<PAGE> 1
REGISTRATION NO. 33-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
FORD MOTOR COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 38-0549190
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
THE AMERICAN ROAD
DEARBORN, MICHIGAN 48121-1899
(Address of principal executive offices) (Zip Code)
______________________
FORD MICROELECTRONICS, INC. SALARIED RETIREMENT SAVINGS PLAN
(Full title of the Plan)
______________________
J. M. RINTAMAKI, Esq.
FORD MOTOR COMPANY
P. O. Box 1899
THE AMERICAN ROAD
DEARBORN, MICHIGAN 48121-1899
(313) 323-2260
(Name, address and telephone number, including area code, of agent for service)
______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
===================================================================================
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE* PRICE* REGISTRATION FEE
- -----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 25,000 $27.5625 $689,062.50 $237.61
$1.00 par value shares
===================================================================================
</TABLE>
* Based on the market price of Common Stock of the Company on December 5,
1994, in accordance with Rule 457(c) under the Securities Act of 1933.
===============================================================================
<PAGE> 2
FORD MICROELECTRONICS, INC. SALARIED RETIREMENT SAVINGS PLAN
______________________
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(a) The latest annual report of Ford Motor Company ("Ford")
filed pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (the "1934 Act") which contains, either directly or
indirectly by incorporation by reference, certified financial
statements for Ford's latest fiscal year for which such statements
have been filed.
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the 1934 Act since the end of the fiscal year covered by the
annual report referred to in paragraph (a) above.
(c) The description of Ford's Common Stock contained in
registration statement no. 2-50792 filed by Ford under the Securities
Act of 1933 (the "1933 Act").
All documents subsequently filed by Ford pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware provides as
follows:
145. Indemnification of officers, directors, employees and agents;
insurance -
(a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in
2
<PAGE> 3
a manner which he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery
or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections
(a) and (b), or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by a majority vote of the directors
who are not parties to such action, suit or proceeding, or (2) if such
there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative,
or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
corporation as authorized in this Section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section
shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled
under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and
as to action in another capacity while holding such office.
3
<PAGE> 4
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this section.
(h) For purposes of this Section, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority
to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of
this Section with respect to the resulting or surviving corporation as
he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this Section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
The Certificate of Incorporation of Ford includes the following
provisions:
LIMITATION ON LIABILITY OF DIRECTORS;
INDEMNIFICATION AND INSURANCE.
5.1. LIMITATION ON LIABILITY OF DIRECTORS. A director of the
corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability
(i) for any breach of the director's duty of loyalty to the
corporation or its stockholders,
4
<PAGE> 5
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation
Law or
(iv) for any transaction from which the director derived an
improper personal benefit.
If the Delaware General Corporation Law is amended after approval by
the stockholders of this subsection 5.1 of Article NINTH to authorize corporate
action further eliminating or limiting the personal liability of directors,
then the liability of a director of the corporation shall be eliminated or
limited to the fullest extent permitted by the Delaware General Corporation
Law, as so amended.
5.2. EFFECT OF ANY REPEAL OR MODIFICATION OF SUBSECTION 5.1. Any
repeal or modification of subsection 5.1 of this Article NINTH by the
stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal
or modification.
5.3. INDEMNIFICATION AND INSURANCE.
5.3a. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative, investigative or
otherwise (hereinafter a "proceeding"), by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or was a
director, officer or employee of the corporation or is or was serving at the
request of the corporation as a director, officer or employee of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer or employee or in any other capacity while serving as a director,
officer or employee, shall be indemnified and held harmless by the corporation
to the fullest extent authorized by the Delaware General Corporation Law, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the corporation to
provide broader indemnification rights than said law permitted the corporation
to provide prior to such amendment), against all expense, liability and loss
(including penalties, fines, judgments, attorneys' fees, amounts paid or to be
paid in settlement and excise taxes or penalties imposed on fiduciaries with
respect to (i) employee benefit plans, (ii) charitable organizations or (iii)
similar matters) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer or employee and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that the
corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person (other
than pursuant to subsection 5.3b of this Article NINTH) only if such proceeding
(or part thereof) was authorized by the Board of Directors of the corporation.
The right to indemnification conferred in this subsection 5.3a of Article NINTH
shall be a contract right and shall include the right to be paid by the
corporation the expenses incurred in defending any such proceeding in advance
of its final disposition; provided, however, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a director
or officer in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding shall be made
only upon delivery to the corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this subsection 5.3a of Article NINTH or otherwise.
5
<PAGE> 6
5.3b. RIGHT OF CLAIMANT TO BRING SUIT. If a claim which the
corporation is obligated to pay under subsection 5.3a of this Article NINTH is
not paid in full by the corporation within 60 days after a written claim has
been received by the corporation, the claimant may at any time thereafter bring
suit against the corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the corporation)
that the claimant has not met the standards of conduct which make it
permissible under the Delaware General Corporation Law for the corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the corporation. Neither the failure of the corporation
(including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the
corporation (including its Board of Directors, independent legal counsel or its
stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
5.3c. MISCELLANEOUS. The provisions of this Section 5.3 of Article
NINTH shall cover claims, actions, suits and proceedings, civil or criminal,
whether now pending or hereafter commenced, and shall be retroactive to cover
acts or omissions or alleged acts or omissions which heretofore have taken
place. If any part of this Section 5.3 of Article NINTH should be found to be
invalid or ineffective in any proceeding, the validity and effect of the
remaining provisions shall not be affected.
5.3d. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section 5.3 of Article NINTH shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, By-Law,
agreement, vote of stockholders or disinterested directors or otherwise.
5.3e. INSURANCE. The corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
5.3f. INDEMNIFICATION OF AGENTS OF THE CORPORATION. The corporation
may, to the extent authorized from time to time by the Board of Directors,
grant rights to indemnification, and rights to be paid by the corporation the
expenses incurred in defending any proceeding in advance of its final
disposition, to any agent of the corporation to the fullest extent of the
provisions of this Section 5.3 of Article NINTH with respect to the
indemnification and advancement of expenses of directors, officers and
employees of the corporation.
Pursuant to underwriting agreements filed as exhibits to registration
statements relating to underwritten offerings of securities issued or
guaranteed by Ford, the underwriters have agreed to indemnify Ford, each
officer and director of Ford and each person, if any, who controls Ford within
the meaning of the 1933 Act, against certain liabilities, including liabilities
under the 1933 Act.
6
<PAGE> 7
Pursuant to most of Ford's employee benefit plans including the
Supplemental Compensation Plan, the Savings and Stock Investment Plan, the
Long-Term Incentive Plans and the Stock Option Plans, directors, officers and
employees of Ford are indemnified against all loss, cost, liability or expense
resulting from any claim, action, suit or proceeding in which such persons are
involved by reason of any action taken or failure to act under such plans.
Ford is insured for liabilities it may incur pursuant to its
Certificate of Incorporation relating to the indemnification of its directors,
officers and employees. In addition, directors, officers and certain key
employees are insured against certain losses which may arise out of their
employment and which are not recoverable under the indemnification provisions
of Ford's Certificate of Incorporation.
ITEM 8. EXHIBITS.
EXHIBIT 4.1 - Description of Ford Microelectronics, Inc. Salaried
Retirement Savings Plan. Filed with this
Registration Statement.
EXHIBIT 4.2 - Trust/Custodial Account Agreement effective as of
September 1, 1994 between Ford Microelectronics,
Inc. and Comerica Bank, as Trustee. Filed with
this Registration Statement.
EXHIBIT 4.3 - Adoption Agreement effective as of September 1, 1994
between Ford Microelectronics, Inc. and Comerica
Bank, as Trustee. Filed with this Registration
Statement.
EXHIBIT 5.1 - Opinion of Thomas J. DeZure, an Assistant Secretary
and Associate Counsel of Ford Motor Company, with
respect to the legality of the securities being
registered hereunder. Filed with this Registration
Statement.
EXHIBIT 5.2 - Opinion of William J. Rooney, an Associate Counsel
of Ford Motor Company, with respect to compliance
requirements of the Employee Retirement Income
Security Act of 1974. Filed with this Registration
Statement.
EXHIBIT 15 - Letter from Independent Certified Public Accountants
regarding unaudited interim financial information.
Filed with this Registration Statement.
EXHIBIT 23 - Consent of Independent Certified Public Accountants.
Filed with this Registration Statement.
EXHIBIT 24.1 - Powers of Attorney authorizing signature. Filed
with this Registration Statement.
EXHIBIT 24.2 - Certified resolutions of Board of Directors
authorizing signature pursuant to a power of
attorney. Filed with this Registration Statement.
7
<PAGE> 8
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
8
<PAGE> 9
The Plan. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
PLAN HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY
THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF COLORADO SPRINGS,
STATE OF COLORADO, ON THIS 8TH DAY OF DECEMBER, 1994
FORD MICROELECTRONICS, INC. SALARIED RETIREMENT SAVINGS PLAN
By: /s/ Ralph F. Schauer
------------------------------------------------
Ralph F. Schauer, Chairman
Ford Microelectronics, Inc. Salaried
Retirement Savings Plan Administrative Committee
9
<PAGE> 10
The Registrant. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF DEARBORN, STATE OF MICHIGAN, ON THIS 8TH DAY OF
DECEMBER, 1994.
FORD MOTOR COMPANY
By: /s/ Alex Trotman*
----------------------------------
(ALEX TROTMAN)
Chairman of the Board of Directors
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATE INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Director and Chairman of the
Board of Directors, President
and Chief Executive Officer
Alex Trotman* (principal executive officer)
- -----------------------
(ALEX TROTMAN)
Colby H. Chandler* Director
- ---------------------------
(COLBY H. CHANDLER)
Michael D. Dingman* Director December 8, 1994
- ---------------------------
(MICHAEL D. DINGMAN)
Director and Vice
President, Ford Motor Company,
and Director and President
and Chief Operating Officer,
Edsel B. Ford II* Ford Motor Credit Company
- ----------------------------
(EDSEL B. FORD II)
Director and Chairman
William Clay Ford* of the Finance Committee
- ----------------------------
(WILLIAM CLAY FORD)
</TABLE>
10
<PAGE> 11
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Director and
William Clay Ford, Jr.* Vice President
- ----------------------------
(WILLIAM CLAY FORD, JR.)
Director and
Allan D. Gilmour* Vice Chairman
- ----------------------------
(ALLAN D. GILMOUR)
Roberto C. Goizueta* Director
- ----------------------------
(ROBERTO C. GOIZUETA)
Irvine O. Hockaday, Jr.* Director
- ----------------------------
(IRVINE O. HOCKADAY, JR.)
Drew Lewis Director
- ----------------------------
(DREW LEWIS)
Ellen R. Marram* Director December 8, 1994
- ----------------------------
(ELLEN R. MARRAM)
Kenneth H. Olsen* Director
- ----------------------------
(KENNETH H. OLSEN)
Carl E. Reichardt* Director
- ----------------------------
(CARL E. REICHARDT)
Director and Vice Chairman
Louis R. Ross* and Chief Technical Officer
- ----------------------------
(LOUIS R. ROSS)
Director and Executive
Stanley A. Seneker* Vice President
- ----------------------------
(STANLEY A. SENEKER)
</TABLE>
11
<PAGE> 12
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Clifton R. Wharton, Jr.* Director
- ----------------------------
(CLIFTON R. WHARTON, JR.)
Group Vice President
and Chief Financial Officer
John M. Devine* (principal financial officer)
- ----------------------------
(JOHN M. DEVINE) December 8, 1994
Vice President--Controller
Murray L. Reichenstein* (principal accounting officer)
- ---------------------------
(MURRAY L. REICHENSTEIN)
</TABLE>
*By: /s/ K. S. Lamping
-----------------
(K. S. Lamping,
Attorney-in-Fact)
12
<PAGE> 13
<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE NO.
- ----------- ----------- --------
<S> <C> <C>
EXHIBIT 4.1 Description of Ford Microelectronics, Inc. Salaried Retirement
Savings Plan. Filed with this Registration Statement.
EXHIBIT 4.2 Trust/Custodial Account Agreement effective as of September
1, 1994 between Ford Microelectronics, Inc. and Comerica
Bank, as Trustee. Filed with this Registration Statement.
EXHIBIT 4.3 Adoption Agreement effective September 1, 1994 between Ford
Microelectronics, Inc. and Comerica Bank, as Trustee.
Filed with this Registration Statement.
EXHIBIT 5.1 Opinion of Thomas J. DeZure, an Assistant Secretary and
Associate Counsel of Ford Motor Company, with respect to
the legality of the securities being registered hereunder.
Filed with this Registration Statement.
EXHIBIT 5.2 Opinion of William J. Rooney, an Associate Counsel of Ford
Motor Company, with respect to compliance requirements of
the Employee Retirement Income Security Act of 1974. Filed
with this Registration Statement.
EXHIBIT 15 Letter from Independent Certified Public Accountants
regarding unaudited interim financial information. Filed
with this Registration Statement.
EXHIBIT 23 Consent of Independent Certified Public Accountants. Filed
with this Registration Statement.
EXHIBIT 24.1 Powers of Attorney authorizing signature. Filed with this
Registration Statement.
EXHIBIT 24.2 Certified resolutions of Board of Directors authorizing
signature pursuant to a power of attorney. Filed with this
Registration Statement.
</TABLE>
13
<PAGE> 1
EXHIBIT 4.1
FORD MICROELECTRONICS, INC.
SALARIED RETIREMENT SAVINGS PLAN
SUMMARY PLAN DESCRIPTION
DECEMBER 1, 1994
<PAGE> 2
I INTRODUCTION
Your Employer has established a savings retirement plan to help
supplement your retirement income. The Plan is a "cash or deferred
arrangement," (also known as a 401(k) plan) which permits you to
elect either (1) to have all your compensation paid currently to you
in cash or (2) to defer part of that compensation and have the
deferred amount contributed by the Employer on your behalf to the
Plan. Details about how the Plan works are contained in this
summary. While the summary describes the principal provisions of the
Plan, it does not include every limitation or detail. If there is a
discrepancy between this booklet and the official Plan document, the
Plan document shall govern. You may obtain a copy of the Plan
document from the Plan Administrator. The Plan Administrator may
charge a reasonable fee for providing you with the copy.
