<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: (Date of earliest event reported) June 13, 1994
First Mississippi Corporation
(Exact name of registrant as specified in its charter)
Mississippi 1-7488 64-0354930
(State of (Commission (IRS Employer
Incorporation File Number) Identification)
Number)
700 North Street, Jackson, Mississippi 39202-3095
(Address of principal executive offices) (Zip Code)
(601)948-7550
(Registrant's telephone number)
Page 1 of 83 sequentially numbered pages.
The Exhibit Index is on Page 4.
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Item 5. Other Events
On May 24, 1994, the Board of Directors of First Mississippi
Corporation adopted amendments to the First Mississippi Corporation Savings
Plan (formerly the 401(K) Thrift Plan). The purpose of the amendments was to
incorporate design changes to the plan and to comply with the provisions of the
Tax Reform Act of 1986.
The amended and restated 401(K), executed June 13, 1994, is contained
in Exhibit 4 attached as the "First Mississippi Corporation 401(K) Savings Plan
as amended and restated, effective July 1, 1989."
Item 7. Financial Statements and Exhibits
C. Exhibits
Exhibit 4 - First Mississippi Corporation 401(K) Savings
Plan as amended and restated, effective July 1, 1989.
2
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
By: /s/ R. MICHAEL SUMMERFORD
R. Michael Summerford
Vice President
Date: June 21, 1994
3
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Exhibit Index
Exhibits
4 - First Mississippi Corporation 401(K) Savings Plan as amended and
restated, effective July 1, 1989 at page 5.
4
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EXHIBIT 4
FIRST MISSISSIPPI CORPORATION
401(K) SAVINGS PLAN
as amended and restated
effective July 1, 1989
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PREAMBLE
The purpose of this Plan and Trust is to provide, in accordance with its
provisions, a defined contribution plan providing retirement and other related
benefits for those Employees of the Employer who are eligible to participate
hereunder. This document is a complete amendment and restatement of the First
Mississippi Corporation 401(k) Savings Plan, which was originally effective as
of July 1, 1974.
It is intended that the Plan qualify for approval under Sections 401 and 410
through 417 of the Internal Revenue Code. It is intended that the Trust
qualify for approval under Section 501 of the Code. It is further intended
that the Plan comply with the provisions of the Employee Retirement Income
Security Act of 1974 (ERISA) and 404(c) of ERISA. In case of any ambiguity in
the Plan's language, it will be interpreted to accomplish the Plan's intent of
qualifying under the Code and complying with ERISA.
This Plan and Trust is exclusively for the benefit of the eligible Employees
and their Beneficiaries. Neither the Employer, the Plan Administrator nor the
Trustee will apply or interpret the terms of the Plan in any manner that
permits discrimination in favor of Highly Compensated Employees. All Employees
under similar circumstances will be treated alike.
The undersigned Employer and Trustee hereby adopt this restatement of the First
Mississippi Corporation 401(k) Savings Plan to be effective as of July 1, 1989.
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TABLE OF CONTENTS
<TABLE>
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PAGE NO.
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<S> <C>
ARTICLE 1 - DEFINITIONS 1-1
ARTICLE 2 - PARTICIPATION 2-1
ARTICLE 3 - PARTICIPANT ACCOUNTS 3-1
ARTICLE 4 - ACCOUNTING AND VALUATION 4-1
ARTICLE 5 - RETIREMENT BENEFITS 5-1
ARTICLE 6 - DEATH BENEFIT 6-1
ARTICLE 7 - LIMITATIONS ON BENEFITS 7-1
ARTICLE 8 - MISCELLANEOUS 8-1
ARTICLE 9 - ADMINISTRATION 9-1
ARTICLE 10 - AMENDMENT OR TERMINATION OF PLAN 10-1
ARTICLE 11 - TRUSTEE AND TRUST FUND 11-1
ARTICLE 12 - PROVISIONS RELATING TO EMPLOYER STOCK 12-1
</TABLE>
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ARTICLE 1
DEFINITIONS
As used in this document, unless otherwise defined or required by the context,
the following terms have the meanings set forth in this Article 1. Some of the
terms used in this document are not defined in Article 1, but for convenience
are defined as they are introduced in the text.
1.01 Account
Account means a separate account maintained for each Participant
reflecting applicable contributions, applicable forfeitures,
investment income (loss) allocated to the account and distributions.
1.02 Accounting Date, Valuation Date
The terms Accounting Date and Valuation Date are used interchangeably
and mean the last day of each Accounting Period and any other days
within the Accounting Period upon which, consistent with established
methods and guidelines, the Plan Administrator applies the accounting
procedures specified in Section 4.02.
1.03 Accounting Period, Valuation Period
The terms Accounting Period and Valuation Period are used
interchangeably and mean each month.
1.04 Accrued Benefit
A Participant's Accrued Benefit means the total value, as of a given
date, of his Accounts determined as of the Valuation Date immediately
preceding the date of determination plus any other amounts withheld
from the Participant's Compensation subsequent to such Valuation Date
pursuant to a Payroll Withholding Agreement. A Participant's Accrued
Benefit will not be reduced solely on account of any increase in such
Participant's age or service or on account of an amendment to the
Plan.
A Participant's Vested Accrued Benefit is equal to his Vested
Percentage of that portion of his Accrued Benefit which is subject to
the Vesting Schedule plus 100% of the remaining portion of his Accrued
Benefit.
1.05 Beneficiary
Beneficiary means the person, persons, trust or other entity who is
designated to receive any amount payable upon the death of a
Participant.
1.06 Cash-Out Distribution
Cash-Out Distribution means, as described in Article 5, a distribution
to a Participant upon termination of employment of his Vested Accrued
Benefit.
1.07 Code and ERISA
Code means the Internal Revenue Code of 1986, as it may be amended
from time to time, and all regulations issued thereunder. Reference
to a section of the Code includes that section and any comparable
section or sections of any future legislation that amends, supplements
or supersedes such section and any regulations issued thereunder.
ERISA means Public Law No. 93-406, the Employee Retirement Income
Security Act of 1974, as it may be amended from time to time, and all
regulations issued thereunder. Reference to a section of ERISA
includes that section and any comparable section or sections of any
future legislation that amends, supplements or supersedes such section
and any regulations issued thereunder.
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1.08 Compensation
Except where otherwise specifically provided in this Plan,
Compensation means Aggregate Compensation as defined in Section
7.03(a), excluding payments for overtime work in excess of the
regularly scheduled work period, expense or other allowances, bonuses,
and shift differential pay.
Compensation also includes any amounts contributed by the Employer or
any Related Employer on behalf of any Employee pursuant to a salary
reduction agreement which are not includable in the gross income of
the Employee due to Code Section 125, 402(a)(8), 402(h) or 403(b).
Notwithstanding the foregoing, for all purposes under this Plan,
Compensation in excess of the Statutory Compensation Limit will be
disregarded. For purposes of applying this compensation limit, a
Family Member of a Highly Compensated Employee is subject to the
single aggregate compensation limit imposed on the Highly Compensated
Employee if the Family Member is either the Employee's spouse or is a
lineal descendant who has not attained the age of 19 by the end of the
Plan Year.
Statutory Compensation Limit means $150,000 ($200,000 for Plan Years
beginning before 1994), as adjusted in accordance with Code Section
401(a)(17)(B).
1.09 Effective Date
The Effective Date of the Plan is July 1, 1974.
Except as specified elsewhere in this document, the effective date of
this restatement of the Plan is July 1, 1989.
Sections 1.12, 1.18, 1.32, 1.33, 1.36, and Article 7 are effective
July 1, 1987.
Section 4.05 is effective July 1, 1987.
1.10 Eligible Employee Classification
An Eligible Employee Classification is a classification of Employees,
the members of which are eligible to participate in the Plan. The
Plan covers all employee classifications except Leased Employees,
Temporary Employees and any employee covered by a collective
bargaining agreement, except as otherwise provided in any applicable
collective bargaining agreement.
1.11 Eligible Participant
All Participants are Eligible Participants.
1.12 Employee
(a) In General
An Employee is any person who is employed by the Employer or a
Participating Employer.
(b) Leased Employee
A Leased Employee means any person who, pursuant to an
agreement between the Employer or any Related Employer
("Recipient Employer") and any other person ("leasing
organization"), has performed services for the Recipient
Employer on a substantially full-time basis for a period of at
least one year and such services are of a type historically
performed by employees in the business field of the Recipient
Employer.
Any Leased Employee will be treated as an Employee of the
Recipient Employer; however, contributions or benefits
provided by the leasing organization which are attributable to
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the services performed for the Recipient Employer will be
treated as provided by the Recipient Employer. If all Leased
Employees constitute less than 20% of the Employer's
non-highly-compensated work force within the meaning of Code
Section 414(n)(1)(C)(ii), then the preceding sentence will not
apply to any Leased Employee if such Employee is covered by a
money purchase pension plan ("Safe Harbor Plan") which
provides: (1) a nonintegrated employer contribution rate of at
least 10% of compensation, (2) immediate participation, and
(3) full and immediate vesting.
Years of Eligibility Service for purposes of eligibility to
participate in the Plan and Years of Vesting Service for
purposes of determining a Participant's Vested Percentage
include service by an Employee as a Leased Employee.
1.13 Employer
The Employer and Plan Sponsor is First Mississippi Corporation. A
Participating Employer is any organization which has adopted this Plan
and Trust in accordance with Section 8.07.
The term Predecessor Employer means any prior employer to which the
Employer is the successor, including any Predecessor Employer for
which the Employer maintains the obligations of a Predecessor Plan
established by the Predecessor Employer. Service with a Predecessor
Employer will be included as Service with the Employer for purposes of
determining Eligibility under this Plan, unless it is determined that
the Company and/or business organization is not a Portability Group
Member.
Service with a Predecessor Employer for purposes of determining Years
of Vesting Service shall be determined as a part of the merger,
acquisition, and/or adoption agreement.
1.14 Employment Commencement Date
The date an Employee first performs an Hour of Service for the
Employer is his Employment Commencement Date.
1.15 Entry Date
Entry Date means the first day of the month which coincides with or
next follows the date upon which the eligibility requirements are met.
1.16 Fiscal Year
Fiscal Year means the taxable year of the Plan Sponsor. The Fiscal
Year of the Plan Sponsor is the 12 month period beginning July 1 and
ending June 30.
1.17 Forfeiture
The term Forfeiture refers to that portion, if any, of a Participant's
Accrued Benefit which is in excess of his Vested Accrued Benefit
following the termination of the Participant's employment.
Effective April 1, 1994, a Forfeiture is considered to occur as of the
earlier of (a) the date of the occurrence of the fifth of 5
consecutive One Year Breaks-in-Service or (b) the date a Cash-Out
Distribution occurs in accordance with the provisions of Article 5.
Forfeitures are credited to the thrifters fund, an account maintained
to capture forfeitures and any earnings thereof, and allocated to
those Participants who are actively employed on the last day of the
Plan Year.
Prior to April 1, 1994, a Forfeiture is considered to occur as of the
earlier of (a) the last day of the Plan Year in which occurs the end
of the fifth of 5 consecutive One Year Breaks-in-Service or (b) the
date a Cash-Out Distribution occurs in accordance with the
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provisions of Article 5.
Forfeitures are credited to the thrifters fund, an account maintained
to capture forfeitures and any earnings thereof, and allocated to the
Participants who: (1) are Active Participants in Service on the last
day of the Plan Year; and (2) complete at least 1,000 Hours of Service
during the Plan Year.
1.18 Highly Compensated Definitions
(a) Compensation
For purposes of this Section, Compensation means Aggregate
Compensation as defined in Section 7.03(a) plus amounts
contributed by the Employer pursuant to a salary reduction
agreement which are excludable from the gross income of the
Employee under Code Section 125, 402(a)(8), 402(h) or 403(b).
Compensation in excess of the Statutory Compensation Limit
will be disregarded.
(b) Determination Year
Determination Year means the Plan Year for which the
determination of who is Highly Compensated is being made.
(c) Family Member
Family Member means an Employee who is the spouse, a lineal
ascendant or descendant, or the spouse of a lineal ascendant
or descendant of:
-- a 5-percent owner (within the meaning of Code Section
416(i)) of the Employer or any Related Employer who
is an active or former Employee; or
-- a Highly Compensated Employee who is one of the 10
most highly compensated employees ranked on the basis
of Compensation paid by the Employer during the
Determination Year or the Lookback Year.
For purposes of this Section, the Family Member and the Highly
Compensated Employee will be considered one Employee. A
Family Member's Compensation and benefits will be aggregated
with those of the Highly Compensated Employee irrespective of
whether the Family Member would otherwise be treated as a
Highly-Compensated Employee or is in a category of Employees
which may be excluded in determining the number of Employees
in the Top-Paid Group.
If an Employee is required to be aggregated as a member of
more than one family group, all eligible employees who are
members of those family groups which include that employee
will be aggregated as one family group.
For purposes of applying the compensation limit under Code
Section 401(a)(17), a Family Member is subject to the single
aggregate compensation limit imposed on the Highly Compensated
Employee if the Family Member is either the Employee's spouse
or is a lineal descendant who has not attained the age of 19
by the end of the Plan Year.
(d) Highly Compensated Employee
Highly Compensated Employee means any individual who is a
Highly Compensated Active Employee or a Highly Compensated
Former Employee within the meaning of Code Section 414(q) and
the regulations thereunder.
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(e) Highly Compensated Active Employee
Highly Compensated Active Employee means any individual who
during the Determination Year or the Lookback Year:
(1) Was at any time a 5-percent Owner (within the meaning
of Code Section 416(i)) of the Employer or any
Related Employer;
(2) Received Compensation from the Employer and all
Related Employers in excess of $75,000 (or any
greater amount determined by regulations issued by
the Secretary of the Treasury under Code Section
415(d));
(3) Received Compensation from the Employer and all
Related Employers in excess of $50,000 (or any
greater amount determined by regulations issued by
the Secretary of the Treasury under Code Section
415(d)) and was in the Top-Paid Group of Employees;
or
(4) Was an Officer of the Employer or any Related
Employer (as that term is defined in the regulations
under Code Section 416(i)) and received Compensation
greater than 50% of the Defined Benefit Dollar Limit
described in Section 7.03(f) for the applicable year.
For this purpose, if no Officer received enough
Compensation to be a Highly Compensated Employee
under the preceding sentence, the highest-paid
Officer will be treated as a Highly Compensated
Employee. The maximum number of Officers who will be
treated as Highly Compensated Active Employees under
this paragraph is equal to 10% of all Employees
determined without regard to statutory or other
exclusions, subject to a minimum of 3 Employees and a
maximum of 50 Employees.
No individual described in subparagraphs (2), (3) or (4) above
will be treated as a Highly Compensated Active Employee for
the Determination Year unless he (i) was a Highly Compensated
Active Employee for the Lookback Year (or would have been
except that he was not among the 100 most highly compensated
Employees of the Employer and all Related Employers for the
Lookback Year) or (ii) was among the 100 most highly
compensated Employees of the Employer and all Related
Employers for the Determination Year.
(f) Highly Compensated Former Employee
Highly Compensated Former Employee means any Former Employee
who had a Separation Year (within the meaning of Treasury
Regulation Section 1.414(q)-1T Q&A-5) and was a Highly
Compensated Active Employee for either the Separation Year or
any Determination Year ending on or after the Employee's 55th
birthday.
(g) Highly Compensated Group
Highly Compensated Group means all Highly Compensated
Employees.
(h) Lookback Year
Lookback Year means the 12-month period immediately preceding
the Determination Year.
(i) Non-Highly Compensated Employee
Non-Highly Compensated Employee means an Employee who is
neither a Highly Compensated Employee nor a Family Member.
(j) Non-Highly Compensated Group
Non-Highly Compensated Group means all Non-Highly Compensated
Employees.
(k) Top-Paid Group
Top-Paid Group means those individuals who are among the top
20 percent of Employees of the Employer and all Related
Employers when ranked on the basis of Compensation received
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during the year. In determining the number of individuals in
the Top-Paid Group (but not the identity of those
individuals), the following individuals may be excluded:
(1) Employees who have not completed 6 months of Service
by the end of the year. For this purpose, an
Employee who has completed One Hour of Service in any
calendar month will be credited with one month of
Service;
(2) Employees who normally work fewer than 17 1/2 hours
per week;
(3) Employees who normally work fewer than 6 months
during any year. For this purpose, an Employee who
has worked on one day of a month is treated as having
worked for the whole month;
(4) Employees who have not reached age 21 by the end of
the year;
(5) Nonresident aliens who received no earned income
(which constitutes income from sources within the
United States) within the year from the Employer or
any Related Employer; and
(6) Employees covered by a collective bargaining
agreement negotiated in good faith between the
employee representatives and the Employer or a group
of employers of which the Employer is a member if (i)
90% or more of all employees of the Employer and all
Related Employers are covered by collective
bargaining agreements, and (ii) this Plan covers only
Employees who are not covered under a collective
bargaining agreement.
1.19 Hour of Service
An Hour of Service means:
(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer.
These hours will be credited to the Employee for the
computation period in which the duties are performed;
(b) 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 leave of absence. No more than
501 Hours of Service will be credited under this paragraph for
any 12-month period. Hours under this paragraph will be
calculated and credited pursuant to Section 2530.200b-2 of the
Department of Labor Regulations which are incorporated herein
by this reference; and
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The
same Hours of Service will not be credited both under
paragraphs (a) or (b), as the case may be, and under this
paragraph (c). These hours will be credited to the Employee
for the computation period or periods to which the award or
agreement pertains rather than the computation period in which
the award, agreement or payment is made.
Hours of Service for all Employees will be determined on the basis of
actual hours for which an Employee is paid or is entitled to payment.
Hours of Service will be credited for employment with any Related
Employer or any Predecessor Employer. Hours of Service will be
credited for any individual considered an employee under Code Section
414(n) or 414(o) and the regulations thereunder.
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Solely for purposes of determining whether a One Year Break-in-Service
has occurred, a Participant who is absent from work on an authorized
Leave of Absence or by reason of the Participant's pregnancy, birth of
the Participant's child, placement of a child with the Participant in
connection with the adoption of such child, or for the purpose of
caring for such child for a period immediately following such birth or
placement, will receive credit for the Hours of Service which
otherwise would have been credited to the Participant but for such
absence. The Hours of Service credited under this paragraph will be
credited in the Plan Year in which the absence begins if such
crediting is necessary to prevent a One Year Break-in- Service in such
Plan Year; otherwise, such Hours of Service will be credited in the
following Plan Year. The Hours of Service credited under this
paragraph are those which would normally have been credited but for
such absence; in any case in which the Plan Administrator is unable to
determine such hours normally credited, 8 Hours of Service per day
will be credited. No more than 501 Hours of Service will be credited
under this paragraph for any 12-month period. The Date of Severance
is the second anniversary of the date on which the absence begins.
The period between the initial date of absence and the first
anniversary of the initial date of absence is deemed to be a period of
Service. The period between the first and second anniversaries of the
initial date of absence is neither a period of service nor a period of
severance.
1.20 Reserved
1.21 Leave of Absence
An authorized Leave of Absence means a period of time of one year or
less granted to an Employee by the Employer due to illness, injury,
temporary reduction in work force, or other appropriate cause or due
to military service during which the Employee's reemployment rights
are protected by law, provided the Employee returns to the service of
the Employer on or before the expiration of such leave, or in the case
of military service, within the time his reemployment rights are so
protected or within 60 days of his discharge from military service if
no federal law is applicable. All authorized Leaves of Absence are
granted or denied by the Employer in a uniform and nondiscriminatory
manner, treating Employees in similar circumstances in a like manner.
If the Participant does not return to active service with the Employer
on or prior to the expiration of his authorized Leave of Absence he
will be considered to have had a Date of Severance as of the earlier
of the date on which his authorized Leave of Absence expired, the
first anniversary of the last date he worked at least one hour as an
Active Participant, or the date on which he resigned or was
discharged.
1.22 Reserved
1.23 Normal Retirement Age and Early Retirement Age
A Participant's Normal Retirement Age is age 65.
Effective April 1, 1994, a Participant shall attain Early Retirement
Age after he attains age fifty-five and completes his third
anniversary of his date of employment.
Prior to April 1, 1994, a Participant's Early Retirement Age is age 55.
1.24 Normal Retirement Date and Early Retirement Date
A Participant's Normal Retirement Date is the first day of the month
which coincides with or next follows the date on which the Participant
attains Normal Retirement Age.
A Participant's Early Retirement Date shall be the first day of the
month coincident with or next following the date on which the
Participant attains Early Retirement Age.
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1.25 One Year Break-in-Service
One Year Break-in-Service means any 365-day period following a
Participant's Date of Termination in which an Employee does not
complete at least one Hour of Service.
1.26 Participant
The term Participant means an Employee or former Employee who is
eligible to participate in this Plan and who is or who may become
eligible to receive a benefit of any type from this Plan or whose
Beneficiary may be eligible to receive any such benefit.
(a) Active Participant means a Participant who is currently an
Employee in an Eligible Employee Classification.
(b) Disabled Participant means a Participant who has terminated
his employment with the Employer due to his Disability and who
is receiving or is entitled to receive benefits from the Plan.
(c) Retired Participant means a Participant who has terminated
his employment with the Employer after meeting the
requirements for his Normal Retirement Date and who is
receiving or is entitled to receive benefits from the Plan.
(d) Vested Terminated Participant means a Participant who has
terminated his employment with the Employer and who has a
nonforfeitable right to all or a portion of his or her Accrued
Benefit and who has not received a distribution of the value
of his or her Vested Accrued Benefit.
(e) Inactive Participant means a Participant who has (i)
interrupted his status as an Active Participant without
becoming a Disabled, Retired or Vested Terminated Participant
and (ii) has a non-forfeitable right to all or a portion of
his Accrued Benefit and has not received a complete
distribution of his benefit.
(f) Former Participant means a Participant who has terminated his
employment with the Employer and who currently has no
nonforfeitable right to any portion of his or her Accrued
Benefit.
1.27 Payroll Withholding Agreement
If a written Payroll Withholding Agreement is required pursuant to the
provisions of Article 3, then each Participant who elects to
participate in the Plan will file such agreement on or before the
first day of the payroll period for which the agreement is applicable
(or at some other time as specified by the Plan Administrator). Such
agreement will be effective for each payroll period thereafter until
modified or amended.
The terms of such agreement will provide that the Participant agrees
to have the Employer withhold, each payroll period, any whole
percentage of his Compensation (or such other amount as allowed by the
Plan Administrator under rules applied on a uniform and
nondiscriminatory basis), not to exceed the limitations of Article 7.
In consideration of such agreement, the Employer periodically will
make a contribution to the Participant's proper Account(s) in an
amount equal to the total amount by which the Participant's
Compensation from the Employer was reduced during applicable payroll
periods pursuant to the Payroll Withholding Agreement.
Notwithstanding the above, Payroll Withholding Agreements will be
governed by the following general guidelines:
(a) A Payroll Withholding Agreement will apply to each payroll
period during which an effective agreement is on file with the
Employer. Upon termination of employment, such
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agreement will become void.
(b) The Plan Administrator will establish and apply guidelines
concerning the frequency and timing of amendments or changes
to Payroll Withholding Agreements. Notwithstanding the
foregoing, a Participant may revoke his Payroll Withholding
Agreement at any time and discontinue all future withholding.
