUE.
The Plan Administrator shall cause to be determined the fair market
value of all assets held by the Trustee in the Trust hereunder as of
each Allocation Date.
4.07 INTERIM ALLOCATIONS.
The Plan Administrator may direct a special allocation date in order
to avoid prejudice either to continuing Participants or terminating
Participants. Such special allocation date shall be deemed equivalent
to a regular Allocation Date, except that the allocations under
Section 4.01 may be deferred until the next following regular
Allocation Date. Interim allocations, if any, shall be made on a
nondiscriminatory basis.
4.08 ELECTION OF INVESTMENT FUND.
Each Participant shall elect to have his Participant contributions and
Employer contributions invested in the available investment funds in
any combination of whole percentages that totals one hundred percent
(100%).
All elections hereunder shall be effective for the entire amount of
both his Participant contributions and Employer contributions. The
form and manner of all elections under this section shall be
prescribed by the Committee.
Such investment funds shall remain a part of the Trust Fund, but shall
be separately invested, with all investment income on such investments
credited to the investment funds and all disbursements to, or on
behalf of, the Participant changed thereto.
A Participant may make, revise or revoke such election for the future
investment of contributions made under this Plan provided for under
this Section 4.08 as of the next Allocation Date, provided sufficient
notice is provided to allow the modification to be made. Such
election shall remain effective for all subsequent contributions
allocated on behalf of the Participant to the investment funds until
the election is effectively modified or revoked.
The transfer of existing balances in the Accounts of Participants
between investment funds shall be permitted once each allocation
period on the Allocation Date, provided sufficient notice is provided
to allow the transfer to be made.
4.09 UNITS ACCOUNTING FOR INVESTMENT FUND
The Committee may choose to maintain accounting of one or more of the
investment funds on a "units" basis, wherein the market value of the
assets in the fund are represented by units. As of any date, the
market value of a units fund will exactly equal the product of the
number of units in the fund on that date and the value of each unit on
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that date. Each Participant's Accounts with respect to such a fund
will be maintained in units, and all additions to and subtractions
from such Accounts will be in terms of units and will be based on the
unit value as of the date of the transaction. Investment earnings of
the fund shall be accounted for based on the market value of the fund
units, and the provisions of the Plan regarding the allocation of
investment earnings shall not apply to a fund being maintained on a
units basis. The provisions of this Section shall automatically
supersede any conflicting provisions in the Plan.
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ARTICLE 5
IN-SERVICE WITHDRAWALS AND LOANS
5.01 WITHDRAWALS FROM PARTICIPANTS' EMPLOYER ACCOUNTS.
In-service withdrawals from a Participant's Employer Account are not
permitted.
5.02 WITHDRAWALS FROM PART I OF PARTICIPANTS' PERSONAL ACCOUNTS.
While a Participant or a former Participant is in the Service of the
Employer, he may apply to the Plan Administrator to withdraw all or a
part of the amount attributed to Part I of his Personal Account. Such
a request shall be granted only if the Participant has demonstrated an
immediate and heavy financial need arising from a hardship situation
or has attained fifty nine and one half (59-1/2) years of age. The
Committee shall determine whether an emergency financial hardship has
been proven by the Participant in accordance with regulations issued
by the Secretary of the Treasury pursuant to section 401(k) of the
Code and the Secretary of the U.S. Department of Labor pursuant to
ERISA section 408. A maximum of one (1) withdrawal under this Section
5.02 may be made in each half of the calendar year.
The determination of whether a Participant or a former Participant has
an immediate and heavy financial need and no other resources available
to satisfy such need shall be made in accordance with the following
conditions.
(a) Financial Need Test. The immediate and heavy financial needs
for which a hardship withdrawal may be granted shall be
limited to the following:
(1) Expenses for medical care described in Code section
213(d) previously incurred by the Participant, the
Participant's spouse, or any dependents of the
Participant (as defined in Code section 152) or
necessary for these persons to obtain medical care
described in Code section 213(d);
(2) Costs directly related to the purchase of a principal
residence for the Participant (excluding mortgage
payments);
(3) Payment of tuition and related education fees for the
next twelve (12) months of post-secondary education
for the Participant, or the Participant's spouse,
children, or dependents (as defined in Code section
152);
(4) Payments necessary to prevent the eviction of the
Participant from the Participant's principal
residence or foreclosure on the mortgage on that
residence; or
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(5) Other expenses which the Commissioner of the Internal
Revenue Service indicates will be deemed to be made
on account of such need.
The amount of any hardship withdrawal granted pursuant to this
Section 5.02(a) shall be limited to the lesser of:
o the actual amount of the salary deferral
contributions made on behalf of the Participant or
former Participant, without regard to Income
allocable thereto, less the amount of salary deferral
contributions previously withdrawn; and
o the amount required to relieve the financial need
plus amounts necessary to pay any federal, state, or
local income taxes or penalties reasonably
anticipated to result from the hardship distribution.
(b) Resources Test. To qualify for a hardship withdrawal pursuant
to Section 5.02(a), the Participant or former Participant must
certify that the financial need giving rise to the hardship
cannot be met from other resources that are reasonably
available to the participant, such as:
(1) insurance reimbursement;
(2) liquidation of assets, including those of the spouse
and minor children of the Participant;
(3) cessation of contributions to the Plan;
(4) other plan distributions or commercial loans.
5.03 WITHDRAWALS FROM PART II OF PARTICIPANT'S PERSONAL ACCOUNTS.
In-service withdrawals from Part II of a Participant's Personal
Account are not permitted.
5.04 WITHDRAWALS FROM PART III OF PARTICIPANT'S PERSONAL ACCOUNTS.
In-service withdrawals from Part III of a Participant's Personal
Account may be made at any time, at the election of the Participant.
A maximum of one (1) withdrawal under this Section 5.04 may be made in
each half of the calendar year.
5.05 WITHDRAWALS FROM PART IV OF PARTICIPANT'S PERSONAL ACCOUNTS.
In-service withdrawals from Part IV of a Participant's Personal
Account are not permitted.
5.06 LOANS TO PARTICIPANTS.
Loans to Participants will not be permitted from the Plan.
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ARTICLE 6
GENERAL BENEFIT PROVISIONS
6.01 FORM OF BENEFIT PAYMENT.
(a) In General. The normal form of payment shall be a single lump
sum, except that payment of a benefit attributable to a
transfer of assets from an Annuity Transfer Plan shall be made
in conformance with Section 6.01(b). In lieu of this normal
form of payment, a Participant may elect to have his benefit
paid in accordance with one or more of the following optional
forms of payments, subject to Sections 6.01(b) or (c), if
applicable.
(1) Paid in a single sum; or
(2) Paid in installments as nearly equal as practicable
for a period not to exceed the Participant's life
expectancy or the life expectancy of the Participant
and his Beneficiary. The Retired Participant or, if
the Retired Participant is deceased, the Beneficiary
may nevertheless, as of any subsequent date, elect to
have the balance then remaining paid in a single sum;
or
(3) Applied to the purchase of a nontransferable,
immediate life annuity contract. Such annuity may
not be in any form that will provide for payments
over a period extending beyond the period described
in Section 6.03(c) hereof.
Such election must be in writing, in such form as the
Committee shall uniformly and nondiscriminatorily require, and
may be submitted at any time during the ninety (90) day period
preceding the first day of the first period for which an
amount is paid as a benefit and following the date which the
Participant is provided with information concerning the
optional forms of benefit and the Participant's right, if any,
to defer payment of his benefit. Such notice shall be
provided at least thirty (30) and no more than ninety (90)
days before the first day of the period described in the
preceding sentence. If a distribution is one to which
sections 401(a)(11) and 417 of the Code do not apply, such
distribution may commence less than thirty (30) days after the
notice required under section 1.411(a)-11(c) of the Income Tax
Regulations is given, provided that:
(i) the Plan Administrator clearly informs the
Participant that the Participant has a right
to a period of at least thirty (30) days
after receiving the notice to consider the
decision of whether or not to elect a
distribution (and, if applicable, a
particular distribution option), and
(ii) the Participant, after receiving the notice,
affirmatively elects a distribution.
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If the Retired Participant does not elect an option, such
benefits shall be paid or applied in accordance with the
option described in (a) above.
(b) Annuity Benefit Payment Provisions. Any annuity contract
purchased for a Participant pursuant to an election of the
payment form provided in Section 6.01(a)(3) or pursuant to the
requirement of Code section 401(a)(11)(B)(iii) that the Plan
purchase the annuity contract because of a transfer from an
Annuity Transfer Plan with respect to the Participant, shall
be in the form of a Qualified Joint and Survivor Annuity to
the Participant and his Spouse, or if the Participant does not
have a Spouse, in the form of an annuity for the life of the
Participant. However, payment may be made in an alternate
form or to an alternate joint annuitant, if a qualified
election to waive payment in the above- described form and
manner is made in conformance with subsection (1) below,
following receipt of the notice described in (2) below:
(1) Qualified Election. An election shall be a qualified
election, effective to waive payment in the Qualified
Joint and Survivor Annuity form or the straight life
annuity form, if applicable, only if:
(i) the Participant's Spouse consents in writing
to the election;
(ii) the election designates a specific
Beneficiary, including any class of
Beneficiaries or any contingent
Beneficiaries, which may not be changed
without spousal consent (or the Spouse
expressly permits designations by the
Participant without any further spousal
consent);
(iii) the election designates a form of benefit
payment which may not be changed without
spousal consent (or the Spouse expressly
permits designations by the Participant
without any further spousal consent);
(iv) the Spouse's consent acknowledges the effect
of the election; and
(v) the Spouse's consent is witnessed by the
Committee, its representative, or by a notary
public.
If it is established to the satisfaction of the
Committee, or its representative that there is no
Spouse or that the Spouse cannot be located, a waiver
will be deemed a qualified election. Any consent by
a Spouse obtained under this provision (or
establishment that the consent of a Spouse may not be
obtained) shall be effective only with respect to
such Spouse. A consent that permits designations by
the Participant without any requirement of further
consent by such Spouse must acknowledge that the
Spouse has the right to limit consent to a specific
joint annuitant, and a specific form of benefit where
applicable, and that the Spouse voluntarily elects to
relinquish either or both of such rights. A
revocation of a prior waiver may be made by a
participant without the consent of the Spouse at any
time before the Annuity Starting Date. The number of
revocations shall not
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be limited. No consent obtained under this provision
shall be valid unless the Participant has received
notice as provided in paragraph (2) below.
Notwithstanding the above, if the Participant has not
been credited with at least one (1) Hour of Service
on or after August 23, 1984, then any waiver by the
Participant will be deemed to be a qualified
election, and consent by the Participant's Spouse is
not required.
(2) Notice of Qualified Joint and Survivor Annuity. At
least thirty (30) and no more than ninety (90) days
prior to the Annuity Starting Date, the Committee
shall provide each affected Participant a notice in
the form of a written explanation concerning the
Qualified Joint and Survivor Annuity containing:
(i) the terms and conditions of a Qualified Joint
and Survivor Annuity;
(ii) the Participant's right to make, and the
effect of, an election to waive the Qualified
Joint and Survivor Annuity form of benefit;
(iii) the rights of the Participant's Spouse and;
(iv) the right to make, and the effect of, a
revocation of a previous election to waive a
Qualified Joint and Survivor Annuity.
(c) Rollovers. Notwithstanding anything expressed or implied to
the contrary above, Part III of a Participant's Personal
Account shall be distributed to him in a single sum unless the
Participant shall elect an alternate form of payment under
Section 6.01(a). In no event shall payment of such amount be
required to be made in a Qualified Joint and Survivor Annuity
form or in a straight life annuity form.
6.02 GENERAL COMMENCEMENT OF BENEFITS RULE.
Notwithstanding any other provisions of the Plan, but in addition to
such provisions (as applicable), unless the Participant elects
otherwise in writing, distribution of benefits shall begin no later
than the sixtieth (60th) day after the close of the Plan Year in which
the latest of the following events occurs:
(a) the date the Participant attains sixty-five (65) years of age;
(b) the date which is the tenth (10th) anniversary of the first
(1st) day of the Plan Year in which the Participant commenced
participation in the Plan; or
(c) the date the Participant terminates Service with the Employer.
If a Participant is still in Service at his attainment of age seventy
and one-half (70-1/2), then his entire Accounts shall then be paid or
applied on his behalf in accordance with the provisions of Section
6.01 hereof, except that installment payments under Section 6.01(a)(2)
shall not be available.
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If the amount of the payment required to commence on the date
determined under this section cannot be ascertained by such date, or
if it is not possible to make such payment on such date because the
Committee has been unable to locate the Participant after making
reasonable efforts to do so, then a payment retroactive to such date
may be made no later than sixty (60) days after the earliest date on
which the amount can be ascertained under the Plan or the date on
which the Participant is located (whichever is applicable).
6.03 SPECIAL COMMENCEMENT AND DISTRIBUTION OF BENEFITS RULES.
(a) General Rules.
(1) The requirements of this section shall apply to any
distribution of a Participant's interest and will
take precedence over any inconsistent provisions of
this Plan.
(2) All distributions required under this section shall
be determined and made in accordance with the
proposed regulations under section 401(a)(9) of the
Code, including the minimum distribution incidental
benefit requirement of section 1.401(a)(9)-2 of the
proposed regulations.
(b) Required Beginning Date. The entire interest of a Participant
must be distributed or begin to be distributed no later than
the Participant's required beginning date. The consent of the
Participant or of the Participant's Spouse or Beneficiary
shall not be required to make a distribution required under
this section.
"Required beginning date" shall mean the first day of April of
the calendar year following the calendar year in which the
Participant attains age seventy and one-half (70-1/2) subject,
however, to the following transition rules.
(1) Transitional rules. The required beginning date of a
Participant who attains age seventy and one-half
(70-1/2) before January 1, 1988, shall be determined
in accordance with (i) and (ii) below:
(i) Non-five-percent (5%) owners. The required
beginning date of a Participant who is not a
"five-percent (5%) owner" (as defined in (2)
below) is the first day of April of the
calendar year following the calendar year in
which the later of retirement and attainment
of age seventy and one-half (70-1/2) occurs.
(ii) Five-percent (5%) owners. The required
beginning date of a Participant who is a
five- percent (5%) owner during any year
beginning after December 31, 1979, is the
first day of April following the later of:
(A) the calendar year in which the
Participant attains age seventy and
one-half (70-1/2), and
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<PAGE> 44
(B) the earlier of the calendar year
with or within which ends the Plan
Year in which the Participant
becomes a five-percent (5%) owner,
and the calendar year in which the
Participant retires.