II PLAN DATA
A. AGENT FOR SERVICE OF LEGAL PROCESS: The Employer or
Trustee
B. EFFECTIVE DATE: September 30, 1994
The Effective Date for the Plan's
Elective Deferral provision shall be
Jan. 1, 1995.
C. EMPLOYER: Ford Microelectronics, Inc.
Address: 9965 Federal Drive
Colorado Springs, CO 80921
Telephone No.: (719) 528-7600
Tax I.D. No.: 38-3295872
Plan No.: 001
D. PLAN ADMINISTRATOR: The Employer has been designated to
serve as Plan Administrator.
E. PLAN YEAR: The 12-month period beginning on January I and
ending on December 31. The first Plan Year is a Short
Plan Year beginning on September 1, 1994 and ending on
December 31, 1994.
F. TRUSTEE(S): Comerica Bank
Address: P.O. Box 75000
Detroit, MI 48275-3432
Telephone No.: (313) 222-3263
G. TYPE OF ADMINISTRATION: Trust Fund
1
<PAGE> 3
III DEFINITIONS
A. BREAK IN SERVICE. A 12-consecutive month period during
which you are not credited with or are not paid for more
than 500 hours. If you go into the military service of
the United States, you are not considered terminated as
long as you return to work within the time required by
law. If you separate from employment and incur a Break
in Service, all contributions to your various accounts
are suspended. [See special rules relating to maternity
and paternity leave below.] If a Break in Service occurs
and you return to full time employment with the Employer,
your rights are explained in the section entitled
"Vesting."
B. COMPENSATION. Your total salary, pay, or earned income
from the Employer, as reflected on tax Form W-2, which is
subject to withholding. Compensation shall include
amounts received by you during the calendar year.
Compensation for Plan purposes is limited to $150,000.00.
C. DISABILITY. A potentially permanent illness or injury,
as certified to by a physician who is approved by the
Employer, which prevents you from engaging in work for
which you are qualified for a period of at least 12
months.
D. EFFECTIVE DATE. The date on which the Plan starts or an
amendment is effective.
E. ELECTIVE DEFERRAL. Employer contributions made to the
Plan at your election, instead of being given to you in
cash as part of your salary. You can elect to defer a
portion of your salary, instead of receiving it in cash,
and your Employer will contribute it to the Plan on your
behalf.
F. ENTRY DATE. The date on which you enter the Plan after
having met the Plan's eligibility requirements. Your
Entry Date will be the first day of the month coinciding
with or following the date you satisfy the eligibility
requirements.
2
<PAGE> 4
G. HIGHLY COMPENSATED EMPLOYEE. Any Employee who during the
current or prior Plan Year (1) was a 5% owner, (2)
received more than $75,000 in compensation as adjusted
for inflation, (3) received more than $50,000 in
compensation as adjusted for inflation and was in the top
20% of Employees when ranked by compensation, or (4) was
an officer receiving more than $45,000 in compensation as
adjusted for inflation. Family members of any 5% owner,
or Highly Compensated Employee in the group of the ten
Employees with the greatest Compensation, will be
combined as if they were one person for purposes of
Compensation and contributions. If you are not currently
or never were Highly Compensated, or a family member of a
Highly Compensated Employee, you are a Non-highly
Compensated Employee.
H. HOUR OF SERVICE. You will receive credit for each hour
you are (1) paid for being on your job, (2) paid even if
you are not at work (vacation, sickness, leave of
absence, or Disability), or (3) paid for back pay if
hours were not already counted. A maximum of 501 hours
will be credited for any year you are not at work but are
paid. Hours of Service will be calculated based on
actual hours you are entitled to payment.
I. MATERNITY/PATERNITY LEAVE. You may be eligible for
additional Hours of Service if you leave employment, even
if temporarily, due to childbirth or adoption. If this
is the case, you will be credited with enough hours (up
to 501) of service to prevent a Break in Service, either
in the year you leave employment or the following year.
For example, if you have 750 Hours of Service when your
child is born, you would not get any more hours credited
for that Plan Year since you do not have a Break in
Service. Therefore, if you do not return to employment
the following year, you will get 501 Hours of Service so
you will not have a Break in Service in that year.
Alternatively, if you do return the following year, but
only work 300 hours, you will receive an additional 201
hours in order to prevent a break. These Hours of
Service for maternity or paternity leave must all be used
in one Plan Year. They are used only to prevent a Break
in Service and not for calculating your Years of Service
for eligibility, vesting or benefits.
J. NORMAL RETIREMENT AGE. The attainment of age 65.
3
<PAGE> 5
K. SPOUSE. The person to whom you are or were legally
married, or your common law Spouse if common law marriage
is recognized by the state in which you live. In order
for your Spouse to receive a benefit under this Plan, he
or she may not predecease you. A former Spouse may be
treated as a "Spouse" under this definition if recognized
as such under a Qualified Domestic Relations Order as
explained at Section XV(F) of this Summary Plan
Description.
L. YEAR OF SERVICE.
CONTRIBUTION
For purposes of determining whether or not you are
entitled to have a contribution allocated to your
account, a Year of Service is a 12-consecutive month
period, which is the same as the Plan Year, during which
you are credited with at least 1,000 Hours of Service.
VESTING
For purposes of determining whether or not you are vested
in your account balance, a Year of Service is a
12-consecutive month period during which you are credited
with 1,000 Hours of Service.
IV ELIGIBILITY REQUIREMENTS AND PARTICIPATION
You are eligible to participate in this Plan upon completing 3 months
of service. You are considered to have completed 3 months of service
for purposes of eligibility on the 3 month anniversary of your first
day of employment.
The Plan will also exclude the following nondiscriminatory
classification of Employees:
Hourly Employees, Leased Employees, and Temporary
Employees
Your participation in the Plan will begin on the Entry Date defined
at Section III.
4
<PAGE> 6
V EMPLOYEE CONTRIBUTIONS
A. ELECTIVE DEFERRALS
Effective January 1, 1995, you, as an eligible Employee,
may authorize the Employer to withhold from 1% up to 15%
of your Compensation, not to exceed $9,240 as adjusted
for inflation, and to deposit such amount in the Plan
fund. If you participate in a similar plan of an
unrelated employer and your Elective Deferrals under this
Plan and the other plan exceed the $9,240 limit for a
given year, you must designate one of the Plans as
receiving an excess amount. If you choose this Plan as
the one receiving the excess, you must notify the Plan
Administrator by March 1 of the following year so that
the excess and any income thereon may be returned to you
by April 15. You may increase, decrease, or terminate
your Elective Deferral percentage upon 30 days notice to
the Employer.
If you terminate your Elective Deferrals, you may not
reinstate payroll withholding for a period of one month.
The Employer may also reduce or terminate your payroll
withholding if required to maintain the Plan's qualified
status.
B. VOLUNTARY CONTRIBUTIONS
You may make personal after-tax contributions to the Plan
in any amount. Voluntary Contributions are not tax
deductible, but the investment earnings are tax deferred
until paid to you under the terms of the Plan.
C. ROLLOVER AND TRANSFER CONTRIBUTIONS
Rollover and Transfer Contributions are permitted. You
may make a Rollover or Transfer Contribution prior to
becoming a Participant. An Employer can refuse to allow
Transfer Contributions to its profit sharing plan if the
transfer will affect the plan's ability to offer lump sum
distributions as the normal form of distribution.
A rollover or transfer of your retirement benefits may
originate from another qualified retirement plan or
special individual retirement arrangement (known as a
"conduit" IRA) to this Plan. If you have already
received a lump sum payment from another qualified
retirement plan, or if you received payment from another
qualified plan and placed it in a separate "conduit" IRA,
you may be eligible to redeposit
5
<PAGE> 7
that payment to this Plan. The last day you may make a
Rollover Contribution to this Plan is the 60th day after
you receive the distribution from the other plan or IRA.
A transfer occurs when the trustee of the old plan
transfers your assets to this Plan. If you believe you
qualify for a transfer or rollover, see the Plan
Administrator for more details.
VI EMPLOYER CONTRIBUTIONS
A. CONTRIBUTION FORMULA
Elective Deferrals:
The Employer will contribute all Compensation which you
elect to defer to the Plan within the limits established
by law.
Matching Contributions:
The Employer will contribute an amount equal to 100% of
the first 3% of your Elective Deferrals and 60% of the
next 7% of your Elective Deferrals. Matching
Contributions are forfeitable and shall vest as described
in Section IX(A).
Employer Matching Contributions will only be made on
Elective Deferrals contributed to the Plan.
Discretionary Contribution:
The Employer may also contribute an additional amount
determined in its sole judgement. Such additional
contribution, if any, shall be allocated to Participants
in proportion to each Participant's Compensation.
Discretionary Contributions are nonforfeitable.
B. ELIGIBILITY FOR ALLOCATION
The Employer's Contribution, if any, will be made to all
Participants who are employed at the end of the Plan Year
provided that the Participant has completed a Year of
Service during the Plan Year. The Employer shall also
make matching and other related contributions as
indicated below to Employees who terminate during the
Plan Year as a result of:
6
<PAGE> 8
--Retirement
--Disability
--Death
Matching Contributions will be allocated only to
Participants who actually defer Compensation under the
Plan.
VII GOVERNMENT REGULATIONS
The federal government sets certain limitations on the level of
contributions which may be made to a Plan such as this. There is
also a "percentage" limitation which means that the percentage of
Compensation which you may contribute (both Elective Deferrals and,
if applicable, Voluntary Contributions) depends on the average
percentage of Compensation that the other Participants are
contributing. Simply stated, all Participants are divided into 2
categories: Highly Compensated and Non-highly Compensated and the
average for each group is calculated. The average contribution that
the Highly Compensated may make is based on the average contribution
that the Non-highly Compensated make. If a Highly Compensated
Participant is contributing more than he or she is allowed, the
excess plus or minus any gain or loss will either be returned or if
permitted, recharacterized as Voluntary Contributions. Keep in mind
that if you are a 5% owner of the business or one of the ten highest
paid Highly Compensated employees, your family member's contribution
percentage and Compensation will be combined with yours for purposes
of determining your contributions under the Plan.
VIII PARTICIPANT ACCOUNTS
The Employer will set up a record keeping account in your name to
show the value of your retirement benefit. The Employer will make
the following additions to your account:
A. your allocated share of the Employer's Contribution
(including your Elective Deferrals),
B. the amount of your personal Employee Voluntary
Contributions, Rollover Contributions and Transfer
Contributions, if any, and
C. your share of investment earnings and appreciation in the
value of investments.
The Employer will make the following subtractions from your account:
D. any withdrawals or distributions made to you, and
7
<PAGE> 9
E. your share of investment losses and depreciation in the
value of investments.
The Employer will value your account on a daily basis. The Employer
will provide you with a statement of account activity at least once
annually.
IX VESTING
A. DETERMINING VESTED BENEFIT
Vesting refers to your earning or acquiring a
nonforfeitable right to the full amount of your
account(s). Any contribution of Elective Deferrals,
Employer Discretionary Contribution, Rollover
Contribution (including Elective Deferrals), Transfer
Contribution, plus or minus any earnings or losses, is
always 100% vested and cannot be forfeited for any
reason. Your account attributable to the Employer's
Matching Contributions and the earnings or losses
thereon, is not fully vested when contributed and will
vest in accordance with the following table:
<TABLE>
<CAPTION>
Years of Service
---------------------------------------------------
1 2 3 4 5
--- --- --- --- ----
<S> <C> <C> <C> <C>
0% 0% 0% 0% 100%
</TABLE>
You are considered to have completed 1 Year of Service
for purposes of vesting upon the completion of 1,000
Hours of Service at any time during your employment year.
You automatically become fully vested, regardless of the
vesting table, upon attainment of Normal Retirement Age,
upon retirement due to Disability, upon death, and upon
termination of the Plan.
B. PAYMENT OF VESTED BENEFIT
If you separate from Service before your retirement,
death or Disability, you may request early payment of
your vested benefit by submitting a written request to
the Plan Administrator. If your vested account balance
at the time of termination exceeds $3,500, you may defer
the payment of your benefit until April 1 of the calendar
year following the calendar year during which you attain
age 70-1/2. Please note that even if you initially elect
to defer your benefit payment, you may change your
election at any time and request immediate payment of
your vested benefit. Also note that the Employer has the
option to pay immediately
8
<PAGE> 10
any vested benefit not in excess of $3,500. The portion
of your account balance to which you are not vested is
called a "forfeiture" and remains in the Plan to pay Plan
administration expenses.
C. LOSS OF BENEFITS
There are only two events which can cause loss of all or
a portion of your account. One is termination of
employment before you are 100% vested according to the
vesting provisions described at IX(A) and the other is a
decrease in the value of your account from investment
losses or administrative expenses and other costs of
maintaining the Plan.
D. REALLOCATION OF FORFEITURE
If you receive the vested portion of your account upon
separation from service, the Employer will forfeit and
reallocate the non-vested portion of your account on the
Valuation Date immediately following the date of payment
of your vested account balance. If you have not received
a distribution of your vested balance, your non-vested
portion will be forfeited at the end of the Plan Year
during which you incur your fifth consecutive 1-year
Break in Service.
E. REEMPLOYMENT
If you terminate service with your Employer, then later
become reemployed, you will become a Participant as of
the next Entry Date [see Section III] following your
return to employment. If you are not a member of a class
of employees eligible to participate in the Plan and
later become a member of the eligible class, you will
participate upon reaching the next Entry Date if you have
satisfied the minimum age and service requirements.
Should you become ineligible to participate because you
are no longer a member of an eligible class, you will
automatically become re-eligible to participate upon your
return to an eligible class. All years of prior service
will be counted when calculating your vested percentage
in your new account balance. The following rules apply in
connection with reemployed Participants.