(c) The Plan Administrator may amend or revoke its Payroll
Withholding Agreement with any Participant at any time, if the
Employer determines that such revocation or amendment is
necessary to insure that a Participant's Annual Additions for
any Plan Year will not exceed the limitations of Article 7 or
to insure that the requirements of Sections 401(k) and 401(m)
of the Code have been satisfied with respect to the amount
which may be withheld and contributed on behalf of the Highly
Compensated Group.
(d) Except as provided above, a Payroll Withholding Agreement may
not be revoked or amended by the Participant or the Employer.
1.28 Plan, Plan and Trust, Trust
The terms Plan, Plan and Trust and Trust mean First Mississippi
Corporation 401(k) Savings Plan. The Plan Identification Number is
002. The Plan is a profit sharing plan.
The term Predecessor Plan means any qualified plan previously
established and maintained by the Employer and to which this Plan is
the successor.
1.29 Plan Administrator
The Plan Administrator is the Plan Administrative Committee.
1.30 Plan Year
The Plan Year is the 12 month period beginning July 1 and ending June
30.
Provided, however, the first Plan Year shall be the period from July
1, 1974 through December 31, 1974; the second Plan Year shall be the
period from January 1, 1975 through December 31, 1975; and the third
Plan Year shall be the period from January 1, 1976 through June 30,
1976.
The Limitation Year coincides with the Plan Year.
1.31 Portability Group Member
A Portability Group Member shall mean the Company and any business
organization with which the Company has agreed to recognize the
portability of either service or benefits, or both, with respect to
employees whose employment is transferred between such Portability
Group Members.
1.32 Qualified Annuity Definitions
(a) Annuity Starting Date
Annuity Starting Date means (i) the first day of the first
period for which an amount is payable as an annuity, or (ii)
in the case of a benefit not payable in the form of an
annuity, the first day on which all events have occurred which
entitled the Participant to such benefit.
(b) Qualified Election
(1) In General
Qualified Election means a written waiver of a
Qualified Joint and Survivor Annuity or a Qualified
Survivor Annuity. The waiver must be consented to by
the Participant's
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spouse with such written consent witnessed by a
representative of the Plan Administrator or a notary
public. The spouse's consent must include the
designation of a specific Beneficiary and the form of
payment which cannot be changed without the consent
of the spouse. Such consent will not be required if
the Participant establishes to the satisfaction of
the Plan Administrator that such written consent may
not be obtained because there is no spouse, the
spouse cannot be located or other circumstances that
may be prescribed by Treasury Regulations. Any
consent which is required under this Section will be
valid only with respect to the spouse who signs the
consent (or in the event of a deemed Qualified
Election, the designated spouse). Additionally, any
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; however, any
waiver of a Qualified Joint and Survivor Annuity or a
Qualified Survivor Annuity which follows such
revocation must be in writing and must be consented
to by the Participant's spouse. The number of
waivers or revocations of such waivers will not be
limited.
(2) Qualified Joint and Survivor Annuity Notices
Not more than 90 days nor less than 30 days before
the Participant's Annuity Starting Date, the Plan
Administrator will provide the Participant a written
explanation of:
-- the terms and conditions of a Qualified
Joint and Survivor Annuity;
-- the Participant's right to make and the
effect of a Qualified Election to waive the
Qualified Joint and Survivor Annuity form
of benefit;
-- a general description of the eligibility
conditions and other material features of
the optional forms of benefit and sufficient
additional information to explain the
relative values of the optional forms of
benefit available;
-- the rights of the Participant's spouse; and
-- the right to make, and the effect of, a
revocation of a previous Qualified Election
to waive the Qualified Joint and Survivor
Annuity.
(3) Qualified Survivor Annuity Notices
The election period to waive the Qualified Survivor
Annuity begins on the first day of the Plan Year in
which the Participant attains age 35 and ends on the
date of the Participant's death. If a Vested
Terminated Participant separates from service before
the beginning of the election period, the election
period begins on the date of separation from service.
The Plan Administrator will, within the applicable
notice period, provide each Participant a written
explanation of the Qualified Survivor Annuity
containing comparable information to that required
under the provisions of Section 1.32(b)(2). For
purposes of this paragraph, the term "applicable
notice period" means whichever of the following
periods ends last:
-- the period beginning with the first day of
the Plan Year in which the Participant
attains age 32 and ending with the close of
the Plan Year preceding the Plan Year in
which the Participant attains age 35;
-- the period beginning two years before and
ending 12 months after the individual
becomes a Participant;
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-- the period beginning two years before and
ending 12 months after the joint and
survivor rules become effective for the
Participant; or
-- the period beginning one year before and
ending 12 months after the Participant
separates from service before attaining age
35.
A Participant who will not have attained age 35 as of
the end of any current Plan Year may make a special
Qualified Election to waive the Qualified Survivor
Annuity for the period beginning on the date of the
election and ending on the first day of the Plan Year
in which the Participant attains age 35. The
Election will not be valid unless the Participant
receives a written explanation of the Qualified
Survivor Annuity in terms comparable to the
explanation required above. Qualified Survivor
Annuity coverage will automatically resume as of the
first day of the Plan Year in which the Participant
attains age 35. Any new waiver on or after that date
will be subject to the full requirements of this
Section 1.32(b).
(c) Qualified Joint and Survivor Annuity
A Qualified Joint and Survivor Annuity means an annuity
which is purchased from an Insurer and which is payable for
the life of the Participant with a survivor annuity for the
life of his Surviving Spouse in an amount which is 50% of the
amount payable during the joint lives of the Participant and
his spouse. The amount of the Qualified Joint and Survivor
Annuity will be the amount of benefit which can be purchased
from an Insurer with the Participant's Vested Accrued
Benefit.
(d) Qualified Life Annuity
A Qualified Life Annuity means an annuity which is purchased
from an Insurer and which is payable for the lifetime of the
Participant with payments terminating upon the death of the
Participant. The amount of the Qualified Life Annuity will
be the amount of benefit which can be purchased from an
Insurer with the Participant's Vested Accrued Benefit.
(e) Qualified Survivor Annuity
A Qualified Survivor Annuity which a Surviving Spouse will be
eligible to receive under the provisions of Section 6.02
means a monthly benefit payable for the remaining lifetime of
the Surviving Spouse. The amount of the Qualified Survivor
Annuity benefit will be the amount of benefit which can be
purchased from an Insurer with the Participant's Vested
Accrued Benefit.
If the Participant's Vested Accrued Benefit is $3,500 or
less, the Plan Administrator will direct the immediate
distribution of the Participant's Vested Accrued Benefit to
the Surviving Spouse. If the Participant's Vested Accrued
Benefit at the time of any distribution exceeds $3,500, the
Vested Accrued Benefit at any later time will be deemed to
exceed $3,500. The Surviving Spouse may elect to receive the
Qualified Survivor Annuity as a lump sum.
1.33 Related Employer
The terms Related Employer and Affiliated Employer are used
interchangeably and mean any other corporation, association, company
or entity on or after the Effective Date which is, along with the
Employer, a member of a controlled group of corporations (as defined
in Code Section 414(b)), a group of trades or businesses which are
under common control (as defined in Code Section 414(c)), an
affiliated service group (as defined in Code Section 414(m)), or any
organization or arrangement required to be aggregated with the
Employer by Treasury Regulations issued under Code Section 414(o).
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<PAGE> 15
1.34 Required Beginning Date
A Participant's Required Beginning Date for the commencement of
benefit payments from the Plan is the April 1 immediately following:
-- the later of 1989 or the calendar year in which he
attained age 70-1/2 if he attained age 70-1/2 after
December 31, 1987;
-- the calendar year in which he attains age 70-1/2 if he is or
was a Five Percent Owner at any time during the Plan Year
ending with or within the calendar year in which he attains
age 66-1/2 or any later Plan Year; or
-- the later of the calendar year in which he attains age 70-1/2
or the calendar year in which he retires for any other
Participant.
1.35 Surviving Spouse
Surviving Spouse means a deceased Participant's spouse who was married
to the Participant on the Participant's date of death. The Plan
Administrator and the Trustee may rely conclusively on a Participant's
written statement of his marital status. Neither the Plan
Administrator nor the Trustee is required at any time to inquire into
the validity of any marriage, the effectiveness of a common-law
relationship or the claim of any alleged spouse which is inconsistent
with the Participant's report of his marital status and the identity
of his spouse.
1.36 Top-Heavy Definitions
(a) Aggregate Account
Aggregate Account means, with respect to each Participant, the
value of all accounts maintained on behalf of the Participant,
whether attributable to Employer or Employee contributions,
used to determine Top-Heavy Plan status under the provisions
of a defined contribution plan. A Participant's Aggregate
Account as of the Determination Date will be the sum of:
-- the balance of his Account(s) as of the most recent
valuation date occurring within a 12-month period
ending on the Determination Date (excluding any
amounts attributable to deductible voluntary employee
contributions); plus
-- contributions that would be allocated as of a date
not later than the Determination Date, even though
those amounts are not yet made or required to be
made; plus
-- any Plan Distributions made within the Plan Year that
includes the Determination Date or within the four
preceding Plan Years.
(b) Aggregation Group
Aggregation Group means either a Required Aggregation Group or
a Permissive Aggregation Group as hereinafter determined.
(1) Required Aggregation Group
Each plan of the Employer in which a Key Employee is
a Participant, and each other plan of the Employer
which enables any plan in which a Key Employee
participates to meet the requirements of Code Section
401(a)(4) or 410, will be aggregated and the
resulting group will be known as a Required
Aggregation Group.
Each plan in the Required Aggregation Group will be
considered a Top-Heavy Plan if the Required
Aggregation Group is a Top-Heavy Group. No plan in
the Required Aggregation
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<PAGE> 16
Group will be considered a Top-Heavy Plan if the
Required Aggregation Group is not a Top-Heavy Group.
(2) Permissive Aggregation Group
The Employer may also include any other plan not
required to be included in the Required Aggregation
Group, provided the resulting group (to be known as a
Permissive Aggregation Group), taken as a whole,
would continue to satisfy the provisions of Code
Sections 401(a)(4) and 410.
Only a plan that is part of the Required Aggregation
Group will be considered a Top-Heavy Plan if the
Permissive Aggregation Group is a Top-Heavy Group.
No plan in the Permissive Aggregation Group will be
considered a Top-Heavy Plan if the Permissive
Aggregation Group is not a Top-Heavy Group.
Only those plans of the Employer in which the
Determination Dates fall within the same calendar
year will be aggregated in order to determine whether
the plans are Top-Heavy Plans.
(c) Determination Date
Determination Date means the last day of the preceding Plan
Year, or, in the case of the first Plan Year, the last day of
the first Plan Year.
(d) Key Employee
Key Employee means any Employee or former Employee (and his
Beneficiary) who, at any time during the Plan Year or any of
the preceding four Plan Years, was:
(1) A "Five Percent Owner" of the Employer. "Five Percent
Owner" means any person who owns (or is considered as
owning within the meaning of Code Section 318) more
than 5% of the value of the outstanding stock of the
Employer or stock possessing more than 5% of the
total combined voting power of all stock of the
Employer. If the Employer is not a corporation, Five
Percent Owner means any person who owns more than 5%
of the capital or profits interest in the Employer.
In determining percentage ownership hereunder,
Related Employers will be treated as separate
Employers; or
(2) A "One Percent Owner" of the Employer having
Compensation from the Employer of more than $150,000.
"One Percent Owner" means any person who owns (or is
considered as owning within the meaning of Code
Section 318) more than 1% of the value of the
outstanding stock of the Employer or stock possessing
more than 1% of the total combined voting power of
all stock of the Employer. If the Employer is not a
corporation, One Percent Owner means any person who
owns more than 1% of the capital or profits interest
in the Employer. In determining percentage ownership
hereunder, Related Employers will be treated as
separate Employers. However, in determining whether
an individual has Compensation of more than $150,000,
Compensation from each Related Employer will be taken
into account.
(3) One of the 10 Employees having Compensation not less
than the Defined Contribution Dollar Limit (as
defined in Section 7.03(j) for the Plan Year) who
owns (or is considered as owning within the meaning
of Code Section 318) both greater than 1/2% interest
and the largest interests in all Employers required
to be aggregated under Code Sections 414(b), (c), (m)
and (o);
(4) An officer (within the meaning of the regulations
under Code Section 416) of the Employer having
Compensation greater than 50% of the Defined Benefit
Dollar Limit as defined in Section 7.03(f) for the
Plan Year;
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<PAGE> 17
For purposes of this Section, Compensation means
Aggregate Compensation as defined in Section 7.03(a) plus any
amounts contributed by the Employer pursuant to a salary
reduction agreement which are excludable from the gross income
of the Employee under Code Section 125, 402(a)(8), 402(h) or
403(b). Compensation in excess of the Statutory Compensation
Limit is disregarded.
(e) Non-Key Employee
Non-Key Employee means any Employee (and his Beneficiaries)
who is not a Key Employee.
(f) Plan Distributions
Plan distributions include distributions made before January
1, 1984, and distributions under a terminated plan which, if
it had not been terminated, would have been required to be
included in an aggregation group. However, distributions made
after the Valuation Date and before the Determination Date are
not included to the extent that they are already included in
the Participant's Single Sum Benefit as of the Valuation Date.
With respect to "unrelated" rollovers and plan-to-plan
transfers (those which are both initiated by an employee and
made from a plan maintained by one employer to a plan
maintained by another employer), if such a rollover or plan-
to-plan transfer is made from this Plan, it will be considered
as a distribution for purposes of this Section. If such a
rollover or plan-to-plan transfer is made to this Plan, it
will not be considered as part of the Participant's Single Sum
Benefit. However, an unrelated rollover or plan-to-plan
transfer accepted before January 1, 1984, will be considered
as part of the Participant's Single Sum Benefit.
With respect to "related" rollovers and plan-to-plan transfers
(those which are either not initiated by an employee or are
made from one plan to another plan maintained by the same
employer), if such a rollover or plan-to-plan transfer is made
from this Plan, it will not be considered as a distribution
for purposes of this Section. If such a rollover or
plan-to-plan transfer is made to this Plan, it will be
considered as part of the Participant's Single Sum Benefit.
(g) Present Value of Accrued Benefit
In the case of the defined benefit plan, a Participant's
Present Value of Accrued Benefit, for Top-Heavy determination
purposes, will be determined using the following rules:
(1) The Present Value of Accrued Benefit will be
determined as of the most recent "Valuation Date"
within a 12- month period ending on the Determination
Date.
(2) For the first Plan Year, the Present Value of Accrued
Benefit will be determined as if (A) the Participant
terminated service as of the Determination Date; or
(B) the Participant terminated service as of the
Valuation Date, but taking into account the estimated
Present Value of Accrued Benefits as of the
Determination Date.
(3) For any other Plan Year, the Present Value of Accrued
Benefit will be determined as if the Participant
terminated service as of the Valuation Date.
(4) The Valuation Date must be the same date used for
computing the defined benefit plan minimum funding
costs, regardless of whether a calculation is
performed that plan year.
(5) A Participant's Present Value of Accrued Benefit as
of a Determination Date will be the sum of:
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<PAGE> 18
-- the present value of his Accrued Benefit
determined using the actuarial assumptions
which are specified below; plus
-- any Plan Distributions made within the Plan
Year that includes the Determination Date or
within the four preceding Plan Years; plus
-- any employee contributions, whether
voluntary or mandatory. However, amounts
attributable to qualified voluntary employee
contributions, as defined in Code Section
219(e)(2) will not be considered to be a
part of the Participant's Present Value of
Accrued Benefit.
For purposes of this Section, the present value of a
Participant's Accrued Benefitwill be equal to the
greater of the present value determined using the
actuarial assumptions which are specified for
Actuarial Equivalent purposes or the present value
determined using the "Applicable Interest Rate." The
Applicable Interest Rate is the rate or rates that
would be used by the Pension Benefit Guaranty
Corporation for a trusteed single-employer plan to
value a Participant's or Beneficiary's benefit on the
date of distribution (the "PBGC Rate"). If the
present value using the PBGC Rate exceeds $25,000,
the Applicable Interest Rate is 120% of the PBGC
Rate. However, the use of 120% of the PBGC Rate will
never result in a present value less than $25,000.
(6) Solely for the purpose of determining if this Plan
(or any other plan included in a Required Aggregation
Group of which this Plan is a part) is Top-Heavy, the
Accrued Benefit of any Employee other than a Key
Employee will be determined under
(A) the method, if any, that uniformly applies
for accrual purposes under all plans
maintained by the Employer or any Related
Employer, or
(B) if there is no such method, as if the benefit
accrued no more rapidly than the slowest
accrual rate permitted under the fractional
accrual rate of Code Section 411(b)(1)(C).
(h) Single Sum Benefit
The Single Sum Benefit for any Participant in a defined
benefit pension plan will be equal to his Present Value of
Accrued Benefit. The Single Sum Benefit for any Participant
in a defined contribution plan will be equal to his Aggregate
Account.
(i) Top-Heavy Group
Top-Heavy Group means an Aggregation Group in which, as of the
Determination Date, the Single Sum Benefits of all Key
Employees under all plans included in the group exceeds 60% of
a similar sum determined for all Participants.
Super Top-Heavy Group means an Aggregation Group in which, as
of the Determination Date, the sum of (1) the Single Sum
Benefits of all Key Employees under all defined benefit plans
included in the group, plus (2) the Single Sum Benefit of all
Key Employees under all defined contribution plans included in
the group exceeds 90% of a similar sum determined for all
Participants.
(j) Top-Heavy Plan
This Plan will be a Top-Heavy Plan for any Plan Year beginning
after December 31, 1983, in which, as of the Determination
Date, the Single Sum Benefits of all Key Employees exceed 60%
of the Single Sum Benefits of all Participants under this
Plan.
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<PAGE> 19
This Plan will be a Super Top-Heavy Plan for any Plan Year
beginning after December 31, 1983, in which, as of the
Determination Date, the Single Sum Benefits of all Key
Employees exceed 90% of the Single Sum Benefits of all
Participants under this Plan.
If any Participant is a Non-Key Employee for a given Plan
Year, but was a Key Employee for any prior Plan Year, the
Participant's Single Sum Benefit will not be taken into
account for purposes of determining whether this Plan is a
Top-Heavy or Super Top-Heavy Plan (or whether any Aggregation
Group which includes this Plan is a Top-Heavy or Super
Top-Heavy Group).
If an individual has performed no services for the Employer at
any time during the 5-year period ending on the Determination
Date, any Single Sum Benefit of such individual will not be
taken into account for purposes of determining whether this
Plan is a Top-Heavy or Super Top-Heavy Plan (or whether any
Aggregation Group which includes this Plan is a Top-Heavy
Group or Super Top-Heavy Group).
1.37 Trust Fund, Trust
These terms mean the total cash, securities, real property, insurance
contracts and any other property held by the Trustee.
1.38 Trustee
The Trustee is Deposit Guaranty National Bank or any successor Trustee.
1.39 Vested Percentage
A Participant's Vested Percentage as of a given date will be that
percentage determined in accordance with the Vesting Schedule.
Notwithstanding the preceding, a Participant will be 100% vested upon
reaching his Normal Retirement Age.
1.40 Vesting Schedule
A Participant's Vested Percentage will be 100% upon the completion of
3 Years of Vesting Service. Prior to the completion of 3 Years of
Vesting Service, a Participant's Vested Percentage is zero.
1.41 Written Resolution
The terms Written Resolution and Written Consent are used
interchangeably and reflect decisions, authorizations, etc. by the
Employer. A Written Resolution will be evidenced by a resolution of
the Board of Directors of the Employer.
1.42 Year of Service
(a) Crediting Years of Service
Effective July 1, 1994, Years of Service are determined under
the Elapsed Time Method. Under the Elapsed Time Method, Years
of Service are based upon an Employee's Elapsed Time of
employment irrespective of the number of hours actually worked
during such period; a Year of Service (including a fraction
thereof) will be credited for each completed 365 days of
Elapsed Time which need not be consecutive. The following
terms are used in determining Years of Service under the
Elapsed Time Method:
(1) Date of Severance (Termination) - means the earlier
of (A) the actual date an Employee resigns, is
discharged, dies or retires, or (B) the first
anniversary of the date an Employee is absent from
work (with or without pay) for any other reason,
e.g., disability, vacation, leave of absence, layoff,
etc.
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<PAGE> 20
(2) Elapsed Time - means the total period of service
which has elapsed between a Participant's Employment
Commencement Date and Date of Termination including
Periods of Severance where a One Year
Break-in-Service does not occur.
(3) Employment Commencement Date - means the date an
Employee first performs one Hour of Service for the
Employer.
(4) One Year Break-in-Service - means any 365-day period
following an Employee's Date of Termination as
defined above in which the Employee does not complete
at least one Hour of Service.
(5) Period of Severance - is the time between the actual
Date of Severance as defined above and the subsequent
date, if any, on which the Employee performs an Hour
of Service.
All periods of employment will be aggregated including Periods
of Severance unless there is a One Year Break-in- Service.
Prior to July 1, 1994, Years of Service are determined under
the Hours of Service Method. Under the Hours of Service
Method, a Year of Service will be credited for each 12
consecutive month Computation Period during which an Employee
is credited with a specified number of Hours of Service.
Under the Hours of Service Method, a One Year Break-in-Service
means any Computation Period during which an Employee
completes 500 or fewer Hours of Service.
Years of Eligibility Service for purposes of determining
eligibility to participate in the Plan and Years of Vesting
Service for purposes of determining a Participant's Vested
Percentage include service with any organization which is a
Related Employer with respect to the Employer.
(b) For Eligibility Purposes
Effective July 1, 1994, Years of Service for purposes of
eligibility to participate in the Plan are referred to as
Years of Eligibility Service and are determined using the
Elapsed Time Method.
All of an Employee's Years of Eligibility Service are taken
into account in determining his eligibility to participate.
Prior to July 1, 1994, Years of Service for purposes of
eligibility to participate in the Plan are referred to as
Years of Eligibility Service and are determined using the
Hours of Service Method.
A Year of Eligibility Service is credited for each Computation
Period during which an Employee is credited with at least
1,000 Hours of Service. The initial Computation Period is the
12 consecutive month period beginning with the Employee's
Employment Commencement Date. Thereafter, the Computation
Period is the Plan Year beginning with the Plan Year in which
the initial Computation Period ends.
(c) For Vesting Purposes
Effective July 1, 1994, Years of Service for purposes of
computing a Participant's Vested Percentage are referred to as
Years of Vesting Service and are determined using the Elapsed
Time Method.
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<PAGE> 21
Prior to July 1, 1994, Years of Service for purposes of
computing a Participant's Vested Percentage are referred to as
Years of Vesting Service and are determined using the Hours of
Service Method.
A Year of Vesting Service is credited for each Plan Year in
which an Employee is credited with at least 1,000 Hours of
Service. Only full Years of Service are credited.
Service shall be disregarded in computing a Participant's
Years of Vesting Service under the Plan for Plan Years during
a period prior to March 1, 1985, for which the Employee was
eligible to make basic contributions (after-tax contributions)
but declined to make any such contributions to the Plan, if
such period occurred prior to his initial date of
participation in the Plan.