The required beginning date of a Participant
who is not a five-percent (5%) owner who
attains age seventy and one-half (70-1/2)
during 1988 and who has not retired as of
January 1, 1989, is April 1, 1990.
(2) Five-percent (5%) owner. A Participant is treated as
a five-percent (5%) owner for purposes of this
subsection (b) if such Participant is a five-percent
(5%) owner as defined in section 416(i) of the Code
(determined in accordance with section 416 but
without regard to whether the Plan is top-heavy) at
any time during the Plan Year ending with or within
the calendar year in which such owner attains age
sixty-six and one-half (66-1/2) or any subsequent
Plan Year.
(3) Once distributions have begun to a five-percent (5%)
owner under this section, those distributions must
continue even if the Participant ceases to be a
five-percent (5%) owner in a subsequent year.
(c) Duration of Benefits. Benefits to a Participant shall be
distributed, beginning not later than the required beginning
date set forth in subsection (b) in accordance with
regulations, for a period not exceeding the life of such
Participant or, if applicable, the joint lives of such
Participant and his Beneficiary, or over the life expectancy
of such Participant or, if applicable, the joint life
expectancies of the Participant and his Beneficiary. For
purposes of this section, "life expectancy" shall mean the
life expectancy (or joint and last survivor expectancy)
calculated using the attained age of the Participant (or
designated Beneficiary) as of the Participant's (or designated
Beneficiary's) birthday in the applicable calendar year,
reduced by one (1) for each calendar year which has elapsed
since the date life expectancy was first calculated. If life
expectancy is being recalculated, the applicable life
expectancy shall be the life expectancy as so recalculated.
The applicable calendar year shall be the first distribution
calendar year, and if life expectancy is being recalculated
such succeeding calendar year. If annuity payments commence
before the required beginning date, the applicable calendar
year is the year such payments commence. Life expectancy and
joint and last survivor expectancy are computed by use of the
expected return multiples in Tables V and VI of section 1.72-9
of the Treasury Regulations.
(d) Minimum Amount to be Distributed Each Year. If the
Participant's interest is to be distributed in other than a
single sum, the following distribution rules shall apply on or
after the required beginning date.
(1) The amount to be distributed each year, beginning
with distributions for the first distribution
calendar year shall not be less than the quotient
obtained by dividing the Participant's benefit by the
lesser of (i) the applicable life expectancy as
described in Section 6.04(c) or (ii) if the
Participant's Spouse is not the designated
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<PAGE> 45
Beneficiary, the applicable divisor determined from
the table set forth in Q&A-4 of section 1.401(a)(9)-2
of the proposed regulations.
(2) The minimum distribution required for the
Participant's first distribution calendar year must
be made on or before the Participant's required
beginning date. The minimum distribution for other
calendar years, including the minimum distribution
for the distribution calendar year in which the
employee's required beginning date occurs, must be
made on or before December 31 of that distribution
calendar year.
(3) Distribution calendar year. For purposes of this
section, the term "distribution calendar year" means
a calendar year for which a minimum distribution is
required. For distributions beginning before the
Participant's death, the first distribution calendar
year is the calendar year immediately preceding the
calendar year which contains the Participant's
required beginning date. For distributions beginning
after the Participant's death, the first distribution
calendar year is the calendar year in which
distributions are required to begin pursuant to
section 6.04(e) below.
(e) Death distribution provisions.
(1) Distribution Beginning Before Death. If the
Participant dies after distribution of his or her
interest has begun, the remaining portion of such
interest will continue to be distributed at least as
rapidly as under the method of distribution being
used prior to the Participant's death.
(2) Distribution Beginning After Death. If the
Participant dies before distribution of his or her
interest begins, distribution of the Participant's
entire interest shall be completed by December 31 of
the calendar year containing the fifth anniversary of
the Participant's death except to the extent that an
election is made to receive distributions in
accordance with (i) or (ii) below:
(i) if any portion of the Participant's interest
is payable to a designated Beneficiary,
distributions may be made over the life or
over a period certain not greater than the
life expectancy of the designated Beneficiary
commencing on or before December 31 of the
calendar year immediately following the
calendar year in which the Participant died;
(ii) if the designated Beneficiary is the
Participant's surviving spouse, the date
distributions are required to begin in
accordance with (i) above shall not be
earlier than the later of (1) December 31 of
the calendar year immediately following the
calendar year in which the Participant died
and (2) December 31 of the calendar year in
which the Participant would have attained age
70 1/2.
If the Participant has not made an election pursuant
to this subsection (e)(2) by the time of his or her
death, the Participant's designated Beneficiary must
elect the
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<PAGE> 46
method of distribution no later than the earlier of
(1) December 31 of the calendar year in which
distributions would be required to begin under this
section, or (2) December 31 of the calendar year
which contains the fifth anniversary of the date of
death of the Participant. If the Participant has no
designated Beneficiary, or if the designated
Beneficiary does not elect a method of distribution,
distribution of the Participant's entire interest
must be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant's
death.
(3) For purposes of subsection (e)(2) above, if the
surviving Spouse dies after the Participant, but
before payments to such Spouse begin, the provisions
of subsection (e)(2), with the exception of paragraph
(ii) therein, shall be applied as if the surviving
Spouse were the Participant.
(4) For the purposes of this subsection (e),
distributions of a Participant's interest is
considered to begin on the Participant's required
beginning date (or, if subsection (e)(3) above is
applicable, the date distribution is required to
begin to the surviving Spouse pursuant to subsection
(e)(2) above). If distribution in the form of an
annuity irrevocably commences to the Participant
before the required beginning date, the date
distribution is considered to begin is the date
distribution actually commences.
6.04 LIMITATIONS ON DISTRIBUTION OF SALARY DEFERRALS.
Except as otherwise provided in this section, amounts attributable to
elective salary deferrals pursuant to Section 3.02(a) hereof shall not
be distributed earlier than upon the occurrence of one of the
following events:
(a) the employee's retirement, death, Disability or termination
of Service;
(b) attainment of age fifty-nine and one-half (59-1/2);
(c) the termination of the Plan without the establishment of a
successor plan;
(d) the date of the sale or other disposition by the Employer of
substantially all of the assets used by such corporation in a
trade or business of the Employer with respect to an Employee
who continues employment with the corporation acquiring such
assets;
(e) with regard to an Employee who continues employment with such
subsidiary, the date of the sale or other disposition by the
Employer of such corporation's interest in a subsidiary;
(f) with regard to distributions of elective salary deferrals
only, the Participant's or former Participant's hardship, as
defined in Section 5.02 hereof.
This Section 6.04 shall be interpreted in accordance with section
1.401(k)-1(d) of the Treasury Regulations.
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<PAGE> 47
6.05 SINGLE SUM DISTRIBUTION OF SMALL BENEFITS.
In the event that a Retired Participant or Beneficiary shall become
entitled to receive any benefit under the Plan, and the value of the
nonforfeitable benefit is not greater than (or at the time of any
prior distribution was not greater than) three thousand five hundred
dollars ($3,500), the benefit shall be paid to such person in a single
sum after such Participant incurs a Break in Service but before the
end of the second Plan Year following the Plan Year during which the
Participant ceases to participate in the Plan. Provided, however,
that for distributions made on or after January 1, 1993, the foregoing
shall be subject to the provisions of Section 6.06 hereof regarding
direct rollover of eligible rollover distributions as provided
therein.
Payment under this section shall be in lieu of the form of benefit
otherwise payable under any provision of this Plan.
6.06 DIRECT ROLLOVER OF ELIGIBLE ROLLOVER DISTRIBUTIONS.
(a) Application:
This Section applies to distributions made on or after January
1, 1993. Notwith-standing any provision of the Plan to the
contrary that would otherwise limit a distributee's election
under this Section, a distributee may elect, at the time and
in the manner prescribed by the Plan Administrator, to have
any portion of an eligible rollover distribution paid directly
to an eligible retirement plan specified by the distributee in
a direct rollover. Provided, however, that direct rollovers
are not permitted for amounts under two hundred dollars
($200).
(b) Definitions:
(1) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any
portion of the balance to the credit of the
distributee, except that an eligible rollover
distribution does not include: any distribution that
is one of a series of substantially equal periodic
payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or
the joint lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten years
or more; any distribution to the extent such
distribution is required under section 401(a)(9) of
the Code; and the portion of any distribution that is
not includible in gross income (determined without
regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(2) Eligible retirement plan: An eligible retirement
plan is an individual retirement account described in
section 408(a) of the Code, an individual retirement
annuity described in section 408(b) of the Code, an
annuity plan described in section 403(a) of the Code,
or a qualified trust described in section 401(a) of
the Code, that accepts the distributee's eligible
rollover distribution. However, in the case of
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<PAGE> 48
an eligible rollover distribution to the surviving
spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(3) Distributee: A distributee includes an Employee or
former employee. In addition, the Employee's or
former employee's surviving spouse and the Employee's
or former employee's spouse or former spouse who is
the alternate payee under a qualified domestic
relations order, as defined in section 414(p) of the
Code, are distributees with regard to the interest of
the spouse or former spouse.
(4) Direct rollover: A direct rollover is a payment by
the Plan to the eligible retirement plan specified by
the distributee.
6.07 PURCHASE OF ANNUITIES.
If benefits under the Plan are to be paid in the form of an annuity,
then the Trustee shall purchase such annuity contracts from a life
insurance company licensed to do business in the state in which the
Sponsor maintains offices, utilizing for such purchase the entire
amount in the Accounts of the Participant as of the date of the
purchase. Any annuity contract which is purchased hereunder to
provide benefits otherwise payable under the Plan, and which is
distributed to a former Participant or Beneficiary, shall be endorsed
as "nontransferable."
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ARTICLE 7
RETIREMENT, DEATH AND DISABILITY BENEFITS
7.01 BENEFITS UPON RETIREMENT.
Upon attainment of Normal Retirement Age, a Participant shall be one
hundred percent (100%) vested in his Accounts. Upon retirement
following attainment of his Normal Retirement Age or after having
satisfied the conditions for and taken early retirement under the
Trustmark National Bank Pension Plan, a Participant shall receive as
the value of his retirement benefit hereunder the amounts in his
Accounts determined on the Allocation Date coincident with or
immediately preceding his retirement, increased by any Employer and
Participant contributions allocated after such Allocation Date,
reduced by any payments and withdrawals made from such accounts since
such Allocation Date and adjusted for any Income allocated or other
adjustments made after such Allocation Date.
7.02 DEATH BENEFITS.
In the event of the death of a Participant or Retired Participant
(other than a Retired Participant receiving benefits pursuant to
Section 6.01 hereof) prior to complete distribution of his Accounts,
the amount of the death benefit on his behalf shall be one hundred
percent (100%) of both his Employer Account and Personal Account,
determined on the Allocation Date immediately preceding the date of
the distribution, adjusted to reflect any Employer or Participant
contributions or trustee to trustee transfers allocated after such
Allocation Date, and any payments or withdrawals made from such
accounts since such preceding Allocation Date. Notwithstanding the
foregoing, however, the Employer Account for a Retired Participant
whose participation in the Plan terminated before the date of his
death and during the Plan Year coincident with the date of his death
shall be determined by applying the vested percentage described in
Section 8.01 hereof unless the Participant had reached his Normal
Retirement Date.
7.03 PAYMENT OF DEATH BENEFITS.
(a) In General. Except as required in Section 7.03(b) below, the
benefit payable under Section 7.02 shall be paid in a single
sum. In lieu thereof, a Participant may elect to have such
benefit paid in any of the optional forms set forth in Section
6.01(a). Provided, however, that any elected optional form of
payment shall comply with the form of payment limitations set
forth in Section 6.03 hereof. Such election must be in
writing, in such form as the Committee shall uniformly and
nondiscriminatorily require and may be submitted at any time,
beginning on the date the Participant enters the Plan and
ending on the date of his death. Payment of the death benefit
shall be made to the Participant's surviving Spouse or to his
otherwise designated Beneficiary
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<PAGE> 50
(if the Participant is not survived by a Spouse or if his
Spouse has consented to designation of an alternate
Beneficiary in conformance with Section 7.04).
(b) Annuity Benefit Payment Provisions. Notwithstanding Section
7.03(a) above, the benefit payable under Section 7.02 will be
paid as an annuity for the life of the surviving Spouse of the
Participant if the Participant died before his Annuity
Starting Date and either:
(1) the Participant elected prior to his death that any
benefits payable to him under the Plan would be paid
in the form provided in Section 6.01(a)(3) and the
Participant is survived by a Spouse who has not
waived payment in such form and has not consented to
the designation of an alternate Beneficiary in
conformance with Section 7.04 as of the date of the
Participant's death; or
(2) part or all of the benefit to be distributed to the
Participant under this Plan is attributable to a
transfer to this Plan from an Annuity Transfer Plan
and the Participant is survived by a Spouse who has
not waived payment in the annuity form and has not
consented to designation of an alternate Beneficiary
in conformance with Section 7.04 prior to the
Participant's death.
Notwithstanding the above, the Spouse may elect to receive
this death benefit in an optional form of benefit payment
pursuant to subsection (a) hereof as if the Spouse were the
Participant pursuant to a qualified election at any time prior
to ninety (90) days before payment of the death benefit
actually commences.
(c) Qualified Election. Only a qualified election hereunder by
the Participant shall be effective to waive the form of
payment, or the payment to the Spouse, of the death benefit
provided under Section 7.03(b) of the Plan. Such waiver under
a qualified election shall be in writing at any time after the
Participant elected the annuity form of payment (if
applicable) and before the Participant's death, and shall be
consented to by his Spouse during such period. Any such
Spouse's consent to a waiver shall be witnessed by the
Committee, or its representative, or by a notary public and,
if an alternate Beneficiary other than a Spouse is to be
named, shall provide a specifically named alternate
Beneficiary. Notwithstanding this consent requirement, if the
Participant establishes to the satisfaction of the Committee
that such written consent cannot be obtained because there is
not such a Spouse, or that such Spouse cannot be located, then
consent to a waiver shall be deemed to have, in fact, been
made, and such deemed consent to a spousal waiver shall be
considered as a qualified election. Any consent necessary
under this subsection shall be valid only with respect to the
Spouse who signs the consent, or in the case of a deemed
qualified election, the relevant Spouse, and shall not be
valid with respect to any other Spouse. Additionally, a
revocation of a prior waiver may be made by a Participant in
writing delivered to the Committee without the consent of any
such Spouse at any time before the commencement of benefits.
The number of such revocations shall not be limited.
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<PAGE> 51
However, any subsequent waiver or change of alternate
Beneficiary in a prior spousal consent shall require a new
spousal consent.