(a) TERMINATED PARTIALLY VESTED PARTICIPANTS. If
you terminate employment and receive payment
of your partially vested interest and are
reemployed prior to incurring 5 consecutive
1-year Breaks in Service, you have the right
to buy back the non-vested portion of your
account if it was forfeited. If your
non-vested balance was not
9
<PAGE> 11
forfeited it will still be part of your
account and the buy back is not necessary.
If a buy back is necessary to regain the
forfeiture, you must redeposit the amount
paid to you without interest within 5 years
of your date of reemployment. If you do not
repay the amount you received, the non-vested
portion of your Employer account will be
permanently forfeited. Whether you repay or
not, your prior service will count toward
vesting service for future Employer
contributions.
FOR EXAMPLE, assume that you quit your job
with your current Employer. At the time of
termination you had completed 4 Years of
Service and had accrued a total benefit of
$10,000 under the Plan. Although this amount
had been allocated to your account, you were
only 40% vested in that amount when you left.
You decided to take a distribution of your
vested account balance (40% of $10,000, or
$4,000) when you quit. The non-vested
balance of your account ($6,000) was
forfeited. Three years later, you became
reemployed by the same Employer. Since you
were reemployed within 5 years, you have the
right to repay the $4,000 distribution you
received when you quit. You would have to
repay the $4,000 within 5 years of being
rehired. If you do so, the non-vested
portion of your account ($6,000) which was
forfeited when you left will be restored to
your account. After restoration, you will be
vested in 40% of this account, but your
vested percentage will increase based on your
Years of Service after your reemployment.
Your prior service will always count towards
vesting of Employer Contributions which you
receive after reemployment, whether or not
you decide to repay and restore your prior
account.
(b) TERMINATED NON-VESTED PARTICIPANTS. If you
were not vested in any portion of your
Employer Contribution account prior to your
separation from service and are reemployed
before incurring 5 consecutive 1-year Breaks
in Service, you will be credited for vesting
with all pre-break and post-break service.
Your prior account balance will automatically
be restored and will continue to vest in that
account. If you are reemployed after
incurring 5 consecutive 1-year Breaks in
Service, you will lose your prior account
balance, but your pre-break Years of Service
will count towards vesting in your new
account balance.
10
<PAGE> 12
X TOP-HEAVY RULES
A "top-heavy" plan is one in which more than 60% of the contributions
or benefits are attributable to certain "key employees," such as
owners, officers and stockholders. The Plan Administrator is
responsible for determining each year if the Plan is "top-heavy." If
the Plan becomes top-heavy, special rules apply to the allocation of
the Employer's contribution. These special rules require that all
Participants receive an allocation of the Employer's contribution
equal to 3% of compensation, or if less, the greatest percentage
allocated to the account of any key employee. All participants are
entitled to receive a minimum allocation upon completing at least one
Hour of Service in the top-heavy Plan Year provided they are employed
on the last day of the Plan Year. The Employer's minimum
contribution can be satisfied by another Employer sponsored
retirement plan, if so elected by the Employer. The following
vesting schedule shall apply for the Plan Year the Plan becomes
top-heavy, for any type of Employer Contribution, unless the Employer
has already elected a faster schedule:
<TABLE>
<CAPTION>
Years of Service
---------------------------------------------------------------
1 2 3 4 5 6
--- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
0% 20% 40% 60% 80% 100%
</TABLE>
XI RETIREMENT BENEFITS AND DISTRIBUTIONS
A. RETIREMENT BENEFITS
The full value of your account balance is payable at your
Normal Retirement Age, even if you continue to work, or
you may defer payment until April 1 following the year
you reach age 70-1/2. If you work beyond your Normal
Retirement Age, you will continue to fully participate in
the Plan.
B. DISTRIBUTIONS DURING EMPLOYMENT
Benefits attributable to Employer contributions allocated
to your account(s) in excess of two years are available
for withdrawal if you are 100% vested in those benefits.
Benefits attributable to your personal Voluntary
contributions under the Plan plus any rollovers or
transfers are available for withdrawal upon request to
the Plan Administrator.
11
<PAGE> 13
C. HARDSHIP WITHDRAWALS
You may file a written request for a hardship withdrawal
of benefits attributable to Elective Deferrals and
certain Employer Contributions to the extent vested.
Earnings on Elective Deferrals may not be included in any
hardship withdrawal. You must generally have your
Spouse's written consent for a hardship withdrawal unless
you are advised otherwise by the Plan Administrator.
Prior to receiving a hardship distribution, you must take
any other distribution and borrow the maximum nontaxable
loan amount allowed under this and other plans of the
Employer. Hardship withdrawals may be authorized by the
Employer for the following reasons:
(a) to assist you in purchasing a personal
residence which is your primary place of
residence (not including mortgage payments),
(b) to assist you in paying post-secondary
tuition expenses for you or your dependents,
for the next academic period,
(c) to assist you in paying actual expenses
incurred on behalf of you or your dependents
for hospitalization, doctor or surgery
expenses which are not covered by insurance,
or
(d) to prevent your eviction from or foreclosure
on your principal residence.
Any hardship distribution is limited to the amount needed
to meet the financial need. Hardship withdrawals must be
approved by the Employer and will be administered in a
nondiscriminatory manner. Such withdrawals will not
affect your eligibility to continue to participate in the
allocation of Employer Contributions made to the Plan,
although your right to make Voluntary Contributions and
Elective Deferrals will be suspended for 12 months. Any
withdrawals you receive under these rules may not be
recontributed to the Plan and may be subject to taxation,
as well as an additional 10% penalty tax if the
withdrawal is received before you reach age 59-1/2.
D. BENEFICIARY
Every Participant or former Participant with plan
benefits may designate a person or persons who are to
receive benefits under the Plan in the event of his or
her death. The designation must be made on a form
provided by and returned to the Plan Administrator. You
may change your designation at any time.
12
<PAGE> 14
If you are married, your beneficiary will automatically
be your Spouse. If you and your Spouse wish to waive
this automatic designation, you must complete a
beneficiary designation form. The form must be signed by
you and your Spouse in front of a Plan representative or
a Notary Public.
E. DEATH BENEFITS
In the event of your death, the full value of your
account is payable to your beneficiary in a lump sum.
F. FORM OF PAYMENT
When benefits become due, you or your representative
should apply to the Employer requesting payment of your
account. The normal or automatic form of payment is a
lump sum.
G. ROLLOVER OF PAYMENT
If your benefits qualify as eligible rollovers, you have
the option of having them paid directly to you, when they
become due, or having them directly rolled over to
another qualified plan or an IRA. If you do not choose
to have the benefits directly rolled over, the Plan is
required to automatically withhold 20% of your payment
for tax purposes. If you do choose to have the payment
made to you, you still have the option of rolling over
the payment yourself to a qualified plan or an IRA within
60 days (first check with a tax advisor to make sure it
is an eligible rollover). However, 20% of your payment
will still be withheld. The following example
illustrates how this works:
For example, if you have $100,000 in your vested account
balance and choose to have the payment of your benefits
made directly to an IRA or another qualified plan, the
entire $100,000 will be transferred to the trustee of the
other plan or the IRA, and you will treat the entire
amount as a rollover on your tax return so that you will
not pay taxes on the entire amount. If you choose NOT to
have the account transferred directly to an IRA or
qualified plan, 20% or $20,000 will automatically be
withheld from your payment. Thus, you will receive only
$80,000 as a distribution of your benefits. In order to
roll the entire amount over into your IRA, you would have
to come up with $20,000 out of your own pocket to make up
the difference. If this is done, the $20,000 which was
withheld may be returned when you file your taxes at the
end of the year. However, if you are unable to produce
the extra cash, the rollover amount will only be $80,000,
and the other $20,000 which was withheld will be
13
<PAGE> 15
treated as taxable income to you. If you are under age
59-1/2 when you receive your benefit payment, the
withheld amount will also be subject to the 10% early
distribution penalty.
Certain benefit payments are not eligible for rollover
and therefore will also not be subject to the 20%
mandatory withholding. They are as follows:
1. annuities paid over life;
2. installments for a period of at
least 10 years; and
3. minimum required distributions at
age 70-1/2.
There are also several operational exceptions and a "de
minimis" exception for payments of less than $200.
H. TIME OF PAYMENT
If you terminate employment, retire, become disabled, or
die, your payment will be made as soon as
administratively feasible following the date on which a
distribution is requested by you or is otherwise payable.
XII INVESTMENTS
A. TRUST FUND
The monies contributed to the Plan may be invested in any
security or form of property considered prudent for a
retirement plan. Such investments include common and
preferred stocks, exchange traded put and call options,
bonds, money market instruments, mutual funds, savings
accounts, certificates of deposit, Treasury bills, or
insurance contracts. An institutional Trustee may invest
in its own deposits or those of affiliates which bear a
reasonable interest rate, or in a group or collective
trust maintained by such Trustee.
B. INVESTMENT RESPONSIBILITY
The Plan's assets are held by the Trustee who is
identified in Section II of this Summary. The Trustee is
responsible for the safekeeping of Plan assets and for
the investment management of such assets unless the
Employer elects to direct investments, appoints an
outside investment manager or permits Participants to
direct the investment of their individual accounts.
14
<PAGE> 16
C. EMPLOYEE INVESTMENT DIRECTION
Participants may direct the investments of their accounts
among alternative investment funds provided under the
Plan. The investment funds available to you and the
procedures for making an election are shown in a separate
Investment Election Form which can be obtained from the
Plan Administrator. You may change your investment
selection and move monies from one fund to another in
accordance with the rules established by the Plan
Administrator.
D. PARTICIPANT LOANS
Participant loans are permitted under the Plan. In order
to get a loan from the Plan, you must make application to
the Plan Administrator. Loans must be approved by the
Plan Administrator and are subject to a strict set of
rules established by law. The rules are covered in a
separate Loan Procedures Document, Loan Application Form
and Promissory Note Form. These Forms are available from
the Plan Administrator.
XIII ADMINISTRATION
The Plan will be administered by the following parties:
A. PLAN ADMINISTRATOR
The Employer is the party who has established the Plan
and who has overall control and authority over
administration of the Plan. The Employer's duties as
Plan Administrator include:
(a) appointing the Plan's professional advisors
needed to administer the Plan including, but
not limited to, an accountant, attorney,
actuary, or administrator,
(b) directing the Trustee with respect to
payments from the Fund,
(c) communicating with Employees regarding their
participation and benefits under the Plan,
including the administration of all claims
procedures and domestic relations orders,
(d) filing any returns and reports with the
Internal Revenue Service, Department of
Labor, or any other governmental agency,
15
<PAGE> 17
(e) reviewing and approving any financial
reports, investment reviews, or other reports
prepared by any party appointed by the
Employer,
(f) establishing a funding policy and investment
objectives consistent with the purposes of
the Plan and the Employee Retirement Income
Security Act of 1974, and
(g) construing and resolving any question of Plan
interpretation. The Plan Administrator's
interpretation and application thereof is
final.
B. TRUSTEE
The Trustee shall be responsible for the administration
of investments held in the Fund. These duties shall
include:
(a) receiving contributions under the terms of
the Plan,
(b) investing Plan assets unless investment
responsibility is delegated to another party
by the Employer,
(c) making distributions from the Fund in
accordance with written instructions received
from the Plan Administrator,
(d) keeping accounts and records of the financial
transactions of the Fund, and
(e) rendering an annual report of the Fund
showing the financial transactions for the
Plan Year.
XIV AMENDMENT AND TERMINATION
The Employer may amend the Plan at any time, provided that no
amendment will divert any part of the Plan's assets to any purpose
other than for the exclusive benefit of you and the other
Participants in the Plan or eliminate an optional form of
distribution. The Employer may also terminate the Plan. In the
event of a full or partial termination, all amounts credited to your
account will be fully vested and will be paid to you. Depending on
the facts and circumstances, a partial termination may be found to
occur where a significant number of Employees are terminated by the
Employer. In case of a partial termination, only those who separated
from service will become 100% vested.
16
<PAGE> 18
XV LEGAL PROVISIONS
A. RIGHTS OF PARTICIPANTS
As a Plan Participant, you have certain rights and
protections under the Employee Retirement Income Security
Act of 1974 (ERISA). The law says that you are entitled
to:
(a) Examine, without charge, all documents
relating to the operation of the Plan and any
documents filed with the U.S. Department of
Labor. These documents are available for
review in the Employer's offices during
regular business hours.
(b) Obtain copies of all Plan documents and other
Plan information upon written request to the
Employer. The Employer may make a reasonable
charge for producing the copies.
(c) Receive from the Employer at least once each
year a summary of the Plan's annual financial
report.
(d) Obtain, at least once a year, a statement of
the total benefits accrued for you, and your
nonforfeitable (vested) benefits, if any.
The Plan provides that you will receive this
statement automatically. If you are not
vested, you may request a statement showing
the date when your account will begin to
become nonforfeitable.
(e) File suit in a federal court, if any
materials requested are not received within
30 days of your request, unless the materials
were not sent because of matters beyond the
control of the Employer. If you are
improperly denied access to information you
are entitled to receive, the Employer may be
required to pay up to $100 for each day's
delay until the information is provided to
you.
B. FIDUCIARY RESPONSIBILITY
ERISA also imposes obligations upon the persons who are
responsible for the operation of the Plan. These persons
are referred to as "fiduciaries." Fiduciaries must act
solely in your interest as a Plan Participant and they
must exercise prudence in the performance of their
duties. Fiduciaries who violate ERISA may be removed and
required to reimburse any losses they have caused you or
your Plan.
17
<PAGE> 19
C. EMPLOYMENT RIGHTS
Participation in the Plan is not a guarantee of
employment. However, the Employer may not fire you or
discriminate against you to prevent you from becoming
eligible for the Plan or from obtaining a benefit or
exercising your rights under ERISA.
D. BENEFIT INSURANCE
Your benefits under this Plan are not insured by the
Pension Benefit Guaranty Corporation since the law does
not require plan termination insurance for this type of
Plan.