Service shall be disregarded in computing a Participant's
Years of Vesting Service for Plan Years during a period on or
after March 1, 1985 but before October 1, 1993, for which the
Employee was eligible to direct the Employer to make Salary
Deferral Contributions on his behalf but declined to direct
the Employer to make any such contributions to the Plan; and
if such period occurred prior to his initial date of
participation in the Plan.
Service prior to July 1, 1974, shall be disregarded in
computing a Participant's Years of Vesting Service
(d) Loss of Service
If a Participant who is zero percent vested terminates
employment and incurs at least five consecutive One Year
Breaks-in-Service, he or she will lose all prior Eligibility
Service and Vesting Service.
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<PAGE> 22
ARTICLE 2
PARTICIPATION
2.01 Participation
Effective July 1, 1994, an Employee who is a member of an Eligible
Employee Classification will become eligible to participate in the
Plan on the Entry Date which coincides with or next follows the
completion of 6 months of employment.
Prior to July 1, 1994, each Employee shall be eligible to become a
Participant on the first day of the month coincident with or next
following the earlier of:
(a) the date he completes six (6) months of continuous
employment(full-time employment), or
(b) the date he completes one (1) Year of Service
provided he is still an Employee on such first day of the month.
2.02 Participation After Reemployment
An Employee who has satisfied all of the eligibility requirements but
terminates employment prior to his Entry Date will participate in the
Plan immediately upon returning to the employ of the Employer.
A Participant or Former Participant who has terminated employment will
participate as an Active Participant in the Plan immediately upon
returning to the employ of the Employer.
2.03 Change in Employment Classification
In the event a Participant becomes ineligible to participate because
he is no longer a member of an Eligible Employee Classification, the
Participant will participate immediately upon his return to an
Eligible Employee Classification.
In the event an Employee who is not a member of an Eligible Employee
Classification becomes a member of such a classification, such
Employee will begin to participate immediately if he has satisfied the
eligibility requirements which are specified in Section 2.01.
2.04 Portability
In the event an individual is transferred to or from employment
covered by this Plan from or to employment covered by another plan,
the provisions of this Section 2.04 shall control in situations where
the provisions of this Section 2.04 are in conflict with any other
Section or Sections of the Plan.
In the event that an individual is transferred from employment covered
by a plan sponsored by a Portability Group Member to employment
covered by this Plan, employment of such individual which is counted
for eligibility, vesting, and/or benefit accrual under the other plan
may be counted as Service for the same purpose under this Plan if
provided for by the acquisition, merger, and/or adoption agreement.
Provided, however, that participation in this Plan shall not commence
prior to the date on which the transfer takes place.
In the event that an individual is transferred from employment covered
by this Plan to employment covered by a plan sponsored by a
Portability Group Member, employment of such individual which is
counted for vesting purposes under the other plan may be counted as
Service for vesting purposes under this Plan. The individual's
Accounts in the Plan shall be
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<PAGE> 23
maintained on an inactive basis and will continue to share in the
allocation of investment earnings pursuant to Section 4.02 herof.
Except as otherwise provided in this paragraph, such individual will
not share in the allocation of Company Matching Contributions or
Forfeitures under this Plan after the date of his transfer to
employment covered by a Portability Group Member. In the Plan Year in
which such transfer occurs, such individual shall be entitled to share
in the Company Matching Contributions or Forfeitures under the
Portability Group Member's plan.
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<PAGE> 24
ARTICLE 3
PARTICIPANT ACCOUNTS
3.01 Employee Account
Employee Account means the Account of a Participant reflecting
applicable Employee Contributions, investment income or loss allocated
thereto and distributions. A Participant's Employee Account is 100%
vested at all times.
(a) Employee Contributions
(1) Amount of Contribution
Each Participant may elect to make an employee
contribution each Accounting Period not to exceed
16.8% of the Participant's Compensation. Such
contribution will be designated as a percentage of
Compensation and will be equal to an even multiple of
1% or such other amount as allowed by the Plan
Administrator.
(2) Payroll Withholding
All Employee Contributions will be made pursuant to a
Payroll Withholding Agreement in accordance with
Section 1.27.
(3) Nondiscrimination Requirements
All Employee Contributions are Elective Contributions
within the meaning of Section 4.05(a) and must
satisfy the Nondiscrimination Requirements of Section
4.05.
(4) Excess Deferrals
The maximum amount of Employee Contribution which can
be made under the Plan on behalf of any Participant
during any calendar year will be limited to that
amount which would not constitute an Excess Deferral
as defined in Section 4.05. The Plan Administrator
will distribute any Excess Deferral, together with
the income allocable to it, to the Participant no
later than April 15 of the calendar year immediately
following the year of the Excess Deferral. If a
Participant notifies the Plan Administrator before
March 1 of any calendar year that Excess Deferrals
have been made on his account for the previous
calendar year by reason of participation in a Cash or
Deferred Arrangement maintained by another employer
or employers, and if the Participant requests that
the Plan Administrator distribute a specific amount
to him on account of Excess Deferrals and certifies
that the requested amount is an Excess Deferral, the
Plan Administrator will designate the amount
requested together with the income allocable to it as
a distribution of Excess deferrals and distribute
such amount no later than April 15 of that calendar
year. The amount of Excess Deferrals to be
distributed will be reduced by any Excess
Contributions previously distributed or
recharacterized with respect to the Plan Year
beginning with or within the calendar year. The
amount of income allocable to the Excess Deferral
will be determined as described in Section 4.05.
(5) Timing of Deposits
The Employer will deposit all Employee Contributions
no later than 90 days after the date on which the
amounts withheld would otherwise have been paid to
the Participant in cash.
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<PAGE> 25
(b) Financial Hardship Withdrawals
A Participant may file with the Plan Administrator a written
request to withdraw, in order to avoid or alleviate a
Financial Hardship, any amount not to exceed that portion of
his Employee Account which represents the sum of
-- his total Employee Contributions made after 1988, and
-- his total Employee Contributions made before
1989 together with the income earned before 1989
which is allocable to those Contributions.
The Plan Administrator will allow Financial Hardship
withdrawals only if they are necessary to satisfy a
Participant's immediate and heavy financial need.
(1) Immediate and Heavy Financial Need
Effective April 1, 1994, a withdrawal will be deemed
to be made due to an immediate and heavy financial
need of the Participant if it is made because of:
-- Expenses for medical care described in Code
Section 213(d) previously incurred by the
Participant, his spouse or any of his
dependents (as defined in Code Section 152)
or necessary for these persons to obtain
medical care described in Code Section
213(d);
-- Costs directly related to the purchase
(excluding mortgage payments) of a
principal residence for the Participant;
-- Payment of tuition or educational fees for
up to the next 12 months of post-secondary
education for the Participant, his spouse,
children or dependents (as defined in Code
Section 152);
-- Prevention of the eviction of the
Participant from his principal residence or
foreclosure on the mortgage of the
Participant's principal residence.
(2) Necessary To Satisfy Financial Need
No withdrawal may exceed the amount necessary to
satisfy the Participant's immediate and heavy
financial need. However, the amount of an immediate
and heavy financial need may include any amounts
necessary to pay any federal, state or local income
taxes or penalties reasonably anticipated to result
from the distribution. The Plan Administrator will
allow the withdrawal if it determines, after a full
review of the Participant's written request and
evidence presented by the Participant showing
immediate and heavy financial need as well as the
Participant's lack of other reasonably available
resources, that the withdrawal is necessary to
satisfy the need. No withdrawal will be treated as
necessary to the extent it can be satisfied from
other resources which are reasonably available to the
Participant, including those of the Participant's
spouse and minor children. A withdrawal will be
treated as necessary to the extent the Participant
demonstrates to the satisfaction of the Plan
Administrator that the need cannot be relieved by any
of the following:
-- Reimbursement or compensation by insurance
or otherwise;
-- Reasonable liquidation of assets to the
extent the liquidation would not itself
cause an immediate and heavy financial need;
-- Cessation of Employee Contributions or
Employee Contributions (as defined in
Section 4.05(a)) or both under any plan
maintained by any employer;
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-- Other distributions or nontaxable (at
the time of the loan) loans from plans
maintained by any employer;
-- Borrowing from commercial sources on
reasonable commercial terms.
Unless the Plan Administrator has evidence to the
contrary, it may rely upon the Participant's written
representation that the need cannot be relieved by
any of the foregoing.
(3) Safe Harbor
Effective April 1, 1994, the Plan Administrator will
not allow any withdrawal until the Participant has
obtained all distributions, other than hardship
distributions, and all nontaxable loans currently
available to the Participant under all plans
maintained by the Employer as long as taking loans
currently available to the Participant under any or
all plans maintained by the Employer does not create
a financial hardship. Upon the withdrawal of any
portion of a Participant's Employee Account, the
Participant will become ineligible for any Elective
Contribution to this Plan or any other plan
maintained by the Employer, or to make any
contribution to this Plan or any other plan
maintained by the Employer until the first day of the
first Accounting Period which begins not less than 12
months following the date of withdrawal. For this
purpose the phrase "any other plan maintained by the
Employer" means all qualified and nonqualified plans
of deferred compensation maintained by the Employer.
The phrase includes stock option, stock purchase, or
similar plans, or a cash or deferred arrangement that
is part of a cafeteria plan within the meaning of
Code Section 125. It does not include the mandatory
employee contribution portion of a defined benefit
plan, nor does it include a health or welfare benefit
plan (including one that is part of a cafeteria plan
within the meaning of Code Section 125).
Furthermore, the maximum amount of Employee
Contributions which can be made under the Plan on
behalf of any Participant during the calendar year
which follows the calendar year in which the
withdrawal was made will be limited to the amount
which would not be treated as an Excess Deferral for
that year reduced by the amount of Employee
Contributions made on behalf of the Participant in
the calendar year of withdrawal.
(c) Distributions
No distribution may be made from the Participant's Employee
Account or any account comprised of Matching Contributions or
Nonelective Contributions which are treated as Elective
Contributions in accordance with the provisions of Section
4.05(h) except under one of the following circumstances:
-- the Participant's retirement, death, disability or
termination of employment;
-- the Participant's attaining of age 59 1/2;
-- the avoidance or alleviation of a Financial Hardship;
-- the termination of this Plan without the
establishment of a successor plan within the meaning
of Treasury Regulation Section
1.401(k)-1(d)(3);
-- the sale or other disposition by the Employer of at
least 85 percent of the assets used by the Employer
in a trade or business to an unrelated corporation
which does not maintain the plan, but only if the
Participant continues employment with the corporation
acquiring the assets and only if the Employer
continues to maintain this Plan; or
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-- the sale or other disposition by the Employer of its
interest in a subsidiary to an unrelated entity which
does not maintain the plan, but only if the
Participant continues employment with the subsidiary
and only if the Employer continues to maintain this
Plan.
This paragraph does not apply to distributions of Excess
Deferrals, Excess Contributions, or excess Annual Additions.
3.02 Pre 401(k) Account
Pre 401(k) Account means the Account of a Participant reflecting
applicable Pre 401(k) Contributions investment income or loss
allocated thereto and distributions. A Participant's Pre 401(k)
Account is 100% vested at all times.
Prior to April 1, 1994, this account was the Employee
Nondeferred Account.
(a) Frozen Account
The Pre-401(k) Account is a frozen account consisting of
after-tax contributions contributed prior to March 1, 1985 and
earnings thereof.
A Participant may withdraw all or any portion of his Pre
401(k) Account subject to a minimum of $300, or a
Participant's full account balance if less.
3.03 Company Matching Account
Company Matching Account means the Account of a Participant reflecting
applicable contributions, forfeitures, investment income or loss
allocated thereto and distributions. A Participant's Company Matching
Account is subject to the Vesting Schedule.
(a) Company Match Contributions
Each Accounting Period, the Employer will, within the time
prescribed by law for making a deductible contribution, make a
Company Match Contribution to each Eligible Participant's
Company Matching Account in an amount which is determined in
accordance with this Section subject to the limitations of
Article 7.
The amount of Company Match Contribution to be made to an
Eligible Participant's Company Matching Account is equal to
100% of that portion of the Participant's Employee
Contribution which is not in excess of 4% of the Participant's
Compensation.
All Company Match Contributions are Matching Contributions
within the meaning of Section 4.05(a) and must satisfy the
Nondiscrimination Requirements of Section 4.05.
(b) Application of Forfeitures
Forfeitures from a Participant's Company Matching Account will
be added to the thrifters fund and allocated along with
Company Matching Contributions on the last day of the Plan
Year in which the forfeitures are determined to occur.
Forfeitures will be allocated by the ratio which each eligible
Participant's Compensation bears to the total Compensation of
all eligible Participants. An eligible Participant for
purposes of allocating forfeitures is a Participant who has
made Employee Contributions during the Plan Year and is
actively employed on the last day of the Plan Year.
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<PAGE> 28
(c) Withdrawals
A Participant must take any withdrawals available to him under
Section 3.02(a) and/or Section 3.04(b) before being eligible
to make a Company Matching Account withdrawal.
A Participant will be permitted to make a Company Matching
Account withdrawal if at least one of the following conditions
applies:
(1) if the Employee has been a Participant for five or
more years;
(2) if the Participant has attained age fifty-nine and
one-half; or
(3) on account of a Participant's financial need or
hardship as that term is defined in Section
3.01(b)(1).
A Company Matching Account withdrawal will not result in a
suspension of Company Matching Contributions.
Effective April 1, 1994, a Participant with a date of
participation on or after January 1, 1995 will not be eligible
to make a withdrawal from his Company Matching Account for the
condition stated in Section 3.03(c)(1).
Effective April 1, 1994, a Participant who is eligible to make
a withdrawal from his Company Matching Account may not make a
withdrawal from his Company Matching Account more frequently
than once each Plan Year.
3.04 Rollover Account
Rollover Account means the Account of a Participant reflecting
applicable Rollover Contributions, investment income or loss allocated
thereto and distributions. A Participant's Rollover Account is 100%
vested at all times.
(a) Rollover Contributions
Rollover Contribution means a contribution to the Plan by a
Participant where such contribution is the result of a prior
distribution from an Individual Retirement Account, an
Individual Retirement Annuity or another qualified plan. Such
prior contribution must be a rollover amount described in
Section 402(c)(4) of the Code or a contribution described in
Section 408(d)(3) of the Code.
Each Employee who is a member of an Eligible Employee
Classification, regardless of whether he is a Participant in
the Plan, will have the right to make a Rollover Contribution
of cash (or other property of a form acceptable to the Plan
Administrator and the Trustee) into the Plan from another
qualified plan. If the Employee is not a Participant
hereunder, his Rollover Account will constitute his entire
interest in the Plan. In no event will the existence of a
Rollover Account entitle the Employee to participate in any
other benefit provided by the Plan.
If specifically provided for in a Written Resolution, Rollover
Contribution will also mean the amount of assets transferred,
pursuant to Section 10.05, to this Plan from another plan
which is qualified under Code Sections 401(a) and 501(a).
(b) Withdrawals
A Participant may withdraw all or any portion of his Rollover
Account subject to the limitations of this Section.
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<PAGE> 29
ARTICLE 4
ACCOUNTING AND VALUATION
4.01 General Powers of the Plan Administrator
The Plan Administrator will have the power to establish rules and
guidelines, which will be applied on a uniform and non-discriminatory
basis, as it deems necessary, desirable or appropriate with regard to
accounting procedures and to the timing and method of contributions to
and/or withdrawals from the Plan.
4.02 Accounting Procedure
As of each Valuation Date, the Plan Administrator will determine from
the Trustee the fair market value of Trust assets and will, subject to
the provisions of this Article, determine the allocation of such value
among the Accounts of the Participants; in doing so, the Plan
Administrator will in the following order:
(a) Credit or charge, as appropriate, to the proper Accounts all
transfers, payments, forfeitures, withdrawals or other
distributions made to or from such Accounts during the current
Accounting Period that have not been previously credited or
charged.
(b) Dividends and other distributions on common stock of the
Employer shall be allocated to each Participant's Accounts in
the ratio that the number of shares of common stock of the
Employer in such Account on the Valuation Date bears to the
total number of shares of common stock of the Employer in all
such Accounts as of such Valuation Date (or such other date as
determined by the Committee on a uniform and nondiscriminatory
basis).
(c) Credit or charge, as applicable, each Account that is in
existence on the Valuation Date with its pro rata portion of
the appreciation or depreciation in the fair market value of
the Trust Fund since the prior Valuation Date. Such
appreciation or depreciation will reflect investment income,
realized and unrealized gains and losses, other investment
transactions and expenses paid from the Trust Fund. Such pro
rata crediting or charging will be based upon the current
amounts of the Accounts as adjusted by the above step (a). The
Plan Administrator will establish the guidelines under which
any appreciation or depreciation is allocated to the various
Accounts as of the first Valuation Date for the Plan.
(d) Credit to the proper Accounts all contributions and
reallocated forfeitures which are to be credited for the
current Accounting Period.
Effective October 1, 1993, allocated amounts of dividends and
other distributions received on common stock of the Employer
shall be reinvested in a nondiscriminatory manner based on a
policy established by the Plan Administrator.
Prior to October 1, 1993, allocated amounts of dividends and
other distributions received on common stock of the Employer
shall be reinvested in common stock of the Company, to the
extent practicable.
4.03 Miscellaneous
(a) General Powers of the Trustee
The Trustee will have the power to establish rules and
guidelines as it deems necessary, desirable or appropriate
with regard to the directed investment of contributions in
accordance with this Section. Included in such powers, but
not by way of limitation, are
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<PAGE> 30
the following powers and rights.
(1) To temporarily invest those contributions which are
pending directed investment in a Specific Investment
Fund, in the General Investment Fund or in some other
manner as determined by the Trustee.
(2) To establish rules with regard to the transfer of all
or any part of the balance of an Account or Accounts
of a given Participant from one Investment Fund to
another.
(3) To maintain any part of the assets of any Investment
Fund in cash, or in demand or short-term time
deposits bearing a reasonable rate of interest, or in
a short-term investment fund that provides for the
collective investment of cash balances or in other
cash equivalents having ready marketability,
including, but not limited to, U.S. Treasury Bills,
commercial paper, certificates of deposit, and
similar types of short- term securities, as may be
deemed necessary by the Trustee in its sole
discretion.
The Trustee will not be liable for any loss that results from
the Participant's exercise of control over the investment of
the Participant's Account. If the Participant fails to
provide directions, the Plan Administrator will direct the
investment of the Participant's Account. The Trustee will
have no duty to review or make recommendations regarding a
Participant's investment directions.
(b) Accounting
The Plan Administrator will maintain a set of accounts for
each Investment Fund. The accounts of the Plan Administrator
for each Investment Fund will indicate separately the dollar
amounts of all contributions made to such Investment Fund by
or on behalf of each Participant from time to time. The Plan
Administrator will compute the net income from investments;
net profits or losses arising from the sale, exchange,
redemption, or other disposition of assets, and the prorata
share attributable to each Investment Fund of the expenses of
the administration of the Plan and Trust and will debit or
credit, as the case may be, such income, profits or losses,
and expenses to the unsegregated balance in each Investment
Fund from time to time. To the extent that the expenses of
the administration of the Plan and Trust are not directly
attributable to a given Investment Fund, such expenses, as of
a given Valuation Date, will be prorated among each Investment
Fund; such allocation of expenses will, in general, be
performed in accordance with the guidelines which are
specified in this Article.
(c) Future Contributions
Effective April 1, 1994, each Participant who elects to
participate in the Plan will designate, in writing, the
particular percentage of those contributions (which are
subject to Participant direction of investment) which is to be
deposited in the various available Investment Funds. Written
designations will be made not later than 15 days before the
first day of each Accounting Period (or at some other time as
specified by the Plan Administrator) and will be effective for
such Accounting Period and each Accounting Period thereafter
until modified. A Participant may modify his election with
respect to future contributions as of the first day of the
Accounting Period, but no more frequently than once each
calendar quarter. Designations will be limited to multiples
of 5% (or such other reasonable increments as determined by
the Plan Administrator). If any Participant fails to make a
designation by the appropriate date, he will be deemed to have
designated an Investment Fund(s) as determined by the Plan
Administrator.
Prior to April 1, 1994, a Participant may make or revoke such
election for future investment of contributions made under
this Plan as of the first day of any future pay
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<PAGE> 31
period, provided sufficient notice is provided to allow the
modification to be made, and provided at least six months have
elapsed since the last such election by the Participant.
(d) Change in Investment of Past Contributions
Effective April 1, 1994, a Participant may file a written
election with the Plan Administrator to shift the aggregate
amount or reasonable increments (as determined by the Plan
Administrator) of the balance of his existing Account or
Accounts which are subject to Participant direction of
investment among the various available Investment Funds as of
the first day of each Accounting Period (or such other time or
times as determined by the Plan Administrator). A Participant
may modify his election with respect to his investment of past
contributions once each calendar quarter. The form of such
written election will be specified by the Plan Administrator
and will be filed not later than 15 days before the effective
date of the shift (or at such other time as determined by the
Plan Administrator).
Prior to April 1, 1994, a Participant may direct that amounts
held on his behalf in an investment fund be transferred to any
of the other permitted investment funds. Provided, however,
that if a Participant directs that stock of the Employer be
held for him to be sold and transferred to one of the other
permitted investment funds, he may not direct that the
proceeds, less any applicable expense of sale, be reinvested
in such stock until at least six months following the date of
such sale. In addition, a Participant who has less than three
years of Vesting Service who directs that stock of the Company
be sold may not have the resulting proceeds reinvested in
such stock until he has three years of Vesting Service.
(e) Addition and Deletion of Specific Investment Funds
Specific Investment Funds may be made available from time to
time by the Trustee. Specific Investment Funds, as are from
time to time made available by the Trustee, may be deleted or
added from time to time by the Plan Administrator. The Plan
Administrator will establish guidelines for the proper
administration of affected Accounts when a Specific Investment
Fund is added or deleted.
(f) Election to Invest Accounts Effective April 1, 1994, each
Participant will instruct the Plan Sponsor to invest future
contributions to the Plan made on his behalf. The one
election will apply to all of a Participant's Accounts.
(g) Special Procedures for Rule 16(b)-3 Notwithstanding any
provision of this Plan to the contrary, those participants who
have been designated as "insiders" of either FirstMiss Gold or
First Mississippi or both, within the scope of Rule 16(b)-3,
adopted by the Securities and Exchange Commission, must follow
the Company procedures, not included within the Plan, with
regard to withdrawals, cessation of participation in and
ongoing purchases of the particular investment account (stock
fund) of which the participant is an "insider".
4.04 Reserved
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<PAGE> 32
4.05 Nondiscrimination Requirements
(a) Definitions Applicable to the Nondiscrimination Requirements
The following definitions apply to this Section:
(1) Aggregate Limit
With respect to a given Plan Year, Aggregate Limit
means the greater of the sum of ((A) + (B)) or the
sum of ((C) + (D)) where:
(A) is equal to 125% of the greater of DP or CP;
(B) is equal to 2 percentage points plus the
lesser of DP or CP, not to exceed 2 times the
lesser of DP or CP;
(C) is equal to 125% of the lesser of DP or CP;
(D) is equal to 2 percentage points plus the
greater of DP or CP, not to exceed 2 times
the greater of DP or CP;
DP represents the Deferral Percentage for the
Non-highly Compensated Group eligible under
the Cash or Deferred Arrangement for the Plan
Year; and
CP represents the Contribution Percentage for
the Non-highly Compensated Group eligible
under the plan providing for the Employee
Contributions or Employer Matching
Contributions for the Plan Year beginning
with or within the Plan Year of the Cash or
Deferred Arrangement.