Notwithstanding the above, if the Participant has not been
credited with at least one (1) Hour of Service on or after
August 23, 1984, then any waiver by the Participant will be
deemed to be a qualified election, and consent by the
Participant's Spouse is not required.
(d) Notice of Spouse's Survivor Annuity. The Committee shall
provide each Participant whose Spouse may receive a survivor
annuity pursuant to Section 7.03(b), a written explanation of
the survivor annuity described in Section 7.03(b) hereof in
such terms and in such manner as is comparable to the
explanation provided pursuant to Section 6.01(b)(2) with
respect to the Qualified Joint and Survivor Annuity notice.
The Committee shall provide such Participant with a written
explanation of the survivor annuity within a reasonable period
ending after Section 7.03(b) first applies to the Participant.
(e) Time of Payment. Subject to the time limitations set forth in
Sections 6.02 and 6.03 hereof, the death benefit commencement
date shall be no later than as soon as practicable after the
end of the Plan Year in which the death of the Participant
occurs.
(f) Discharge of Liability. Payment of the death benefit to the
Beneficiary of the deceased Participant shall fully discharge
the Trustee, the Committee and the Employer, and each of them,
from any and all liability hereunder as to such deceased
Participant. The Trustee, the Committee and the Employer, and
each of them, shall not be responsible for the ultimate
disposition of such benefit in accordance with any will or
other testamentary disposition made by such Participant, or in
accordance with the intestacy provisions of any law.
7.04 DESIGNATION OF BENEFICIARY.
Subject to the rights of a surviving Spouse described herein, each
Participant or Retired Participant shall have the right to designate
the Beneficiary to receive the death benefit on his behalf, and to
revoke any such designation. Each such designation, or revocation
thereof, shall be evidenced by a written instrument filed with the
Committee and signed by the Participant or Retired Participant.
Unless the conditions which follow for the designation of a
Beneficiary other than the Spouse are satisfied, the Beneficiary of a
Participant or Retired Participant shall be the surviving Spouse, if
any, whether or not so designated in the written instrument filed with
the Committee and even if no such instrument is filed. Designation of
a Beneficiary other than the Spouse shall be valid only if either:
(a) the Spouse consents in writing to such designation,
acknowledging the effect thereof, witnessed by a notary public
or Plan representative;
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<PAGE> 52
(b) the Retired Participant or Participant, although married at
the time of the designation, is ultimately not survived by his
Spouse; or
(c) the surviving Spouse cannot be located.
Such spousal consent obtained pursuant to (a) shall be irrevocable.
If the Participant or Retired Participant is survived by a Spouse
other than the Spouse who consented to designation of another as
Beneficiary, the consent of the former Spouse shall be ineffective.
If no designation of Beneficiary is on file with the Plan
Administrator at the time of the death of a Participant or Retired
Participant, or if such designation is not effective for any reason,
and if there is no surviving Spouse, the death benefit shall be
payable to the estate of the Participant or Retired Participant (which
shall be conclusively deemed to be the Beneficiary designated to
receive such death benefit).
7.05 DISABILITY BENEFITS.
In the event the Committee determines that a Participant incurs
Disability while still an Employee, such Participant shall be entitled
to one hundred percent (100%) of both his Employer Account and
Personal Account, determined on the Allocation Date coincident with or
immediately preceding the date of his Disability, increased by any
Employer and Participant contributions allocated after such Allocation
Date, reduced by any payments and withdrawals made from his accounts
since such preceding Allocation Date and adjusted for any Income
allocated or other adjustments made after such Allocation Date.
Subject to the provisions hereof concerning the death of a former
Participant prior to the commencement of benefits hereunder, any
amounts due a disabled Participant pursuant to this article from his
accounts shall be paid or applied for his benefit in accordance with
the provisions described in Section 6.01 hereof for the payment of
retirement benefits; provided, however, that upon the Participant's
election the commencement date shall be any date after his Disability
occurred and before the earliest date he could retire under the Plan.
With respect to a Participant who has a Spouse, such early
commencement of disability benefits attributable to amounts
transferred from an Annuity Transfer Plan may be made only upon his
Spouse's consent pursuant to a qualified election within the meaning
of Sections 6.01(b)(1) and 7.03(c) hereof. Notwithstanding the above,
if the Participant has not been credited with at least one (1) Hour of
Service on or after August 23, 1984, then any waiver by the
Participant will be deemed to be a qualified election, and consent by
the Participant's Spouse is not required.
In the event of the death of the Participant subsequent to the date
his Disability occurred and prior to the commencement of his
disability benefits hereunder, the amount payable on behalf of such
Participant shall be paid as a death benefit as provided otherwise in
this article.
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<PAGE> 53
ARTICLE 8
TERMINATION BENEFITS
8.01 BENEFITS UPON TERMINATION OF SERVICE.
A Participant whose Service terminates for reasons other than
retirement on or after his Normal Retirement Date, death or Disability
shall be entitled to a vested percentage, determined at the date his
Service terminates, of Parts I and II of his Employer Account, and one
hundred percent (100%) of Part III of his Employer Account and his
Personal Account. Such accounts will be determined as of the
Allocation Date coincident with or immediately preceding the date the
Participant's Service terminates, increased by any Employer and
Participant contributions allocated to such accounts after such
Allocation Date, reduced by any payments and withdrawals from the
accounts since such preceding Allocation Date and adjusted for any
Income allocated or other adjustments made after such Allocation Date.
The vested percentage of Parts I and II of a Participant's Employer
Account shall be determined from the following schedule:
<TABLE>
<CAPTION>
YEARS OF Vested
Vesting Service Percentage
--------------- ----------
Less than 5 0%
<S> <C>
5 or more 100%
</TABLE>
Provided, however, that the vested percentage shall be one hundred
percent (100%) for a Participant on and after his Normal Retirement
Age.
8.02 FORFEITURES.
The portion of an Employer Account to which a former Participant is
not entitled, as provided in Section 8.01 hereof, shall be a
Forfeiture as of the last day of the Plan Year in which occurs the
earlier of the following dates:
(a) the date the former Participant is paid the entire vested
amount of his Accounts, and
(b) the date the former Participant incurs five (5) consecutive
Breaks in Service.
For purposes of this Section, if the value of an Employee's vested
account balance is zero, the former Participant shall be deemed to
have received a distribution of such vested account balance and the
Employer Account shall be treated as a Forfeiture as of the date such
Employee incurs a Break in Service.
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<PAGE> 54
If a former Participant receives or is deemed to have received a
distribution from his Employer Account due to termination of
participation in the Plan, no later than the close of the second Plan
Year following the Plan Year during which he ceases to be a
Participant, which distribution is:
(c) equal to his vested Employer Account, but less than one
hundred percent (100%) of such account, and
(d) in an amount not exceeding thirty-five hundred dollars
($3,500) or, if greater, which the Participant elected to
receive,
and he subsequently resumes Service before he incurs five (5)
consecutive Breaks in Service, he may repay such distribution to the
Plan. Such repayment must be made before the earlier of the date the
Participant incurs five (5) consecutive Breaks in Service and the
fifth anniversary of the date of the Participant's resumption of
Service following the Break in Service. In the event of such
repayment, the amount of the Participant's Employer Account at the
date of the distribution shall be reestablished.
If a benefit cannot be paid to a Retired Participant or his
Beneficiary because he cannot be found, such benefit (subject to
overruling law) shall be treated as a Forfeiture but, if treated as a
Forfeiture, shall be reinstated if a claim is made by that Participant
or his Beneficiary. Such reinstatement shall be made from then
available Forfeitures arising from the Accounts of other Retired
Participants. If the amount of available Forfeitures is insufficient
for such reinstatement, then the Employer shall contribute an amount
to complete the reinstatement.
Any Forfeitures remaining after the reinstatements described above
shall be allocated to Part I of the Employer Accounts of other
Participants in accordance with the provisions of Section 4.01(a)
hereof.
8.03 PAYMENT OF BENEFITS UPON TERMINATION OF SERVICE.
Subject to the provisions hereof concerning the death of a former
Participant prior to the complete distribution of benefits hereunder,
any amounts due the Participant pursuant to this article from his
Accounts shall be paid or applied for his benefit at his Normal
Retirement Date in accordance with Section 6.01 hereof.
Notwithstanding the above, such former Participant may elect an
earlier commencement date, except that payment from the former
Participant's Employer Account may not occur until said former
Participant has incurred a Break in Service. With respect to a
participant who has a Spouse, such early commencement of benefits
attributable to amounts transferred from an Annuity Transfer Plan may
be made only upon his Spouse's consent pursuant to a qualified
election within the meaning of Sections 6.01(b)(1) and 7.03(c) hereof.
Notwithstanding the above, if the Participant has not been credited
with at least one (1) Hour of Service on or after August 23, 1984,
then any waiver by the Participant will be deemed to be a qualified
election, and consent by the Participant's Spouse is not required.
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<PAGE> 55
In the event of the death of the Participant subsequent to the date
his Service terminates and prior to the commencement of his benefits,
the amount payable under this article on behalf of such Participant
shall be paid as provided in Article 7 hereof.
In the event of the Disability of the Participant, and certification
thereof by the Committee to the Trustee, subsequent to the date his
Service terminates and prior to the commencement of his benefits, the
amount payable under this article to such Participant shall be paid as
provided in Article 7 hereof.
8.04 SPECIAL VESTING DUE TO RE-EMPLOYMENT.
If a distribution is made from a Retired Participant's Employer
Account at a time when the Retired Participant has a vested percentage
of less than one hundred percent (100%) of such Employer Account, and
the Retired Participant resumes Service before the non-vested portion
of such Employer Account becomes a Forfeiture, then the portion of the
Participant's Employer Account which he did not receive as a
distribution shall be established on his behalf as a "separate
account." At any later relevant time, the amount to which the
Participant shall be entitled from the "separate account" shall be
computed according to the following formula:
X = P x (AB + (R x D)) - (R x D)
For purposes of solving this equation, "X" is the amount to which the
Participant is entitled, "P" is his vested percentage at the relevant
time, "AB" is his Account balance at the relevant time, "R" is the
ratio of his Account balance at the relevant time to his Account
balance immediately after the distribution, and "D" is the amount of
the distribution. Provided, however, that a separate account is not
required to be established so long as Account balances are maintained
under a method that has the same effect as the method described above.
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<PAGE> 56
ARTICLE 9
PLAN ADMINISTRATION
9.01 PLAN ADMINISTRATOR AND APPOINTMENT OF COMMITTEE.
The Sponsor shall be the Plan Administrator of the Plan. The Board of
Directors of the Sponsor may appoint a Committee consisting of not
less than three (3) and not more than nine (9) persons to assist the
Plan Administrator and to carry out the day to day administrative
functions of the Plan as the Plan Administrator may delegate to the
Committee.
Members of the Committee shall serve without compensation, but the
reasonable expenses of the Committee in discharging its
responsibilities shall be borne by the Sponsor.
The Sponsor will notify the Trustee in writing of the names of the
members of the Committee and of any changes in Committee membership
that may transpire from time to time.
9.02 POWERS AND DUTIES OF THE PLAN ADMINISTRATOR.
The Plan Administrator shall administer and supervise the operation of
the Plan in accordance with the terms and provisions of the Plan.
The Plan Administrator shall have all power and authority (including
discretion with respect to the exercise of that power and authority)
necessary, properly advisable, desirable or convenient for the
performance of its duties, which duties shall include, but not be
limited to, the following:
(a) to construe the Plan in good faith;
(b) to determine eligibility of Employees for participation in the
Plan, and to notify Employees of their eligibility and the
requirements for such participation;
(c) to determine and certify eligibility for benefits under the
Plan, and to direct the Trustee concerning the amount, manner
and time of the payment of such benefits and any annuity
contracts to be purchased on behalf of Participants, Retired
Participants and Beneficiaries;
(d) to prepare and distribute, in such manner as the Plan
Administrator determines to be appropriate, information
explaining the Plan;
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<PAGE> 57
(e) to require a Participant to complete and file with the Plan
Administrator an application for a benefit and all other forms
approved by the Plan Administrator, and to require that the
Participant furnish all pertinent information requested by the
Plan Administrator, which information may be relied upon by
the Plan Administrator;
(f) to cause the allocations of contributions to the Plan and
investment earnings (or losses) to be made as of each
Allocation Date;
(g) to adopt such rules as it deems necessary, desirable or
appropriate for the administration of the Plan, provided such
rules are consistent with the terms and provisions of the
Plan; all rules and decisions of the Plan Administrator shall
be uniformly and consistently applied to all Participants in
similar circumstances;
(h) to appoint such agents as it may need in the performance of
its duties; and
(i) to receive and review the reports from the Trustee and other
agents.
9.03 PLAN ADMINISTRATOR PROCEDURES.
The Plan Administrator may adopt such procedures and regulations as it
deems desirable for the administration of the Plan. Such procedures
and regulations shall be nondiscriminatory and shall to the extent
feasible be maintained in writing.
9.04 COMMITTEE PROCEDURES.
The Committee may act at a meeting or in writing without a meeting.
The Committee shall elect one (1) of its members as chairman, appoint
a secretary, who may or may not be a Committee member, and the Trustee
shall be advised in writing of such actions. The secretary shall
forward all necessary communications to the Sponsor and the Trustee.
The Committee may adopt such bylaws and regulations as it deems
desirable for the conduct of its affairs. All decisions of the
Committee shall be made by majority vote.
A dissenting Committee member who, within a reasonable time after he
has knowledge of any action or failure to act by the majority,
registers his dissent in writing delivered to the other Committee
members, the Sponsor and the Trustee, shall not be responsible for any
such action or failure to act.
9.05 CLAIMS AND REVIEW PROCEDURES.
The Plan Administrator shall establish reasonable procedures
concerning the filing of claims for benefits hereunder and shall
administer such procedures uniformly. If a claim is wholly or
partially denied, the Plan Administrator shall furnish the claimant,
within a reasonable period of time after receipt of the claim by the
Plan Administrator, a notice of such denial, setting forth at least
the following information in language calculated to be understood by
the claimant:
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<PAGE> 58
(a) the specific reason or reasons for the denial;
(b) specific reference to pertinent Plan provisions on which the
denial is based;
(c) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary;
and
(d) an explanation of the claims review procedure in the Plan.
Upon receipt of such a notice of denial, or if such a notice is not
furnished but the claim has not been granted within sixty (60) days of
its filing, the claimant or his duly authorized representative may
appeal to the Plan Administrator for a full and fair review.