E. CLAIMS PROCEDURE
If you feel you are entitled to a benefit under the Plan,
mail or deliver your written claim to the Plan
Administrator. The Plan Administrator will notify you,
your beneficiary, or authorized representative of the
action taken within 60 days of receipt of the claim. If
you believe that you are being improperly denied a
benefit in full or in part, the Employer must give you a
written explanation of the reason for the denial. If the
Employer denies your claim, you may, within 60 days after
receiving the denial, submit a written request asking the
Employer to review your claim for benefit. Any such
request should be accompanied by documents or records in
support of your appeal. You, your beneficiary, or your
authorized representative may review pertinent documents
and submit issues and comments in writing. If you get no
satisfaction from the Employer, you have the right to
request assistance from the U.S. Department of Labor or
you can file suit in a state or federal court. Service
of legal process may be made upon the Plan Trustee or the
Plan Administrator. If you are successful in your
lawsuit, the court may require the Employer to pay your
legal costs, including your attorney's fees. If you
lose, and the court finds that your claim is frivolous,
you may be required to pay the Employer's legal fees.
F. ASSIGNMENT
Your rights and benefits under this Plan cannot be
assigned, sold, transferred or pledged by you or reached
by your creditors or anyone else except under a qualified
domestic relations order or as provided by state law. A
qualified domestic relations order (QDRO) is a court
order issued under state domestic relations law relating
to divorce, legal separation, custody, or support
proceedings. The QDRO recognizes the right of someone
other
18
<PAGE> 20
than you to receive your Plan benefits. You will be
notified if a QDRO on your Plan benefits is received.
G. QUESTIONS
If you have any questions about this statement of your
rights under ERISA, please contact the Employer or the
nearest Area Office of the U.S. Labor-Management Service
Administration, Department of Labor.
H. CONFLICTS WITH PLAN
This booklet is not the Plan document, but only a Summary
Plan Description of its principal provisions and not
every limitation or detail of the Plan is included.
Every attempt has been made to provide concise and
accurate information. However, if there is a discrepancy
between this booklet and the official Plan document, the
Plan document shall prevail.
19
<PAGE> 21
FORD MICROELECTRONICS, INC. SALARIED RETIREMENT SAVINGS PLAN
ENROLLMENT FORM
NOTICE TO PLAN PARTICIPANTS: This form is designed to enroll you as a
participant in the Ford Microelectronics, Inc.
Salaried Retirement Savings Plan. You must
complete sections 1, 2, 3 and 4. Section 4 must
also be signed by you. Section 5 will be
completed by the Plan Administrator. IF ANY
SECTION IS NOT COMPLETED PROPERLY, THIS FORM
CANNOT BE PROCESSED AND WILL BE RETURNED.
________________________________________________________________________________
________________________________________________________________________________
SECTION 1
NAME: __________________________ SOCIAL SECURITY #: _____________________
EMPLOYEE NUMBER: _______________ DATE OF HIRE: __________________________
DEPT/DIV: ______________________ DATE OF BIRTH: _________________________
________________________________________________________________________________
________________________________________________________________________________
SECTION 2
Please indicate the amount you want to contribute to the Ford
Microelectronics, Inc. Salaried Retirement Savings Plan per pay:
Employee Pre-tax Employee Post-tax
__1% __2% __3% __4% __1% __2% __3% __4%
__5% __6% __7% __8% __5% __6% __7% __8%
__9% __10% __11% __12% __9% __10%
__13% __14% __15%
________________________________________________________________________________
________________________________________________________________________________
SECTION 3
Please indicate in multiples of 5% how you want your contributions
invested in the funds listed below for your investment selections.
The total of your investment percentage must equal 100%.
___ % Short Term Fund
___ % Bond Index Fund
___ % 500 Index Fund
___ % Medium Cap Index Fund
___ % Spectrum Aggressive
___ % Ford Stock Fund
100 % TOTAL
===
________________________________________________________________________________
________________________________________________________________________________
SECTION 4 AUTHORIZATION
/ / I ELECT TO ENROLL in the Ford Microelectronics, Inc. Salaried Retirement
Savings Plan and agree to accept all the terms and conditions of the Plan.
I hereby authorize the payroll deduction percentage indicated on this form.
/ / I ELECT NOT TO ENROLL in the Ford Microelectronics, Inc. Salaried
Retirement Savings Plan at this time. I understand that I may enroll in
the Plan in the next enrollment period.
EMPLOYEE'S SIGNATURE: __________________________________ DATE: __________
________________________________________________________________________________
________________________________________________________________________________
Section 5 (For Plan Administrator Use Only)
EFFECTIVE
APPROVED BY: ___________________ DATE: _________ DATE OF PARTICIPATION: _____
NOTE: FORWARD ORIGINAL TO COMERICA BANK, MAKE COPIES FOR PARTICIPANT AND PLAN
ADMINISTRATOR.
________________________________________________________________________________
________________________________________________________________________________
<PAGE> 1
Exhibit 4.2
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
PROTOTYPE CASH OR DEFERRED PROFIT-SHARING PLAN AND
TRUST/CUSTODIAL ACCOUNT
SPONSORED BY
COMERICA BANK
BASIC PLAN DOCUMENT #05
JANUARY 1993
[LOGO]
<PAGE> 2
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
PROTOTYPE CASH OR DEFERRED PROFIT-SHARING PLAN
AND TRUST/CUSTODIAL ACCOUNT
SPONSORED BY
COMERICA BANK
The Sponsor hereby establishes the following Prototype Retirement Plan and
Trust/Custodial Account for use by those of its customers who qualify and wish
to adopt a qualified retirement program. Any Plan and Trust/Custodial Account
established hereunder shall be administered for the exclusive benefit of
Participants and their beneficiaries under the following terms and conditions:
ARTICLE I
DEFINITIONS
1.1 ACTUAL DEFERRAL PERCENTAGE. The ratio (expressed as a percentage and
calculated separately for each Participant) of:
(a) the amount of Employer contributions [as defined at (c) and (d)]
actually paid over to the Fund on behalf of such Participant for the
Plan Year to
(b) the Participant's Compensation for such Plan Year. Compensation will
only include amounts for the period during which the Employee was
eligible to participate.
Employer contributions on behalf of any Participant shall include:
(c) any Elective Deferrals made pursuant to the Participant's deferral
election, including Excess Elective Deferrals, but excluding Elective
Deferrals that are either taken into account in the Contribution
Percentage test (provided the ADP test is satisfied both with and without
exclusion of these Elective Deferrals) or are returned as excess Annual
Additions; and
(d) at the election of the Employer, Qualified Non-Elective Contributions and
Qualified Matching Contributions.
For purposes of computing Actual Deferral Percentages, an Employee who would be
a Participant but for the failure to make Elective Deferrals shall be treated
as a Participant on whose behalf no Elective Deferrals are made.
1.2 ADOPTION AGREEMENT. The document attached to this Plan by which an Employer
elects to establish a qualified retirement plan and trust/custodial account
under the terms of this Prototype Plan and Trust/Custodial Account.
1.3 AGGREGATE LIMIT. The sum of:
(a) 125 percent of the greater of the ADP of the non-Highly Compensated
Employees for the Plan Year or the ACP of non-Highly Compensated
Employees under the Plan subject to Code Section 401(m) for the Plan
Year beginning with or within the Plan Year of the cash or deferred
arrangement as described in Code Section 401(k) or Code Section
402(h)(1)(B), and
(b) the lesser of 200% or two percent plus the lesser of such
ADP or ACP.
Alternatively, the aggregate limit can be determined by substituting "the
lesser of 200% or 2 percent plus" for "125% of" in (a) above, and substituting
"125% of" for "the lesser of 200% or 2 percent plus" in (b) above.
1.4 ANNUAL ADDITIONS. The sum of the following amounts credited to a
Participant's account for the Limitation Year:
(a) Employer Contributions,
(b) Employee Contributions (under Article IV),
(c) forfeitures,
(d) amounts allocated after March 31, 1984 to an individual medical account,
as defined in Code Section 415(l)(2), which is part of a pension or annuity
plan maintained by the Employer (these amounts are treated as Annual Additions
to a Defined Contribution Plan though they arise under a Defined Benefit Plan),
and
(e) amounts derived from contributions paid or accrued after 1985, in taxable
years ending after 1985, which are either attributable to post-retirement
medical benefits allocated to the account of a Key Employee, or to a Welfare
Benefit Fund maintained by the Employer, are also treated as Annual Additions
to a Defined Contribution Plan. For purposes of this paragraph, an Employee is
a Key Employee if he or she meets the requirements of paragraph 1.43 at any
time during the Plan Year or any preceding Plan Year. Welfare Benefit Fund is
defined at paragraph 1.89.
Excess amounts applied in a Limitation Year to reduce Employer contributions
will be considered Annual Additions for such Limitation Year,
pursuant to the provisions of Article X.
1.5 ANNUITY STARTING DATE. The first day of the first period for which an
amount is paid as an annuity or in any other form.
1.6 APPLICABLE CALENDAR YEAR. The First Distribution Calendar Year, and in
the event of the recalculation of life expectancy, such succeeding calendar
year. If payments commence in accordance with paragraph 7.4(e) before the
Required Beginning Date, the Applicable Calendar Year is the year such payments
commence. If distribution is in the form of an immediate annuity purchased
after the Participant's death with the Participant's remaining interest, the
Applicable Calendar Year is the year of purchase.
1.7 APPLICABLE LIFE EXPECTANCY. Used in determining the required minimum
distribution. The life expectancy (or joint and last survivor expectancy)
calculated using the attained age of the Participant (or Designated Beneficiary)
as of the Participant's (or Designated Beneficiary's) birthday in the
Applicable Calendar Year reduced by one for each calendar year which has
elapsed since the date life expectancy was first calculated. If life
expectancy is being recalculated, the Applicable Life Expectancy shall be the
life expectancy as so recalculated. The life expectancy of a non-Spouse
Beneficiary may not be recalculated.
1.8 AVERAGE CONTRIBUTION PERCENTAGE (ACP). The average of the Contribution
Percentages for each Highly Compensated Employee and for each non-Highly
Compensated Employee.
Page 1
<PAGE> 3
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
1.9 AVERAGE DEFERRAL PERCENTAGE (ADP). The average of the Actual Deferral
Percentages for each Highly Compensated Employee and for each non-Highly
Compensated Employee.
1.10 BREAK IN SERVICE. A 12-consecutive month period during which an
Employee fails to complete more than 500 Hours of Service.
1.11 CODE. The Internal Revenue Code of 1986, including any amendments.
1.12 COMPENSATION. The Employer may select one of the following three
safe-harbor definitions of compensation in the Adoption Agreement. Compensation
shall only include amounts earned while a Participant if Plan Year is chosen as
the applicable computation period.
(a) CODE SECTION 3401(A) WAGES. Compensation is defined as wages within the
meaning of Code Section 3401(a) for the purposes of Federal income tax
withholding at the source but determined without regard to any rules that
limit the remuneration included in wages based on the nature or location
of the employment or the services performed [such as the exception for
agricultural labor in Code Section 3401(a)(2)].
(b) CODE SECTION 6041 AND 6051 WAGES. Compensation is defined as wages as
defined in Code Section 3401(a) and all other payments of compensation to
an Employee by the Employer (in the course of the Employer's trade or
business) for which the Employer is required to furnish the employee a
written statement under Code Section 6041(d) and 6051(a)(3). Compensation
must be determined without regard to any rules under Code Section 3401(a)
that limit the remuneration included in wages based on the nature or
location of the employment or the services performed [such as the
exception for agricultural labor in Code Section 3401(a)(2)].
(c) CODE SECTION 415 COMPENSATION. For purposes of applying the limitations
of Article X and Top-Heavy Minimums, the definition of Compensation shall
be Code Section 415 Compensation as follows: a Participant's Earned
Income, wages, salaries, and fees for professional services and other
amounts received (without regard to whether or not an amount is paid in
cash) for personal services actually rendered in the course of employment
with the Employer maintaining the Plan to the extent that the amounts are
includible in gross income [including, but not limited to, commissions
paid salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses, fringe benefits
and reimbursements or other expense allowances under a nonaccountable plan
(as described in Regulation 1.62-2(c)], and excluding the following:
1. Employer contributions to a plan of deferred compensation which are not
includible in the Employee's gross income for the taxable year in which
contributed, or Employer contributions under a Simplified Employee Pension Plan
or any distributions from a plan of deferred compensation,
2. Amounts realized from the exercise of a non-qualified 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,
3. Amounts realized from the sale, exchange or other disposition of stock
acquired under a qualified stock option; and
4. other amounts which received special tax benefits, or contributions made by
the Employer (whether or not under a salary reduction agreement) towards the
purchase of an annuity contract described in Code Section 403(b) (whether or
not the contributions are actually excludible from the gross income of the
Employee).
For purposes of applying the limitations of Article X, Compensation for a
Limitation Year is the Compensation actually paid or made available during such
Limitation Year. Notwithstanding the preceding sentence, Compensation for a
Participant in a defined contribution plan who is permanently and totally
disabled [as defined in Code Section 22(e)(3)] is the Compensation such
Participant would have received for the Limitation Year if the Participant had
been paid at the rate of Compensation paid immediately before becoming
permanently and totally disabled. Such imputed Compensation for the disabled
Participant may be taken into account only if the participant is not a Highly
Compensated Employee [as defined in Code Section 414(q)] and contributions made
on behalf of such Participant are nonforfeitable when made.
If the Employer fails to pick the applicable period in the Adoption Agreement,
the Plan Year shall be used. Unless otherwise specified by the Employer in the
Adoption Agreement, Compensation shall be determined as provided in 1.12(c).
Beginning with 1989 Plan Years, the annual Compensation of each Participant
which may be taken into account for determining all benefits provided under the
Plan (including benefits under Article XIV) for any year shall not exceed
$200,000, as adjusted under Code Section 415(d). In determining the
Compensation of a Participant for purposes of this limitation, the rules of
Code Section 414(q)(6) shall apply, except in applying such rules, the term
"family" shall include only the spouse of the Participant and any lineal
descendants of the Participant who have not attained age 19 before the end of
the Plan year. If, as a result of the application of such rules the adjusted
$200,000 limitation is exceeded, then (except for purposes of determining the
portion of Compensation up to the integration level if this Plan provides for
permitted disparity), the limitation shall be prorated among the affected
individuals in proportion to each such individual's Compensation as determined
under this section prior to the application of this limitation.