(2) Cash or Deferred Arrangement (CODA)
A Cash or Deferred Election is any election (or
modification of an earlier election) by an Employee
to have the Employer either:
-- provide an amount to the Employee in the
form of cash or some other taxable benefit
that is not currently available, or
-- contribute an amount to the Plan (or provide
an accrual or other benefit) thereby
deferring receipt of Compensation.
A Cash or Deferred Election will only be made with
respect to an amount that is not currently available
to the Employee on the date of election. Further, a
Cash or Deferred Election will only be made with
respect to amounts that would have (but for the Cash
or Deferred Election) become currently available
after the later of the date on which the Employer
adopts the Cash or Deferred Arrangement or the date
on which the arrangement first becomes effective.
A Cash or Deferred Election does not include a
one-time irrevocable election upon the Employee's
commencement of employment or first becoming an
Eligible Employee.
(3) Compensation
For purposes of this Section, Compensation means
Aggregate Compensation as defined in Section 7.03(a)
plus amounts contributed by the Employer pursuant to
a salary reduction agreement which are excludable
from the gross income of the Employee under Code
Section 125, 402(a)(8), 402(h) or 403(b).
Compensation in excess of the Statutory
Compensation Limit is disregarded.
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<PAGE> 33
The period used to determine an Employee's
Compensation for a Plan Year may be limited to that
portion of the Plan Year in which the Employee was
an Eligible Employee, provided that this method is
applied uniformly to all Eligible Employees under the
Plan for the Plan Year.
(4) Contribution Percentage
Contribution Percentage means, for any specified
group, the average of the ratios calculated (to
the nearest one-hundredth of one percent) separately
for each Participant in the group, of the amount
of Employee Contributions and Matching
Contributions which are made by or on behalf of each
Participant for a Plan Year to each Participant's
Compensation for the Plan Year.
For purposes of determining the Contribution
Percentage, each Employee who is eligible under the
terms of the Plan to make or to have contributions
made on his behalf is treated as a Participant.
The Contribution Percentage of an eligible Employee
who makes no Employee Contribution and receives no
Matching Contribution is zero.
For purposes of determining the Contribution
Percentage of a Participant who is a Highly
Compensated Employee, the Compensation of and all
Employee Contributions and Matching Contributions
for the Participant include, in accordance with the
provisions of Section 4.05(d), the Compensation of
and all Employee Contributions and Matching
Contributions for any Family Member of the
Participant.
The Contribution Percentage of a Participant who is a
Highly Compensated Employee for the Plan Year and
who is eligible to make Employee Contributions or
receive an allocation of Matching Contributions
(including Elective Contributions and Nonelective
Contributions which are treated as Employee or
Matching Contributions for purposes of the
Contribution Percentage Test) allocated to his
accounts under two or more plans which are sponsored
by the Employer will be determined as if the Employee
and Matching Contributions were made under a single
plan. For purposes of this paragraph, if a Highly
Compensated Employee participates in two or more such
plans which have different Plan Years, all plans
ending with or within the same calendar year will be
treated as a single plan.
(5) Contribution Percentage Test
The Contribution Percentage Test is a test applied on
a Plan Year basis to determine whether a plan meets
the requirements of Code Section 401(m). The
Contribution Percentage Test may be met by either
satisfying the General Contribution Percentage Test
or the Alternative Contribution Percentage Test.
The General Contribution Percentage Test is satisfied
if the Contribution Percentage for the Highly
Compensated Group does not exceed 125% of the
Contribution Percentage for the Non-highly
Compensated Group.
The Alternative Contribution Percentage Test is
satisfied if the Contribution Percentage for the
Highly Compensated Group does not exceed the lesser
of:
-- the Contribution Percentage for the
Non-highly Compensated Group plus 2
percentage points, or
-- the Contribution Percentage for the
Non-highly Compensated Group
multiplied by 2.0.
If (i) one or more Highly Compensated Employees of
the Employer or any Related
4-5
<PAGE> 34
Employer are eligible to participate in both a Cash
or Deferred Arrangement and a plan which provides
for Employee Contributions or Matching Contributions,
(ii) the Deferral Percentage for the Highly
Compensated Group does not satisfy the General
Deferral Percentage Test, and (iii) the
Contribution Percentage for the Highly Compensated
Group does not satisfy the General Contribution
Percentage Test, then the Contribution Percentage
Test will be deemed to be satisfied only if the sum
of the Deferral Percentage and the Contribution
Percentage for the Highly Compensated Group does not
exceed the Aggregate Limit.
The Plan will not fail to satisfy the Contribution
Percentage test merely because all of the Eligible
Employees under the Plan for a Plan Year are Highly
Compensated Employees.
(6) Deferral Percentage
Deferral Percentage means, for any specified group,
the average of the ratios calculated (to the
nearest one-hundredth of one percent) separately for
each Participant in the group, of the amount of
Elective Contributions which are made on behalf of
each Participant for a Plan Year to each
Participant's Compensation for the Plan Year.
For purposes of determining the Deferral Percentage,
each Employee who is eligible under the terms of
the Plan to have contributions made on his behalf is
treated as a Participant. The Deferral Percentage
of an eligible Employee who makes no Elective
Contribution is zero.
For purposes of determining the Deferral Percentage
of a Participant who is a Highly Compensated
Employee, the Compensation of and Elective
Contributions for the Participant include, in
accordance with the provisions of Section 4.05(d),
the Compensation and all Elective Contributions
for any Family Member of the Participant.
The Deferral Percentage of a Participant who is a
Highly Compensated Employee for the Plan Year and
who is eligible to have Elective Contributions
(including Nonelective Contributions or Matching
Contributions which are treated as Elective
Contributions for purposes of the Deferral
Percentage Test) allocated to his accounts under two
or more Cash or Deferred Arrangements which are
maintained by the Employer will be determined as if
the Elective Contributions were made under a single
Arrangement. For purposes of this paragraph, if a
Highly Compensated Employee participates in two or
more Cash or Deferred Arrangements which have
different Plan Years, all Cash or Deferred
Arrangements ending with or within the same calendar
year will be treated as a single Arrangement.
(7) Deferral Percentage Test
The Deferral Percentage Test is a test applied on a
Plan Year basis to determine whether a plan meets
the requirements of Code Section 401(k). The
Deferral Percentage Test may be met by either
satisfying the General Deferral Percentage Test or
the Alternative Deferral Percentage Test.
The General Deferral Percentage Test is satisfied if
the Deferral Percentage for the Highly Compensated
Group does not exceed 125% of the Deferral Percentage
for the Non-highly Compensated Group.
The Alternative Deferral Percentage Test is satisfied
if the Deferral Percentage for the Highly
Compensated Group does not exceed the lesser of:
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<PAGE> 35
-- the Deferral Percentage for the Non-highly
Compensated Group plus 2 percentage points,
or
-- the Deferral Percentage for the Non-highly
Compensated Group multiplied by 2.0.
If (i) one or more Highly Compensated Employees of
the Employer or any Related Employer are eligible
to participate in both a Cash or Deferred Arrangement
and a plan which provides for Employee Contributions
or Matching Contributions, (ii) the Deferral
Percentage for the Highly Compensated Group does not
satisfy the General Deferral Percentage Test, and
(iii) the Contribution Percentage for the Highly
Compensated Group does not satisfy the General
Contribution Percentage Test, then the Deferral
Percentage Test will be deemed to be satisfied only
if the sum of the Deferral Percentage and the
Contribution Percentage for the Highly Compensated
Group does not exceed the Aggregate Limit.
The Plan will not fail to satisfy the Deferral
Percentage test merely because all of the Eligible
Employees under the Plan for a Plan Year are Highly
Compensated Employees.
(8) Elective Contribution
Elective Contribution means any contribution made by
the Employer to a Cash or Deferred Arrangement on
behalf of and at the election of an Employee. An
Elective Contribution will be taken into account
for a given Plan Year only if:
-- The Elective Contribution is allocated to
the Participant's Account as of a date
within the Plan Year to which it relates;
-- The allocation is not contingent upon the
Employee's participation in the Plan or
performance of services on any date after
the allocation date;
-- The Elective Contribution is actually paid
to the trust no later than 12 months after
the end of the Plan Year to which the
Elective Contribution relates; and
-- The Elective Contribution relates to
Compensation which either (i) but for the
Participant's election to defer, would
have been received by the Participant in the
Plan Year or (ii) 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
months after the close of the Plan Year.
Elective Contributions will be treated as Employer
Contributions for purposes of Code Sections 401(a),
401(k), 402(a), 404, 409, 411, 412, 415, 416, and
417.
(9) Elective Deferral
Elective Deferral means the sum of the following:
-- Any Elective Contribution to any Cash or
Deferred Arrangement to the extent it is not
includable in the Participant's gross
income for the taxable year of contribution;
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<PAGE> 36
-- Any employer contribution to a simplified
employee pension as defined in Code Section
408(k) to the extent not includable in the
Participant's gross income for the taxable
year of contribution;
-- Any employer contribution to an annuity
contract under Code Section 403(b) under a
salary reduction agreement to the extent not
includable in the Participant's gross
income for the taxable year of contribution;
plus
-- Any employee contribution designated as
deductible under a trust described in Code
Section 501(c)(18) for the taxable year of
contribution.
(10) Eligible Employee
Eligible Employee means an Employee who is directly
or indirectly eligible to make a Cash or Deferred
Election under the Plan for all or a portion of the
Plan Year. An Employee who is unable to make a Cash
or Deferred Election because the Employee has not
contributed to another plan is also an Eligible
Employee. An Employee who would be eligible to make
Elective Contributions but for a suspension due to a
distribution, a loan, or an election not to
participate in the Plan, is treated as an Eligible
Employee for purposes of Code Section 401(k)(3) and
401(m) for a Plan Year even though the Employee may
not make a Cash or Deferred Election due to the
suspension. Also, an Employee will not fail to be
treated as an Eligible Employee merely because the
employee may receive no additional Annual Additions
because of Code Section 415(c)(1) or 415(e).
(11) Employee Contribution
Employee Contribution means any contribution made by
an Employee to any plan maintained by the Employer
or any Related Employer which is other than an
Elective Contribution and which is designated or
treated at the time of contribution as an after-tax
contribution. Employee Contributions include amounts
attributable to Excess Contributions which are
recharacterized as Employee Contributions.
(12) Excess Contribution
Excess Contribution means, for each member of the
Highly Compensated Group, the amount of Elective
Contribution (including any Qualified Nonelective
Contributions and Qualified Matching Contributions
which are treated as Elective Contributions) which
exceeds the maximum contribution which could be made
if the Deferral Percentage Test were to be
satisfied.
(13) Excess Aggregate Contribution
Excess Aggregate Contribution means, for each member
of the Highly Compensated Group, the amount of
Employee and Matching Contributions (including any
Qualified Nonelective Contributions and Elective
Contributions which are treated as Matching
Contributions) which exceeds the maximum
contribution which could be made if the Contribution
Percentage Test were to be satisfied.
(14) Excess Deferral
Excess Deferral means, for a given calendar year,
that amount by which each Participant's total
Elective Deferrals under all plans of all employers
exceed the dollar limit in effect under Code
Section 402(g) for the calendar year.
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(15) Matching Contribution
Matching Contribution means any contribution made by
the Employer to any plan maintained by the
Employer or any Related Employer which is based on an
Elective Contribution or an Employee Contribution
together with any forfeiture allocated to the
Participant's Account on the basis of Elective
Contributions, Employee Contributions or Matching
Contributions. A Matching Contribution will be taken
into account for a given Plan Year only if:
-- The Matching Contribution is allocated to a
Participant's Account as of a date within
the Plan Year to which it relates;
-- The allocation is not contingent upon the
Employee's participation in the
Plan or performance of services on any
date after the allocation date;
-- The Matching Contribution is actually paid
to the Trust no later than 12 months after
the end of the Plan Year to which the
Matching Contribution relates; and
-- The Matching Contribution is based on an
Elective or Employee Contribution for the
Plan Year.
Any contribution or allocation, other than a
Qualified Nonelective Contribution, which is used to
meet the minimum contribution or benefit requirement
of Code Section 416 is not treated as being based on
Elective Contributions or Employee Contributions and
therefore is not treated as a Matching Contribution.
Qualified Matching Contribution means a Matching
Contribution which is 100% vested and may be
withdrawn or distributed only under the conditions
described in Treasury Regulation 1.401(k)-1(d).
(16) Nonelective Contribution
Nonelective Contribution means any Employer
Contribution, other than a Matching Contribution,
which meets all of the following requirements:
-- The Nonelective Contribution is allocated to
a Participant's Account as of a date within
the Plan Year to which it relates;
-- The allocation is not contingent upon the
Employee's participation in the Plan or
performance of services on any date after
the allocation date;
-- The Nonelective Contribution is actually
paid to the Trust no later than 12 months
after the end of the Plan Year to which the
Nonelective Contribution relates; and
-- The Employee may not elect to have the
Nonelective Contribution paid in cash in
lieu of being contributed to the Plan.
Qualified Nonelective Contribution means a
Nonelective Contribution which is 100% vested and
may be withdrawn or distributed only under the
conditions described in Treasury Regulation
1.401(k)-1(d).
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<PAGE> 38
(b) Application of Deferral Percentage Test
All Elective Contributions, including any Elective
Contributions which are treated as Employee or Matching
Contributions with respect to the Contribution Percentage
Test, must satisfy the Deferral Percentage Test. Furthermore,
any Elective Contributions which are not treated as Employee
or Matching Contributions with respect to the Contribution
Percentage Test must satisfy the Deferral Percentage Test.
The Plan Administrator will determine as soon as
administratively feasible after the end of the Plan Year
whether the Deferral Percentage Test has been satisfied. If
the Deferral Percentage Test is not satisfied, the Employer
may elect to make an additional contribution to the Plan on
account of the Non-highly Compensated Group. The additional
contribution will be treated as a Nonelective Contribution.
If the Deferral Percentage Test is not satisfied after any
Nonelective Contributions, the Plan Administrator may, in its
sole discretion, recharacterize all or any portion of the
Excess Contribution of each Highly Compensated Employee as an
Employee Contribution if Employee Contributions are otherwise
allowed by the Plan. If so, the Plan Administrator will
notify all affected Participants and the Internal Revenue
Service of the amount recharacterized no later than the 15th
day of the third month following the end of the Plan Year in
which the Excess Contribution was made. Excess Contributions
will be includable in the Participant's gross income on the
earliest date any Elective Contribution made on behalf of the
Participant during the Plan Year would have been received by
the Participant had the Participant elected to receive the
amount in cash. Recharacterized Excess Contributions will
continue to be treated as Employer Contributions that are
Elective Contributions for all other purposes under the Code,
including Code Sections 401(a) (other than 401(a)(4) and
401(m)), 404, 409, 411, 412, 415, 416, 417 and 401(k)(2).
With respect to the Plan Year for which the Excess
Contribution was made, the Plan Administrator will treat the
recharacterized amount as an Employee Contribution for
purposes of the Deferral Percentage Test and the Contribution
Percentage Test and for purposes of determining whether the
Plan meets the requirements of Code Section 401(a)(4), but not
for any other purposes under this Plan. Therefore,
recharacterized amounts will remain subject to the
nonforfeiture requirements and distribution limitations which
apply to Elective Contributions.
If the Deferral Percentage Test is still not satisfied, then
after the close of the Plan Year in which the Excess
Contribution arose but within 12 months after the close of
that Plan Year, the Plan Administrator will distribute the
Excess Contributions, together with allocable income, to the
affected Participants of the Highly Compensated Group to the
extent necessary to satisfy the Deferral Percentage Test.
Failure to do so will cause the Plan to not satisfy the
requirements of Code Section 401(a)(4) for the Plan Year for
which the Excess Contribution was made and for all subsequent
Plan Years for which the Excess Contribution remains
uncorrected.
The amount of Excess Contribution to be distributed to a
Highly Compensated Employee for a Plan Year will be reduced by
any Excess Deferrals previously distributed to the Participant
for the calendar year ending with or within the Plan Year in
accordance with Code Section 402(g)(2).
Excess Contributions will be treated as Employer Contributions
for purposes of Code Sections 404 and 415 even if distributed
from the Plan.
(c) Application of Contribution Percentage Test
Employee Contributions and Matching Contributions,
disregarding any Matching Contributions which are treated as
Elective Contributions with respect to the Deferral Percentage
Test, must satisfy the Contribution Percentage Test. The Plan
Administrator will determine as
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<PAGE> 39
soon as administratively feasible after the end of the Plan
Year whether the Contribution Test has been satisfied. If
the Contribution Percentage Test is not satisfied, the
Employer may elect to make an additional contribution to the
Plan for the benefit of the Non-Highly Compensated Group. The
additional contribution will be treated as a Nonelective
Contribution.
If the Contribution Percentage Test is still not satisfied,
then after the close of the Plan Year in which the Excess
Aggregate Contribution arose but within 12 months after the
close of that Plan Year, the Plan Administrator will
distribute (or forfeit, to the extent not vested) the Excess
Aggregate Contributions, together with allocable income, to
the affected Participants of the Highly Compensated Group to
the extent necessary to satisfy the Contribution Percentage
Test. Failure to do so will cause the Plan to not satisfy the
requirements of Code Section 401(a)(4) for the Plan Year for
which the Excess Aggregate Contribution was made and for all
subsequent Plan Years for which the Excess Aggregate
Contribution remains uncorrected.
The determination of any Excess Aggregate Contributions will
be made after the recharacterization of any Excess
Contributions as Employee Contributions.
Excess Aggregate Contributions, including forfeited Matching
Contributions, will be treated as Employer Contributions for
purposes of Code Sections 404 and 415 even if they are
distributed from the Plan.
Forfeited Matching Contributions that are reallocated to the
Accounts of other Participants are treated as Annual Additions
under Code Section 415 for the Participant whose Accounts they
are reallocated to and for the Participants from whose
Accounts they are forfeited.
(d) Family Aggregation
The Deferral Percentage or the Contribution Percentage (the
"Relevant Percentage") for any Highly Compensated Employee who
is subject to the family aggregation rules of Section 1.18(c)
will be determined by combining the Elective Contributions,
Employee Contributions, Matching Contribution, amounts treated
as Elective or Matching Contributions and Compensation of all
the eligible Family Members.
The determination and correction of Excess Contributions and
Excess Aggregate Contributions of a Highly Compensated
Employee whose Relevant Percentage is determined under the
family aggregation rules is accomplished by reducing the
Relevant Percentage as provided for in Sections 4.05(b) and
4.05(c) and Excess Contributions or Excess Aggregate
Contributions for the family group are allocated among the
Family Members whose contributions were combined to determine
the Relevant Percentage in proportion to the Elective
Contributions or Nonelective and Matching Contributions of
each Family Member.
For all purposes under this Section, the contributions and
compensation of eligible Family Members who are not Highly
Compensated Employees without regard to family aggregation are
disregarded when determining the Relevant Percentage for the
Non-highly Compensated Group.
(e) Reduction of Excess Amounts The total Excess Contribution or
total Excess Aggregate Contribution will be reduced in a
manner so that the Deferral Percentage or the Contribution
Percentage (Relevant Percentage) of the affected
Participant(s) with the highest Relevant Percentage will first
be lowered to a point not less than the level of the affected
Participant(s) with the next highest Relevant Percentage. If
further overall reductions are required to satisfy the
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<PAGE> 40
relevant test, each of the above Participants' (or groups of
Participants') Relevant Percentage will be lowered to a point
not less than the level of the affected Participant(s) with
the next highest Relevant Percentage, and so on continuing
until sufficient total reductions have occurred to achieve
satisfaction of the relevant test.
(f) Priority of Reductions
The Plan Administrator will determine the method and order of
correcting Excess Contributions and Excess Aggregate
Contributions. The method of correcting Excess Contributions
and Excess Aggregate Contributions must meet the requirements
of Code Section 401(a)(4). The determination of whether a
rate of Matching Contribution discriminates under Code Section
401(a)(4) will be made after making any corrective
distributions of Excess Deferrals, Excess Contributions and
Excess Aggregate Contributions.
Excess Aggregate Contributions (and any attributable income)
will be corrected first, by distributing any excess Employee
Contributions (and any attributable income); then by
distributing vested excess Matching Contributions (and any
attributable income); and finally, by forfeiting or
distributing non-vested Matching Contributions (and any
attributable income). The Plan will not distribute Employee
Contributions while the Matching Contributions based upon
those Employee Contributions remain allocated.
(g) Income
The income allocable to any Excess Contribution made to a
given Account for a given Plan Year will be equal to the total
income allocated to the Account for the Plan Year, multiplied
by a fraction, the numerator of which is the amount of the
Excess Contribution and the denominator of which is equal to
the sum of the balance of the Account at the beginning of the
Plan Year plus the Participant's Elective Contributions and
amounts treated as Elective Contributions for the Plan Year.
The income allocable to any Excess Aggregate Contribution made
to a given Account for a given Plan Year will be equal to the
total income allocated to the Account for the Plan Year,
multiplied by a fraction, the numerator of which is the amount
of the Excess Aggregate Contribution and the denominator of
which is equal to the sum of the balance of the Account at the
beginning of the Plan Year plus the Participant's Employee and
Matching Contributions and amounts treated as Employee and
Matching Contributions for the Plan Year.
Notwithstanding the foregoing, the Plan may use any reasonable
method for computing the income allocable to any Excess
Contribution or Excess Aggregate Contribution provided the
method does not violate Code Section 401(a)(4), is used
consistently for all corrective distributions under the Plan
for the Plan Year, and is used by the Plan for allocating
income to the Participants' Accounts.
Income includes all earnings and appreciation, including
interest, dividends, rents, royalties, gains from the sale of
property, and appreciation in the value of stocks, bonds,
annuity and life insurance contracts and other property,
regardless of whether the appreciation has been realized.
(h) Treatment as Elective Contributions
The Plan Administrator may, in its discretion, treat all or
any portion of Qualified Nonelective Contributions or
Qualified Matching Contributions or both, whether to this Plan
or to any other qualified plan which has the same Plan Year
and is maintained by the Employer or a Related Employer, as
Elective Contributions for purposes of satisfying the Deferral
Percentage Test if they meet all of the following
requirements:
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<PAGE> 41
-- All Nonelective Contributions, including the
Qualified Nonelective Contributions treated as
Elective Contributions for purposes of the Deferral
Percentage Test, satisfy the requirements of Code
Section 401(a)(4);
-- Any Nonelective Contributions which are not treated
as Elective Contributions for purposes of the
Deferral Percentage Test or as Matching Contributions
for purposes of the Contribution Percentage Test
satisfy the requirements of Code Section 401(a)(4);
-- The Qualified Matching Contributions which are
treated as Elective Contributions for purposes of the
Deferral Percentage Test are not taken into account
in determining whether any Employee Contributions or
other Matching Contributions satisfy the Contribution
Percentage Test;
-- Any Matching Contributions which are not treated as
Elective Contributions for purposes of the Deferral
Percentage Test satisfy the requirements of Code
Section 401(m); and
-- The plan which includes the Cash or Deferred
Arrangement and the plan or plans to which the
Qualified Nonelective Contributions and Qualified
Matching Contributions are made could be
aggregated for purposes of Code Section 410(b).