In submitting a request for review, the claimant or his duly
authorized representative may request a review upon written
application to the Plan Administrator, may review pertinent documents,
and may submit comments in writing. Such request for review must be
made within sixty (60) days of the receipt by the claimant of the
notice of denial (or within sixty (60) days of the expire of the sixty
(60) day period beginning with the date of the filing of the claim, if
no such notice is received during such period).
The Plan Administrator shall respond promptly to a request for review
and shall deliver a written decision which shall include, in a manner
calculated to be understood by the claimant, the decision itself,
specific reasons therefor and specific references to the pertinent
Plan provisions on which the decision is based. The decision shall be
made not later than one hundred twenty (120) days after receipt of a
request for review.
Any decision by the Plan Administrator shall be conclusive and binding
upon all persons, subject to the claims review procedure described in
this Section 9.05 and subject to judicial review where it is shown by
clear and convincing evidence that the Plan Administrator acted in an
arbitrary and capricious manner.
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<PAGE> 59
ARTICLE 10
THE TRUST AND THE TRUSTEE
10.01 THE TRUST; GENERAL DUTIES OF THE TRUSTEE.
The Sponsor hereby continues the Trust previously established with the
Trustee pursuant to the terms of the Plan. The Trustee shall hold all
property received by it hereunder, which, together with the income and
gains therefrom and additions thereto, shall constitute the Trust
Fund. The Trustee shall manage, invest and reinvest the Trust Fund,
collect the income thereof, and make payments therefrom, all as
provided in this Plan and Trust.
The Trustee shall be responsible only for the property actually
received by it hereunder. It shall have no duty or authority to
compute any amount to be paid to it by the Employer or to bring any
action or proceeding to enforce the collection from the Employer of
any contribution to the Trust Fund.
Title to the Trust Fund, including all funds and investments held
hereunder by the Trustee, shall be and remain in the Trustee, and no
Participant, Retired Participant or Beneficiary shall have any legal
or equitable right or interest in the Trust Fund except to the extent
that such rights or interests are expressly granted under the
provisions of the Plan.
The Trust Fund may not be used or diverted for purposes other than the
exclusive benefit of Participants, Retired Participants and
Beneficiaries for the proper satisfaction of liabilities to such
persons covered by the Trust.
10.02 GENERAL POWERS.
The Trustee shall have all the powers necessary for the performance of
its duties as Trustee. The Trustee shall have the following powers
and immunities and be subject to the following duties:
(a) The Trustee shall receive all contributions hereunder and
apply such contributions as hereinafter set forth. The
Trustee shall have the custody of and safely keep all cash,
securities, property and investments, including any insurance
company contracts, received or purchased in accordance with
the terms hereof.
(b) Subject to any limitations that may be contained elsewhere in
the Plan, the Trustee shall take control and management of the
Trust Fund and shall hold, sell, buy, exchange, invest and
reinvest the corpus and income of the Trust Fund. All
contributions paid to the Trustee under the Plan shall be held
and administered by the
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<PAGE> 60
Trustee as a single Trust Fund, and the Trustee shall not be
required to segregate and invest separately any part of the
Trust Fund representing accruals or interests of individual
Participants in the Plan, except as provided in Section 6.02
hereof.
(c) The Trustee may invest and reinvest the funds of the Trust
Fund in any property, real, personal or mixed, wherever
situate, and whether or not productive of income or consisting
of wasting assets, including, without limitation, common and
preferred stock, bonds, notes, debentures, leaseholds,
mortgages (including without limitation, any collective or
part interest in any bond and mortgage or note and mortgage),
certificates of deposit, and oil, mineral or gas properties,
royalties, interests or rights (including equipment pertaining
thereto), without being limited to the classes of property in
which trustees are authorized by law or any rule of court to
invest trust funds and without regard to the proportion any
such property may bear to the entire amount of the Trust Fund.
(d) The Trustee may invest and reinvest all or any portion of the
Trust Fund collectively with funds of other retirement plan
trusts exempt from tax under section 501(a) of the Code,
including, without limitation, power to invest collectively
with such other funds through the medium of one (1) or more
common, collective or commingled trust funds which have been
or may hereafter be established and maintained by the Trustee,
the instrument or instruments establishing such trust fund or
funds, as amended from time to time, being made part of this
Trust by reference so long as any portion of the Trust Fund
shall be invested through the medium thereof.
(e) The Trustee is expressly authorized to invest all or part of
the Trust Fund in savings accounts, time deposits,
certificates of deposit, money market accounts, repurchase
agreements and any other interest- bearing accounts which bear
a reasonable interest rate (regardless of the term of such
deposits or investments), issued by the Trustmark National
Bank or any of its affiliates. The Trustee is further
expressly authorized to utilize the discount brokerage
operation, if any, offered by Trustmark National Bank or its
affiliates.
(f) The Trustee shall, at the direction of the Chief Executive
Officer of the Sponsor, invest up to one hundred percent
(100%) of the portion of the Trust Fund which is not
attributable to salary deferral contributions, voluntary
Participant contributions, rollover contributions and
trustee-to-trustee transfers in Qualifying Employer
Securities. The Chief Executive Officer is authorized to
issue such direction at his discretion. For purposes of this
section, the term Qualifying Employer Securities shall mean
Employer securities (or securities of a member of the
Controlled Group of the Employer) which are stock or
marketable obligations, such as bonds, debentures, notes or
certificates, or other evidence of indebtedness, as defined in
Section 401(d)(5) of ERISA.
(g) The Trustee may sell or exchange any property or asset of the
Trust Fund at public or private sale, with or without
advertisement, upon terms acceptable to the Trustee and
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<PAGE> 61
in such manner as the Trustee may deem wise and proper. The
proceeds of any such sale or exchange may be reinvested as is
provided hereunder. The purchaser of any such property from
the Trustee shall not be required to look to the application
of the proceeds of any such sale or exchange by the Trustee.
(h) The Trustee shall have full power to mortgage, pledge, lease
or otherwise dispose of the property of the Trust Fund without
securing any order of court therefor, without advertisement,
and to execute any instrument containing any provisions which
the Trustee may deem proper in order to carry out such
actions. Any such lease so made by the Trustee shall be
binding, notwithstanding the fact that the term of the lease
may extend beyond the termination of the Plan.
(i) The Trustee shall have the power to borrow money upon terms
agreeable to the Trustee and pay interest thereon at rates
agreeable to the Trustee, and to repay any debts so created.
(j) The Trustee may participate in the reorganization,
recapitalization, merger or consolidation of any corporation
wherein the Trustee may own stock or securities and may
deposit such stock or other securities in any voting trust or
protective committee or like committee or trustee, or with the
depositories designated thereby, and may exercise any
subscription rights or conversion privileges, and generally
may exercise any of the powers of any owner with respect to
any stock or other securities or property comprising the Trust
Fund.
(k) The Trustee may, through any duly authorized officer or proxy,
vote any share of stock which the Trustee may own from time to
time except for stock of Trustmark National Bank ("Bank") on
the following matters. On any matter which involves a sale of
substantially all of the assets or the stock of the Bank or a
transfer of a majority or more of the stock of the Bank
through merger, consolidation or other means in which control
of the Bank is transferred to another party, each Participant
or Beneficiary shall be entitled to direct the Trustee to vote
a certain number of shares of stock of the Bank determined
under the following formula: multiply the total number of
Bank shares held by the Trustee by a fraction the numerator of
which is the Employer Account balance of such Participant or
Beneficiary and the denominator of which is the total Employer
Account balances of all Participants and Beneficiaries.
(l) The Trustee shall retain in cash and keep unproductive of
income such funds as from time to time it may deem advisable.
The Trustee shall not be required to pay interest on any such
cash in its hands pending investment, nor shall the Trustee be
responsible for the adequacy of the Trust Fund to discharge
any and all payments under the Plan. All persons dealing with
the Trustee are released from inquiry into the decision or
authority of the Trustee to act.
(m) The Trustee may hold stocks, bonds, or other securities in its
own name as Trustee, with or without the designation of said
trust estate, or in the name of a nominee selected by it for
the purpose, but said Trustee shall nevertheless be obligated
to
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<PAGE> 62
account for all securities received by it as part of the
corpus of the trust estate herein created, notwithstanding the
name in which the same may be held.
(n) The Trustee may consult with legal counsel (who may be of
counsel to the Employer or the Plan Administrator) concerning
any questions which may arise with reference to the
construction of this Plan, its duties hereunder, or any action
which it proposes to take or omit.
(o) The Trustee may employ such counsel, accountants and other
agents as it shall deem advisable. The Trustee may charge the
compensation of such counsel, accountants and other agents and
the Trustee's compensation for its services in such amounts as
may be agreed upon from time to time by the Employer and the
Trustee, and any other expenses necessary in the
administration of this Plan against the Trust Fund to the
extent they are not paid by the Employer. However, only those
fees and expenses which constitute reasonable expenses of
administering the Plan may be charged to the Trust.
(p) The Trustee shall have the power to designate a bank or trust
company as depository of the funds or property of the Trust
and also to retain investment counsel, and the Trustee may
deposit funds in its commercial banking department (if any)
without making bond.
(q) Without diminution or restriction of the powers vested by law
or elsewhere in this Plan, but subject to all the provisions
of the Plan, the Trustee, without the necessity of procuring
any judicial authorization therefor or approval thereof, shall
be vested with and, in the application of its best judgment
and discretion on behalf of the beneficiaries of this Plan,
shall be authorized to exercise all or any of the powers
specifically permitted by statute or judicial decision in, or
with respect to, the state in which the Trustee principally
does business.
10.03 RELIANCE ON PLAN ADMINISTRATOR AND EMPLOYER.
Until notified pursuant to Article 9 hereof that any person authorized
to act for the Plan Administrator (such as a Committee member) has
ceased to act or is no longer authorized to act for the Plan
Administrator, the Trustee may continue to rely on the authority of
such person. The Trustee may rely upon any certificate, notice or
direction purporting to have been signed on behalf of the Plan
Administrator which the Trustee believes to have been signed by or on
behalf of the Plan Administrator. The Trustee may rely upon any
certificate, notice or direction of the Employer which the Trustee
believes to have been signed by a duly authorized officer, principal
or agent of the Employer. The Trustee may request instructions in
writing from the Plan Administrator on other matters and may rely and
act thereon.
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10.04 ACCOUNTS AND REPORTS.
The Trustee shall keep an accurate record of its administration of the
Trust Fund, including a detailed account of all investments, receipts
and disbursements, and other transactions hereunder. All accounts,
books and records relating hereto shall be open for inspection to any
person designated by the Committee or the Sponsor at all reasonable
times. Within sixty (60) days following the close of each Plan Year,
the Trustee shall file with the Plan Administrator a written report
setting forth all investments, receipts and disbursements and other
transactions during the Plan Year, and such report shall contain an
exact description of all securities purchased, exchanged or sold, the
cost or net proceeds of sale, and shall show the securities and
investments held at the end of such Plan Year, and the cost and fair
market value of each item thereof, as carried on the books of the
Trustee.
The Trustee shall also provide the Plan Administrator with such other
information in its possession as may be necessary for the Plan
Administrator to comply with the reporting and disclosure requirements
of ERISA.
Upon the expiration of ninety (90) days from the date of filing such
report, the Trustee shall be forever released and discharged from all
liability and accountability to anyone with respect to the recording
of its acts and transactions shown in such statement, except with
respect to any such acts or transactions as to which the Plan
Administrator shall file with the Trustee written objections within
such ninety (90) day period.
10.05 DISBURSEMENTS.
The Trustee, upon written instructions from the Plan Administrator,
shall make distributions or payments, or both, including monthly
payments, to the Participants, Retired Participants, and Beneficiaries
who qualify for such benefits. The Trustee shall have no liability to
the Employer, the Plan Administrator or any other person in making
such distributions or payments. The Trustee shall not be required to
determine or make any investigation to determine the identity or
mailing address of any person entitled to benefits under the Plan and
shall have discharged its obligation in that respect when it shall
have sent checks and other papers by ordinary mail to such person or
persons at such addresses as may be certified to it in writing by the
Plan Administrator.
10.06 PAYMENT IN KIND.
Whenever the Trustee is empowered hereunder to make any payment or
distribution, the Trustee shall have the power, in its sole
discretion, to make such payment in cash or in kind, or partly in cash
and partly in kind. In no event shall any payment in kind be made in
the form of a life annuity. The assets of the Trust Fund shall be
valued, for the purposes of making, or of computing the amount of,
such payment or distribution, at their fair market value at the dates
of such payment or distributions.
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10.07 AUTHORITY OF TRUSTEE.
At no time during the administration of the Trust Fund shall the
Trustee be required to obtain any court approval of any act required
of it in connection with the performance of its duties or in the
performance of any act required of it in the administration of its
duties as Trustee. The Trustee shall have full authority to exercise
its judgment in all matters and at all times without court approval of
such decisions; provided, however, that if any application to, or
proceeding or action in, the courts is made, only the Sponsor and the
Trustee shall be necessary parties, and no Participant in the Plan or
other person having an interest in the Trust Fund shall be entitled to
any notice or service of process. Any judgment entered in such
proceeding or action shall be conclusive upon all persons claiming an
interest under the Trust Fund.
10.08 REMOVAL OR RESIGNATION OF TRUSTEE.
The Trustee may at any time be removed as Trustee of the Plan by
action of the Board of Directors of the Sponsor and written notice to
the Trustee, such removal to be effective sixty (60) days after such
notice is given.
The Trustee may resign as Trustee of the Plan upon written notice to
the Sponsor, such resignation to be effective sixty (60) days after
such notice is given.
Upon mutual, written agreement by the Sponsor and the Trustee, the
sixty (60) day period in this section may be waived or a shorter
period substituted.
10.09 SUCCESSOR TRUSTEE.
In the event of the resignation or removal of the Trustee, the Sponsor
shall appoint a successor trustee in place of the resigned or removed
Trustee on or before the effective date of such resignation or
removal. In the absence of such action, the Sponsor shall be deemed
to have terminated the Plan, and the termination provisions of Article
11 shall apply.
On or before the effective date of the removal or resignation, the
Trustee shall file with the Sponsor a written report setting forth all
investments, receipts and disbursements and other transactions
effected by it since the end of the preceding Plan Year. Such report
shall be in the same form and be subject to the same requirements as
the annual report.
The Trustee, if not paid by the Sponsor, is authorized to reserve such
sum of money or to liquidate such property and reserve the proceeds
thereof as it may deem advisable for the payment of its expenses or
charges in connection with the settlement of its account or otherwise,
and any such balance of such reserve remaining after the payment of
such expenses and charges shall be paid over to the successor trustee
or trustees, or to the Participants in the event of termination.
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10.10 TRUST FUNDING POLICY; PARTIES IN INTEREST.