If a Plan has a Plan Year that contains fewer than 12 Calendar Months, then the
annual compensation limit for that period is an amount equal to the $200,000 as
adjusted for the calendar year in which the compensation period begins,
multiplied by a fraction the numerator of which is the number of full months in
the Short Plan Year and the denominator of which is 12. If compensation for
any prior plan year is taken into account in determining an employee's
contributions or benefits for the current year, the compensation for such prior
year is subject to the applicable annual compensation limit in effect for that
prior year. For this purpose, for years beginning before January 1, 1990, the
applicable annual compensation limit is $200,000.
Compensation shall not include deferred compensation other than contributions
through a salary reduction agreement to a cash or deferred plan under Code
Section 401(k), a Simplified
Page 2
<PAGE> 4
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
Employee Pension Plan under Code Section 402(h)(1)(B), a cafeteria plan under
Code Section 125 or a tax-deferred annuity under Code Section 403(b). Unless
elected otherwise by the Employer in the Adoption Agreement, these deferred
amounts will be considered as Compensation for Plan purposes. These deferred
amounts are not counted as Compensation for purposes of Articles X and XIV.
When applicable to a Self-Employed Individual, Compensation shall mean Earned
Income.
1.13 CONTRIBUTION PERCENTAGE. The ratio (expressed as a percentage and
calculated separately for each Participant) of:
(a) the Participant's Contribution Percentage Amounts [as defined at (c)-(Of)]
for the Plan Year, to
(b) the Participant's Compensation for the Plan Year. Compensation will
only include amounts for the period during which the Employee was
eligible to participate.
Contribution Percentage Amounts on behalf of any Participant shall include:
(c) the amount of Employee Voluntary Contributions, Matching Contributions,
and Qualified Matching Contributions (to the extent not taken into
account for purposes of the ADP test) made under the Plan on behalf of
the Participant for the Plan Year,
(d) forfeitures of Excess Aggregate Contributions or Matching Contributions
allocated to the Participant's account which shall be taken into account
in the year in which such forfeiture is allocated,
(e) at the election of the Employer, Qualified Non-Elective Contributions, and
(f) the Employer also may elect to use Elective Deferrals in the Contribution
Percentage Amounts so long as the ADP test is met before the Elective
Deferrals are used in the ACP test and continues to be met following the
exclusion of those Elective Deferrals that are used to meet the ACP test.
Contribution Percentage Amounts shall not include Matching Contributions,
whether or not Qualified, that are forfeited either to correct Excess Aggregate
Contributions, or because the contributions to which they relate are Excess
Deferrals, Excess Contributions, or Excess Aggregate Contributions.
1.14 CUSTODIAN. The Sponsor of this Prototype, or, if applicable, an affiliate
or successor, shall serve as Custodian if a Custodian is appointed in the
Adoption Agreement.
1.15 DEFINED BENEFIT PLAN. A Plan under which a Participant's benefit is
determined by a formula contained in the Plan and no individual accounts are
maintained for Participants.
1.16 DEFINED BENEFIT (PLAN) FRACTION. A fraction, the numerator of which is the
sum of the Participant's Projected Annual Benefits under all the Defined Benefit
Plans (whether or not terminated) maintained by the Employer, and the
denominator of which is the lesser of 125 percent of the dollar limitation
determined for the Limitation Year under Code Sections 415(b) and (d) or 140
percent of the Highest Average Compensation, including any adjustments under
Code Section 415(b).
Notwithstanding the above, if the Participant was a Participant as of the first
day of the first Limitation Year beginning after 1986, in one or more Defined
Benefit Plans maintained by the Employer which were in existence on May 6,
1986, the denominator of this fraction will not be less than 125 percent of the
sum of the annual benefits under such plans which the Participant had accrued
as of the close of the last Limitation Year beginning before 1987, disregarding
any changes in the terms and conditions of the plan after May 5, 1986. The
preceding sentence applies only if the Defined Benefit Plans individually and
in the aggregate satisfied the requirements of Section 415 for all Limitation
Years beginning before 1987.
1.17 DEFINED CONTRIBUTION DOLLAR LIMITATION. Thirty thousand dollars ($30,000)
or if greater, one-fourth of the defined benefit dollar limitation set forth in
Code Section 415(b)(1) as in effect for the Limitation Year.
1.18 DEFINED CONTRIBUTION PLAN. A Plan under which individual accounts are
maintained for each Participant to which all contributions, forfeitures,
investment income and gains or losses, and expenses are credited or deducted.
A Participant's benefit under such Plan is based solely on the fair market
value of his or her account balance.
1.19 DEFINED CONTRIBUTION (PLAN) FRACTION. A Fraction, the numerator of which
is the sum of the Annual Additions to the Participant's account under all the
Defined Contribution Plans (whether or not terminated) maintained by the
Employer for the current and all prior Limitation Years (including the Annual
Additions attributable to the Participant's nondeductible Employee
contributions to all Defined Benefit Plans, whether or not terminated,
maintained by the Employer, and the Annual Additions attributable to all
Welfare Benefit Funds, as defined in paragraph 1.89 and individual medical
accounts, as defined in Code Section 415(1)(2), maintained by the Employer),
and the denominator of which is the sum of the maximum aggregate amounts for
the current and all prior Limitation Years of service with the
Employer (regardless of whether a Defined Contribution Plan was maintained by
the Employer). The maximum aggregate amount in the Limitation Year is the lesser
of 125 percent of the dollar limitation determined under Code Sections 415(b)
and (d) in effect under Code Section 415(c)(1)(A) or 35 percent of the
Participant's Compensation for such year.
If the Employee was a Participant as of the end of the first day of the first
Limitation Year beginning after 1986, in one or more Defined Contribution Plans
maintained by the Employer which were in existence on May 6,1986, the numerator
of this fraction will be adjusted if the sum of this fraction and the Defined
Benefit Fraction would otherwise exceed 1.0 under the terms of this Plan.
Under the adjustment, an amount equal to the product of (1) the excess of the
sum of the fractions over 1.0 times (2) the denominator of this fraction will
be permanently subtracted from the numerator of this fraction. The adjustment
is calculated using the fractions as they would be computed as of the end of
the last Limitation Year beginning before 1987, and disregarding any changes in
the terms and conditions of the Plan made after May 6,1986, but using the
Section 415 limitation applicable to the first Limitation Year beginning on or
after January 1, 1987. The Annual Addition for any Limitation Year beginning
before 1987, shall not be re-computed to treat all Employee Contributions as
Annual Additions.
1.20 DESIGNATED BENEFICIARY. The individual who is designated as the beneficiary
under the Plan in accordance with Code Section 401(a)(9) and the regulations
thereunder.
Page 3
<PAGE> 5
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
1.21 DISABILITY. An illness or injury of a potentially permanent nature,
expected to last for a continuous period of not less than 12 months, certified
by a physician selected by or satisfactory to the Employer, which prevents the
Employee from engaging in any occupation for wage or profit for which the
Employee is reasonably fitted by training, education or experience.
1.22 DISTRIBUTION CALENDAR YEAR. A calendar year for which a minimum
distribution is required.
1.23 EARLY RETIREMENT AGE. The age set by the Employer in the Adoption
Agreement (but not less than 55), which is the earliest age at which a
Participant may retire and receive his or her benefits under the Plan.
1.24 EARNED INCOME. Net earnings from self-employment in the trade or
business with respect to which the Plan is established, determined without
regard to items not included in gross income and the deductions allocable to
such items, provided that personal services of the individual are a material
income-producing factor. Earned income shall be reduced by contributions made
by an Employer to a qualified plan to the extent deductible under Code Section
404. For tax years beginning after 1989, net earnings shall be determined
taking into account the deduction for one-half of self-employment taxes allowed
to the Employer under Code Section 164(f) to the extent deductible.
1.25 EFFECTIVE DATE. The date on which the Employer's retirement plan or
amendment to such plan becomes effective.
1.26 ELECTION PERIOD. The period which 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 Participant separates from service prior to the
first day of the Plan Year in which age 35 is attained, the Election
Period shall begin on the date of separation, with respect to the account
balance as of the date of separation.
1.27 ELECTIVE DEFERRAL. Employer contributions made to the Plan at the election
of the Participant, in lieu of cash Compensation. Elective Deferrals shall
also include contributions made pursuant to a Salary Savings Agreement or other
deferral mechanism, such as a cash option contribution. With respect to any
taxable year, a Participant's Elective Deferral is the sum of all Employer
contributions made on behalf of such Participant pursuant to an election to
defer under any qualified cash or deferred arrangement as described in Code
Section 401(k), any simplified employee pension cash or deferred arrangement as
described in Code Section 402(h)(1)(B), any eligible deferred compensation plan
under Code Section 457, any plan as described under Code Section 501(c)(18),
and any Employer contributions made on the behalf of a Participant for the
purchase of an annuity contract under Code Section 403(b) pursuant to a Salary
Savings Agreement. Elective Deferrals shall not include any deferrals properly
distributed as Excess Annual Additions.
1.28 ELIGIBLE PARTICIPANT. Any Employee who is eligible to make a Voluntary
Contribution, or an Elective Deferral (if the Employer takes such contributions
into account in the calculation of the Contribution Percentage), or to receive
a Matching Contribution (including forfeitures) or a Qualified Matching
Contribution. If a Voluntary Contribution or Elective Deferral is required as
a condition of participation in the Plan, any Employee who would be a
Participant in the Plan if such Employee made such a contribution shall be
treated as an Eligible Participant even though no Voluntary Contributions or
Elective Deferrals are made.
1.29 EMPLOYEE. Any person employed by the Employer (including Self-Employed
Individuals and partners), all Employees of a member of an affiliated service
group [as defined in Code Section 414(m)], Employees of a controlled group of
corporations [as defined in Code Section 414(b)], all Employees of any
incorporated or unincorporated trade or business which is under common control
[as defined in Code Section 414(c)], leased Employees [as defined in Code
Section 414(n)] and any Employee required to be aggregated by Code Section
414(o). All such Employees shall be treated as employed by a single Employer.
1.30 EMPLOYER. The Self-Employed Individual, partnership, corporation or other
organization which adopts this Plan including any firm that succeeds the
Employer and adopts this Plan. For purposes of Article X, Limitations on
Allocations, Employer shall mean the Employer that adopts this Plan, and all
members of a controlled group of corporations [as defined in Code Section
414(b) as modified by Code Section 415(h)], all commonly controlled trades or
businesses [as defined in Code Section 414(c) as modified by Code Section
415(h)] or affiliated service groups [as defined in Code Section 414(m)] of
which the adopting Employer is a part, and any other entity required to be
aggregated with the Employer pursuant to regulations under Code Section 414(o).
1.31 ENTRY DATE. The date on which an Employee commences participation in the
Plan as determined by the Employer in the Adoption Agreement.
1.32 EXCESS AGGREGATE CONTRIBUTIONS. The excess, with respect to any Plan Year,
of:
(a) The aggregate Contribution Percentage Amounts taken into account in
computing the numerator of the Contribution Percentage actually made on
behalf of Highly Compensated Employees for such Plan Year, over
(b) The maximum Contribution Percentage Amounts permitted by the ACP test
(determined by reducing contributions made on behalf of Highly Compensated
Employees in order of their Contribution Percentages beginning with the
highest of such percentages).
Such determination shall be made after first determining Excess Elective
Deferrals pursuant to paragraph 1.35 and then determining Excess
Contributions pursuant to paragraph 1.34.
1.33 EXCESS AMOUNT. The excess of the Participant's Annual Additions for the
Limitation Year over the Maximum Permissible Amount.
1.34 EXCESS CONTRIBUTION. With respect to any Plan Year, the excess of:
(a) The aggregate amount of Employer contributions actually taken into
account in computing the ADP of Highly Compensated Employees for such Plan
Year, over
(b) The maximum amount of such contributions permitted by the ADP test
(determined by reducing contributions made on behalf of Highly Compensated
Employees in order of the ADPs, beginning with the highest of such
percentages).
Page 4
<PAGE> 6
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
1.35 EXCESS ELECTIVE DEFERRALS. Those Elective Deferrals that are includible
in a Participant's gross income under Code Section 4O2(g) to the extent such
Participant's Elective Deferrals for a taxable year exceed the dollar
limitation under such Code Section. Excess Elective Deferrals shall be treated
as Annual Additions under the Plan, unless such amounts are distributed no
later than the first April 15th following the close of the Participant's
taxable year.
1.36 FAMILY MEMBER. The Employee's Spouse, any lineal descendants and
ascendants and the Spouse of such lineal descendants and ascendants.
1.37 FIRST DISTRIBUTION CALENDAR YEAR. For distributions beginning before the
Participant's death, the First Distribution Calendar Year is the calendar year
immediately preceding the calendar year which contains the Participant's
Required Beginning Date. For distributions beginning after the Participant's
death, the First Distribution Calendar Year is the calendar year in which
distributions are required to begin pursuant to paragraph 7.10.
1.38 FUND. All contributions received by the Trustee/Custodian under this Plan
and Trust/Custodial Account, investments thereof and earnings
and appreciation thereon.
1.39 HARDSHIP. An immediate and heavy financial need of the Employee where such
Employee lacks other available resources.
1.40 HIGHEST AVERAGE COMPENSATION. The average Compensation for the three
consecutive Years of Service with the Employer that produces the highest
average. A Year of Service with the Employer is the 12-consecutive month
period defined in the Adoption Agreement.
1.41 HIGHLY COMPENSATED EMPLOYEE. Any Employee who performs service for the
Employer during the determination year and who, during the immediate prior
year:
(a) received Compensation from the Employer in excess of $75,000 [as adjusted
pursuant to Code Section 415(d)]; or
(b) received Compensation from the Employer in excess of $50,000 [as
adjusted pursuant to Code Section 415(d)] and was a member of the Top-
Paid Group for such year; or
(c) was an officer of the Employer and received Compensation during such year
that is greater than 50 percent of the dollar limitation in effect under
Code Section 415(b)(1)(A).