(i) Treatment as Matching Contributions
The Plan Administrator may, in its discretion, treat all or
any portion of Qualified Nonelective Contributions or Elective
Contributions or both, whether to this Plan or to any other
qualified plan which has the same Plan Year and is maintained
by the Employer or a Related Employer, as Matching
Contributions for purposes of satisfying the Contribution
Percentage Test if they meet all of the following
requirements:
-- All Nonelective Contributions, including the
Qualified Nonelective Contributions treated as
Matching Contributions for purposes of the
Contribution Percentage Test, satisfy the
requirements of Code Section 401(a)(4);
-- Any Nonelective Contributions which are not treated
as Elective Contributions for purposes of the
Deferral Percentage Test or as Matching
Contributions for purposes of the Contribution
Percentage Test satisfy the requirements of Code
Section 401(a)(4);
-- The Elective Contributions which are treated as
Matching Contributions for purposes of the
Contribution Percentage Test are not taken into
account in determining whether any other Elective
Contributions satisfy the Deferral Percentage Test;
-- The Qualified Nonelective Contributions and Elective
Contributions which are treated as Matching
Contributions for purposes of the Contribution
Percentage Test are not taken into account in
determining whether any other contributions or
benefits satisfy Code Section 401(a); and
-- All Elective Contributions, including those treated
as Matching Contributions for purposes of the
Contribution Percentage Test, satisfy the
requirements of Code Section 401(k)(3); and
-- The plan that takes Qualified Nonelective
Contributions and Elective Contributions into account
in determining whether Employee and Matching
Contributions satisfy the
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<PAGE> 42
requirements of Code Section 401(m)(2)(A) and the
plan or plans to which the Qualified Nonelective
Contributions and Elective Contributions are made
could be aggregated for purposes of Code Section
410(b).
(j) Aggregation of Plans
If the Employer or a Related Employer sponsors one or more
other plans which include a Cash or Deferred Arrangement, the
Employer may elect to treat any two or more of such plans as
an aggregated single plan for purposes of satisfying Code
Sections 401(a)(4), 401(k) and 410(b). The Cash of Deferred
Arrangements included in such aggregated plans will be treated
as a single Arrangement for purposes of this Section.
However, only those plans that have the same plan year may be
so aggregated.
If the Employer or a Related Employer sponsors one or more
other plans to which Employee Contributions or Matching
Contributions are made, the Employer may elect to treat any
two or more of such plans as an aggregated single plan for
purposes of satisfying Code Sections 401(a)(4), 401(m) and
410(b). However, only those plans that have the same plan
year may be so aggregated.
Any such aggregation must be made in accordance with Treasury
Regulation 1.401(k)-1(b)(3). For example, contributions and
allocations under the portion of a plan described in Code
Section 4975(e)(7) (an ESOP) may not be aggregated with the
portion of a plan not described in Code Section 4975(e)(7) (a
non-ESOP) for purposes of determining whether the ESOP or
non-ESOP satisfies the requirements of Code Sections
401(a)(4), 401(k), 401(m) and 410(b).
Plans that could be aggregated under Code Section 410(b) but
that are not actually aggregated for a Plan Year for purposes
of Code Section 410(b) may not be aggregated for purposes of
Code Sections 401(k) and 401(m).
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<PAGE> 43
ARTICLE 5
RETIREMENT BENEFITS
5.01 Valuation of Accounts
For purposes of this Article, the value of a Participant's Accrued
Benefit will be determined as of the Valuation Date coincident with or
immediately preceding the date that benefits are to be distributed.
5.02 Normal and Early Retirement
After an Active Participant reaches his Normal Retirement Date, he may
elect to retire. Upon such retirement he will become a Retired
Participant and his Accrued Benefit will become distributable to him.
A Participant's Accrued Benefit will become nonforfeitable no later
than the date upon which he attains his Normal Retirement Age. The
form of benefit payment will be governed by the provisions of Section
5.05.
As of a Participant's Early Retirement Date, a Participant may retire
from Service or he may elect to continue in Service. If such a
Participant continues in Service, then he shall continue to be treated
in all respects as a Particpant until his actual retirement, and no
retirement benefit shall be payable prior to his separation from
Service. If a Participant separates from Service before satisfying
the age requirement for early retirement then the Participant shall be
entitled to elect immediate commencement of benefit payments from his
Account upon satisfaction of such age requirement
Effective April 1, 1994, if a Participant separates from Service
before satisfying the age and service requirement for early retirement
then the Participant shall not be eligible for Early Retirement
benefits under the Plan.
5.03 Disability Retirement
In the event of a Participant's termination due to Disability, he will
be entitled to begin to receive a distribution of his Accrued Benefit
which will become nonforfeitable as of his date of termination. The
form of benefit payment will be governed by the provisions of Section
5.05.
Disability shall mean a Participant's total and permanent disability
as a result of a disease or bodily injury which renders the
Participant incapable of engaging in substantial gainful activity, and
as a result of such disability he is qualified for and is receiving
either (a) disability benefits under the Social Security Act or (b)
payments (other than Worker's Compensation or Health Care Benefits)
payable directly or indirectly by the Employer or its' insurer as a
result of the Participant's sickness or injury under any long term
disability program maintained by the Employer.
5.04 Termination of Employment
(a) In General
If a Participant's employment terminates for any reason other
than retirement, death, or disability his Vested Accrued
Benefit will become distributable to him as of the Valuation
Date which coincides with or next follows his date of
termination of employment (or as of such earlier date as
determined by the Plan Administrator in a uniform and
nondiscriminatory manner). The form of benefit payment will
be governed by the provisions of Section 5.05.
(b) Cash-Out Distribution
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<PAGE> 44
If a Participant terminates employment and receives a
distribution equal to the Vested Percentage of his Company
Matching Account, a Cash-Out Distribution will be deemed to
have occurred if the following conditions are met:
(1) The Participant was less than 100% vested in his
Company Matching Account; and
(2) The entire distribution is made before the last day
of the second Plan Year following the Plan Year in
which the Participant terminated employment.
(c) Restoration of Company Matching Account
If, following the date of a Cash-Out Distribution, a
Participant returns to an Eligible Employee Classification
prior to incurring 5 consecutive One Year Breaks-in-Service,
then the Participant will have the right to repay to the
Trustee, within 5 years after his return date, the portion of
the Cash-Out Distribution which was attributable to his
Company Matching Account in order to restore such Account to
its value as of the date of the Cash-Out Distribution.
The Plan Administrator will restore an eligible Participant's
Company Matching Account as of the Valuation Date coincident
with or immediately following the complete repayment of the
Cash-Out Distribution. To restore the Participant's Company
Matching Account, the Plan Administrator, to the extent
necessary, will, under rules and guidelines applied in a
uniform and nondiscriminatory manner, allocate to the
Participant's Company Matching Account:
-- First, the amount, if any, of Forfeitures which
would otherwise be allocated under Article 3;
-- Second, the amount, if any, of the Trust Fund net
income or gain for the Accounting Period.
To the extent the amounts available for restoration for a
particular Accounting Period are insufficient to enable the
Plan Administrator to make the required restoration, the
Employer will contribute such additional amount as is
necessary to enable the Plan Administrator to make the
required restoration. The Plan Administrator will not take
into account the allocation under this Section in applying the
limitation on allocations under Article 7.
Until the Plan Administrator restores a Participant's Company
Matching Account, the Trustee will invest any amount the
Participant has repaid in a segregated account maintained
solely for that Participant. If possible, the Trustee will
invest the amount in the Participant's segregated account in
an interest-bearing savings account, time deposit or similar
type of account. Until commingled with the balance of the
Trust Fund on the date the Plan Administrator restores the
Participant's Company Matching Account, the Participant's
segregated account will remain a part of the Trust, but it
alone will share in any income it earns and it alone will bear
any expense or loss it incurs.
(d) Non-Vested Participant
If a Participant who is zero percent vested in his Company
Matching Account terminates employment, a Cash-Out
Distribution will be deemed to have occurred as of the
Participant's date of termination of employment.
If the Participant subsequently returns to an Eligible
Employee Classification prior to incurring five consecutive
One Year Breaks-in-Service, then the Participant will
immediately become entitled to a complete restoration of his
Company Matching Account as
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<PAGE> 45
of the Valuation Date coincident with or next following his
date of re-employment. Such restoration will be made in
accordance with the provisions of Section 5.04(c).
5.05 Form of Benefit Payment
The Plan Administrator will direct the Trustee to make the payment of
any benefit provided under this Plan upon the event giving rise to
such benefit within the time prescribed by this Article. The form of
benefit will be determined as follows:
(a) a Participant who is not married on the date benefits are to
commence will be provided a Qualified Life Annuity, unless a
lump sum payment is elected, under a Qualified Election, by
the Participant within the 90-day period which ends on his
benefit commencement date.
(b) a Participant who is married on the date benefits commence
will be provided a Qualified Joint and Survivor Annuity unless
a lump sum payment is elected, under a Qualified Election, by
the Participant within the 90-day period which ends on his
benefit commencement date.
Within the 90-day period which ends on a married Participant's
expected benefit commencement date, the Plan Administrator will
provide each Participant with a written explanation of:
(a) the terms and conditions of a Qualified Joint and Survivor
Annuity;
(b) the Participant's right to make and the effect of a Qualified
Election to waive the Qualified Joint and Survivor Annuity
form of benefit;
(c) the rights of a Participant's spouse; and
(d) the right to make, and the effect of, a revocation of a
previous Qualified Election to waive the Qualified Joint and
Survivor Annuity.
Notwithstanding the above, if a terminated Participant's Vested
Accrued Benefit is $3,500 or less, the Plan Administrator will,
without the request or approval of the Participant, direct the
immediate distribution in a lump sum of the entire amount of his
Vested Accrued Benefit. If the value of his Vested Accrued Benefit at
the time of any distribution exceeds $3,500, the value of his Vested
Accrued Benefit at any later time will be deemed to also exceed
$3,500. This paragraph will not apply after the Annuity Starting Date.
Upon request, the Participant may receive his benefit paid in a series
of substantially equal annual or more frequent installments over a
period certain not extending beyond the earliest of (a) the end of the
period measured by the joint life and last survivor expectancy of the
Participant and his spouse, or (b) twenty (20) years. The Plan
Administrator and the Trustee will have the power to establish rules
and guidelines as deemed necessary or appropriate with regard to the
payment of benefits under the installment payment form.
5.06 Commencement of Benefit
Subject to the provisions of this Article, commencement of a benefit
will, unless the Participant elects otherwise in writing, begin not
later than the 60th day after the later of the close of the Plan Year
in which the Participant attains Normal Retirement Age or the close of
the Plan Year which contains the date the Participant terminates his
service with the Employer.
Payment of a Participant's benefits must begin no later than his
Required Beginning Date.
For purposes of this Section, life expectancy and joint and last
survivor expectancy are to be
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<PAGE> 46
computed by the use of the return multiples contained in Section
1.72-9 of the Income Tax Regulations.
If the Participant dies after distribution of his interest has begun,
the remaining portion of the interest will continue to be distributed
at least as rapidly as under the method of distribution being used
before the Participant's death.
All distributions required under this Section will be determined and
made in accordance with the regulations issued under Code Section
401(a)(9), including those dealing with minimum distribution
requirements.
5.07 Directed Transfer of Eligible Rollover Distributions
(a) General
This Section applies to distributions made on or after January
1, 1993. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a Distributee's election
under this 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.
(b) 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).
(c) 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, or
a qualified trust described in section 401(a) of the Code,
that accepts the Distributee's Eligible Rollover Distribution.
However, in the case of an Eligible Rollover Distribution to
the surviving spouse, an Eligible Retirement Plan is an
individual retirement account or individual retirement
annuity.
(d) 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.
(e) Direct Rollover
A Direct Rollover is a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
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<PAGE> 47
(f) Waiver of 30-Day Notice
If a distribution is one to which Code Sections 401(a)(11) and
417 do not apply, such distribution may commence less than 30
days after the notice required under Section 1.411(a)-11(c) of
the Income Tax Regulations is given, provided that:
-- the Plan Administrator clearly informs the
Participant that the Participant has a right to a
period of at least 30 days after receiving the notice
to consider the decision of whether or not to elect a
distribution (and, if applicable, a particular
distribution option); and
-- the Participant, after receiving the notice,
affirmatively elects to receive a distribution.
5.08 Indefinite Layoff
If a full time permanent Employee who is a Particpant is indefinitely
laid off due to a lack of work or economic or industrial reasons, his
vested percentage shall be one hundred percent (100%).
Prior to July 1, 1994, if such a Particpant does not receive a
distribution of any part of his Accounts under the Plan until after
the end of the Plan year in which his layoff occurred, he shall be
entitled to share in the allocation of Forfeitures on the last day of
the Plan Year during which such layoff occurred as if:
(a) he had completed at least 1,000 Hours of Service
during such Plan Year; and
(b) he was an active Participant on the last day of such
Plan Year.
After July 1, 1994, Participant's who are indefinitely laid off will
not share in the allocation of Forfeitures on the last day of the Plan
Year during which such layoff occurs.
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<PAGE> 48
ARTICLE 6
DEATH BENEFIT
6.01 Valuation of Accounts
For purposes of this Article, the value of a Participant's Accrued
Benefit will be determined as of the Valuation Date coincident with or
immediately preceding the date that benefits are to be distributed.
6.02 Death Benefit
(a) Pre-Retirement Death Benefit
In the event of the death of a Participant prior to the date
that he begins to receive a retirement benefit under the Plan,
if the Participant has a Surviving Spouse and if a Beneficiary
other than the Participant's Surviving Spouse has not been
designated pursuant to a Qualified Election, the Participant's
Surviving Spouse will be entitled to receive a Qualified
Survivor Annuity.
If a Surviving Spouse does not exist or if a Beneficiary other
than the Participant's Surviving Spouse has been designated
pursuant to a Qualified Election, the Participant's designated
Beneficiary will be entitled to receive the value of the
Participant's Accrued Benefit.
(b) Post-Retirement Death Benefit
In the event of the death of a Retired Participant or a
Disabled Participant receiving a benefit, a benefit will be
paid to the Participant's Beneficiary or Surviving Spouse in
accordance with the form of benefit payment elected under the
Plan.
6.03 Designation of Beneficiary
Each Participant will be given the opportunity to designate a
Beneficiary or Beneficiaries, and from time to time the Participant
may file with the Plan Administrator a new or revised designation on
the form provided by the Plan Administrator. If a Participant is
married, any designation of a Beneficiary other than the
Participant's spouse must be consented to by the Participant's spouse
pursuant to a Qualified Election.
If a Participant dies without designating a Beneficiary, or if the
Participant is predeceased by all designated Beneficiaries and
contingent Beneficiaries, the Plan Administrator will distribute all
benefits which are payable in the event of the Participant's death in
the following manner and to the first of the following (who are
listed in order of priority) who survive the Participant by at least
30 days:
-- All to the Participant's Surviving Spouse;
-- Equally among the then living children of the
Participant (by birth or adoption);
-- Among the Participant's then living lineal
descendants, by right of representation; or
-- The Participant's estate.
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<PAGE> 49
ARTICLE 7
LIMITATIONS ON BENEFITS
7.01 Limitation on Annual Additions
The amount of the Annual Addition which may be allocated under this
Plan to any Participant's Account as of any Valuation Date will not
exceed the Defined Contribution Limit (based uponhis Aggregate
Compensation up to such Valuation Date) reduced by the sum of any
allocations of annual additions made to Participant's Accounts under
this Plan as of any preceding Valuation Date within the Limitation
Year.
If the Annual Addition under this Plan on behalf of a Participant is
to be reduced as of any Valuation Date as a result of the next
preceding paragraph, the reduction will be, to the extent required,
effected by first reducing Participant contributions (which increase
the annual addition), then Forfeitures (if any), and then Employer
contributions to be allocated under this Plan on behalf of the
Participant as of the Valuation Date.
Any necessary reduction will be made as follows:
(a) The amount of the reduction consisting of nondeductible
Participant contributions will be paid to the Participant as
soon as administratively feasible.
(b) The amount of the reduction consisting of any other
Participant contributions will be paid to the Participant as
soon as administratively feasible.
(c) The amount of the reduction consisting of Forfeitures will be
allocated and reallocated to other Accounts in accordance with
the Plan formula for allocating Forfeitures to the extent that
such allocations do not cause the additions to any other
Participant's Accounts to exceed the lesser of the Defined
Contribution Limit or any other limitation provided in the
Plan.
(d) The amount of the reduction consisting of Employer
contributions will be allocated and reallocated to other
Accounts in accordance with the Plan formula for Employer
Contributions to the extent that such allocations do not cause
the additions to any other Participant's Accounts to exceed
the lesser of the Defined Contribution Limit or any other
limitation provided in the Plan.
(e) To the extent that the reductions described in paragraph (d)
cannot be allocated to other Participant's Accounts, the
reductions will be allocated to a suspense account as
Forfeitures and held therein until the next succeeding
Valuation Date on which Forfeitures could be applied under the
provisions of the Plan. All amounts held in a suspense
account must be applied as Forfeitures before any additional
contributions, which would constitute annual additions, may be
made to the Plan. If the Plan terminates, the suspense
account will revert to the Employer to the extent it may not
be allocated to any Participant's Accounts.
(f) If a suspense account is in existence at any time during a
Limitation Year pursuant to this Section, it will not
participate in the allocation of the Trust Fund's investment
gains and losses.
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<PAGE> 50
7.02 Where Employer Maintains Another Qualified Plan
(a) Where Employer Maintains Another Qualified Defined
Contribution Plan
If the Employer maintains this Plan and one or more other
qualified defined contribution plans, one or more welfare
benefit funds (as defined in Code Section 419(e)), or one or
more individual medical accounts (as defined in Code Section
415(1)(2)), all of which are referred to in this Article 7 as
"qualified defined contribution plans", the annual additions
allocated under this Plan to any Participant's Accounts will
be limited in accordance with the allocation provisions of
this Section 7.02(a).
The amount of the Annual Additions which may be allocated
under this Plan to any Participant's Accounts as of any
Valuation Date will not exceed the Defined Contribution Limit
(based upon Aggregate Compensation up to the allocation date)
reduced by the sum of any allocations of Annual Additions made
to the Participant's Accounts under this Plan and any other
qualified defined contribution plans maintained by the
Employer as of any earlier Valuation Date within the
Limitation Year.
If a Valuation Date of this Plan coincides with a Valuation
Date of any other plan described in the above paragraph, the
amount of Annual Additions to be allocated on behalf of a
Participant under this Plan as of such date will be an amount
equal to the product of the amount described in the next
preceding paragraph multiplied by a fraction (not to exceed
1.0), the numerator of which is the amount to be allocated
under this Plan without regard to this Article during the
Limitation Year and the denominator of which is the amount
that would otherwise be allocated on this Valuation Date under
all plans without regard to this Article 7.
If the Annual Addition under this Plan on behalf of a
Participant is to be reduced as of any Valuation Date as a
result of the next preceding two paragraphs, the reduction
will be, to the extent required, effected by first reducing
Participant contributions (which increase the annual
addition), then Forfeitures (if any), and then any Employer
contributions, to be allocated under this Plan on behalf of
the Participant as of the Valuation Date.
If as a result of the first four paragraphs of this Section
7.02 the allocation of additions is reduced, the reduction
will be treated in the manner described in the third paragraph
of Section 7.01.
(b) Where Employer Maintains a Qualified Defined Benefit Plan
(1) In General
If the Employer maintains (or has ever maintained),
in addition to this Plan, one or more qualified
defined benefit plans, then for any Limitation Year,
the sum of the Defined Benefit Plan Fraction and the
Defined Contribution Plan Fraction will not exceed
1.0. If, in any Limitation Year, the sum of the
Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction for a Participant would
exceed 1.0 without adjustment to the amount of the
annual benefit that can be paid to the Participant
under the defined benefit plan, then the amount of
annual benefit that would otherwise be paid to the
Participant under the defined benefit plan will be
reduced to the extent necessary to reduce the sum of
the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction for the Participant to
1.0.
(2) Transition Rule under TRA '86
If a plan was in existence on May 6, 1986, the
numerator of the Defined Contribution Plan Fraction
will be reduced (to not less than zero) as prescribed
by the Secretary
7-2
<PAGE> 51
of the Treasury by subtracting the amount required to
decrease the sum of the Defined Contribution Plan
Fraction plus the Defined Benefit Plan Fraction to
1.0. Such amount is determined (as of the first day
of the first Limitation Year beginning on or after
January 1, 1987) as the product of:
(A) The amount by which, without this adjustment,
the sum of the Defined Contribution Plan
Fraction plus the Defined Benefit Plan
Fraction exceeds 1.0, multiplied by
(B) The denominator of the Defined Contribution
Plan Fraction, as computed through the last
Limitation Year beginning before January 1,
1987, disregarding any changes in the terms
and conditions of the plan after May 5, 1986.
This subparagraph applies only if the defined benefit
plans individually and in the aggregate satisfied the
requirements of Code Section 415 for all Limitation
Years beginning before January 1, 1987.
(3) Transition Rule under TEFRA
In the case of a plan which met the limitation of
Section 415 of the Code for the last Limitation Year
beginning before January 1, 1983, the numerator of
the Defined Contribution Plan Fraction will be
reduced (to not less than zero) as prescribed by the
Secretary of the Treasury by subtracting the amount
required to decrease the sum of the Defined
Contribution Plan Fraction plus the Defined Benefit
Plan Fraction to 1.0. Such amount is determined (as
of the first day of the first Limitation Year
beginning on or after January 1, 1983) as the product
of:
(A) The amount by which, without this adjustment,
the sum of the Defined Contribution Plan
Fraction plus the Defined Benefit Plan
Fraction exceeds 1.0, multiplied by
(B) The denominator of the Defined Contribution
Plan Fraction, as computed through the last
Limitation Year beginning before January 1,
1983.
7.03 Definitions Applicable to Article 7
(a) Aggregate Compensation
Aggregate Compensation means a Participant's earned income,
wages, salaries, and fees for professional services, and other
amounts received for personal services actually rendered in
the course of employment with the employer maintaining the
plan (including, but not limited to, commissions paid to
salesmen, compensation for services on the basis of a
percentage of profits, commissions on insurance premiums, tips
and bonuses), and excluding the following:
-- Employer contributions to a plan of deferred
compensation which are not included in the employee's
gross income for the taxable year in which
contributed or employer contributions under a
simplified employee pension plan to the extent the
contributions are deductible by the employee, or any
distributions from a plan of deferred compensation;
-- Amounts realized from the exercise of a nonqualified
stock option, or when restricted stock (or property)
held by the employee either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
-- Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
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<PAGE> 52
-- Other amounts which received special tax benefits, or
contributions made by the employer (whether or not
under a salary reduction agreement) toward the
purchase of an annuity described in Code Section
403(b) (whether or not the amounts are actually
excludable from the gross income of the employee).