From time to time the Plan Administrator shall communicate to the
Trustee the current funding policy and method that have been
established to carry out the objectives of the Plan.
Upon the written request of the Trustee, the Sponsor shall file with
the Trustee a roster of the names of all persons, corporations,
partnerships, organizations and entities which are "parties in
interest" with respect to the Plan, as that term is defined in ERISA.
10.11 TRUSTEE TO TRUSTEE TRANSFERS.
The Plan Administrator shall have the power to authorize the
acceptance of a direct transfer to this Plan of plan assets
attributable to a Participant's participation in another qualified
plan; provided, however, that any restrictions on distributions of
such transferred assets under such other plan shall be maintained
under this Plan with respect to such assets. Likewise, the Plan
Administrator shall have the power to authorize the Trustee to make
such a direct transfer of assets from this Plan attributable to a
Participant's participation in this Plan to another qualified pension,
profit sharing or stock bonus plan.
A separate bookkeeping subaccount for his transfers shall be
established on behalf of a Participant under his Personal Account, and
such transfers shall be treated as Participant contributions for
purposes of investment and allocation of Income. Likewise, for
purposes of the withdrawal and distribution of benefits pursuant to
Articles 5, 6, 7 and 8 hereof, the subaccount shall be treated as part
of the Personal Account, subject to any additional restrictions
required by the preceding paragraph. The balance of each such account
shall be fully vested at all times.
Such direct trustee to trustee transfers shall not be considered (i)
as contributions by the Employer under Section 3.01 of this Plan, (ii)
in determining the maximum benefits permissible under the Plan
pursuant to Section 4.04 hereof or (iii) in determining the Top Heavy
Ratio in Section 13.02(j) hereof, provided they are transfers
initiated by the Employee and made from a plan maintained by an
employer which is not in the Controlled Group.
10.12 INVESTMENT MANAGER.
The Sponsor may appoint in writing an Investment Manager or Investment
Managers to manage all or any portion of the assets of the Plan and
may revoke any such appointment previously made. While such an
appointment is in effect, the relations among the Plan Administrator,
Sponsor, Investment Manager, and Trustee shall be governed by the
following provisions:
(a) The Sponsor shall certify to the Trustee the name or names of
any Investment Manager appointed by it to manage the
investment or reinvestment of all or any
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portion of the Trust Fund. Such certificate shall also state
that the Investment Manager has acknowledged his Fiduciary
status with respect to the Plan in writing.
(b) The Trustee shall segregate any portion of the Trust Fund held
by it which will be subject to the management of an Investment
Manager into one or more separate accounts to be known as
investment manager accounts and shall charge any expenses
related to investments directed by an Investment Manager
against such accounts. Each Investment Manager shall have the
right and power to manage the investment and reinvestment of
his investment manager account. The Trustee shall follow the
directions of the Investment Manager with respect to the
account of such Investment Manager and shall not be obligated
to invest or otherwise manage any such investment manager
account. All directions given by an Investment Manager to the
Trustee shall be in writing, signed by an officer or a partner
of the Investment Manager or by such other person or persons
as may be designated by such officer or partner. Subject to
such conditions as may be approved by the Sponsor and Trustee,
the Investment Manager may place direct orders for the
purchase or sale of securities or other property for its
investment manager account, provided, that the Trustee shall
nevertheless retain custody of the assets comprising said
account.
(c) If the Sponsor, by written notice to the Trustee, terminates
the authority of an Investment Manager but does not appoint a
successor to manage the investment and reinvestment of the
account of such Investment Manager, the portion of the Fund
then held in such investment manager account shall return to
the unsegregated portion of the Fund and the Trustee shall
have authority to manage the investment and reinvestment of
such account. Until receipt of a written notice terminating
the authority of an Investment Manager, the Trustee shall be
fully protected in relying upon the latest prior written
notice of appointment of an Investment Manager.
(d) Any Investment Manager may, in writing, authorize the Trustee
to invest any portion of his investment manager account in
short-term investments. The Trustee, in its sole discretion,
may make such investments either directly or by investment
collectively with other assets, including but not limited to
investment in any common, commingled, collective, mutual or
pooled trust fund established and maintained by the Trustee or
any affiliate of the Trustee for the investment of funds
administered in a fiduciary capacity.
(e) The Trustee shall not be responsible for any loss caused by
its acting upon any notice, direction or certification of any
Investment Manager appointed by the Sponsor which the Trustee
reasonably believes to be genuine. The Trustee shall have no
duty to question any direction, action or inaction of any
Investment Manager taken as provided in this section. The
Trustee shall have no duty to review the securities or other
property held in any investment manager account or to make any
suggestions to any Investment Manager or to the Employer with
respect to the investment, reinvestment, or disposition of
investments in any investment manager account. The
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Trustee shall not be responsible for the results arising from
the Trustee's compliance with the instructions of any
Investment Manager.
(f) The Trustee shall not be responsible for determining the
reasonableness of any compensation paid to or agreed to be
paid to an Investment Manager. Any such compensation to an
Investment Manager shall be paid from the Trust Fund, if the
Plan Administrator so directs.
(g) With respect to any share of stock in the investment manager
account, the Trustee may, through any duly authorized officer
or proxy, vote any such stock.
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ARTICLE 11
AMENDMENT AND TERMINATION OF THE PLAN
11.01 AMENDMENT OF PLAN.
The Board of Directors of the Sponsor shall have the right at any
time, and from time to time, to modify, alter or amend the Plan in
whole or in part by instrument in writing duly executed.
Provided, however, that the Plan shall not be amended in the following
respects:
(a) the duties, powers and responsibilities of the Trustee shall
not be increased without the written consent of the Trustee;
(b) subject to Section 12.05 hereof, no amendment may be made to
permit any part of the funds of the Trust to be used for or
diverted to purposes other than for the exclusive benefit of
Participants, Retired Participants and their Beneficiaries or
for administration expenses of the Plan;
(c) no amendment may be made, unless it is necessary to meet the
requirements of any federal law or regulation, which shall
reduce the benefits which have accrued or the nonforfeitable
percentage applicable to any Participant, Retired Participant
or Beneficiary prior to the later of the date of adoption or
the effective date of such amendment, nor shall any amendment
to the Plan eliminate an optional form of distribution
provided under Section 6.01 hereof except as may be permitted
by federal law or regulation; and
(d) no amendment to the vesting provision in Section 8.01 hereof
shall become effective with respect to a Participant who has
completed three (3) or more years of Service at the date of
adoption of such amendment unless such Participant is given
the opportunity to elect irrevocably to have his
nonforfeitable benefits computed without regard to such
amendment. The election period shall be a period of sixty
(60) days after the latest of:
(i) the date of adoption of the amendment,
(ii) the effective date of the amendment, and
(iii) the date written notification of the amendment is
furnished such Participant.
An executed copy of any amendment to the Plan shall be
furnished the Trustee as soon as practicable after the date of
adoption thereof.
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11.02 INTENT TO CONTINUE THE PLAN.
The Employer has established the Plan with the bona fide intention and
expectation that from year to year it will make contributions as
herein provided. However, the Employer realizes that it may become
inadvisable to continue such contributions. The Employer shall have
the right to modify, suspend or discontinue contributions to the Plan
at any time and from time to time, and such action shall not be deemed
to be a termination of the Plan unless it constitutes a complete
discontinuance of Employer contributions to the Plan.
11.03 TERMINATION OF THE PLAN BY THE SPONSOR; PARTIAL TERMINATION.
In the event the Sponsor concludes that it is impossible or
inadvisable to continue the Plan, the Board of Directors of the
Sponsor shall have the right to terminate the Plan by an appropriate
action which shall specify the date of termination. A certified copy
of a writing reflecting such action shall be delivered to the
Committee and to the Trustee, and as soon as possible thereafter the
Committee shall send or deliver to each then Participant a notice of
such action.
If a determination is made that the Plan has experienced a partial
termination, then the rights of the affected Participants, Retired
Participants and Beneficiaries to benefits accrued to the date of such
partial termination shall be nonforfeitable.
11.04 TERMINATION OF THE PLAN UPON CERTAIN EVENTS.
The Plan shall automatically terminate upon the occurrence of any of
the following events:
(a) discontinuance or liquidation of the Sponsor's business;
(b) the merger or consolidation of the Sponsor into any other
entity, unincorporated business organization or corporation,
or the sale by the Sponsor of substantially all of its assets
to any entity, unincorporated business organization, or
corporation which shall fail to adopt and continue the Plan
within ninety (90) days from the effective date of such
consolidation, merger or sale of assets; or
(c) failure of the Sponsor to appoint a successor trustee in place
of a Trustee who has resigned or been removed on or before the
effective date of such resignation or removal as provided in
Section 10.09.
11.05 DISTRIBUTION OF TRUST FUND UPON TERMINATION.
Upon complete termination of the Plan, or upon discontinuance of
Employer contributions to the Plan, the balance in each Participant's
or Retired Participant's accounts (after payment of all expenses and
proportional adjustment of Participants' accounts to reflect such
expenses, investment gains or losses and reallocations to the date
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of termination) shall become nonforfeitable and each Participant,
Retired Participant or Beneficiary shall be entitled to receive any
amounts then credited to his accounts in the Trust Fund.
The Trustee shall make payment of such amounts in a single sum. Upon
the distribution of all of the Trust Fund as aforesaid, the Trustee
shall be discharged from all obligations under the Trust and no
Participant, Retired Participant or Beneficiary shall have any further
rights or claim therein.
11.06 TERMINATION OF PLAN WITH RESPECT TO AN ADOPTING EMPLOYER.
Each Adopting Employer reserves the right to terminate the Plan at any
time with respect to Employees of the Adopting Employer by action of
its Board of Directors. The Adopting Employer shall also have the
right to suspend contributions to the Plan from time to time, and such
suspension of contributions shall not be deemed to be a termination of
the Plan with respect to the Employees of the Adopting Employer unless
it constitutes a complete discontinuance of Employer contributions to
the Plan.
In the event of termination of the Plan only with respect to the
Employees of the Adopting Employer, the Plan Administrator shall
direct that the portion of the Trust Fund attributable to Employees of
the Adopting Employer be segregated by the Trustee into a separate
fund.
The portion of the Trust Fund which is so segregated shall be retained
in a separate trust fund and applied in one of the following methods,
at the discretion of the Committee.
(a) If the Adopting Employer shall demonstrate conclusively,
within the one hundred eighty (180) day period immediately
following termination of the Plan with respect to its
Employees, that it has established a successor retirement plan
and trust for the benefit of its Employees which is qualified
under sections 401(a) and 501(a), respectively, of the Code,
then such assets shall be transferred to the successor
trustee.
(b) If the Adopting Employer shall fail, within the one hundred
eighty (180) day period immediately following termination of
the Plan with respect to its Employees, to establish a
successor retirement plan and trust which is qualified under
sections 401(a) and 501(a), respectively, of the Code, then
such assets shall be distributed for the benefit of the
Employees of the Adopting Employer in accordance with the
method described in Section 11.05 hereof.
At the discretion of the Plan Administrator, the one hundred eighty
(180) day period may be extended.
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ARTICLE 12
CERTAIN PROVISIONS AFFECTING THE EMPLOYER
12.01 DUTIES OF THE EMPLOYER.
The Sponsor shall furnish the Trustee with the information required
herein. Each Employer shall make its contributions as the same may be
appropriated by due action, which contributions may be in cash or in
other property acceptable to the Trustee. The Employer shall keep
accurate books and records with respect to its Employees and their
compensation.
12.02 RIGHT OF EMPLOYER TO DISCHARGE EMPLOYEES.
The adoption and maintenance of the Plan shall not be deemed to
constitute a contract between the Employer and any Employee, or to be
a consideration for, or an inducement or condition of, the employment
of any person.
12.03 INFORMATION TO BE FURNISHED.
As soon as practicable after the close of each Plan Year, each
Employer shall deliver to the Plan Administrator a full and complete
list of all Employees entitled to participate in the Plan during such
Plan Year, together with the information required to perform the
allocations described in Article 4 hereof with respect to such Plan
Year.
As soon as possible after the execution of the Plan, and from time to
time thereafter, the Sponsor and the Plan Administrator shall certify
to the Trustee the names and specimen signatures of any
representatives who have authority to act on behalf of the Sponsor
with respect to the Plan.
12.04 COMMUNICATIONS FROM SPONSOR TO TRUSTEE.
The Trustee may rely upon and shall be protected in acting upon any
information furnished to it by the Sponsor in writing subscribed by a
duly authorized agent of the Sponsor. Any certification by the
Sponsor of the information required or permitted to be certified to
the Trustee pursuant to the provisions of the Plan, shall, for all
purposes of the Plan, be binding upon all parties in interest.
12.05 NO REVERSION TO EMPLOYER.
The Employer has no beneficial interest in the Trust Fund, and no part
of the Trust Fund shall ever revert or be repaid to the Employer,
directly or indirectly, except, if, and to the extent, permitted by
the Code and applicable regulations thereunder for the following:
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(a) upon initial non-qualification pursuant to Section 14.10
hereof;
(b) in the event that the deduction of an Employer contribution to
the Plan under section 404 of the Code is disallowed, in which
case the contribution (to the extent disallowed) shall be
returned to the Employer, upon the request of the Employer
within one (1) year after the disallowance of the deduction;
or
(c) in the event that the Employer contribution is made by mistake
of fact, in which case the amount of such mistaken
contribution shall be returned to the Employer provided no
more than one (1) year has elapsed since the date of payment
by the Employer of the mistaken contribution.
12.06 INDEMNIFICATION.
To the extent permitted by law the Sponsor shall indemnify from any
loss or expense the Plan Administrator or any individual member of the
Committee, in connection with the good faith discharge of duties under
the Plan.
12.07 ADOPTION OF PLAN BY ADOPTING EMPLOYERS.
Notwithstanding anything herein to the contrary, with the
authorization of the Board of Directors of the Sponsor any corporation
or entity affiliated with the Sponsor through complete or partial
ownership by the Sponsor or by any owner thereof or which is otherwise
cooperating with the Sponsor for purposes of establishing a retirement
plan may adopt the Plan as an Adopting Employer in a manner
satisfactory to the Board of Directors of the Sponsor. As part of its
adoption of the Plan, each Adopting Employer shall designate, subject
to the agreement and approval of the Sponsor and the provisions of
Code section 413(c), whether or not its participation in the Plan
shall constitute a single plan, within the meaning of the regulations
under section 414(l) of the Code, with the participation in the Plan
of the Sponsor and/or other Adopting Employers. Such designation may
be amended by the Adopting Employer at any subsequent date.