Notwithstanding (a), (b) and (c), an Employee who was not Highly Compensated
during the preceding Plan Year shall not be treated as a Highly Compensated
Employee with respect to the current Plan Year unless such Employee is a member
of the 100 Employees paid the greatest Compensation during the year for which
such determination is being made.
(d) Employees who are five percent (5%) Owners at any time during the
immediate prior year or determination year.
Highly Compensated Employee includes Highly Compensated active Employees and
Highly Compensated former Employees.
1.42 HOUR OF SERVICE
(a) Each hour for which an Employee is paid, or entitled to payment, for the
performance of duties for the Employer. These hours shall be credited to
the Employee for the computation period in which the duties are performed;
and
(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 shall be credited under this paragraph
for any single continuous period (whether or not such period occurs in a
single computation period). Hours under this paragraph shall 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 mitigatior of damages, is
either awarded or agreed to by the Employee. The same Hours of Service
shall not be credited both under paragraph (a) or paragraph (b), as the
case may be, and under this paragraph (c). These hours shall 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.
(d) Hours of Service shall be credited for employment with the Employer and
with other members of an affiliated service group [as defined in Code
Section 414(m)], a controlled group of corporations [as defined in Code
Section 414(b)], or a group of trades or businesses under common control
[as defined in Code Section 414(c)] of which the adopting Employer is a
member, and any other entity required to be aggregated with the Employer
pursuant to Code Section 414(o) and the regulations thereunder. Hours
of Service shall also be credited for any individual considered an
Employee for purposes of this Plan under Code Section 414(n) or Code
Section 414(o) and the regulations thereunder.
(e) Solely for purposes of determining whether a Break in Service, as defined
in paragraph 1.10, for participation and vesting purposes has occurred in
a computation period, an individual who is absent from work for maternity
or paternity reasons shall receive credit for the Hours of Service which
would otherwise have been credited to such individual but for such
absence, or in any case in which such hours cannot be determined, 8 Hours
of Service per day of such absence. For purposes of this paragraph, an
absence from work for maternity or paternity reasons means an absence by
reason of the pregnancy of the individual, by reason of a birth of a child
of the individual, by reason of the placement of a child with the
individual in connection with the adoption of such child by such
individual, or for purposes of caring for such child for a period beginning
immediately following such birth or placement. The Hours of Service
credited under this paragraph shall be credited in the computation period
in which the absence begins if the crediting is necessary to prevent a
Break in Service in that period, or in all other cases, in the following
computation period. No more than 501 hours will be credited under this
paragraph.
Page 5
<PAGE> 7
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
(f) Hours of Service shall be determined on the basis of the method selected
in the Adoption Agreement.
1.43 KEY EMPLOYEE. Any Employee or former Employee (and the beneficiaries
of such employee) who at any time during the determination period was an
officer of the Employer if such individual's annual compensation exceeds 50% of
the dollar limitation under Code Section 415(b)(1)(A)(the defined benefit
maximum annual benefit), an owner (or considered an owner under Code Section
318) of one of the ten largest interests in the employer if such individual's
compensation exceeds 100% of the dollar limitation under Code Section
415(c)(1)(A), a 5% owner of the Employer, or a 1% owner of the Employer who
has an annual compensation of more than $150,000. For purposes of determining
who is a Key Employee, annual compensation shall mean Compensation as defined
for Article X, but including amounts deferred through a salary reduction
agreement to a cash or deferred plan under Code Section 401(k), a Simplified
Employee Pension Plan under Code Section 408(k), a cafeteria plan under Code
Section 125 or a tax-deferred annuity under Code Section 403(b). The
determination period is the Plan Year containing the Determination Date and the
four preceding Plan Years. The determination of who is a Key Employee will be
made in accordance with Code Section 416(i)(1) and the regulations thereunder.
1.44 LEASED EMPLOYEE. Any person (other than an Employee of the recipient) who,
pursuant to an agreement between the recipient and any other person ("leasing
organization"), has performed services for the recipient [or for the recipient
and related persons determined in accordance with Code Section 414(n)(6)] 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.
1.45 LIMITATION YEAR. The calendar year or such other 12-consecutive month
period designated by the Employer in the Adoption Agreement for purposes of
determining the maximum Annual Addition to a Participant's account. All
qualified plans maintained by the Employer must use the same Limitation Year.
If the Limitation Year is amended to a different 12-consecutive month period,
the new Limitation Year must begin on a date within the Limitation Year in
which the amendment is made.
1.46 MASTER OR PROTOTYPE PLAN. A plan, the form of which is the subject of a
favorable opinion letter from the Internal Revenue Service.
1.47 MATCHING CONTRIBUTION. An Employer contribution made to this or any other
defined contribution plan on behalf of a Participant on account of an Employee
Voluntary Contribution made by such Participant, or on account of a
Participant's Elective Deferral, under a Plan maintained by the Employer.
1.48 MAXIMUM PERMISSIBLE AMOUNT. The maximum Annual Addition that may be
contributed or allocated to a Participant's account under the plan for any
Limitation Year shall not exceed the lesser of:
(a) the Defined Contribution Dollar Limitation, or
(b) 25% of the Participant's Compensation for the Limitation Year.
The compensation limitation referred to in (b) shall not apply to any
contribution for medical benefits [within the meaning of Code Section 401(h) or
Code Section 419A(f)(2)] which is otherwise treated as an Annual Addition under
Code Section 415(l)(1) or 419(d)(2). If a short Limitation Year is created
because of an amendment changing the Limitation Year to a different
Inconsecutive month period, the Maximum Permissible Amount will not exceed the
Defined Contribution Dollar Limitation multiplied by the following fraction:
Number of months in the short Limitation Year divided by 12.
1.49 NET PROFIT. The current and accumulated operating earnings of the Employer
before Federal and State income taxes, excluding nonrecurring or unusual
items of income, and before contributions to this and any other qualified plan
of the Employer. Alternatively, the Employer may fix another definition in the
Adoption Agreement.
1.50 NORMAL RETIREMENT AGE. The age, set by the Employer in the Adoption
Agreement, at which a Participant may retire and receive his or her benefits
under the Plan.
1.51 OWNER-EMPLOYEE. A sole proprietor, or a partner owning more than 10% of
either the capital or profits interest of the partnership.
1.52 PAIRED PLANS. Two or more Plans maintained by the Sponsor designed so that
a single or any combination of Plans adopted by an Employer will meet the
antidiscrimination rules, the contribution and benefit limitations, and the
Top-Heavy provisions of the Code.
1.53 PARTICIPANT. Any Employee who has met the eligibility requirements and is
participating in the Plan.
1.54 PARTICIPANT'S BENEFIT. The account balance as of the last Valuation Date
in the calendar year immediately preceding the Distribution Calendar Year
(valuation calendar year) increased by the amount of any contributions or
forfeitures allocated to the account balance as of the dates in the valuation
calendar year after the Valuation Date and decreased by distributions made in
the valuation calendar year after the Valuation Date. A special exception
exists for the second distribution Calendar Year. For purposes of this
paragraph, if any portion of the minimum distribution for the First
Distribution Calendar Year is made in the second Distribution Calendar Year on
or before the Required Beginning Date, the amount of the minimum distribution
made in the second distribution calendar year shall be treated as if it had
been made in the immediately preceding Distribution Calendar Year.
1.55 PERMISSIVE AGGREGATION GROUP. Used for Top-Heavy testing purposes, it is
the Required Aggregation Group of plans plus any other plan or plans of the
Employer which, when considered as a group with the Required Aggregation Group,
would continue to satisfy the requirements of Code Sections 401(a)(4) and 410.
1.56 PLAN. The Employer's retirement plan as embodied here in and in the
Adoption Agreement.
1.57 PLAN ADMINISTRATOR. The Employer.
1.58 PLAN YEAR. The 12-consecutive month period designated by the Employer in
the Adoption Agreement.
1.59 PRESENT VALUE. Used for Top-Heavy test and determination purposes, when
determining the Present Value of accrued
Page 6
<PAGE> 8
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
benefits, with respect to any Defined Benefit Plan maintained by the Employer,
interest and mortality rates shall be determined in accordance with the
provisions of the respective plan. If applicable, interest and mortality
assumptions will be specified in Section 11 of the Adoption Agreement.
1.60 PROJECTED ANNUAL BENEFIT. Used to test the maximum benefit which may be
obtained from a combination of retirement plans, it is the annual retirement
benefit (adjusted to an actuarial equivalent straight life annuity if such
benefit is expressed in a form other than a straight life annuity or Qualified
Joint and Survivor Annuity) to which the Participant would be entitled under
the terms of a Defined Benefit Plan or plans, assuming:
(a) the Participant will continue employment until Normal Retirement Age
under the plan (or current age, if later), and
(b) the Participant's Compensation for the current Limitation Year and all
other relevant factors used to determine benefits under the plan will
remain constant for all future Limitation Years.
1.61 QUALIFIED DEFERRED COMPENSATION PLAN. Any pension, profit-sharing, stock
bonus, or other plan which meets the requirements of Code Section 401 and
includes a trust exempt from tax under Code Section 501(a) and any annuity plan
described in Code Section 403(a).
An Eligible Retirement Plan is an individual retirement account (IRA) as
described in section 408(a) of the Code, an individual retirement annuity (IRA)
as described in section 408(b) of the Code, an annuity plan as described in
section 403(a) of the Code, or a qualified trust, as described in section
401(a) of the Code, which accepts Eligible Rollover Distributions. However in
the case of an Eligible Rollover Distribution to a Surviving Spouse, an
Eligible Retirement Plan is an individual retirement account or individual
retirement annuity.
1.62 QUALIFIED DOMESTIC RELATIONS ORDER. A QDRO is a signed Domestic Relations
Order issued by a State Court which creates, recognizes or assigns to an
alternate payee(s) the right to receive all or part of a Participant's Plan
benefit and which meets the requirements of Code Section 414(p). An alternate
payee is a Spouse, former Spouse, child, or other dependent who is treated as a
beneficiary under the Plan as a result of the QDRO.
1.63 QUALIFIED EARLY RETIREMENT AGE. For purposes of paragraph 8.9, Qualified
Early Retirement Age is the latest of: and Survivor Annuity will be the amount
of benefit which can be provided by the Participant's Vested Account Balance.
(a) the earliest date, under the Plan, on which the Participant may elect to
receive retirement benefits, or
(b) the first day of the 120th month beginning before the Participant reaches
Normal Retirement Age, or
(c) the date the Participant begins participation.
1.64 QUALIFIED JOINT AND SURVIVOR ANNUITY. An immediate annuity for the life
of the Participant with a survivor annuity for the life of the Participant's
Spouse which is at least one-half of but not more than the amount of the
annuity payable during the joint lives of the Participant and the Participant's
Spouse. The exact amount of the Survivor Annuity is to be specified by the
Employer in the Adoption Agreement. If not designated by the Employer, the
Survivor Annuity will be 1/2 of the amount paid to the Participant during his
or her lifetime. The Qualified Joint and Survivor Annuity will be the amount
of benefit which can be provided by the Participant's Vested Account Balance.
1.65 QUALIFIED MATCHING CONTRIBUTION. Matching Contributions which when made
are subject to the distribution and nonforfeitability requirements under
Code Section 401(k).
1.66 QUALIFIED NON-ELECTIVE CONTRIBUTIONS. Contributions (other than Matching
Contributions or Qualified Matching Contributions) made by the Employer and
allocated to Participants' accounts that the Participants may not elect to
receive in cash until distributed from the Plan; that are nonforfeitable when
made; and that are distributable only in accordance with the distribution
provisions that are applicable to Elective Deferrals and Qualified Matching
Contributions.
1.67 QUALIFIED VOLUNTARY CONTRIBUTION. A tax-deductible voluntary Employee
contribution. These contributions may no longer be made to the Plan.
1.68 REQUIRED AGGREGATION GROUP. Used for Top-Heavy testing purposes, it
consists of:
(a) each qualified plan of the Employer in which at least one Key Employee
participates or participated at any time during the determination period
(regardless of whether the plan has terminated), and
(b) any other qualified plan of the Employer which enables a plan described
in (a) to meet the requirements of Code Sections 401 (a)(4) or 410.
1.69 REQUIRED BEGINNING DATE. The date on which a Participant is required to
take his or her first minimum distribution under the Plan. The rules are set
forth at paragraph 7.5.
1.70 ROLLOVER CONTRIBUTION. A contribution made by a Participant of an amount
distributed to such Participant from another Qualified Deferred Compensation
Plan in accordance with Code Sections 402(a)(5), (6), and (7).
An Eligible Rollover Distribution is any distribution of all or any portion of
the balance to the credit of the Participant except that an Eligible Rollover
Distribution does not include:
(a) 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 Participant or the joint lives (or joint life
expectancies) of the Participant and the Participant's Designated
Beneficiary, or for a specified period of ten years or more;
(b) any distribution to the extent such distribution is required or under
section 401(a)(9) of the Code; and
(c) the portion of any distribution that is not includible in gross income
(determined without regard to the exclusion Participant reaches Normal
for net unrealized appreciation with respect to employer securities).
A Direct Rollover is a payment by the plan to the Eligible Retirement Plan
specified by the Participant.
1.71 SALARY SAVINGS AGREEMENT. An agreement between the Employer and a
participating Employee where the Employee authorizes the Employer to withhold
a specified percentage of his or her Compensation for deposit to the Plan on
behalf of such Employee.
Page 7
<PAGE> 9
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
1.72 SELF-EMPLOYED INDIVIDUAL. An individual who has Earned Income for the
taxable year from the trade or business for which the Plan is established
including an individual who would have had Earned Income but for the fact that
the trade or business had no Net Profit for the taxable year.
1.73 SERVICE. The period of current or prior employment with the Employer. If
the Employer maintains a plan of a predecessor employer, Service for such
predecessor shall be treated as Service for the Employer.
1.74 SHAREHOLDER EMPLOYEE. An Employee or Officer who owns [or is considered as
owning within the meaning of Code Section 318(a)(1)], on any day during the
taxable year of an electing small business corporation (S Corporation), more
than 5% of such corporation's outstanding stock.