Aggregate Compensation excludes any amounts contributed by the
Employer or any Related Employer on behalf of any Employee
pursuant to a salary reduction agreement which are not
includable in the gross income of the Employee due to Code
Section 125, 402(a)(8), 402(h) or 403(b).
Aggregate Compensation in excess of the Statutory Compensation
Limit is disregarded.
Aggregate Compensation for any Limitation Year is the
Aggregate Compensation actually paid or includable in gross
income in such year.
(b) Allocation Date, Valuation Date
These terms are used interchangeably and mean the date with
respect to which all or a portion of employer contributions,
employee contributions or forfeitures or both are allocated to
participant accounts under a defined contribution plan.
(c) Annual Additions
For Plan Years beginning after December 31, 1986, Annual
Additions are the sum of the following amounts allocated to
any defined contribution plan maintained by the Employer
(including voluntary contributions to any defined benefit plan
maintained by the Employer) on behalf of a Participant for a
Limitation Year:
-- All Employee and Employer contributions;
-- All reallocated forfeitures;
-- Amounts allocated after March 31, 1984, to an
individual medical account, as defined in Code
Section 415(1)(2) which is part of a pension or
annuity plan maintained by the Employer, and amounts
derived from contributions paid or accrued after
December 31, 1985, in taxable years ending after that
date, which are attributable to post-retirement
medical benefits required by Code Section 401(h)(6)
to be allocated to the separate account of a Key
Employee under a welfare benefit plan (as defined in
Code Section 419(e)) maintained by the Employer.
Contributions or forfeitures will be treated as Annual
Additions regardless of whether they constitute Excess
Deferrals, Excess Contributions or Excess Aggregate
Contributions within the meaning of the regulations under Code
Section 401(k) or 401(m) and regardless of whether they are
corrected through distribution or recharacterization. The
Annual Addition for any Limitation Year beginning before
January 1, 1987, will not be recomputed to treat all Employee
contributions as Annual Additions.
(d) Annual Benefit
Annual Benefit means a benefit payable annually in the form of
a straight life annuity (with no ancillary benefits) under a
plan to which employees do not contribute and under which no
rollover contributions are made.
(e) Defined Benefit Compensation Limit
The Defined Benefit Compensation Limit is equal to 100% of the
Participant's average Aggregate Compensation for the three
consecutive calendar years (or other twelve consecutive month
periods adopted by the Employer pursuant to a Written
Resolution and
7-4
<PAGE> 53
applied on a uniform and consistent basis) of service during
which the Participant had the greatest Aggregate Compensation.
Where the annual benefit is payable to a Participant in a form
other than a straight life annuity or a Qualified Joint and
Survivor Annuity, the Defined Benefit Compensation Limit will
be the Actuarial Equivalent of a straight life annuity
beginning at the same age. No adjustment is required for the
following: pre-retirement disability benefits, pre-retirement
death benefits and post-retirement medical benefits. For
purposes of this paragraph, the interest rate used in
adjusting the Defined Benefit Compensation Limit will be the
greater of (1) 5%, or (2) the post-retirement interest rate
specified in the plan for Actuarial Equivalent purposes.
Where the annual benefit is payable to a Participant who has
fewer than 10 years of service with the Employer or any
Related or Predecessor Employer, the Defined Benefit
Compensation Limit will be multiplied by a fraction, the
numerator of which is the Participant's number of years of
service with the Employer or Related or Predecessor Employer,
and the denominator of which is 10.
With regard to a Participant who has separated from service
with a nonforfeitable right to an Accrued Benefit, the Defined
Benefit Compensation Limit will be adjusted effective January
1 of each Calendar year. For any Limitation Year beginning
after the separation occurs, the Defined Benefit Compensation
Limit will be equal to the Defined Benefit Compensation Limit
which was applicable to the Participant in the Limitation Year
in which he separated from service multiplied by a fraction,
the numerator of which is the Defined Benefit Dollar Limit for
the Limitation Year in which the Defined Benefit Compensation
Limit is being adjusted and the denominator of which is the
Defined Benefit Dollar Limit for the Limitation Year in which
the Participant separated from service.
(f) Defined Benefit Dollar Limit
The Defined Benefit Dollar Limit is equal to $90,000 for
calendar years 1984 through 1987. As of January 1, 1988 and
as of January 1 of each subsequent calendar year, the dollar
limitation (described in Code Section 415(b)(1)(A)) as
determined by the Secretary of the Treasury for that calendar
year will become effective as the Defined Benefit Dollar Limit
for the calendar year. For calendar years between 1976 and
1983, the Defined Benefit Dollar Limit is $75,000 as adjusted
by the Secretary of the Treasury under Code Section 415(d) for
that calendar year. The Defined Benefit Dollar Limit for a
calendar year applies to Limitation Years ending with or
within that calendar year.
Where the annual benefit is payable to a Participant in a form
other than a straight life annuity or a Qualified Joint and
Survivor Annuity, the Defined Benefit Dollar Limit will be the
Actuarial Equivalent of a straight life annuity beginning at
the same age. No adjustment is required for the following:
pre-retirement disability benefits, pre-retirement death
benefits, and post-retirement medical benefits. For purposes
of this paragraph, the interest rate used for adjusting the
Defined Benefit Dollar Limit will be the greater of (1) 5%, or
(2) the post-retirement interest rate specified for Actuarial
Equivalent purposes.
Where the annual benefit is payable to a Participant who has
fewer than 10 years of participation in the Plan, the Defined
Benefit Dollar Limit will be multiplied by a fraction, the
numerator of which is the Participant's number of years (or
part thereof) of participation in the Plan, and the
denominator of which is 10. To the extent provided by the
Secretary of the Treasury, this paragraph will be applied to
each change in the benefit structure of the Plan.
7-5
<PAGE> 54
For a benefit commencing before a Participant's Social
Security Retirement Age but at or after age 62, the Defined
Benefit Dollar Limit will be adjusted in a manner which is
consistent with the reduction for old-age insurance benefits
commencing before Social Security Retirement Age under the
Social Security Act. The reduction will be 5/9 of 1% for each
of the first 36 months and 5/12 of 1% for each additional
month (up to 24 months) by which benefits commence before the
month of the Participant's Social Security Retirement Age.
The Defined Benefit Dollar Limit for a benefit commencing
before age 62 will be adjusted to the Actuarial Equivalent of
the Defined Benefit Dollar Limit for a benefit commencing at
age 62 based on an interest rate equal to the greater of (1)
5%, or (2) the interest rate specified in the plan for
determining actuarial equivalence for early retirement.
For a benefit commencing after a Participant's Social Security
Retirement Age, the Defined Benefit Dollar Limit will be
adjusted to the actuarial equivalent of the Defined Benefit
Dollar Limit for a benefit commencing at the Participant's
Social Security Retirement Age. For purposes of this
paragraph, the interest rate used for adjusting the Defined
Benefit Dollar Limit will be the lesser of (1) 5%, or (2) the
interest rate specified in the plan for determining actuarial
equivalence for early retirement.
(g) Defined Benefit Limit
The Defined Benefit Limit is the lesser of the Defined Benefit
Dollar Limit or the Defined Benefit Compensation Limit.
(h) Defined Benefit Plan Fraction Denominator
The Defined Benefit Plan Fraction Denominator with respect to
any Participant is the lesser of (1) the product of the
Defined Benefit Dollar Limit multiplied by 1.25, or (2) the
product of the Defined Benefit Compensation Limit multiplied
by 1.4. However, for purposes of determining the Defined
Benefit Plan Fraction Denominator, "years of service with the
Employer or any Related or Predecessor Employer" will be
substituted for "years of participation in the Plan" wherever
it appears in Section 7.03(f).
(i) Defined Benefit Plan Fraction
The Defined Benefit Plan Fraction is a fraction determined as
of the close of a Limitation Year, the numerator of which is
the Projected Annual Benefit payable to a Participant under
this Plan and the denominator of which is the Defined Benefit
Fraction Denominator. If a Participant has participated in
more than one defined benefit plan maintained by the Employer,
the numerator of the Defined Benefit Plan Fraction is the sum
of the projected annual benefits payable to the Participant
under all of the defined benefit plans, whether or not
terminated.
(j) Defined Contribution Limit
The Defined Contribution Limit for a given Limitation Year is
equal to the lesser of (1) the Defined Contribution
Compensation Limit, which is 25% of Aggregate Compensation
applicable to the Limitation Year, or (2) the Defined
Contribution Dollar Limit, which, for calendar years after
1983 is the greater of $30,000 or one-fourth of the Defined
Benefit Dollar Limit for the Limitation Year, and for calendar
years between 1976 and 1983 is one-third of the Defined
Benefit Dollar Limit. If a short Limitation Year is created
because of an amendment changing the Limitation Year to a
different 12 consecutive month period, the Defined
Contribution Dollar Limit is multiplied by a fraction, the
numerator of which is equal to the number of months in the
short Limitation Year and the denominator of which is 12.
7-6
<PAGE> 55
(k) Defined Contribution Plan Fraction
The Defined Contribution Plan Fraction is a fraction
determined as of the close of a Limitation Year, the numerator
of which is the sum of the Annual Additions to the
Participant's Accounts under all defined contribution plans of
the Employer for the current and all prior Limitation Years
and the denominator of which is the sum of the Annual
Additions which would have been made for the Participant for
the current and all prior Limitation Years (for all prior
years of service with the Employer or any predecessor
Employer) if in each Limitation year the Annual Additions
equaled the lesser of (1) the product of the Defined
Contribution Compensation Limit for the Limitation Year
multiplied by 1.4, or (2) the product of the Defined
Contribution Dollar Limit for the Limitation Year multiplied
by 1.25. The aggregate amount in the numerator of this
fraction due to years beginning before January 1, 1976 may not
exceed the aggregate amount in the denominator of this
fraction for all such years.
For purposes of this Section 7.03(k), the Annual Addition for
any Limitation Year beginning before January 1, 1987 will not
be recomputed to treat all Employee contributions as Annual
Additions.
(l) Employer
The Employer is the Employer that adopts this Plan together
with all Related Employers. For this purpose, the definition
of Related Employer in Section 1.33 of this Plan is modified
by Code Section 415(h).
(m) Limitation Year
The Limitation Year will be the 12 consecutive month period
which is specified in Article 1 of this Plan and which is
adopted for all qualified plans maintained by the Employer
pursuant to a Written Resolution adopted by the Employer. In
the event of a change in the Limitation Year, the additional
limitations of Treasury Regulation Section 1.415-2(b)(4)(iii)
will also apply.
(n) Projected Annual Benefit
For purposes of this Section, a Participant's Projected Annual
Benefit is equal to the annual benefit to which a Participant
in a defined benefit Plan would be entitled under the terms of
the plan based on the following assumptions:
-- The Participant will continue employment until
reaching normal retirement age as determined under
the terms of the plan (or current age, if that is
later);
-- The Participant's compensation for the Limitation
Year under consideration will remain the same for all
future years;
-- All other relevant factors used to determine benefits
under the plan for the Limitation Year under
consideration will remain constant for all future
Limitation Years; and
-- The benefits resulting from any Participant
Contributions or Rollover Contributions are
disregarded.
(o) Social Security Retirement Age
Social Security Retirement Age means age 65 for a Participant
born before January 1, 1938; age 66 for a Participant born
after December 31, 1937, but before January 1, 1955; and age
67 for a Participant born after December 31, 1954.
7-7
<PAGE> 56
(p) Transition Rule Under TRA '86
If at the beginning of the first Limitation Year beginning
after December 31, 1986, an Employee was a Participant in a
defined benefit plan of the Employer or any Related Employer
that was in existence on May 6, 1986, the Defined Benefit
Dollar Limit for that Participant is the greater of the
Defined Benefit Dollar Limit described above or the
Participant's Current Accrued Benefit on that date determined
without regard to changes in the terms and conditions of the
Plan or cost-of-living increases occurring after May 5, 1986.
This Section 7.03(p) applies only if all defined benefit plans
maintained by the Employer and all Related Employers,
individually and in the aggregate, satisfied the requirements
of Code Section 415 for all Limitation Years beginning before
January 1, 1987.
(q) Transition Rule Under TEFRA
The Defined Benefit Dollar Limit for a Participant in a
defined benefit plan of the Employer or any Related Employer
that was in existence on July 1, 1982, will not be less than
the protected current accrued benefit, payable annually,
provided under question T-3 of Internal Revenue Service Notice
83-10.
7.04 Effect of Top-Heavy Status
(a) General
Notwithstanding the provisions of Section 7.03, "1.0" will be
substituted for "1.25" wherever it appears in Sections 7.03(h)
and 7.03(k) for any Limitation Year in which the Plan is found
to be Top-Heavy for the Plan Year which coincides with or ends
within such Limitation Year.
(b) Non-application
If the Plan is not determined to be Super Top-Heavy, then for
the Plan Year which coincides with or ends within a Limitation
Year, the following will apply:
(1) Any Non-Key Employee who is a Participant in both
this Plan and a defined benefit plan maintained by
the Employer or a Related Employer will be entitled
to a minimum accrued benefit under the defined
benefit plan equal to the greater of the accrued
benefit provided under the defined benefit plan or a
monthly benefit in the form of a straight life
annuity (with no ancillary benefits) commencing at
normal retirement date equal to the Participant's
average monthly compensation (which means the average
rate of Aggregate Compensation during the five
consecutive years, as defined for purposes of
determining average monthly compensation, in which
the Participant had the highest Aggregate
Compensation) multiplied by the lesser of (A) 3% for
each year of benefit service performed while actually
participating in the plan during a Plan Year in which
the plan is determined to be Top-Heavy, or (B) 30%.
A Participant will not be required to be employed on
the last day of a Plan Year in order to be entitled
to the benefit provided by this Section 7.04(b). The
defined benefit plan may not satisfy the requirements
of this Section 7.04(b) through Employer
contributions to Social Security.
(2) Section 7.04(a) will not apply for such Limitation
Year.
7-8
<PAGE> 57
ARTICLE 8
MISCELLANEOUS
8.01 Employment Rights of Parties Not Restricted
The adoption and maintenance of this Plan will not be deemed a
contract between the Employer and any Employee. Nothing in this Plan
will give any Employee or Participant the right to be retained in the
employ of the Employer or to interfere with the right of the Employer
to discharge any Employee or Participant at any time, nor will it give
the Employer the right to require any Employee or Participant to
remain in its employ, or to interfere with any Employee's or
Participant's right to terminate his employment at any time.
8.02 Alienation
(a) General
No person entitled to any benefit under this Plan will have
any right to sell, assign, transfer, hypothecate, encumber,
commute, pledge, anticipate or otherwise dispose of his
interest in the benefit, and any attempt to do so will be
void. No benefit under this Plan will be subject to any legal
process, levy, execution, attachment or garnishment for the
payment of any claim against such person.
(b) Exceptions
Section 8.02(a) will not apply to the extent a Participant or
Beneficiary is indebted to the Plan under the provisions of
the Plan. At the time a distribution is to be made to or for
a Participant's or Beneficiary's benefit, the portion of the
amount distributed which equals the indebtedness will be
withheld by the Trustee to apply against or discharge the
indebtedness. Before making a payment, however, the
Participant or Beneficiary must be given written notice by the
Plan Administrator that the indebtedness is to be so paid in
whole or part from his Participant's Accrued Benefit. If the
Participant or Beneficiary does not agree that the
indebtedness is a valid claim against his Vested Accrued
Benefit, he will be entitled to a review of the validity of
the claim in accordance with procedures established by the
Plan Administrator.
Section 8.02(a) will not apply to a qualified domestic
relations order (QDRO) as defined in Code Section 414(p), and
those other domestic relations orders permitted to be so
treated by the Plan Administrator under the provisions of the
Retirement Equity Act of 1984. The Plan Administrator will
establish a written procedure to determine the qualified
status of domestic relations orders and to administer
distributions under such qualified orders. Further, to the
extent provided under a QDRO, a former spouse of a Participant
will be treated as the spouse or Surviving Spouse for all
purposes under the Plan. Where, however, because of a QDRO,
more than one individual is to be treated as a Surviving
Spouse, the total amount to be paid in the form of a Qualified
Survivor Annuity or the survivor portion of a Qualified Joint
and Survivor Annuity may not exceed the amount that would be
paid if there were only one Surviving Spouse. All rights and
benefits, including elections, provided to a Participant under
this Plan will be subject to the rights afforded to any
alternate payee as such term is defined in Code Section
414(p).
This Plan specifically permits distribution to an alternate
payee under a QDRO (without regard to whether the Participant
has attained his or her earliest retirement age as that term
is defined under Code Section 414(p)) in the same manner that
is provided for a Vested Terminated Participant.
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8.03 Qualification of Plan
The Employer will have the sole responsibility for obtaining and
retaining qualification of the Plan under the Code with respect to the
Employer's individual circumstances.
8.04 Construction
To the extent not preempted by ERISA, this Plan will be construed
according to the laws of the state in which the Employer's principal
place of business is located. Words used in the singular will include
the plural, the masculine gender will include the feminine, and vice
versa, whenever appropriate.
8.05 Named Fiduciaries
(a) Allocation of Functions
The authority to control and manage the operation and
administration of the Plan and Trust created by this
instrument will be allocated between the Plan Sponsor and the
Plan Administrator, each of whom are designated as Named
Fiduciaries with respect to the Plan and Trust as provided for
by Section 402(a)(2) of ERISA. The Plan Sponsor reserves the
right to allocate the various responsibilities for the present
execution of the functions of the Plan, other than the
Trustees' responsibilities, among its Named Fiduciaries. Any
person or group of persons may serve in more than one
fiduciary capacity with regard to the Plan.
(b) Responsibilities of the Plan Sponsor
The Plan Sponsor, in its capacity as a Named Fiduciary, will
have only the following authority and responsibility:
-- To appoint or remove the Plan Administrator and
furnish the Trustee with certified copies of any
resolutions of the Plan Sponsor with regard thereto;
-- To appoint and remove the Trustee;
-- To appoint a successor Trustee or additional Trustees;
-- To communicate information to the Plan Administrator
and the Trustee as needed for the proper performance
of the duties of each;
-- To appoint an investment manager (or to refrain from
such appointment), to monitor the performance of the
investment manager so appointed, and to terminate
such appointment (more than one investment manger may
be appointed and in office at any time); and
-- To establish and communicate to the Trustee a funding
policy for the Plan.
(c) Limitation on Obligations of Named Fiduciaries
No Named Fiduciary will have authority or responsibility to
deal with matters other than as delegated to it under this
Plan or by operation of law. A Named Fiduciary will not in
any event be liable for breach of fiduciary responsibility or
obligation by another fiduciary (including Named Fiduciaries)
if the responsibility or authority of the act or omission
deemed to be a breach was not within the scope of the Named
Fiduciary's authority or delegated responsibility.
(d) Standard of Care and Skill
The duties of each fiduciary will be performed with the care,
skill, prudence and diligence under the circumstances then
prevailing that a prudent person acting in a like capacity and
familiar with such matters would use in the conduct of an
enterprise of like
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character and with like objectives.
8.06 Status of Insurer
The term Insurer refers to any legal reserve life insurance company
licensed to do business in the state within which the Employer
maintains its principal office. The Insurer will file such returns,
keep such records, make such reports and supply such information as
required by applicable law or regulation.
8.07 Adoption and Withdrawal by Other Organizations
(a) Procedure for Adoption
Subject to the provisions of this Section 8.07, any
organization now in existence or hereafter formed or acquired,
which is not already a Participating Employer under this Plan
and which is otherwise legally eligible may, in the future,
with the consent and approval of the Plan Sponsor, by formal
Written Resolution (referred to in this Section as an Adoption
Resolution), adopt the Plan and Trust hereby created for all
or any classification of persons in its employment and
thereby, from and after the specified effective date, become a
Participating Employer under this Plan. Such consent will be
effected by and evidenced by a formal Written Resolution of
the Plan Sponsor. The Adoption Resolution may contain such
specific changes and variations in Plan terms and provisions
applicable to the adopting Participating Employer and its
Employees as may be acceptable to the Plan Sponsor and the
Trustee. However, the sole, exclusive right of any other
amendment of whatever kind or extent to the Plan is reserved
to the Plan Sponsor. The Adoption Resolution will become, as
to the adopting organization and its Employees, a part of this
Plan as then amended or thereafter amended. It will not be
necessary for the adopting organization to sign or execute the
original or then amended Plan and Trust Agreement or any
future amendment to the Plan and Trust Agreement. The
effective date of the Plan for the adopting organization will
be that stated in the Adoption Resolution and from and after
such effective date the adopting organization will assume all
the rights, obligations and liabilities as a Participating
Employer under this Plan. The administrative powers of and
control by the Plan Sponsor as provided in the Plan, including
the sole right of amendment or termination of the Plan, of
appointment and removal of the Plan Administrator and the
Trustee, and of appointment and removal of an investment
manager will not be diminished by reason of the participation
of the adopting organization in the Plan.
(b) Withdrawal
Any Participating Employer may withdraw from the Plan at any
time, without affecting the Plan Sponsor or other
Participating Employers not withdrawing, by complying with the
provisions of the Plan. A withdrawing Participating Employer
may arrange for the continuation by itself or its successor of
this Plan in separate forms for its own employees, with such
amendments, if any, as it may deem proper, and may arrange for
continuation of the Plan by merger with an existing plan and
transfer of plan assets. The Plan Sponsor may, in its
absolute discretion, terminate a Participating Employer's
participation at any time when in its judgment the
Participating Employer fails or refuses to discharge its
obligations under the Plan.
(c) Adoption Contingent Upon Initial and Continued Qualifications
The adoption of this Plan by an organization as provided is
hereby made contingent and subject to the condition precedent
that said adopting organization meets all the statutory
requirements for qualified plans, including, but not limited
to, Sections 401(a) and 501(a) of the Internal Revenue Code
for its Employees. If the Plan or the Trust, in its
operation, becomes disqualified, for any reason, as to the
adopting organization and its Employees, the portion of the
Plan assets allocable to them will be segregated as soon as
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is administratively feasible, pending either the prompt (1)
requalification of the Plan as to the organization and its
employees to the satisfaction of the Internal Revenue Service
so as not to affect the continued qualified status thereof as
to other Employers, (2) withdrawal of the organization from
this Plan and a continuation by itself or its successor of its
plan separately from this Plan, or by merger with another
existing plan, with a transfer of its said segregated portion
of Plan assets, or (3) termination of the Plan as to itself
and its Employees.
8.08 Employer Contributions
Employer contributions made to the Plan and Trust are made and will be
held for the sole purpose of providing benefits to Participants and
their Beneficiaries.
In no event will any contribution made by the Employer to the Plan and
Trust or income therefrom revert to the Employer except as provided in
Section 7.01(e) or as provided below.
(a) Any contribution made to the Plan and Trust by the Employer
because of a mistake of fact may be returned to the Employer
within one year of such contribution.
(b) Notwithstanding any other provision of the Plan and Trust, if
the Internal Revenue Service determines initially that the
Plan, as adopted by the Employer, does not qualify under
applicable sections of the Code and applicable Treasury
Department Regulations, and the Employer does not wish to
amend this Plan and Trust so that it does qualify, the value
of all assets will be distributed by the Trustee to the
Employer within one year after the date such initial
qualification is denied. Thereafter, the Employer's
participation in this Plan and Trust will be considered
rescinded and of no force or effect.