For purposes of the payment of benefits due a Participant from the
Plan:
(a) if the Participant is an Employee of an Employer which has
elected to maintain a plan which is not such a single plan,
only that part of the Trust Fund attributable to the Employer
shall be available;
(b) if the Participant is an Employee of an Employer which has
elected to maintain such a single plan, that part of the Trust
Fund attributable to all Employers maintaining the single plan
shall be available.
An Adopting Employer may terminate participation in the Plan at any
time with respect to Employees of the Adopting Employer by action of
its Board of Directors as provided in Section 11.06 hereof, subject to
the applicable provisions therein depending on
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whether or not the Adopting Employer has elected to maintain a single
plan with the Sponsor and/or other Adopting Employers.
All Employers which are Adopting Employers as of January 1, 1994,
shall be deemed to have elected to maintain a single plan with the
plan of the Sponsor.
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ARTICLE 13
PROVISIONS APPLICABLE TO A TOP HEAVY PLAN
13.01 TOP HEAVY PLANS.
The provisions of this article are designed to meet the requirements
of section 416 of the Code and shall automatically supersede any
conflicting provisions in the Plan in every Plan Year in which this
Plan is or becomes a Top Heavy Plan. Provided, however, that if the
provisions of this article are in conflict with final regulations
issued by the Secretary of the Treasury with respect to Top Heavy
Plans, then such final regulations shall supersede the provisions of
this article to the extent not otherwise specifically prohibited by
law.
13.02 DEFINITIONS.
For purposes of this article, and only this article, unless a term
defined in this article is the subject of explicit reference elsewhere
in the Plan, the following terms when used herein, unless the context
clearly indicates otherwise, shall have the meanings set forth
hereinafter:
(a) "Compensation" shall mean, for each Employee, Compensation as
that term is defined in Section 4.04 of the Plan, plus amounts
contributed by the Employer pursuant to a salary reduction
agreement which are excludible from the employee's gross
income under section 125, section 402(a)(8), section 402(h) or
section 403(b) of the Code. However, "Compensation" shall not
include compensation in excess of the applicable dollar limits
in Section 1.10(d) and 1.10(e).
(b) "Determination Date" shall mean, with respect to any Plan Year
subsequent to the first Plan Year, the last day of the
preceding Plan Year. For the first Plan Year of the Plan, the
Determination Date shall be the last day of such Plan Year.
(c) "Key Employee" shall mean any Employee or former Employee (or
Beneficiary of such Employee) who, at any time during the
determination period, was (i) an officer of the Employer
having an annual Compensation greater than fifty percent (50%)
of the maximum dollar limitation in effect under section
415(b)(1)(A) of the Code for any such Plan Year, (ii) an owner
of one (1) of the ten (10) largest interests in the Employer
if such interest is greater than one-half percent (1/2%) and
such individual's Compensation exceeds the maximum dollar
limitation under section 415(c)(1)(A) of the Code, (iii) a
five percent (5%) or more owner of the Employer or (iv) a one
percent (1%) or more owner of the Employer who has an annual
Compensation of more than one hundred and fifty thousand
dollars ($150,000). The term "determination period" shall
mean the Plan Year containing the Determination Date
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and the four (4) preceding Plan Years. The determination of
who is a Key Employee shall be made in accordance with section
416(i)(1) of the Code and regulations thereunder. For
purposes hereof, the term "officer" shall mean an
administrative executive who is in regular and continued
service. An Employee who merely has the title of an officer,
but not the authority of an officer, is not to be considered
an officer hereunder. Furthermore, for purposes hereof, at
any time during a determination period, no more than fifty
(50) Employees of all members of a Controlled Group, or, if
lesser, the greater of three (3) individuals or ten percent
(10%) of such Employees, shall be treated as officers
hereunder. The officers subject to these preceding
limitations shall be comprised of the individual officers
selected from the group of all individuals who were officers
in the current Plan Year of the determination period or any of
the four (4) preceding Plan Years in the determination period,
who had the largest average annual compensation throughout the
total of those five (5) Plan Years in the determination
period. For purposes of (ii) herein, if two (2) employees
have the same interest in the Employer, the Employee having
the greater annual Compensation (without regard to the dollar
limitation of Section 13.02(a) hereof) from the Employer shall
be treated as having a larger interest. Likewise, for
purposes hereof, the term "owner" shall mean an individual
considered to be an owner within the meaning of section 318 of
the Code; provided, however, that subparagraph (c) of section
318(a)(2) shall be applied by substituting "5 percent" for "50
percent".
(d) "Non-Key Employee" shall mean any Employee who is not a Key
Employee.
(e) "Permissive Aggregation Group" shall mean the Required
Aggregation Group of plans plus any other plan or plans of the
Employer, as selected by the Employer, which, when considered
as a group with the Required Aggregation Group, would continue
to satisfy the requirements of sections 401(a)(4) and 410 of
the Code.
(f) "Present Value" shall mean, if the Employer also now or ever
maintains a qualified defined benefit pension plan, the
present value of a benefit based only on the interest and
mortality rates specified in that plan.
(g) "Required Aggregation Group" shall mean as follows:
(1) each qualified plan of the Employer in which at least
one (1) Key Employee participates or participated at
any time during the determination period (regardless
of whether or not the plan terminated), and
(2) any other qualified plan of the Employer which
enables a plan described in the preceding subsection
(1) to meet the requirements of sections 401(a)(4) or
410 of the Code.
(h) "Super Top Heavy Plan" shall mean, for any Plan Year, the Plan
if it would be a Top Heavy Plan under subsection 13.02(i)
hereof if the words "ninety percent (90%)" were substituted
for the words "sixty percent (60%)" in subsection 13.02(i)
hereof.
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(i) "Top Heavy Plan" shall mean, for any Plan Year, the Plan if
any of the following conditions exists.
(1) If the Top Heavy Ratio for this Plan exceeds sixty
percent (60%) and this Plan is not part of any
Required Aggregation Group or Permissive Aggregation
Group of plans.
(2) If this Plan is a part of a Required Aggregation
Group of plans, but not part of a Permissive
Aggregation Group, and the Top Heavy Ratio for the
Required Aggregation Group of plans exceeds sixty
percent (60%).
(3) If this Plan is a part of a Required Aggregation
Group and also is a part of a Permissive Aggregation
Group of plans, and the Top Heavy Ratio for the
Permissive Aggregation Group exceeds sixty percent
(60%).
(j) "Top Heavy Ratio" shall mean as follows.
(1) If the Employer maintains one (1) or more defined
contribution plans (including any simplified employee
pension plan under section 408(k) of the Code), and
the Employer has never maintained any defined benefit
plan which has covered or could cover a Participant
in this Plan, then the Top Heavy Ratio is a fraction,
the numerator of which is the sum of the account
balances of all Key Employees as of the Determination
Date (including any part of any account balance
distributed in the five (5) year period ending on the
Determination Date), and the denominator of which is
the sum of all account balances (including any part
of any account balance distributed in the five (5)
year period ending on the Determination Date) of all
Participants as of the Determination Date. Both the
numerator and denominator of the Top Heavy Ratio are
adjusted to reflect any contribution which is due but
unpaid as of the Determination Date.
(2) If the Employer maintains one (1) or more defined
contribution plans (including any simplified employee
pension plan under section 408(k) of the Code), and
the Employer maintains or has maintained one (1) or
more defined benefit pension plans which have covered
or could cover a Participant in this Plan, then the
Top Heavy Ratio is a fraction, the numerator of which
is the sum of account balances under the defined
contribution plans for all Key Employees and the
present value of accrued benefits under the defined
benefit pension plans for all Key Employees, and the
denominator of which is the sum of the account
balances under the defined contribution plans for all
Participants and the present value of accrued
benefits under the defined benefit pension plans for
all Participants. Both the numerator and denominator
of the Top Heavy Ratio are adjusted for any
distribution of an account balance or an accrued
benefit made in the five (5) year period ending on
the Determination Date and any contribution due, but
unpaid, as of the Determination Date.
13 - 3
<PAGE> 77
(3) For purposes of the preceding subsections (1) and
(2), the value of account balances and the present
value of accrued benefits shall be determined as of
the most recent Top Heavy Valuation Date that falls
within or ends with the twelve (12) month period
ending on the Determination Date. The account
balances and accrued benefits of a Participant who is
a Non-Key Employee, but who was a Key Employee in a
prior year, or who has not been credited with at
least one (1) Hour of Service with any Employer
maintaining the Plan at any time during the preceding
five (5) year period ending on the Determination
Date, shall be disregarded. The calculation of the
Top Heavy Ratio, and the extent to which
distributions, rollovers and transfers are taken into
account shall be made in accordance with section 416
of the Code and the regulations thereunder.
Distributions shall include distributions under a
terminated plan which if it had not been terminated
would have been included in the Required Aggregation
Group. When aggregating plans, the value of account
balances and accrued benefits shall be calculated
with reference to the determination dates that fall
within the same calendar year.
(k) "Top Heavy Valuation Date" shall mean, with respect to any
Plan Year, for this Plan, the Determination Date, and shall
mean with respect to any Plan Year for a defined benefit
pension plan maintained by the Employer, if any, the day
within the twelve (12) month period ending on the
determination date for such defined benefit pension plan as of
which the actuarial determination of the minimum funding
standard is calculated.
13.03 MINIMUM ALLOCATIONS IN SINGLE PLAN.
Notwithstanding the provisions of Section 4.01 hereof, and before any
contributions are allocated thereunder, minimum Employer Contributions
shall be made and allocated pursuant to this section in a Plan Year in
which the Plan is a Top Heavy Plan.
(a) The minimum Employer contribution for a Participant who is a
Non-Key Employee for any Plan Year in which the Plan is a Top
Heavy Plan shall not be less than the lesser of (i) three
percent (3%) of his Compensation or (ii) the percentage at
which Employer contributions (including salary deferral
contributions and Employer matching contributions) are made
for the Plan Year in respect of the Key Employee for whom such
percentage is the highest for the Plan Year, taking into
account such Key Employee's Compensation.
This minimum allocation shall be made even though, under other
Plan provisions, the Participant would not otherwise be
entitled to receive an allocation, or would have received a
lesser allocation for the Plan Year because of the following:
(1) the Participant's failure to complete one thousand
(1,000) hours of Service.
(2) the Participant's failure to make mandatory Employee
contributions, if any, required for participation in
the Plan; or
13 - 4
<PAGE> 78
(3) the Participant's Compensation was less than any
stated required amount.
This subsection shall not apply, however, to any Participant
who was not employed by the Employer on the last day of the
Plan Year.
In determining Employer contributions under this section,
contributions or benefits under Chapter 2 of the Code
(relating to taxes on self-employed income), Chapter 21 of the
Code (relating to the Federal Insurance Contribution Act) or
any other Federal or State laws (including Title II of the
Social Security Act) shall not be taken into account. In
determining Employer contributions under this section for a
Non-Key Employee, salary deferral contributions and Employer
matching contributions needed to satisfy the actual
contribution percentage nondiscrimination test pursuant to
Section 3.04 or the actual deferral percentage
nondiscrimination test pursuant to Section 3.03 shall not be
taken into account.
The minimum allocations required hereunder (to the extent
required to be nonforfeitable under section 416(b) of the
Code) shall not be forfeitable under sections 411(a)(3)(B)
(regarding the suspension of benefits upon reemployment of a
retiree) or 411(a)(3)(D) (regarding withdrawal of mandatory
contributions) of the Code.
(b) Any Employer contributions and Forfeitures remaining
unallocated shall be allocated pursuant to the provisions of
Section 4.01 hereof; provided, however, that all allocations
under the Plan pursuant to Section 4.01 shall be determined
with respect to Compensation as that term is defined in
Section 1.10 hereof, but subject to the dollar limitation set
forth in subsection 13.02(a) hereof.
13.04 MINIMUM VESTING SCHEDULES.
Notwithstanding the provisions of Section 8.01 hereof, the
nonforfeitable interest of each Participant in his Employer Account in
a Plan Year in which this Plan is a Top Heavy Plan shall be the vested
percentage set forth in the following table (or the vested percentage
determined in accordance with Section 8.01, if greater):
<TABLE>
<CAPTION>
Years of Vested
Vesting Service Percentage
---------------
<S> <C>
Less than 3 0%
3 or more 100
</TABLE>
If the vesting schedules under the Plan shift in or out of the
preceding schedule for any Plan Year because of a change in the Plan's
Top Heavy status, then such shift shall be considered an amendment to
the relevant vesting schedule and the election rule for Participants
with three (3) or more years of Service set forth in Section 11.01(d)
hereof shall apply. Furthermore, any contributions that become
nonforfeitable under this
13 - 5
<PAGE> 79
minimum vesting schedule for a Top Heavy Plan shall remain
nonforfeitable if the Plan shifts out of Top Heavy status.
The minimum vesting schedule applies to all benefits within the
meaning of section 411(a)(7)(A) of the Code (except those attributable
to voluntary Participant contributions, if any), including benefits
accrued before the effective date of section 416 of the Code and
benefits accrued before the Plan became a Top Heavy Plan. Further, no
reduction in nonforfeitable benefits may occur in the event the Plan's
status as a Top Heavy Plan changes for any Plan Year. However, this
section does not apply to the account balances of any Participant who
does not have an hour of Service after the Plan has initially become a
Top Heavy Plan, and the nonforfeitable percentage and such
Participant's Employer Account shall be determined without regard to
this section.
13.05 SPECIAL LIMITATIONS AND ALLOCATION IN MULTIPLE PLANS.
If for any Plan Year the Plan is a Top Heavy Plan, and the Employer
maintains, or has ever maintained, a qualified defined benefit pension
plan which is part of a Required or Permissive Aggregation Group, as
appropriate, then the provisions of this section shall apply.
If none of the Employer's plans are considered a Super Top Heavy Plan,
then the Employer shall provide each Participant who would receive an
allocation under Section 13.03 hereof and who is a participant also in
the qualified defined benefit pension plan an allocation pursuant only
to Section 13.03 hereof in lieu of accruing a benefit that year under
the pension plan, but substituting in subsection 13.03(a) hereof the
term "seven and one-half percent (7-1/2%)" for the term "three percent
(3%)". The Employer shall provide each Participant who would receive
an allocation under Section 13.03 hereof, but who is not a participant
also in the qualified defined benefit pension plan, an allocation
pursuant to Section 13.03 hereof, but substituting in subsection (a)
thereof the term "four percent (4%)" for the term "three percent
(3%)".