1.75 SIMPLIFIED EMPLOYEE PENSION PLAN. An individual retirement account which
meets the requirements of Code Section 408(k), and to which the Employer makes
contributions pursuant to a written formula. These plans are considered for
contribution limitation and Top-Heavy testing purposes.
1.76 SPONSOR. Comerica Bank.
1.77 SPOUSE (SURVIVING SPOUSE). The Spouse or Surviving Spouse of the
Participant, provided that a former Spouse will be treated as the Spouse or
Surviving Spouse and a current Spouse will not be treated as the Spouse or
Surviving Spouse to the extent provided under a Qualified Domestic Relations
Order as described in Code Section 414(p).
1.78 SUPER TOP-HEAVY PLAN. A Plan described at paragraph 1.81 under which the
Top-Heavy Ratio [as defined at paragraph 1.82] exceeds 90%.
1.79 TAXABLE WAGE BASE. For plans with an allocation formula which takes into
account the Employer's contribution under the Federal Insurance Contributions
Act (FICA), the maximum amount of earnings which may be considered wages for
such Plan Year under the Social Security Act [Code Section 3121(a)(1)], or the
amount elected by the Employer in the Adoption Agreement.
1.80 TOP-HEAVY DETERMINATION DATE. For any Plan Year subsequent to the first
Plan Year, the last day of the preceding Plan Year. For the first Plan Year of
the Plan, the last day of that year.
1.81 TOP-HEAVY PLAN. For any Plan Year beginning after 1983, the Employer's
Plan is top-heavy if any of the following conditions exist:
(a) If the Top-Heavy Ratio for the Employer's Plan exceeds 60% and this Plan
is not part of any required Aggregation Group or Permissive Aggregation
Group of Plans.
(b) If the Employer's plan is a part of a Required Aggregation Group of plans
but not part of a Permissive Aggregation Group and the Top-Heavy Ratio for
the group of plans exceeds 60%.
(c) If the Employer's plan is a part of a Required Aggregation Group and part
of a Permissive Aggregation Group of plans and the Top-Heavy Ratio for the
Permissive Aggregation Group exceeds 60%.
1.82 TOP-HEAVY RATIO
(a) If the Employer maintains one or more Defined Contribution plans
(including any Simplified Employee Pension Plan) and the Employer has not
maintained any Defined Benefit Plan which during the 5-year period ending
on the Determination Date(s) has or has had accrued benefits, the
Top-Heavy Ratio for this Plan alone, or for the Required or Permissive
Aggregation Group as appropriate, is a fraction,
(1) the numerator of which is the sum of the account balances of all Key
Employees as of the Determination Date(s) [including any part of any
account balance distributed in the 5-year period ending on the
Determination Date(s)], and
(2) the denominator of which is the sum of all account balances
[including any part of any account balance distributed in the 5-year
period ending on the Determination Date(s)], both computed in
accordance with Code Section 416 and the regulations thereunder.
Both the numerator and denominator of the Top-Heavy Ratio are
increased to reflect any contribution not actually made as of the
Determination Date, but which is required to be taken into account on that
date under Code Section 416 and the regulations thereunder.
(b) If the Employer maintains one or more Defined Contribution Plans
(including any Simplified Employee Pension Plan) and the Employer
maintains or has maintained one or more Defined Benefit Plans which
during the 5-year period ending on the Determination Date(s) has or has
had any accrued benefits, the Top-Heavy Ratio for any Required or
Permissive Aggregation Group as appropriate is a fraction, the numerator
of which is the sum of account balances under the aggregated Defined
Contribution Plan or Plans for all Key Employees, determined in
accordance with (a) above, and the Present Value of accrued benefits
under the aggregated Defined Benefit Plan or Plans for all Key Employees
as of the Determination Date(s), and the denominator of which is the sum
of the account balances under the aggregated Defined Contribution Plan
or Plans for all Participants, determined in accordance with (a) above,
and the Present Value of accrued benefits under the Defined Benefit Plan
or Plans for all Participants as of the Determination Date(s), all
determined in accordance with Code Section 416 and the regulations
thereunder. The accrued benefits under a Defined Benefit Plan in both
the numerator and denominator of the Top-Heavy Ratio are increased for
any distribution of an accrued benefit made in the 5-year period ending
on the Determination Date.
(c) For purposes of (a) and (b) above, the value of account balances and the
Present Value of accrued benefits will be determined as of the most recent
Valuation Date that falls within or ends with the 12-month period ending
on the Determination Date, except as provided in Code Section 416 and the
regulations thereunder for the first and second plan years of a Defined
Benefit Plan. The account balances and accrued benefits of a participant
(1) who is not a Key Employee but who was a Key Employee in a prior year,
or (2) who has not been credited with at least one hour of service with
any Employer maintaining the Plan at any
Page 8
<PAGE> 10
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
time during the 5-year period ending on the Determination Date, will be
disregarded. The calculation of the Top-Heavy Ratio, and the extent to
which distributions, rollovers, and transfers are taken into account will
be made in accordance with Code Section 416 and the regulations
thereunder. Qualified Voluntary Employee Contributions will not be taken
into account for purposes of computing the Top-Heavy Ratio. When
aggregating plans the value of account balances and accrued benefits will
be calculated with reference to the Determination Dates that fall within
the same calendar year. The accrued benefit of a Participant other than a
Key Employee shall be determined under (1) the method, if any, that
uniformly applies for accrual purposes under all Defined Benefit Plans
maintained by the Employer, or (2) if there is no such method, as if such
benefit accrued not more rapidly than the slowest accrual rate permitted
under the fractional rule of Code Section 411 (b)(1)(C).
1.83 TOP-PAID GROUP. The group consisting of the top 20% of Employees when
ranked on the basis of Compensation paid during such year. For purposes of
determining the number of Employees in the group (but not who is in it), the
following Employees shall be excluded:
(a) Employees who have not completed 6 months of Service.
(b) Employees who normally work less than 17-1/2 hours per week.
(c) Employees who normally do not work more than 6 months during any year.
(d) Employees who have not attained age 21.
(e) Employees included in a collective bargaining unit, covered by an
agreement between employee representatives and the Employer, where
retirement benefits were the subject of good faith bargaining and
provided that 90% or more of the Employer's Employees are covered by the
agreement.
(f) Employees who are nonresident aliens and who receive no earned income
which constitutes income from sources within the United States.
1.84 TRANSFER CONTRIBUTION. A non-taxable transfer of a Participant's
benefit directly from a Qualified Deferred Compensation Plan to this Plan.
1.85 TRUSTEE. The individual(s) or institution appointed by the Employer to
invest the Fund.
1.86 VALUATION DATE. The last day of the Plan Year or such other date as agreed
to by the Employer and the Trustee/Custodian on which Participant accounts are
revalued in accordance with Article V hereof For Top-Heavy purposes, the date
selected by the Employer as of which the Top-Heavy Ratio is calculated.
1.87 VESTED ACCOUNT BALANCE. The aggregate value of the Participant's Vested
Account Balances derived from Employer and Employee contributions (including
Rollovers), whether vested before or upon death, including the proceeds of
insurance contracts, if any, on the Participant's life. The provisions of
Article VIII shall apply to a Participant who is vested in amounts attributable
to Employer contributions, Employee contributions (or both) at the time of
death or distribution.
1.88 VOLUNTARY CONTRIBUTION. An Employee contribution made to the Plan by or on
behalf of a Participant that is included in the Participant's gross income in
the year in which made and that is maintained under a separate account to which
earnings and losses are allocated.
1.89 WELFARE BENEFIT FUND. Any fund that is part of a plan of the Employer, or
has the effect of a plan, through which the Employer provides welfare benefits
to Employees or their beneficiaries. For these purposes, Welfare Benefits
means any benefit other than those with respect to which Code Section 83(h)
(relating to transfers of property in connection with the performance of
services), Code Section 404 (relating to deductions for contributions to an
Employee's trust or annuity and Compensation under a deferred payment plan),
Code Section 404A (relating to certain foreign deferred compensation plans)
apply. A "Fund" is any social club, voluntary employee benefit association,
supplemental unemployment benefit trust or qualified group legal service
organization described in Code Section 501(c)(7), (9), (17) or (20); any trust,
corporation, or other organization not exempt from income tax, or to the extent
provided in regulations, any account held for an Employer by any person.
1.90 YEAR OF SERVICE. A 12-consecutive month period during which an
Employee is credited with not less than 1,000 (or such lesser number as
specified by the Employer in the Adoption Agreement) Hours of Service.
ARTICLE II
ELIGIBILITY REQUIREMENTS
2.1 PARTICIPATION. Employees who meet the eligibility requirements in the
Adoption Agreement on the Effective Date of the Plan shall become Participants
as of the Effective Date of the Plan. If so elected in the Adoption Agreement,
all Employees employed on the Effective Date of the Plan may participate, even
if they have not satisfied the Plan's specified eligibility requirements.
Other Employees shall become Participants on the Entry Date coinciding with or
immediately following the date on which they meet the eligibility requirements.
The Employee must satisfy the eligibility requirements specified in the Adoption
Agreement and be employed on the Entry Date to become a Participant in the
Plan. In the event an Employee who is not a member of the eligible class of
Employees becomes a member of the eligible class, such Employee shall
participate immediately if such Employee has satisfied the minimum age and
service requirements and would have previously become a Participant had he or
she been in the eligible class. A former Participant shall again become a
Participant upon returning to the employ of the Employer as of the next Entry
Date or if earlier, the next Valuation Date.
2.2 CHANGE IN CLASSIFICATION OF EMPLOYMENT. In the event a Participant
becomes ineligible to participate because he or she is no longer a member of an
eligible class of Employees, such Employee shall participate upon his or her
return to an eligible class of Employees.
2.3 COMPUTATION PERIOD. To determine Years of Service and Breaks in Service
for purposes of eligibility, the 12-consecutive month period shall commence on
the date on which an Employee first performs an Hour of Service for the
Employer and each anniversary thereof, such that the succeeding
Page 9
<PAGE> 11
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
12-consecutive month period commences with the employee's first anniversary of
employment and so on.
2.4 EMPLOYMENT RIGHTS. Participation in the Plan shall not confer upon a
Participant any employment rights, nor shall it interfere with the Employer's
right to terminate the employment of any, Employee at any time.
2.5 SERVICE WITH CONTROLLED GROUPS. All Years of Service with other members of
a controlled group of corporations [as defined in Code Section 414(b)], trades
or businesses under common control [as defined in Code Section 414(c)], or
members of an affiliated service group [as defined in Code Section 414(m)]
shall be credited for purposes of determining an Employee's eligibility to
participate.
2.6 OWNER-EMPLOYEES. If this Plan provides contributions or benefits for one
or more Owner-Employees who control both the business for which this Plan is
established and one or more other trades or businesses, this Plan and the Plan
established for other trades or businesses must, when looked at as a single
Plan, satisfy Code Sections 4O1(a) and (d) for the Employees of this and all
other trades or businesses.
If the Plan provides contributions or benefits for one or more Owner-Employees
who control one or more other trades or businesses, the Employees of the other
trades or businesses must be included in a Plan which satisfies Code Sections
4O1(a) and (d) and which provides contributions and benefits not less favorable
than provided for Owner-Employees under this Plan.
If an individual is covered as an Owner-Employee under the plans of two or more
trades or businesses which are not controlled, and the individual controls a
trade or business, then the contributions or benefits of the Employees under
the plan of the trades or businesses which are controlled must be as favorable
as those provided for him or her under the most favorable plan of the trade or
business which is not controlled.
For purposes of the preceding sentences, an Owner-Employee, or two or more
Owner-Employees, will be considered to control a trade or business if the
Owner-Employee, or two or more Owner-Employees together:
(a) own the entire interest in an unincorporated trade or business, or
(b) in the case of a partnership, own more than 50% of either the capital
interest or the profits interest in the partnership.
For purposes of the preceding sentence, an Owner-Employee, or two or more
Owner-Employees shall be treated as owning any interest in a partnership which
is owned, directly or indirectly, by a partnership which such Owner-Employee,
or such two or more Owner-Employees, are considered to control within the
meaning of the preceding sentence.
2.7 LEASED EMPLOYEES. Any leased Employee shall be treated as an Employee of
the recipient Employer; however, contributions or benefits provided by the
leasing organization which are attributable to services performed for the
recipient Employer shall be treated as provided by the recipient Employer. A
leased Employee shall not be considered an Employee of the recipient if such
Employee is covered by a money purchase pension plan providing:
(a) a non-integrated Employer contribution rate of at least 10% of
Compensation, [as defined in Code Section 415(c)(3) but including amounts
contributed by the Employer pursuant to a salary reduction agreement,
which are excludable from the Employee's gross income under a cafeteria
plan covered by Code Section 125, a cash or deferred profit-sharing plan
under Section 401(k) of the Code, a Simplified Employee Pension Plan under
Code Section 402(h)(1)(B) and a tax-sheltered annuity under Code Section
403(b)],
(b) immediate participation, and
(c) full and immediate vesting.
This exclusion is only available if Leased Employees do not constitute more
than twenty percent (20%) of the recipient's non-highly compensated work force.
2.8 THRIFT PLANS. If the Employer makes an election in the Adoption Agreement
to require Voluntary Contributions to participate in this Plan, the Employer
shall notify each eligible Employee in writing of his or her eligibility for
participation at least 30 days prior to the appropriate Entry Date. The
Employee shall indicate his or her intention to join the Plan by authorizing
the Employer to withhold a percentage of his or her Compensation as provided in
the Plan. Such authorization shall be returned to the Employer at least 10
days prior to the Employee's Entry Date. The Employee may decline
participation by so indicating on the enrollment form or by failure to return
the enrollment form to the Employer prior to the Employee's Entry Date. If the
Employee declines to participate, such Employee shall be given the opportunity
to join the Plan on the next Entry Date. The taking of a Hardship Withdrawal
under the provisions of paragraph 6.9 will impact the Participant's ability to
make these contributions.
ARTICLE III
EMPLOYER CONTRIBUTIONS
3.1 AMOUNT. The Employer intend to make periodic contributions to the Plan in
accordance with the formula or formulas selected in the Adoption Agreement.