(c) Any contribution made by the Employer will be conditioned on
the deductibility of such contribution and may be refunded to
the Employer, to the extent the contribution is determined not
to be deductible, within one year after such determination is
made.
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ARTICLE 9
ADMINISTRATION
9.01 Plan Administrator
The Plan Administrator will have the responsibility for the general
supervision and administration of the Plan and will be a fiduciary of
the Plan. The Employer may, by written appointment, appoint one or
more individuals to serve as Plan Administrator. If the Employer does
not appoint an individual or individuals as Plan Administrator, the
Employer will function as Plan Administrator. The Employer may at any
time, with or without cause, remove an individual as Plan
Administrator or substitute another individual therefor.
9.02 Powers and Duties of the Plan Administrator
The Plan Administrator will be charged with and will have delegated to
it the power, duty, authority and discretion to interpret and construe
the provisions of this Plan, to determine its meaning and intent and
to make application thereof to the facts of any individual case; to
determine in its discretion the rights and benefits of Participants or
the eligibility of Employees; to give necessary instructions and
directions to the Trustee and the Insurer as herein provided or as may
be requested by the Trustee and the Insurer from time to time; to
resolve all questions of fact relating to any of the foregoing; and to
generally direct the administration of the Plan according to its
terms. All decisions of the Plan Administrator in matters properly
coming before it according to the terms of this Plan, and all actions
taken by the Plan Administrator in the proper exercise of its
administrative powers, duties and responsibilities, will be final and
binding upon all Employees, Participants and Beneficiaries and upon
any person having or claiming any rights or interest in this Plan.
The Employer and the Plan Administrator will make and receive any
reports and information, and retain any records necessary or
appropriate to the administration of this Plan or to the performance
of duties hereunder or to satisfy any requirements imposed by law. In
the performance of its duties, the Plan Administrator will be entitled
to rely on information duly furnished by any Employee, Participant or
Beneficiary or by the Employer or Trustee.
9.03 Actions of the Plan Administrator
The Plan Administrator may adopt such rules as it deems necessary,
desirable or appropriate with respect to the conduct of its affairs
and the administration of the Plan. Whenever any action to be taken
in accordance with the terms of the Plan requires the consent or
approval of the Plan Administrator, or whenever an interpretation is
to be made of the terms of the Plan, the Plan Administrator will act
in a uniform and non-discriminatory manner, treating all Employees and
Participants in similar circumstances in a like manner. If the Plan
Administrator is a group of individuals, all of its decisions will be
made by a majority vote. The Plan Administrator will have the
authority to employ one or more persons to render advice or services
with regard to the responsibilities of the Plan Administrator,
including but not limited to attorneys, actuaries, and accountants.
Any persons employed to render advice or services will have no
fiduciary responsibility for any ministerial functions performed with
respect to this Plan.
9.04 Reliance on Plan Administrator and Employer
Until the Employer gives notice to the contrary, the Trustee and any
persons employed to render advice or services will be entitled to rely
on the designation of Plan Administrator that has been furnished to
them. In addition, the Trustee and any persons employed to render
advice or services will be fully protected in acting upon the written
directions and instructions of the Plan Administrator made in
accordance with the terms of this Plan. If the Plan Administrator is
a group of individuals, unless otherwise specified, any one of such
individuals will be authorized to sign documents on behalf of the Plan
Administrator and such authorized signatures will be recognized by all
person dealing with the Plan Administrator.
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<PAGE> 62
The Trustee and any persons employed to render advice or services may
take cognizance of any rules established by the Plan Administrator and
rely upon them until notified to the contrary. The Trustee and any
persons employed to render advice or services will be fully protected
in taking any action upon any paper or document believed to be genuine
and to have been properly signed and presented by the Plan
Administrator, Employer or any agent of the Plan Administrator acting
on behalf of the Plan Administrator.
9.05 Reports to Participants
The Plan Administrator will report in writing to a Participant his
Accrued Benefit under the Plan and the Vested Percentage of such
benefit when the Participant terminates his employment or requests
such a report in writing from the Plan Administrator. To the extent
required by law or regulation, the Plan Administrator will annually
furnish to each Participant, and to each Beneficiary receiving
benefits, a report which fairly summarizes the Plan's most recent
report.
9.06 Bond
The Plan Administrator and other fiduciaries of the Plan will be
bonded to the extent required by ERISA or other applicable law. No
additional bond or other security for the faithful performance of any
duties under this Plan will be required.
9.07 Compensation of Plan Administrator
The Compensation of the Plan Administrator will be left to the
discretion of the Plan Sponsor; no person who is receiving full pay
from the Employer will receive compensation for services as Plan
Administrator. All reasonable and necessary expenses incurred by the
Plan Administrator in supervising and administering the Plan will be
paid from the Plan assets by the Trustee at the direction of the Plan
Administrator to the extent not paid by the Plan Sponsor.
9.08 Claims Procedure
The Plan Administrator will make all determinations as to the rights
of any Employee, Participant, Beneficiary or other person under the
terms of this Plan. Any Employee, Participant or Beneficiary, or
person claiming under them, may make claim for benefit under this Plan
by filing written notice with the Plan Administrator setting forth the
substance of the claim. If a claim is wholly or partially denied, the
claimant will have the opportunity to appeal the denial upon filing
with the Plan Administrator a written request for review within 60
days after receipt of notice of denial. In making an appeal the
claimant may examine pertinent Plan documents and may submit issues
and comments in writing. Denial of a claim or a decision on review
will be made in writing by the Plan Administrator delivered to the
claimant within 60 days after receipt of the claim or request for
review, unless special circumstances require an extension of time for
processing the claim or review, in which event the Plan
Administrator's decision must be made as soon as possible thereafter
but not beyond an additional 60 days. If no action on an initial
claim is taken within 120 days, the claims will be deemed denied for
purposes of permitting the claimant to proceed to the review stage.
The denial of a claim or the decision on review will specify the
reasons for the denial or decision and will make reference to the
pertinent Plan provisions upon which the denial or decision is based.
The denial of a claim will also include a description of any
additional material or information necessary for the claimant to
perfect the claim and an explanation of the claim review procedure
herein described. The Plan Administrator will serve as an agent for
service of legal process with respect to the Plan unless the Employer,
through written resolution, appoints another agent.
If a Participant or Beneficiary is entitled to a distribution from the
Plan, the Participant or Beneficiary will be responsible for providing
the Plan Administrator with his current address. If the Plan
Administrator notifies the Participant or Beneficiary by registered
mail
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<PAGE> 63
(return receipt requested) at his last known address that he is
entitled to a distribution and also notifies him of the provisions of
this paragraph, and the Participant or Beneficiary fails to claim his
benefits under the Plan or provide his current address to the Plan
Administrator within one year after such notification, the
distributable amount will be forfeited and used to reduce the cost of
the Plan. If the Participant or Beneficiary is subsequently located,
such benefit will be restored.
9.09 Liability of Fiduciaries
Except for a breach of fiduciary responsibility due to gross
negligence or willful misconduct, the Plan Administrator will not
incur any individual liability for any decision, act, or failure to
act hereunder. The Plan Administrator may engage agents to assist it
and may engage legal counsel who may be counsel for the Employer. The
Plan Administrator will not be responsible for any action taken or
omitted to be taken on the advice of counsel.
The Trustee will be solely responsible for its own acts or omissions.
The Trustee will have no duty to question any other fiduciary's
performance of duties allocated to such other fiduciary pursuant to
the Plan.
If there is more than one person serving as a fiduciary in any
capacity, each will use reasonable care to prevent the other or others
from committing a breach of this Plan. Nothing contained in this
Section will preclude any agreement allocating specific
responsibilities or obligations among the co-fiduciaries provided that
the agreement does not violate any of the terms and provisions of this
Plan. In those instances where any duties have been allocated between
co-fiduciaries, a fiduciary will not be liable for any loss resulting
to the Plan arising from any act or omission on the part of another
co- fiduciary to whom responsibilities or obligations have been
allocated except under the following circumstances:
-- If he participates knowingly in, or knowingly undertakes to
conceal, an act or omission of a co-fiduciary knowing the act
or omission is a breach; or
-- If by his failure to comply with his specific responsibilities
which give rise to his status as a fiduciary, he has enabled
the other fiduciary to commit a breach; or
-- If he has knowledge of a breach by a co-fiduciary, unless he
makes reasonable efforts under the circumstances to remedy the
breach.
9.10 Expenses of Administration
The Employer does not and will not guarantee the Plan assets against
loss. The Employer may in its sole discretion, but will not be
obligated to, pay the ordinary expenses of establishing the Plan,
including the fees of consultants, accountants and attorneys in
connection therewith. The Employer may, in its sole discretion (but
will not be obligated to), pay other costs and expenses of
administering the Plan, the taxes imposed upon the Plan, if any, and
the fees, charges or commissions with respect to the purchase and sale
of Plan assets. Unless paid by the Employer, such costs and expenses,
taxes (if any), and fees, charges and commissions will be a charge
upon Plan assets and deducted by the Trustee.
9.11 Distribution Authority
If any person entitled to receive payment under this Plan is a minor,
declared incompetent or is under other legal disability, the Plan
Administrator may, in its sole discretion, direct the Trustee to:
-- Distribute directly to the person entitled to the payment;
-- Distribute to the legal guardian or, if none, to a parent of
the person entitled to
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payment or to a responsible adult with whom the person
entitled to payment maintains his residence;
-- Distribute to a custodian for the person entitled to payment
under the Uniform Gifts to Minors Act if permitted by the laws
of the state in which the person entitled to payment resides;
or
-- Withhold distribution of the amount payable until a court of
competent jurisdiction determines the rights of the parties
thereto or appoints a guardian of the estate of the person
entitled to payment.
If there is any dispute, controversy or disagreement between any
Beneficiary or person and any other person as to who is entitled to
receive the benefits payable under this Plan, or if the Plan
Administrator is uncertain as to who is entitled to receive benefits,
or if the Plan Administrator is unable to locate the person who is
entitled to benefits, the Plan Administrator may with acquittance
interplead the funds into a court of competent jurisdiction in the
judicial district in which the Employer maintains its principal place
of business and, upon depositing the funds with the clerk of the
court, be released from any further responsibility for the payment of
the benefits. If it is necessary for the Plan Administrator to retain
legal counsel or incur any expense in determining who is entitled to
receive the benefits, whether or not it is necessary to institute
court action, the Plan Administrator will be entitled to reimbursement
from the benefits for the amount of its reasonable costs, expenses and
attorneys' fees incurred.
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ARTICLE 10
AMENDMENT OR TERMINATION OF PLAN
10.01 Right of Plan Sponsor to Amend or Terminate
The Plan Sponsor reserves the right to alter, amend, revoke or
terminate this Plan. No amendment will deprive any Participant or
Beneficiary of any vested right nor will it reduce the present value
(determined upon an actuarial equivalent basis) of any Accrued Benefit
to which he is then entitled with respect to Employer contributions
previously made, except as may be required to maintain the Plan as a
qualified plan under the Code. No amendment will change the duties or
responsibilities of the Trustee without its express written consent
thereto.
A plan amendment which has the effect of (a) eliminating or reducing
an early retirement benefit or a retirement-type subsidy, or (b)
eliminating an optional benefit form, will, with respect to benefits
attributable to service before the amendment be treated as reducing
Accrued Benefits. In the case of a retirement-type subsidy, the
preceding sentence will apply only with respect to a Participant who
satisfies (either before or after the amendment) the preamendment
conditions for the subsidy. In general, a retirement-type subsidy is
a subsidy that continues after retirement but does not include a
disability retirement benefit, a medical benefit, a social security
supplement, a pre-retirement death benefit, or a plant shutdown
benefit (that does not continue after retirement).
A minimum Accrued Benefit value will apply if this Plan is or becomes
a successor to a profit sharing plan, a defined contribution pension
plan, a target benefit plan, or a defined benefit pension plan which
was fully insured, or any plan under which the accrued benefit of a
Participant was determined as a lump sum or account balance. The
actuarial equivalent value of a Participant's Accrued Benefit will not
be less than the actuarial equivalent value of his Accrued Benefit on
the Effective Date of the Plan.
10.02 Allocation of Assets Upon Termination of Plan
If this Plan is revoked or terminated (in whole or in part) or if
contributions are completely discontinued the Accounts of all affected
Participants will become non-forfeitable. The Employer will then
arrange for allocation of all assets among Participants so affected by
the total or partial termination in accordance with the requirements
of all applicable law and the regulations and requirements of the
Internal Revenue Service. All allocated amounts will be retained in
the Plan to the credit of the individual Participants until
distribution as directed by the Employer. Distribution to
Participants may be in the form of cash or other Plan assets or partly
in each.
10.03 Exclusive Benefit
At no time will any part of the principal or income of the Plan assets
be used or diverted for purposes other than the exclusive benefit of
Participants in the Plan and their Beneficiaries, nor may any portion
of the Plan assets revert to the Employer except as provided in
Sections 7.01(e) and 8.08.
10.04 Failure to Qualify
Notwithstanding any of the foregoing provisions, if this Plan, upon
adoption by the Employer, is submitted to the Internal Revenue Service
which then determines that the Plan as initially adopted by the
Employer is not a qualified plan under the Code, the Employer may
elect to terminate this Plan by giving written notice thereof. Such
termination will have the same effect as if the Plan were never
adopted, all policies and contracts will be canceled, and all
contributions, to the extent recoverable from the Trustee, will be
returned to their
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<PAGE> 66
source. If any amendment to this Plan is submitted to the Internal
Revenue Service within the period allowed under Code Section 401(b)
which then determines that the Plan as amended is not a qualified plan
under the Code, the Employer may cancel or modify any or all
provisions of the amendment retroactive to the effective date of the
amendment in order to maintain the qualified status of the Plan,
whereupon written notice thereof will be furnished to all affected
Employees, Participants and Beneficiaries.
10.05 Mergers, Consolidations or Transfers of Plan Assets
In the event this Plan is merged or consolidated with another plan
which is qualified under Code Sections 401(a) (and 501(a) if
applicable), or in the event of a transfer of the assets or
liabilities of this Plan to another plan which is qualified under Code
Sections 401(a) (and 501(a) if applicable), the benefit which each
Participant would be entitled to receive under the successor plan or
other plan if it were terminated immediately after the merger,
consolidation or transfer will be equal to or greater than the benefit
which the Participant would have received immediately before the
merger, consolidation or transfer if this Plan had then terminated.
Any transfer of assets and/or liabilities to (or from) this Plan from
(or to) another plan qualified under Code Sections 401(a) (and 501(a)
if applicable) will be evidenced by a Written Resolution by the Plan
Sponsor of each affected plan which specifically authorizes such
transfer of assets and/or liabilities.
If any assets which are transferred to this Plan in accordance with
the provisions of this Section are required to be paid in the form of
a joint and survivor annuity, then, notwithstanding the provisions of
Articles 5 and 6, the form of benefit for the portion of a
Participant's Accrued Benefit which is attributable to such
transferred assets will be determined in accordance with the rules
outlined in the remainder of this Section.
(a) Annuity Starting Date
Annuity Starting Date means (i) the first day of the first
period for which an amount is payable as an annuity, or (ii)
in the case of a benefit not payable in the form of an
annuity, the first day on which all events have occurred which
entitled the Participant to such benefit.
(b) Qualified Election
(1) In General
Qualified Election means a written waiver of a
Qualified Joint and Survivor Annuity or a Qualified
Survivor Annuity. The waiver must be consented to by
the Participant's spouse with such consent witnessed
by a representative of the Plan Administrator or a
notary public. The spouse's consent must include the
designation of a specific Beneficiary and the form of
payment which cannot be changed without the consent
of the spouse. Such consent will not be required if
the Participant establishes to the satisfaction of
the Plan Administrator that such written consent may
not be obtained because there is no spouse, the
spouse cannot be located or other circumstances that
may be prescribed by Treasury Regulations. Any
consent which is required under this Section will be
valid only with respect to the spouse who signs the
consent (or in the event of a deemed Qualified
Election, the designated spouse). Additionally, any
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; however, any
waiver of a Qualified Joint and Survivor Annuity or a
Qualified Survivor Annuity which follows such
revocation must be in writing and must be consented
to by the Participant's spouse. The number of
waivers or revocations of such waivers will not be
limited.
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(2) Qualified Joint and Survivor Annuity Notices
Not more than 90 days nor less than 30 days before
the Participant's Annuity Starting Date, the Plan
Administrator will provide the Participant a written
explanation of:
-- the terms and conditions of a Qualified Joint
and Survivor Annuity;
-- the Participant's right to make and the
effect of a Qualified Election to waive the
Qualified Joint and Survivor Annuity form of
benefit;
-- a general description of the eligibility
conditions and other material features of the
optional forms of benefit and sufficient
additional information to explain the
relative values of the optional forms of
benefit available;
-- the rights of the Participant's spouse; and
-- the right to make, and the effect of, a
revocation of a previous Qualified Election
to waive the Qualified Joint and Survivor
Annuity.
(3) Qualified Survivor Annuity Notices
The election period to waive the Qualified Survivor
Annuity begins on the first day of the Plan Year in
which the Participant attains age 35 and ends on the
date of the Participant's death. If a Vested
Terminated Participant separates from service before
the beginning of the election period, the election
period begins on the date of separation from service.
The Plan Administrator will, within the applicable
notice period, provide each Participant a written
explanation of the Qualified Survivor Annuity
containing comparable information to that required
under the provisions of Section 1.32(b)(2). For
purposes of this paragraph, the term "applicable
notice period" means whichever of the following
periods ends last:
-- the period beginning with the first day of
the Plan Year in which the Participant
attains age 32 and ending with the close of
the Plan Year preceding the Plan Year in
which the Participant attains age 35;
-- the period beginning two years before and
ending 12 months after the individual becomes
a Participant;
-- the period beginning two years before and
ending 12 months after the joint and survivor
rules become effective for the Participant;
or
-- the period beginning one year before and
ending 12 months after the Participant
separates from service before attaining age
35.
A Participant who will not have attained age 35 as of
the end of any current Plan Year may make a special
Qualified Election to waive the Qualified Survivor
Annuity for the period beginning on the date of the
election and ending on the first day of the Plan Year
in which the Participant attains age 35. The
Election will not be valid unless the Participant
receives a written explanation of the Qualified
Survivor Annuity in terms comparable to the
explanation required above. Qualified Survivor
Annuity coverage will automatically resume as of the
first day of the Plan Year in which the Participant
attains age 35. Any new waiver on or after that date
will be subject to the full requirements of this
Section 1.32(b).
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(c) Qualified Joint and Survivor Annuity
A Qualified Joint and Survivor Annuity means an annuity
which is purchased from an Insurer and which is payable for
the life of the Participant with a survivor annuity for the
life of his Surviving Spouse in an amount which is 50% of the
amount payable during the joint lives of the Participant and
his spouse. The amount of the Qualified Joint and Survivor
Annuity will be the amount of benefit which can be purchased
from an Insurer with the Participant's Vested Accrued Benefit.
(d) Qualified Life Annuity
A Qualified Life Annuity means an annuity which is
purchased from an Insurer and which is payable for the
lifetime of the Participant with payments terminating upon the
death of the Participant. The amount of the Qualified Life
Annuity will be the amount of benefit which can be purchased
from an Insurer with the Participant's Vested Accrued Benefit.
(e) Qualified Survivor Annuity
A Qualified Survivor Annuity which a Surviving Spouse will be
eligible to receive under the provisions of Section 6.02 means
a monthly benefit payable for the remaining lifetime of the
Surviving Spouse. The amount of the Qualified Survivor
Annuity benefit will be the amount of benefit which can be
purchased from an Insurer with the Participant's Vested
Accrued Benefit.
If the Participant's Vested Accrued Benefit is $3,500
or less, the Plan Administrator will, without the request or
approval of the Surviving Spouse, direct the immediate
distribution of the Participant's Vested Accrued Benefit to
the Surviving Spouse. If the Participant's Vested Accrued
Benefit at the time of any distribution exceeds $3,500, the
Vested Accrued Benefit at any later time will be deemed to
exceed $3,500. The Surviving Spouse may elect to receive the
Qualified Survivor Annuity as a lump sum.
10.06 Effect of Plan Amendment on Vesting Schedule
No amendment to the Vesting Schedule will deprive a Participant of his
nonforfeitable right to his Vested Accrued Benefit as of the date of
the amendment. Further, if the Vesting Schedule of the Plan is
amended, or if the Plan is amended in any way that directly or
indirectly affects the computation of a Participant's non-forfeitable
percentage, each Participant with at least 3 Years of Vesting Service
as of the last day of the election period described below may elect,
within a reasonable period after the adoption of the amendment, to
have his Vested Percentage computed under the Plan without regard to
such amendment. The period during which such election may be made
will commence with the date the amendment is adopted and will end 60
days after the latest of:
(a) the date the amendment is adopted;
(b) the date the amendment becomes effective; or
(c) the date the Participant is issued written notice of the
amendment by the Employer.
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ARTICLE 11
TRUSTEE AND TRUST FUND
11.01 Acceptance of Trust
The Trustee, by signing this Agreement, accepts this Trust and agrees
to perform the duties of the Trustee in accordance with the terms and
conditions set forth herein.
11.02 Trust Fund
(a) Purpose and Nature
The Trustee will establish and maintain a Trust Fund for
purposes of providing a means of accumulating the assets
necessary to provide the benefits which become payable under
the Plan. The Trustee will receive, hold and invest all
contributions made by the Employer, any Participating
Employers, and the Participants, including the investment
earnings thereon. The Trust Fund arising from such
contributions and earnings will consist of all assets held by
the Trustee under the Plan and Trust. All benefits payable
under the Plan will be paid by the Trustee from the Trust
Fund.
Any person having any claim under the Plan will look solely to
the assets of the Trust Fund for satisfaction. In no event
will the Plan Administrator, the Employer, any Employees, any
officer of the Employer or any agents of the Employer or the
Plan Administrator be liable in their individual capacities to
any person whomsoever, under the provisions of this Plan and
Trust, except as provided by law.
The Trust Fund will be used and applied only in accordance
with the provisions of the Plan and Trust, to provide the
benefits thereof, and no part of the corpus or income of the
Trust Fund will be used for, or diverted to, purposes other
than for the exclusive benefit of the Participants or their
Beneficiaries entitled to benefits under the Plan, except to
the extent specifically provided elsewhere herein.
(b) Investments
The Trustee will invest the Trust Fund in accordance with the
proper directions of the Plan Administrator or Investment
Manager.
(c) Investment Policy
The Plan Sponsor (or the Plan Administrator or an Investment
Committee appointed by the Plan Sponsor) will have the right
to periodically provide the Trustee with a written investment
policy which, in consideration of the needs of the Plan, sets
forth the investment objectives, policies, and guidelines
which the Plan Sponsor judges to be appropriate and prudent.