If any of the Employer's plans are considered a Super Top Heavy Plan,
then in applying the limitations of Section 4.04 hereof, the term "one
(1)" shall be substituted for the term "one and twenty-five hundredths
(1.25)" in both the defined benefit fraction and the defined
contribution fraction, as such terms are defined in Section 4.04
hereof. Furthermore, the Employer shall provide each Participant who
would receive an allocation under Section 13.03 hereof and who is a
participant also in the defined benefit pension plan an allocation
pursuant only to Section 13.03 hereof in lieu of accruing a benefit
that year under the pension plan, but substituting in subsection
13.03(a) hereof the term "five percent (5%)" for the term "three
percent (3%)". The Employer shall provide each Participant who would
receive an allocation under Section 13.03 hereof, but who is not a
participant also in the defined benefit pension plan, an allocation
only pursuant to Section 13.03 hereof.
13 - 6
<PAGE> 80
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.01 ALLOCATION OF RESPONSIBILITY AMONG FIDUCIARIES FOR PLAN AND TRUST
ADMINISTRATION.
Each Fiduciary shall have only those specific powers, duties,
responsibilities and obligations as are specifically given it under
the Plan. Each Fiduciary warrants that any directions given,
information furnished, or action taken by it shall be in accordance
with the provisions of the Plan authorizing or providing for such
direction, information or action. Furthermore, each Fiduciary may
rely upon any such direction, information or action of any other
Fiduciary as being proper under the Plan and is not required to
inquire into the propriety of any such direction, information or
action. It is intended that each Fiduciary shall be responsible for
the proper exercise of its own powers, duties, responsibilities and
obligations under the Plan and shall not be responsible for any act or
failure to act of another Fiduciary. No Fiduciary guarantees the
Trust Fund in any manner against investment loss or depreciation in
asset value.
Each Fiduciary shall discharge its duties set forth in the Plan solely
in the interests of the Participants, Retired Participants and their
Beneficiaries:
(a) for the exclusive purpose of:
(1) providing benefits to such persons; and
(2) defraying reasonable expenses of administering the
Plan;
(b) 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.
14.02 ALIENATION OR ASSIGNMENT OF BENEFITS (QDRO'S).
The right of any Participant, Retired Participant or Beneficiary in
any benefit or to any payment hereunder or to any segregated account
may not be anticipated, conveyed, assigned, mortgaged or encumbered
either by voluntary or involuntary action or by operation of law nor
shall any such right or interest be in any manner subject to levy,
attachment, execution, garnishment or any other seizure under legal,
equitable or other process, except pursuant to a qualified domestic
relations order, as defined in section 414(p) of the Code, or pursuant
to a domestic relations order entered before January 1, 1985, under
which payment of benefits under that order has commenced as of January
1, 1985. Otherwise, such interest in this Plan shall be payable only
in accordance with the provisions hereof; provided, however, that
distributions pursuant to a qualified domestic
14 - 1
<PAGE> 81
relations order may be made without regard to the age or employment
status of the Participant.
In the event that a Participant's benefits are garnished or attached
by a court order which the Plan Administrator does not find to
constitute such an order, the Plan Administrator may bring an action
for declaratory judgment in a court of competent jurisdiction to
determine the proper recipient of Plan benefits; during the pendency
of such action, any benefits payable on behalf of the Participant may
be paid into the court for distribution to the proper recipient
pursuant to the judgment of the court.
14.03 HEADINGS.
The headings and sub-headings of articles and sections are included
solely for convenience of reference, and if there be any conflict
between such headings and the text of the Plan, the text shall
control.
14.04 CONSTRUCTION OF THE PLAN.
In the construction of the Plan, the masculine gender shall include
the feminine, the feminine gender shall include the masculine, and the
singular shall include the plural, unless the context clearly
indicates otherwise.
14.05 CORRECTION OF ERRORS.
If any error or change in records results in any Participant, Retired
Participant or Beneficiary receiving from the Plan more or less than
he would have been entitled to receive had the records been correct or
had the error not been made, the Plan Administrator, upon discovery of
such error, shall correct the error by adjusting, as far as
practicable, the payments in such a manner that the benefits to which
such person was correctly entitled shall be paid.
14.06 LEGALLY INCOMPETENT.
If any Participant, Retired Participant or Beneficiary is a minor or
is otherwise legally incapable of personally receiving and giving a
valid receipt for any payment due him hereunder, the Plan
Administrator shall direct that such payment be made to the guardian
or conservator of such person duly appointed by a court of competent
jurisdiction. Any payment so made shall be, to the extent of the
payment, a complete discharge to the Employer and Trustee of any
liabilities under the Plan.
14.07 SUCCESSOR ORGANIZATION.
In the event of a merger or consolidation of any Employer into, or
transfer of all or substantially all of its assets to, any legal
entity, unincorporated business organization or corporation, provision
may be made by such successor legal entity, unincorporated business
organization or corporation for its election of the continuance of
this Plan as to
14 - 2
<PAGE> 82
such successor entity. Such successor shall, upon its election to
continue this Plan, be substituted in place of the transferor Employer
by an instrument duly authorizing such substitution and duly executed
by such Employer and its successor. Upon notice of such substitution,
accompanied by a certified copy of the resolutions or other
appropriate written instrument of the governing body of such Employer
and its successor authorizing such substitution and delivered to the
Trustee, the Trustee shall be authorized to recognize such successor
in place of the transferor Employer.
14.08 MINIMUM BENEFIT IN SUCCESSOR PLAN.
In the event of any merger or consolidation of the Plan with, or the
transfer of assets or liabilities of the Plan to, any other qualified
plan or trust, each Participant, Retired Participant and Beneficiary
shall be entitled upon termination of the successor plan or trust
immediately after the merger, consolidation or transfer to a benefit
in an amount not less than he would have been entitled to receive if
the Plan had terminated immediately before the merger, consolidation
or transfer.
14.09 APPLICATION OF PLAN PROVISIONS.
The provisions of the Plan shall apply only to Employees who terminate
Service, or incur Breaks in Service, on or after the Effective Date.
Any retirement plan rights and benefits of former Employees shall be
determined in accordance with the provisions of any predecessor plan
as in effect on the respective dates of termination of Service or
Break in Service of such former Employees. However, unless
specifically otherwise stated in the Plan, the provisions of this
amendment, restatement and continuation of the Plan shall apply only
to Employees who have Service with the Employer on or after the
effective date of this amendment, restatement and continuation of the
Plan.
14.10 QUALIFICATION OF THE PLAN.
The adoption of the Plan by each Employer is contingent on the receipt
of a written, initial determination letter by the Internal Revenue
Service that the Plan and Trust, with any modifications or amendments
thereto requested by the Internal Revenue Service and agreed to by the
Sponsor, constitute a qualified plan and trust under sections 401(a)
and 501(a), respectively, of the Code. In the event no such
determination letter is received, no Participant, Retired Participant
or Beneficiary shall have any right or claim to the assets of the
Trust Fund or to any benefit under the Plan, all contributions made by
the Employer and Participants in accordance with the terms of the Plan
shall be returned to the respective parties, the Plan and Trust shall
be terminated forthwith with respect to such Employer, and the Trustee
shall be discharged from all obligation pursuant to adoption of the
Plan by the Employer.
14 - 3
<PAGE> 83
14.11 Severability of Provisions.
The provisions of this Plan are several, and should any provision be
ruled illegal, unenforceable or void, all other provisions not so
ruled shall remain in full force and effect.
14.12 APPLICABLE LAW.
The provisions of the Plan shall be interpreted and construed
according to the laws of the state of Mississippi, unless federal law
is exclusively controlling, and the parties hereto expressedly submit
themselves to the jurisdiction of the courts of the state of
Mississippi and the federal district courts for that state, with
respect to any action instituted either in law or in equity arising
out of or related to the breach or enforcement, or both, of the terms
and conditions set forth in the Plan.
14.13 NONASSIGNABILITY OF DUTIES.
Unless provided herein, the duties and responsibilities of the
Fiduciaries of the Plan shall be nonassignable.
14.14 ENTIRE PLAN.
This Plan constitutes the entire qualified profit sharing plan of the
Sponsor, and no modifications or alterations to this Plan shall be
enforceable unless properly and validly made pursuant to the amendment
provisions of Article 11 hereof.
14 - 4
<PAGE> 84
IN WITNESS WHEREOF, the Employer and Sponsor and the Trustee have each caused
this Plan and Trust to be executed by its duly authorized representative on
this 22nd day of December, 1994.
EMPLOYER AND SPONSOR:
Trustmark National Bank
Attest: /s/ DARA D. ROGERS
------------------------------
By: /s/ ROBERT G. SPRING
-----------------------------------
Title: SR. V.P. & Personnel Director
-------------------------------
TRUSTEE:
Trustmark National Bank
Attest: /s/ SUSAN H. HARDEE
------------------------------
By: /s/ W.H. WARDLAW
-----------------------------------
Title (if appropriate): SR. VP & TO
---------------
The Plan may be executed in several counterparts, each of which shall be deemed
an original.
<PAGE> 85
AMENDMENT NUMBER 1
TO THE
TRUSTMARK NATIONAL BANK PROFIT SHARING PLAN
The Trustmark National Bank Profit Sharing Plan is hereby amended, effective
July 1, 1995, as follows:
1. The last paragraph of Section 2.01 is amended to read as follows:
Notwithstanding the above, the following classes of Employees shall be
considered as excluded classes for purposes of the Plan, and Employees
who are members of such classes shall not be eligible to participate
in the plan:
(a) Employees who are active participants in the Trustmark
National Bank Pension Plan who were also participants in the
Canton Exchange Bank Employees Retirement Plan prior to its
merger into the Trustmark National Bank Pension Plan;
(b) Leased Employees.
2. Subsection (b) of Section 3.01 is amended to read as follows:
(b) Employer Matching Contribution - Employer matching
contributions shall be made in accordance with this subsection.
(1) Former Participants of the Rankin County Bank
401K Plan. The Employer shall make an Employer matching
contribution on behalf of each Participant who was a former
participant in the Rankin County Bank 401K Plan on June 30,
1995, who has remained continuously employed by the Employer
since June 30, 1995 and who makes salary deferral
contributions during the Plan Year. The amount of such
Employer matching contribution shall be one hundred percent
(100%) of the portion of the Participant's salary deferral
contributions for the Plan Year which does not exceed three
percent (3%) of the Participant's Compensation for the Plan
Year. The Employer may, but is not required to, increase the
Employer matching contribution for such Participants for any
Plan Year by designating in writing a match formula for such
Plan Year that produces an Employer matching contribution for
each such Participant that is at least as large as the
Employer matching contribution produced by the formula
described above.
<PAGE> 86
(2) Other Participants. The Employer may, but is
not required to, make an Employer matching contribution on
behalf of each Participant not described in subsection (1)
above who makes salary deferral contributions during the Plan
Year. For any Plan Year in which the employer decides to
make such Employer matching contributions, the Committee
shall designate in writing the match formula to be used for
such Plan Year.
(3) General. Notwithstanding the above, the
Employer shall not contribute amounts which (i) would, if
allocated to the Employer Account of Highly Compensated
Employees pursuant to Section 4.01(b), create excess
aggregate contributions (as defined in Section 3.04) or (ii)
are attributable to contributions which pursuant to Section
3.02(a), 3.03 or 3.04 are to be distributed to Employees.
The Employer matching contribution shall be subject to the
vesting schedule provided in Section 8.01 hereof and shall be
credited to Part II of the Participant's Employer Account.
3. Subsection (a) of Section 4.01 is amended to read as follows:
(a) Employer Basic Contributions and Forfeitures. Any
Employer basic contributions made pursuant to Section 3.01(a)
hereof and Forfeitures becoming available during the Plan Year
shall be allocated on the last Allocation Date of the Plan Year
to Part I of the Employer Account of each Participant entitled to
share in such contributions and Forfeitures. Only those
Participants who complete at least one thousand (1,000) Hours of
Service during the Plan Year and who are in one of the following
categories for the Plan Year shall be eligible to share in the
allocation of Employer basic contributions and Forfeitures:
(a) Participants who are employed on the last day
of the Plan Year or whose employment terminated on the last
day of the Plan Year; or
(b) Participants whose employment terminated during
the Plan Year due to retirement at or after Normal Retirement
Age, death or disability.
Provided, however, that Participants who were former Participants
in the Rankin County Bank 401K Plan on June 30, 1995 and who have
remained continuously employed by the Employer since June 30,
1995, shall not be eligible to share in the allocation of Employer
basic contributions and Forfeitures.
<PAGE> 87
Employer basic contributions and Forfeitures for the Plan Year
shall be allocated to Part I of each such Participant's Employer
Account in the proportion that such Participant's number of units
as of the Allocation Date bears to the total number of units for
all such Participants as of the Allocation Date. For purposes of
this allocation, one (1) unit shall be credited for each year of
Vesting Service and one (1) unit will be credited for each full
one hundred dollars ($100) of Compensation for the Plan Year.
4. Paragraph (1) of subsection 6.03(d) is amended as follows:
The reference to Section 6.04(c) in the fourth line of such paragraph
(1) shall be changed to Section 6.03(c).
5. Subsection (b) of Section 10.02 is amended by deleting the phrase "except
as provided in Section 6.02 hereof" and substituting therefor the phrase
"except as otherwise provided in the Plan."
IN WITNESS WHEREOF, this Amendment Number 1 to the Trustmark National Bank
Profit Sharing Plan is hereby executed by its duly authorized officer this 15th
day of June, 1995.
TRUSTMARK NATIONAL BANK
By /s/ ROBERT G. SPRING
-------------------------------
Robert G. Spring
<PAGE> 88
AMENDMENT NUMBER 2
TO THE
TRUSTMARK NATIONAL BANK PROFIT SHARING PLAN
The Trustmark National Bank Profit Sharing Plan is hereby amended as follows:
1. The first paragraph of subsection (a) of Section 3.02 is amended,
effective July 1, 1994, to read as follows:
(a) Salary Deferral Contributions. Effective with any payroll
period beginning on or after the date on which he becomes a
Participant, a Participant may voluntarily elect to enter into a
salary deferral agreement with the Employer. Such salary deferral
agreement shall serve to direct the Employer to contribute to the
Participant's Personal Account, as salary deferral contributions, a
portion of the amount which would otherwise be paid to the
Participant as direct Compensation. Salary deferral contributions
shall be subject to the following restrictions:
(1) the amount of such contributions for any single pay
period may not exceed two hundred eight dollars and thirty-three
cents ($208.33) or fifteen percent of Compensation for the pay
period, whichever is less;
(2) the amount of such contributions for any Plan Year
may not exceed five thousand dollars.
Provided, further, that such amount shall be subject also to the
limitations on annual additions for the limitation year under Section
4.04 hereof.