(d) Operation of Trust Fund
The Trust Fund will be maintained in accordance with the
accounting requirements of the Plan. No Participant will have
any right to any specific asset or any specific portion of the
Trust Fund prior to distribution of benefits. Withdrawals
from the Trust Fund will be made to provide benefits to
Participants and Beneficiaries in the amounts specified by the
Plan, and to pay expenses authorized by the Plan
Administrator.
(e) Plan Sponsor Direction of Investment
The Plan Sponsor will have the right to direct the Trustee
with respect to the investment and reinvestment of assets
comprising the Trust Fund. The Trustee and the Plan Sponsor
(or the Plan Administrator or an Investment Committee
appointed by the Plan Sponsor) will
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execute a letter of agreement as a part of this Plan
containing such conditions, limitations and other provisions
they deem appropriate before the Trustee will follow any Plan
Sponsor direction with respect to the investment or
reinvestment of any part of the Trust Fund.
11.03 Receipt of Contributions
The Trustee will be accountable to the Employer for the funds
contributed to it, but will have no duty to see that the contributions
received comply with the provisions of the Plan. The Trustee will not
be obligated to collect any contributions from the Employer or the
Participants.
11.04 Powers of the Trustee
Subject to the provisions and limitations contained elsewhere in this
Plan, the Trustee will have full discretion and authority with regard
to the investment of the Trust Fund; provided, however, that the
Trustee's authority and discretion with respect to the Trust Fund
shall at all times be subject to the proper written directions of the
Plan Administrator or Investment Manager. The Trustee is authorized
and empowered, but not by way of limitation, with the following
powers, rights and duties:
(a) To invest any part or all of the Trust Fund in any common or
preferred stocks, open-end or closed-end mutual funds, United
States retirement plan bonds, corporate bonds, debentures,
convertible debentures, commercial paper, U.S. Treasury
bills, book entry deposits with the United States Federal
Reserve Bank or System, Master Notes or similar arrangements
sponsored by the Trustee or any other financial institution as
permitted by law, improved or unimproved real estate situated
in the United States, mortgages, notes or other property of
any kind, real or personal, as a prudent man would so invest
under like circumstances with due regard for the purposes of
this Plan;
(b) To maintain any part of the assets of the Trust Fund in cash,
or in demand or short-term time deposits bearing a reasonable
rate of interest (including demand or short-term time deposits
of or with the Trustee), or in a short- term investment fund
or in other cash equivalents having ready marketability,
including, but not limited to, U.S. Treasury Bills,
commercial paper, certificates of deposit (including such
certificates of deposit of or with the Trustee), and similar
types of short-term securities, as may be deemed necessary by
the Trustee in its sole discretion;
(c) To manage, sell, contract to sell, grant options to purchase,
convey, exchange, transfer, abandon, improve, repair, insure,
lease for any term even though commencing in the future or
extending beyond the term of the Trust, and otherwise deal
with all property, real or personal, in such manner, for such
considerations and on such terms and conditions as the Trustee
will decide;
(d) To credit and distribute the Trust as directed by the Plan
Administrator or any agent of the Plan Administrator. The
Trustee will not be obliged to inquire as to whether any payee
or distributee is entitled to any payment or whether the
distribution is proper or within the terms of the Plan, or as
to the manner of making any payment or distribution. The
Trustee will be accountable only to the Plan Administrator for
any payment or distribution made by it in good faith on the
order or direction of the Plan Administrator or any agent of
the Plan Administrator;
(e) To borrow money, assume indebtedness, extend mortgages and
encumber by mortgage or pledge;
(f) To compromise, contest, arbitrate, or abandon claims and
demands, in its discretion;
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(g) To have with respect to the Trust all of the rights of an
individual owner, including the power to give proxies, to
participate in any voting trusts, mergers, consolidations or
liquidations, and to exercise or sell stock subscriptions or
conversion rights;
(h) To hold any securities or other property in the name of the
Trustee or its nominee, or in another form as it may deem
best, with or without disclosing the trust relationship;
(i) To perform any and all other acts in its judgment necessary or
appropriate for the proper and advantageous management,
investment and distribution of the Trust;
(j) To retain any funds or property subject to any dispute without
liability for the payment of interest, and to decline to make
payment or delivery of the funds or property until final
adjudication is made by a court of competent jurisdiction;
(k) To file all tax forms or returns required of the Trustee;
(l) To begin, maintain or defend any litigation necessary in
connection with the administration of the Plan, except that
the Trustee will not be obligated to or required to do so
unless indemnified to its satisfaction; and
(m) To keep any or all of the Trust property at any place or
places within the United States or abroad, or with a
depository or custodian at such place or places; provided,
however, that the Trustee may not maintain the indicia of
ownership of any assets of the Plan outside the jurisdiction
of the District Courts of the United States, except as may be
expressly authorized in U.S. Treasury or U.S. Department of
Labor regulations.
11.05 Investment in Common or Collective Trust Funds
Notwithstanding the provisions of Section 11.04, the Plan Sponsor
specifically authorizes the Trustee to invest all or any portion of
the assets comprising the Trust Fund in any common or collective trust
fund which at the time of the investment provides for the pooling of
the assets of plans qualified under Code Section 401(a). The
authorization applies only if such common or collective trust fund:
(a) is exempt from taxation under Code Section 584 or 501(a); (b) if
exempt under Code Section 501(a), expressly limits participation to
pension and profit sharing trusts which are exempt under Code Section
501(a) by reason of qualifying under Code Section 401(a); (c)
prohibits that part of its corpus or income which equitably belongs to
any participating trust from being used for or diverted to any
purposes other than for the exclusive benefit of the Employees or
their Beneficiaries who are entitled to benefits under such
participating trust; (d) prohibits assignment by participating trust
of any part of its equity or interest in the group trust; and (e) the
sponsor of the group trust created or organized the group trust in the
United States and maintains the group trust at all times as a domestic
trust in the United States. The provisions of the common or
collective trust fund agreement, as amended by the Trustee from time
to time, are by this reference incorporated within this Plan and
Trust. The provisions of the common or collective trust fund will
govern any investment of Plan assets in that fund. This provision
constitutes the express permission required by Section 408(b)(8) of
ERISA.
11.06 Investment in Insurance Company Contracts
The Trustee may invest any portion of the Trust Fund in a deposit
administration, guaranteed investment or similar type of investment
contract (hereinafter referred to as Contract); provided, however,
that no such Contract may provide for an optional form of benefit
which would not be provided for under the provisions hereof. The
Trustee will be the complete and absolute owner of Contracts held in
the Trust Fund.
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The Trustee may convert from one form to another any Contract held in
the Trust Fund; designate any mode of settlement; sell or assign any
Contract held in the Trust Fund; surrender for cash any Contract held
in the Trust Fund; agree with the insurance company issuing any
Contract to any release, reduction, modification or amendment thereof;
and, without limitation of any of the foregoing, exercise any and all
of the rights, options and privileges that belong to the absolute
owner of any Contract held in the Trust Fund that are granted by the
terms of any such Contract or by the terms of this Agreement.
The Trustee will hold in the Trust Fund the proceeds of any sale,
assignment or surrender of any Contract held in the Trust Fund and any
and all dividends and other payments of any kind received in respect
to any Contract held in the Trust Fund.
No insurance company which may issue any Contract based upon the
application of the Trustee will be responsible for the validity of
this Plan, be required to look into the terms of this Plan, be
required to question any act of the Plan Administrator or the Trustee
hereunder or be required to verify that any action of the Trustee is
authorized by this Plan. If a conflict should arise between the terms
of the Plan and any such Contract, the terms of the Plan will govern.
11.07 Fees and Expenses from Fund
The Trustee will be entitled to receive reasonable annual compensation
as may be mutually agreed upon from time to time between the Plan
Sponsor and the Trustee. The Trustee will pay all expenses reasonably
incurred by it in its administration and investment of the Trust Fund
from the Trust Fund unless the Plan Sponsor pays the expenses. No
person who is receiving full pay from the Plan Sponsor will receive
compensation for services as Trustee.
11.08 Records and Accounting
The Trustee will keep full and complete records of the administration
of the Trust Fund which the Employer and the Plan Administrator may
examine at any reasonable time. As soon as practical after the end of
each Plan Year and at such other reasonable times as the Employer may
direct, the Trustee will prepare and deliver to the Employer and the
Plan Administrator an accounting of the administration of the Trust,
including a report on the valuation of all assets of the Trust Fund,
such valuation to be based upon the fair market value on the valuation
date.
11.09 Distribution Directions
If no one claims a payment or distribution made from the Trust, the
Trustee will notify the Plan Administrator and will dispose of the
payment in accordance with the subsequent direction of the Plan
Administrator.
11.10 Third Party
No person dealing with the Trustee will be obliged to see to the
proper application of any money paid or property delivered to the
Trustee, or to inquire whether the Trustee has acted pursuant to any
of the terms of the Plan. Each person dealing with the Trustee may
act upon any notice, request or representation in writing by the
Trustee, or by the Trustee's duly authorized agent, and will not be
liable to any person whomsoever in so doing. The certification of the
Trustee that it is acting in accordance with the Plan will be
conclusive in favor of any person relying on the certification.
11.11 Professional Agents
The Trustee may employ and pay from the Trust Fund reasonable
compensation to agents, attorneys, accountants and other persons to
advise the Trustee as in its opinion may be necessary. The Trustee
may delegate to any agent, attorney, accountant or other person
selected by it any non-Trustee power or duty vested in it by the Plan;
the Trustee may act or
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refrain from acting on the advice or opinion of any agent, attorney,
accountant or other person so selected.
11.12 Valuation of Trust
The Trustee will value the Trust Fund as of the last day of each Plan
Year to determine the fair market value of the Trust, and the Trustee
will value the Trust Fund on such other date(s) as may be necessary to
carry out the provisions of the Plan.
11.13 Liability of Trustee
The Trustee shall discharge its duties under the Plan solely in the
interests of Plan Participants and their Beneficiaries and for the
exclusive purpose of providing benefits to Plan Participants and their
Beneficiaries and defraying reasonable expenses of administering the
Trust Fund. The Trustee shall discharge its duties hereunder with the
care, skill, prudence and diligence under the circumstances then
prevailing that a prudent man acting in like capacity and familiar
with such matters would use in the conduct of an enterprise of a like
character and with like aims. The duties of the Trustee shall be
limited to the assets held in the Trust Fund, and the Trustee shall
have no duties with respect to assets held by any other person
including, without limitation, any other trustee for the Plan. The
duties of the Trustee are subject to and limited by the second
paragraph of Section 9.09.
The Plan Sponsor agrees to hold the Trustee harmless from and against
any liability that the Trustee may incur in the administration of the
Trust Fund including, without limitation, liability for legal and
other professional fees, unless arising from the Trustee's own
negligence or misconduct, or except as may be prohibited by ERISA.
The Trustee will be liable only for the safeguarding and
administration of the assets of this Trust Fund in accordance with the
provisions hereof and any amendments hereto and no other duties or
responsibilities will be implied. The Trustee will not be required to
pay any interest on funds paid to or deposited with it or to its
credit under the provisions of this Trust, unless pursuant to a
written agreement between the Employer and the Trustee. The Trustee
will not be responsible for the adequacy of the Trust Fund to meet and
discharge any liabilities under the Plan and will not be required to
make any payment of any nature except from funds actually received as
Trustee. The Trustee may consult with legal counsel (who may be legal
counsel for the Employer) selected by the Trustee and will be fully
protected for any action taken, suffered or omitted in good faith in
accordance with the opinion of said legal counsel. It will not be the
duty of the Trustee to determine the identity or mailing address of
any Participant or any other person entitled to benefits hereunder,
such identity and mailing addresses to be furnished by the Employer,
the Plan Administrator or an agent of the Plan Administrator. The
Trustee will be under no liability in making payments in accordance
with the terms of this Plan and the certification of the Plan
Administrator or an agent of the Plan Administrator who has been
granted such powers by the Plan Administrator.
Except to the extent required by any applicable law, no bond or other
security for the faithful performance of duty hereunder will be
required of the Trustee.
11.14 Removal or Resignation and Successor Trustee
A Trustee may resign at any time upon giving 30 days prior written
notice to the Plan Sponsor or, with the consent of the Plan Sponsor, a
Trustee may resign with less than 30 days prior written notice.
The Plan Sponsor may remove a Trustee by giving at least 30 days prior
written notice to the Trustee.
Upon the removal or resignation of a Trustee, the Plan Sponsor will
appoint and designate a
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successor Trustee which will be one or more individual successor
Trustees or a corporate Trustee organized under the laws of the United
Sates or of any state thereof with authority to accept and execute
trusts. Any successor Trustee must accept and acknowledge in writing
its appointment as a successor Trustee before it can act in such
capacity.
Title to all property and records or true copies of such records
necessary to the current operation of the Trust Fund held by the
Trustee hereunder will vest in any successor Trustee acting pursuant
to the provisions hereof, without the execution or filing of any
further instrument. Any resigning or removed Trustee will execute all
instruments and do all acts necessary to vest such title in any
successor Trustee of record. Each successor Trustee will have,
exercise and enjoy all the powers, both discretionary and ministerial,
herein conferred upon his predecessor. No successor Trustee will be
obligated to examine the accounts, records and acts of any previous
Trustee or Trustees, and each successor Trustee in no way or manner
will be responsible for any action or omission to act on the part of
any previous Trustee.
Any corporation which results from any merger, consolidation or
purchase to which the Trustee may be a party, or which succeeds to the
trust business of the Trustee, or to which substantially all the trust
assets of the Trustee may be transferred, will be the successor to the
Trustee hereunder without any further act or formality with like
effect as if the successor Trustee had originally been named Trustee
herein; and in any such event it will not be necessary for the Trustee
or any successor Trustee to give notice thereof to any person, and any
requirement, statutory or otherwise, that notice will be given is
hereby waived.
11.15 Appointment of Investment Manager
One or more Investment Managers may be appointed by the Plan Sponsor
(or the Plan Administrator) to exercise full investment management
authority with respect to all or a portion of the Trust assets.
Authorized payment of the fees and expenses of the Investment
Manager(s) may be made from the Trust assets. For purposes of this
agreement, any Investment Manager so appointed will, during the period
of his appointment, possess fully and absolutely those powers, rights
and duties of the Trustee (to the extent delegated by the Plan Sponsor
or the Plan Administrator) with respect to the investment or
reinvestment of that portion of the Trust assets over which the
Investment Manager has investment management authority. The
Investment Manager must be one of the following:
(a) Registered as an investment advisor under the Investment
Advisors Act of 1940;
(b) A bank, as defined in the Investment Advisors Act of 1940; or
(c) An insurance company qualified to manage, acquire, or dispose
of such Plan assets under the laws of more than one state.
Any Investment Manager will acknowledge in writing to the Plan Sponsor
or the Plan Administrator and to the Trustee that he or it is a
fiduciary with respect to the Plan. During any period of time when
the Investment Manager is so appointed and serving, and with respect
to those assets in the Plan over which the Investment Manager
exercises investment management authority, the Trustee's
responsibility will be limited to holding such assets as a custodian,
providing accounting services, disbursing benefits as authorized, and
executing such investment instructions only as directed by the
Investment Manager. The Trustee will not be responsible for any acts
or omissions of the Investment Manager. Any certificates or other
instruments duly signed by the Investment Manager (or the authorized
representative of the Investment Manager), purporting to evidence any
instruction, direction or order of the Investment Manager with respect
to the investment of those assets of the Plan over which the
Investment Manager has investment management authority, will be
accepted by the Trustee as
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conclusive proof thereof. The Trustee will also be fully protected in
acting in good faith upon any notice, instruction, direction, order,
certificate, opinion, letter, telegram or other document believed by
the Trustee to be genuine and from the Investment Manager (or the
authorized representative of the Investment Manager). The Trustee
will not be liable for any action taken or omitted by the Investment
Manager or for any mistakes of judgment or other action made, taken or
omitted by the Trustee in good faith upon direction of the Investment
Manager.
11.16 Loans to Participants
The Plan Administrator may authorize the Trustee to lend on a
nondiscriminatory basis to a Participant an amount from the Plan as
specified herein; provided, a reasonable rate of interest will be
charged on the loan, the loan will be secured by 50% of the
Participant's Vested Accrued Benefit in the Plan, and provision for
repayment will be made. All loans will be subject to the approval of
the Plan Administrator which will investigate each application for a
loan. The Plan Administrator will prescribe such rules as may be
necessary to provide guidelines as to under which circumstances and
for what purpose loans will be permitted.
The Plan Administrator will prescribe guidelines as to which Account
or Accounts loans may be made from. Each loan made to a Participant
will be made from the Participant's allowable Account or Accounts.
All interest and principal repayments will be credited to the
Participant's Account from which the loan was made.
In addition to any additional rules and regulations as the Plan
Administrator may adopt all loans will comply with the following terms
and conditions:
(a) Only Active and Inactive Participants will be eligible to
apply for a loan. Each application for a loan will be made in
writing to the Plan Administrator, whose action thereon will
be final.
(b) Each loan will be made against collateral being the assignment
of 50% of the borrower's entire right, title and interest in
and to the Trust Fund, supported by the borrower's promissory
note for the amount of the loan, including interest payable to
the order to the Trustee, and any additional security deemed
necessary to adequately secure the Loan. If a person fails to
make a required payment within 90 days of the due date set
forth in the loan agreement, the loan will be in default.
There will be no foreclosure against a Participant's Accrued
Benefit prior to his becoming entitled to a distribution of
benefits in accordance with the terms of this Plan. All loans
will become due and payable in full upon the termination of a
Participant's employment. If a Participant with an
outstanding loan terminates employment and becomes entitled to
a distribution of benefits from the Plan, then the outstanding
balance of the unpaid loan plus any accrued interest thereon
will be deducted from the amount of otherwise distributable
benefits and the Participant's promissory note will be
distributed to the Participant.
(c) The principal repayment will be amortized over the fixed life
of a loan with installments of principal and interest to be
paid not less often than quarterly. The period of repayment
for each loan will be arrived at by mutual agreement between
the Plan Administrator and the borrower, but in no event will
such period exceed a reasonable period of time. The period of
repayment will in no event exceed 5 years unless the loan is
to be used to acquire, construct, reconstruct or substantially
rehabilitate any dwelling unit which, within a reasonable
period of time, is to be used as a principal residence of the
Participant or a member of the family (spouse, brother,
sister, ancestor, or lineal descendants) of the Participant.
(d) The minimum amount of any loan is equal to $1,000.
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(e) The maximum amount of any loan is such that when the amount of
the loan is added to the outstanding balance of all other
loans made to the Participant from the Plan (and any other
plans maintained by the Employer or any Related Employer) the
total does not exceed the lesser of:
(1) 50% of the Participant's Vested Accrued Benefit; or
(2) $50,000, reduced by the amount, if any, of the
highest balance of all outstanding loans to the
Participant during the one-year period ending on the
day prior to the day on which the loan in question is
made.
(f) Each loan will bear interest at a rate equal to the prime rate
which is published in the Wall Street Journal as being
representative of the base rate on corporate loans at large
U.S. money center commercial banks on the date on which the
loan is made, plus 1 percentage points.
(g) A Participant may make a new loan no more frequently than once
per year.
(h) Each loan will require the Participant (and, if the
Participant is married, the Participant's spouse) to consent
to the loan and the possible reduction in the Participant's
Accrued Benefit. Such consent must be made in writing within
the 90-day period before the making of the loan.
(i) No loan will be permitted to a Participant in a year in which
he is either an Owner-Employee or Shareholder- Employee as
defined in Code Section 4975(d).
The spousal consent must meet requirements which are
comparable to the requirements described in Code Section
417(a)(2). Any security interest held by the Plan by reason
of an outstanding loan is taken into account in determining
the value of a Qualified Survivor Annuity. However, in the
event a Participant defaults on a loan, the security interest
in the loan will be deducted from the Qualified Survivor
Annuity.
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ARTICLE 12
PROVISIONS RELATING TO EMPLOYER STOCK
12.01 Type of Employer Stock
The Trustee will, to the extent practical based on the Participant's
election, invest that portion of the Trust fund so elected by
Participant's, in Class A Common Stock of the Employer or any
Participating Employer (Employer Stock) which includes treasury stock
which has been purchased by the Employer.
12.02 Voting Rights
(a) In General
Voting of the Employer Stock and FirstMiss Gold Stock held in
the Trust Fund will be carried out by the Trustee. Each
Participant will be entitled to direct the Trustee as to the
manner in which the Participant's shares of Employer Stock and
FirstMiss Gold Stock held in the Trust Fund and allocated to
such Participant's Accounts are voted with respect to all
matters requiring shareholder approval. Any shares of stock
in the Trust Fund which are allocated to Participants who fail
to give instructions to the Trustee will be voted by the
Trustee in its sole and absolute discretion. The Plan
Administrator may establish such rules and guidelines as it
deems appropriate to properly effect the provisions of this
Section.
(b) Tender Offers
Each Participant, or, in the event of his death, his
Beneficiary, shall have the right, to the extent of the number
of full shares of Employer Stock and FirstMiss Gold Stock in
his account, to direct the Trustee in writing as to the manner
in which to respond to a tender or exchange offer with respect
to shares of such Employer Stock or FirstMiss Gold Stock. The
Savings Plan Committee shall utilize its best efforts to
timely distribute or cause to be distributed to each
Participant (or Beneficiary) such information as will be
distributed to shareholders of the Employer in connection with
any such tender or exchange offer. If the Trustee shall not
receive timely direction from a Participant (or Beneficiary)
as to the manner in which to respond to such a tender or
exchange offer, the Trustee shall not tender or exchange any
shares of Employer Stock or FirstMiss Gold Stock with respect
to which such Participant (or Beneficiary) has the right of
direction. The sum of fractional shares allocated to
Particpants' Accounts and unallocated shares of Employer Stock
and FirstMiss Gold Stock shall be tendered or exchanged in the
same manner and proportion as shares with respect to which
Participants have the right of direction are tendered or
exchanged, and the Trustee shall have no discretion in such
matter.
All other common stock of First Mississippi Corporation and/or
FirstMiss Gold Stock may be voted at the discretion of the
Trustee.
12.03 Special Provisions Applicable to Employer Securities
In accordance with Rule 16(b)-3 adopted by the Securities and Exchange
Commission, the following provisions shall apply with respect to
purchases, sales and allocations to participant accounts of Employer
Securities, notwithstanding anything else to the contrary in this Plan
or in any rules adopted hereunder:
(a) the Plan shall not acquire or award to Participants in any
fiscal year of the Plan more than 2% of the outstanding shares
of Common Stock of the Company or more than 2% of the
outstanding shares
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of Common Stock of FirstMiss Gold, in each case based on the
number of such shares outstanding as of the beginning of each
such fiscal year; and
(b) the Trustee and other Plan Fiduciaries shall act in accordance
with their fiduciary duties in determining the prices at which
the Trustee shall purchase Employer securities and in
determining the value used in allocating such securities to
Participant Accounts.
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IN WITNESS WHEREOF, this instrument has been executed by the duly authorized
and empowered officers of the Employer, this 13th day of June, 1994.
First Mississippi Corporation
By: /s/ JAMES K. WILLIAMS
James K. Williams, Chief Executive Officer
The Trustee agrees to continue to serve as Trustee under the terms of
this instrument.
Deposit Guaranty National Bank
By: /s/ WILLIAM G. MCDERMOTT
William G. McDermott