2. Subsection (c) of Section 3.02 is amended, effective January 1, 1989, to
read as follows:
(c) Rollover Contributions. Rollover contributions by a
Participant into this Plan shall not be permitted.
IN WITNESS WHEREOF, this Amendment Number 2 to the Trustmark National Bank
Profit Sharing Plan is hereby executed by its duly authorized officer this 12th
day of October, 1995.
TRUSTMARK NATIONAL BANK
By /s/ ROBERT G. SPRING
-----------------------
Robert G. Spring
<PAGE> 89
AMENDMENT NUMBER 3
TO THE
TRUSTMARK NATIONAL BANK PROFIT SHARING PLAN
The Trustmark National Bank Profit Sharing Plan is hereby amended, effective
January 1, 1989, as follows:
1. Section 1.21 is amended by adding the following immediately before the
last paragraph of the Section:
For purposes of this Section, an individual is in the top-paid group
for any year if such individual is in the group consisting of the top
twenty percent (20%) of the employees when ranked on the basis of
compensation paid during such year.
2. Section 3.03 is amended in its entirety to read as follows:
3.03 COVERAGE AND DISCRIMINATION REQUIREMENTS.
Salary deferral contributions for any Plan Year after December 31,
1986 shall satisfy one (1) of the following tests:
(a) the average deferral percentage for the Highly Compensated
Employees who are eligible to participate in the Plan for
the Plan Year shall not be more than the average deferral
percentage of the Non-highly Compensated Employees who are
eligible to participate in the Plan for the Plan Year
multiplied by one and twenty-five hundredths (1.25); or
(b) the excess of the average deferral percentage for the
Highly Compensated Employees who are eligible to
participate in the Plan for the Plan Year over that of the
Non-highly Compensated Employees who are eligible to
participate in the Plan for the Plan Year shall not be
more than two percent (2%), nor shall the average deferral
percentage for such Highly Compensated Employees be more
than that of such Non-highly Compensated Employees
multiplied by two (2).
For purposes of this Section, the term "average deferral
percentage" for a group of Employees shall mean the average of the
percentages, calculated separately for each Employee in the group,
of the amount of salary deferral contributions and, if applicable,
qualified nonelective contributions and Qualified Matching
Contributions, made on behalf of the Employee for a Plan Year, to
the amount of the Employee's Compensation for such Plan Year (the
"deferral percentage"). Qualified nonelective contributions and
Qualified Matching Contributions may be included in the calculation
of deferral percentages only if the conditions described in section
1.401(k)-1(b)(5) of the regulations are satisfied. For purposes of
calculating the
<PAGE> 90
average deferral percentage, eligible Employees with no salary
deferral contributions or, if applicable, qualified nonelective
contributions or Qualified Matching Contributions, shall be
included in such calculation with deferral percentages of zero
percent (0%). For purposes of determining the deferral percentage
of a Participant who is a five percent (5%) owner of the Employer
or one of the top ten (10) highest paid Highly Compensated
Employees, the amount of contributions and Compensation of such
Participant shall include the contributions and Compensation of
family members (as described in Code section 414(q)(6)(B)) to the
extent required by regulations. Family members who are required to
be aggregated with respect to such Highly Compensated Employees
shall be disregarded as separate Employees in determining the
average deferral percentage both for eligible Employees who are
Highly Compensated Employees and for eligible Employees who are
Non-highly Compensated Employees. For purposes of this Section,
the following rules, relating to aggregation of plans, shall apply:
(c) All salary deferral contributions that are made under this
Plan and any other plan that is aggregated with this Plan
for purposes of sections 401(a)(4) and 410(b) (other than
section 410(b)(2)(A)(ii)) of the Code shall be treated as
made under a single plan.
(d) If this Plan is permissively aggregated with any other
plan or plans for purposes of section 401(k) of the Code,
such aggregated plans must satisfy sections 401(a)(4) and
410(b) of the Code as though they were a single plan.
(e) The deferral percentage for any eligible Employee who is a
Highly Compensated Employee and who is eligible to make
salary deferral contributions under this Plan and any
other plan maintained by the Employer (other than plans
that may not be permissively aggregated) shall be
determined as if all such plans were a single plan.
A salary deferral contribution shall be considered to have been
made with respect to a Plan Year if it (i) is allocated to the
account of a Participant as of any date within that Plan Year and
(ii) relates to Compensation that either would have been received
by the Participant in the Plan Year but for the Participant's
election to defer under the arrangement, or is attributable to
services performed by the Participant in the Plan Year and, but for
the Participant's election to defer, would have been received by
the Participant within two and one-half (2-1/2) months after the
close of the Plan Year. A contribution shall be considered
allocated as of any date within a Plan Year if the following
conditions are met:
(f) such allocation is not dependent upon participation in the
Plan as of any date subsequent to the allocation date,
(g) the Employer contributions in addition to those
attributable to salary deferral contributions are actually
made to the Plan no later than the end of the period
described in Code section 404(a)(6) applicable to the
taxable year with or within which the Plan Year ends, and
<PAGE> 91
(h) the Employer contributions attributable to salary deferrals
are actually made to the Plan no later than the end of the
twelve (12) month period immediately following the end of
the Plan Year to which the contribution relates.
Excess contributions shall mean, with respect to any Plan Year, the
excess of:
(i) The aggregate amount of contributions actually taken into
account in computing the average deferral percentage of
Highly Compensated Employees for such Plan Year as
described above, over
(j) The maximum amount of such contributions permitted by the
average deferral percentage test (determined by reducing
contributions made on behalf of Highly Compensated
Employees in order of the average deferral percentages, beginning
with the highest of such percentages).
Provided, that the amount of any such excess contributions to be
distributed pursuant to this Section 3.03 with respect to a
Participant for a Plan Year shall be reduced by any salary deferral
contributions in excess of the dollar limit specified in Section
3.02(a) hereof which are previously distributed to such Participant
for his taxable year ending with or within such Plan Year. In
addition, the amount of such excess contribution of a Highly
Compensated Employee whose average deferral percentage is
determined under the family aggregation rules, shall be allocated
among the family members in proportion to the salary deferral
contributions of each family member that are combined to
determine the combined average deferral percentage.
Excess contributions shall, if required by law or regulations, be
adjusted for any Income up to the date of distribution. The Income
allocable to such excess contribution shall be equal to the sum of
(i) the allocable Income for the Plan Year and (ii) the allocable
Income for the period between the end of the Plan Year and the date
of distribution. The Income allocable to excess contributions for
such periods is determined in a manner analogous to the above
allocation of Income to excess deferrals, but basing the allocation
on excess contributions and the Income allocable to salary deferral
contributions.
If, for any Plan Year, salary deferral contributions are made with
respect to the Highly Compensated Employees in excess of that
permissible under subsections (a) and (b) of this Section 3.03, the
Committee shall, before the end of the Plan Year following the Plan
Year during which such excess contribution occurs, distribute the
amount of such excess to the Participant on whose behalf the
contribution was made.
Any distributions made hereunder shall be made to Highly Compensated
Employees on the basis of the respective portions of the excess
contributions attributable to each of such Employees.
<PAGE> 92
The tests described in this Section and the corrective measures for
insuring passage of such tests may be performed in any manner
permitted under section 401(k) of the Code, the regulations
thereunder and any other related rulings or pronouncements issued
by the Secretary of the Treasury or the Internal Revenue Service.
3. Section 3.04 is amended in its entirety to read as follows:
3.04 DISCRIMINATION REQUIREMENTS FOR OTHER CONTRIBUTIONS.
The Plan must satisfy the nondiscrimination requirements of section
401(m) of the Code and the regulations issued thereunder, which are
incorporated herein by reference. The Plan shall satisfy such
requirements if, with respect to any Plan Year, either of the
following alternative conditions are met:
(a) the average contribution percentage for eligible Highly
Compensated Employees is not greater than the average
contribution percentage for eligible Non-highly Compensated
Employees, multiplied by one and twenty-five hundredths
(1.25).
(b) the excess of the average contribution percentage for
eligible Highly Compensated Employees over that of
eligible Non-highly Compensated Employees is not more than
two percent (2%), nor is the average contribution
percentage for such Highly Compensated Employees more than
that of such Non-highly Compensated Employees, multiplied
by two (2).
For purposes of this Section, "Eligible Employee" shall mean any
Employee who is eligible to make or be credited with contribution
percentage amounts. Contribution percentage amounts shall mean
Employer matching contributions, voluntary after-tax contributions
and (subject to the conditions hereinafter enumerated and to the
extent taken into account in the calculation of average
contribution percentages) salary deferral contributions, qualified
nonelective contributions and Qualified Matching Contributions.
The Employer may elect to include salary deferral contributions and
qualified nonelective contributions, and must include Qualified
Matching Contributions, to the extent such contributions are not
included in the tests described in Section 3.03 hereof. Salary
deferral contributions and qualified nonelective contributions may
be included only if the conditions described in section
1.401(m)-1(b)(5) and 1.401(k)-1(g)(13) of the regulations are
satisfied. The term "average contribution percentage" for a group
of Eligible Employees shall mean the average of the ratios,
calculated separately for each Eligible Employee in the group, of
the contribution percentage amounts made on behalf of an Eligible
Employee during the Plan Year to that Eligible Employee's
Compensation for such Plan Year (the "contribution percentage").
For purposes of calculating the average contribution percentage,
Eligible Employees with no contribution percentage amounts shall be
included in such calculation with contribution percentages of zero
percent (0%). For purposes of determining the contribution
percentage of a Participant who is a five percent (5%) owner of the
Employer or one of the top ten (10) highest paid Highly Compensated
Employees, the amount of voluntary after-tax contributions,
Employer matching contributions and Compensation of such
Participant shall include the voluntary after-tax
contributions, Employer matching contributions and
<PAGE> 93
Compensation of family members (as described in Code section
414(q)(6)(B)). Family members, with respect to Highly Compensated
Employees, shall be disregarded as separate Employees in determining
the contribution percentage both for Eligible Employees who are
Non-highly Compensated Employees and for Eligible Employees who are
Highly Compensated Employees. For purposes of this Section, the
following rules, relating to aggregation of plans, shall apply:
(c) All contribution percentage amounts that are made under
this Plan and any other plan that is aggregated with this
Plan for purposes of sections 401(a)(4) and 410(b) (other
than section 410(b)(2)(A)(ii)) of the Code shall be
treated as made under a single plan.
(d) If this Plan is permissively aggregated with any other
plan or plans for purposes of section 401(m) of the Code,
such aggregated plans must satisfy sections 401(a)(4) and
410(b) of the Code as though they were a single plan.
(e) The contribution percentage for any Eligible Employee who
is a Highly Compensated Employee and who is eligible to
have contribution percentage amounts credited to him under
this Plan and any other plan maintained by the Employer
(other than plans that may not be permissively aggregated)
shall be determined as if all such plans were a single
plan.
"Excess aggregate contributions", plus any Income allocable
thereto, shall be forfeited, if forfeitable, or if not forfeitable,
distributed no later than the last day of each Plan Year to
Participants to whose accounts such excess aggregate contributions
were allocated for the preceding Plan Year. Excess aggregate
contributions shall be allocated to Participants who are subject to
the family member aggregation rules of section 414(q)(6) of the
Code in proportion to the Employee matching contributions of each
family member that are combined to determine the combined average
contribution percentage. Excess aggregate contributions shall be
treated as annual additions, as defined in Section 4.04, hereof.
"Excess aggregate contributions" shall mean, with respect to any
Plan Year, the excess of:
(f) The aggregate contribution percentage amounts taken into
account in computing the numerator of the contribution
percentage actually made on behalf of Highly Compensated
Employees for such Plan Year, over
(g) The maximum contribution percentage amounts permitted by
the average contribution percentage test (determined by
reducing contributions made on behalf of Highly
Compensated Employees in order of their contribution
percentages beginning with the highest of such
percentages).
Such determination shall be made after first determining excess
elective deferrals pursuant to Section 3.02 and then determining
excess contributions pursuant to Section 3.03 hereof.
<PAGE> 94
Excess aggregate contributions shall, if required by law or
regulations, be adjusted for any Income up to the date of
distribution. The Income allocable to excess aggregate
contributions for such period is determined in a manner analogous
to the above allocation of Income to excess deferrals, but basing
the allocation on excess aggregate contributions and the Income
allocable to Employer matching contributions and Employee
voluntary after-tax contributions.
Forfeitures of excess aggregate contributions shall be applied to
reduce Employer contributions.
The tests described in this Section and the corrective measures for
insuring passage of such tests may be performed in any manner
permitted under section 401(m) of the Code, the regulations
thereunder and any other related rulings or pronouncements issued
by the Secretary of the Treasury or the Internal Revenue
Service.
4. Section 14.10 is amended in its entirety to read as follows:
14.10 QUALIFICATION OF THE PLAN.
The adoption of the Plan by each Employer is contingent on the
receipt of a written, initial determination letter by the Internal
Revenue Service that the Plan and Trust, with any modifications or
amendments thereto requested by the Internal Revenue Service and
agreed to by the Sponsor, constitute a qualified plan and trust
under sections 401(a) and 501(a), respectively, of the Code. In
the event no such determination letter is received, no Participant,
Retired Participant or Beneficiary shall have any right or claim to
the assets of the Trust Fund or to any benefit under the Plan, all
contributions made by the Employer and Participants in accordance
with the terms of the Plan shall be returned to the respective
parties within one (1) year of the date of denial of qualification,
the Plan and Trust shall be terminated forthwith with respect to
such Employer, and the Trustee shall be discharged from all
obligation pursuant to adoption of the Plan by the Employer.
IN WITNESS WHEREOF, this Amendment Number 3 to the Trustmark National Bank
Profit Sharing Plan is hereby executed by its duly authorized officer this 28th
day of December, 1995.
TRUSTMARK NATIONAL BANK
By: /s/ ROBERT G. SPRING
-------------------------------------
Robert G. Spring
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8, to be filed on or around
June 28, 1996, relating to the registration of approximately 250,000 shares of
Trustmark Corporation common stock for the Trustmark National Bank Profit
Sharing Plan, of our report dated January 17, 1996, included in Trustmark
Corporation's Form 10-K for the year ended December 31, 1995, and to all
references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Jackson, Mississippi,
June 28, 1996
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8, to be filed on or around
June 28, 1996, relating to the registration of approximately 250,000 shares of
Trustmark Corporation common stock for the Trustmark National Bank Profit
Sharing Plan, of our report dated May 10, 1996, included in Trustmark National
Bank Profit Sharing Plan's Form 11-K for the year ended December 31, 1995, and
to all references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Jackson, Mississippi,
June 28, 1996