However, the Employer's contribution for any Plan Year shall be subject to the
limitations on allocations contained in Article X.
3.2 EXPENSES AND FEES. The Employer shall also be authorized to reimburse the
Fund for all expenses and fees incurred in the administration of the Plan or
Trust/Custodial Account and paid out of the assets of the Fund. Such expenses
shall include, but shall not be limited to, fees for professional services,
printing and postage. Brokerage commissions may not be reimbursed.
3.3 RESPONSIBILITY FOR CONTRIBUTIONS. Neither the Trustee/Custodian nor the
Sponsor shall be required to determine if the Employer has made a contribution
or if the amount contributed is in accordance with the Adoption Agreement or
the Code. The Employer shall have sole responsibility in this regard. The
Trustee/Custodian shall be accountable solely for contributions actually
received by it, within the limits of Article XI.
3.4 RETURN OF CONTRIBUTIONS. Contributions made to the Fund by the Employer
shall be irrevocable except as provided below:
(a) Any contribution forwarded to the Trustee/Custodian because of a mistake
of fact, provided that the contribution
Page 10
<PAGE> 12
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
is returned to the Employer within one year of the contribution.
(b) In the event that the Commissioner of Internal Revenue determines that
the Plan is not initially qualified under the Internal Revenue Code, any
contribution made incident to that initial qualification by the Employer
must be returned to the Employer within one year after the date the
initial qualification is denied, but only if the application for the
qualification is made by the time prescribed by law for filing the
Employer's return for the taxable year in which the Plan is adopted, or
such later date as the Secretary of the Treasury may prescribe.
(c) Contributions forwarded to the Trustee/Custodian are presumed to be
deductible and are conditioned on their deductibility. Contributions
which are determined to not be deductible will be returned to the
Employer.
ARTICLE IV
EMPLOYEE CONTRIBUTIONS
4.1 VOLUNTARY CONTRIBUTIONS. An Employee may make Voluntary Contributions to
the Plan established hereunder if so authorized by the Employer in a uniform
and nondiscriminatory manner. Such contributions are subject to the
limitations on Annual Additions and are subject to antidiscrimination testing.
4.2 QUALIFIED VOLUNTARY CONTRIBUTIONS. A participant may no longer make
Qualified Voluntary Contributions to the Plan. Amounts already contributed may
remain in the Trust Fund/Custodial Account until distributed to the
Participant. Such amounts will be maintained in a separate account which will
be nonforfeitable at all times. The account will share in the gains and losses
of the Trust in the same manner as described at paragraph 5.4 of the Plan. No
part of the Qualified Voluntary Contribution account will be used to purchase
life insurance. Subject to Article VIII, Joint and Survivor Annuity
Requirements (if applicable), the Participant may withdraw any part of the
Qualified Voluntary Contribution account by making a written application to the
Plan Administrator.
4.3 ROLLOVER CONTRIBUTION. Unless provided otherwise in the Adoption
Agreement, a Participant may make a Rollover Contribution to any Defined
Contribution Plan established hereunder of all or any part of an amount
distributed or distributable to him or her from a Qualified Deferred
Compensation Plan provided:
(a) the amount distributed to the Participant is deposited to the Plan no
later than the sixtieth day after such distribution was received by the
Participant,
(b) the amount distributed is not one of a series of substantially equal
periodic payments made for the life (or life expectancy) of the
Participant or the joint lives (or joint life expectancies) of the
Participant and the Participant's Designated Beneficiary, or for a
specified period of ten years or more,
(c) the amount distributed is not required under section 401(a)(9) of the
Code,
(d) if the amount distributed included property such property is rolled
over, or if sold the proceeds of such property may be rolled over,
(e) the amount distributed is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with
respect to employer securities).
In addition, if the Adoption Agreement allows Rollover Contributions, the Plan
will also accept any Eligible Rollover Distribution (as defined at paragraph
1.55) directly to the Plan.
Rollover Contributions, which relate to distributions prior to January 1, 1993,
must be made in accordance with paragraphs (a) through (e) and additionally
meet the requirements of paragraph (f):
(f) The distribution from the Qualified Deferred Compensation Plan constituted
the Participant's entire interest in such Plan and was distributed within
one taxable year to the Participant:
(1) on account of separation from Service, a Plan termination, or in the
case of a profit-sharing or stock bonus plan, a complete
discontinuance of contributions under such plan within the meaning of
Section 402(a)(6)(A) of the Code, or
(2) in one or more distributions which constitute a qualified lump sum
distribution within the meaning of Code Section 402(e)(4)(A),
determined without reference to subparagraphs (B) and (H).
Such Rollover Contribution may also be made through an Individual Retirement
Account qualified under Code Section 408 where the IRA was used as a conduit
from the Qualified Deferred Compensation Plan, the Rollover Contribution is
made in accordance with the rules provided under paragraphs (a) through (e) and
the Rollover Contribution does not include any regular IRA contributions, or
earnings thereon, which the Participant may have made to the IRA. Rollover
Contributions, which relate to distributions prior to January 1, 1993, may be
made through an IRA in accordance with paragraphs (a) through (f) and
additional requirements as provided in the previous sentence. The
Trustee/Custodian shall not be held responsible for determining the tax-free
status of any Rollover Contribution made under this Plan.
4.4 TRANSFER CONTRIBUTION. Unless provided otherwise in the Adoption Agreement
a Participant may, subject to the provisions of paragraph 4.5, also arrange for
the direct transfer of his or her benefit from a Qualified Deferred
Compensation Plan to this Plan. For accounting and record keeping purposes,
Transfer Contributions shall be treated in the same manner as Rollover
Contributions.
4.5 EMPLOYER APPROVAL OF TRANSFER CONTRIBUTIONS. The Employer maintaining a
Safe-Harbor Profit-Sharing Plan in accordance with the provisions of paragraph
8.7, acting in a nondiscriminatory manner, may in its sole discretion refuse to
allow Transfer Contributions to its profit-sharing plan, if such
contributions are directly or indirectly being transferred from a defined
benefit plan,a money purchase pension plan (including a target benefit plan), a
stock bonus plan, or another profit sharing plan which would otherwise provide
for a life annuity form of payment to the Participant.
4.6 ELECTIVE DEFERRALS. A Participant may enter into a Salary Savings
Agreement with the Employer authorizing the Employer to withhold a portion of
such Participant's Compensation not
Page 11
<PAGE> 13
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
to exceed $7,000 per calendar year as adjusted under Code Section 415(d) or, if
lesser, the percentage of Compensation specified in the Adoption Agreement and
to deposit such amount to the Plan. No Participant shall be permitted to
have Elective Deferrals made under this Plan or any other qualified plan
maintained by the Employer, during any taxable year, in excess of the dollar
limitation contained in Code Section 402(g) in effect at the beginning of such
taxable year. Thus, the $7,000 limit may be reduced if a Participant
contributes pre-tax contributions to qualified plans of this or other
Employers. Any such contribution shall be credited to the Employee's Salary
Savings Account. Unless otherwise specified in the Adoption Agreement, a
Participant may amend his or her Salary Savings Agreement to increase, decrease
or terminate the percentage upon 30 days written notice to the Employer. If a
Participant terminates his or her agreement, such Participant shall not be
permitted to put a new Salary Savings Agreement into effect until the first pay
period in the next Plan Year, unless otherwise stated in the Adoption
Agreement. The Employer may also amend or terminate said agreement on written
notice to the Participant. If a Participant has not authorized the Employer to
withhold at the maximum rate and desires to increase the total withheld for a
Plan Year, such Participant may authorize the Employer upon 30 days notice to
withhold a supplemental amount up to 100% of his or her Compensation for one
or more pay periods. In no event may the sum of the amounts withheld under the
Salary Savings Agreement plus the supplemental withholding exceed 25% of a
Participant's Compensation for a Plan Year. The Employer may also
recharacterize as after-tax Voluntary Contributions all or any portion of
amounts previously withheld under any Salary Savings Agreement within the Plan
Year as provided for at paragraph 10.9. This may be done to insure that the
Plan will meet one of the antidiscrimination tests under Code Section 401(k).
Elective Deferrals shall be deposited in the Trust within 30 days after being
withheld from the Participant's pay.
4.7 REQUIRED VOLUNTARY CONTRIBUTIONS. If the Employer makes a thrift election
in the Adoption Agreement, each eligible Participant shall be required to make
Voluntary Contributions to the Plan for credit to his or her account as
provided in the Adoption Agreement. Such Voluntary Contributions shall be
withheld from the Employee's Compensation and shall be transmitted by the
Employer to the Trustee/Custodian as agreed between the Employer and Trustee/
Custodian. A Participant may discontinue participation or change his or her
Voluntary Contribution percentage by so advising the Employer at least 10 days
prior to the date on which such discontinuance or change is to be effective.
If a Participant discontinues his or her Voluntary Contributions, such
Participant may not again authorize Voluntary Contributions for a period of
one year from the date of discontinuance. A Participant may voluntarily change
his or her Voluntary Contribution percentage once during any Plan Year and may
also agree to have a reduction in his or her contribution, if required to
satisfy the requirements of the ACP test.
4.8 DIRECT ROLLOVER OF BENEFITS. Notwithstanding any provision of the plan to
the contrary that would otherwise limit a Participant's election under this
Paragraph, for distributions made on or after January 1, 1993, a Participant
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 Participant in a Direct Rollover.
Any portion of a distribution which is not paid directly to an Eligible
Retirement Plan shall be distributed to the Participant. For purposes of this
Paragraph, a Surviving Spouse or a spouse or former spouse who is an alternate
payee under a Qualified Domestic Relations Order as defined in section 414(p)
of the Code, will be permitted to elect to have any Eligible Rollover
Distribution paid directly to an individual retirement account (IRA) or an
individual retirement annuity (IRA).
The plan provisions otherwise applicable to distributions continue to apply
to Rollover and Transfer Contributions.
ARTICLE V
PARTICIPANT ACCOUNTS
5.1 SEPARATE ACCOUNTS. The Employer shall establish a separate bookkeeping
account for each Participant showing the total value of his or her interest
in the Fund. Each Participant's account shall be separated for bookkeeping
purposes into the following sub-accounts:
(a) Employer contributions.
(1) Matching Contributions.
(2) Qualified Matching Contributions.
(3) Qualified Non-Elective Contributions.
(4) Discretionary Contributions.
(5) Elective Deferrals.
(b) Voluntary Contributions (and additional amounts including required
contributions and, if applicable, either repayments of loans previously
defaulted on and treated as "deemed distributions" on which a tax report
has been issued, and amounts paid out upon a separation from service which
have been included in income and which are repaid after being re-hired by
the Employer).
(c) Qualified Voluntary Contributions (if the Plan previously accepted these).
(d) Rollover Contributions and Transfer Contributions.
5.2 ADJUSTMENTS TO PARTICIPANT ACCOUNTS. As of each Valuation Date of the
Plan, the Employer shall add to each account:
(a) the Participant's share of the Employer's contribution and forfeitures
as determined in the Adoption Agreement,
(b) any Elective Deferrals, Voluntary, Rollover or Transfer Contributions
made by the Participant,
(c) any repayment of amounts previously paid out to a Participant upon a
separation from Service and repaid by the Participant since the last
Valuation Date, and
(d) the Participant's proportionate share of any investment earnings and
increase in the fair market value of the Fund since the last Valuation
Date, as determined at paragraph 5.4.
The Employer shall deduct from each account:
(e) any withdrawals or payments made from the Participant's account since
the last Valuation Date, and
Page 12
<PAGE> 14
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
(f) the Participant's proportionate share of any decrease in the fair market
value of the Fund since the last Valuation Date, as determined at
paragraph 5.4.
5.3 ALLOCATING EMPLOYER CONTRIBUTIONS. The Employer's contribution shall be
allocated to Participants in accordance with the allocation formula selected by
the Employer in the Adoption Agreement, and the minimum contribution and
allocation requirements for Top-Heavy Plans. Beginning with the 1990 Plan Year
and thereafter, for plans on Standardized Adoption Agreement 001, Participants
who are credited with more than 500 Hours of Service or are employed on the
last day of the Plan Year must receive a full allocation of Employer
contributions. In Nonstandardized Adoption Agreement 002, Employer
contributions shall be allocated to the accounts of Participants employed by
the Employer on the last day of the Plan Year unless indicated otherwise in the
Adoption Agreement. In the case of a non-Top-Heavy, Nonstandardized Plan,
Participants must also have completed a Year of Service unless otherwise
specified in the Adoption Agreement. For Nonstandardized Adoption Agreement
002, the Employer may only apply the last day of the Plan Year and Year of
Service requirements if the Plan satisfies the requirements of Code Sections
401(a)(26) and 410(b) and the regulations thereunder including the exception
for 401(k) plans. If, when applying the last day and Year of Service
requirements, the Plan fails to satisfy the aforementioned requirements,
additional Participants will be eligible to receive an allocation of Employer
Contributions until the requirements are satisfied. Participants who
are credited with a Year of Service, but not employed at Plan Year end, are the
first category of additional Participants eligible to receive an allocation.
If the requirements are still not satisfied, Participants credited with more
than 500 Hours of Service and employed at Plan Year end are the next category
of Participants eligible to receive an allocation. Finally, if necessary to
satisfy the said requirements, any Participant credited with more than 500
Hours of Service will be eligible for an allocation of Employer Contributions.
The Service requirement is not applicable with respect to any Plan Year during
which the Employer's Plan is Top-Heavy.
5.4 ALLOCATING INVESTMENT EARNINGS AND LOSSES. A Participant's share of
investment earnings and any increase or decrease in the fair market value of
the Fund shall be based on the proportionate value of all active accounts
(other than accounts with segregated investments) as of the last Valuation Date
minus withdrawals, minus fees, plus/minus transfers, and plus the average
balance, as defined by the Plan Administrator, of the current period's
contributions and loan payments except for Employer contributions made on an
annual basis after the end of the Plan Year since the last Valuation Date.
Account balances not yet forfeited shall receive an allocation of earnings
and/or losses. Accounts with segregated investments shall receive only the
income or loss on such segregated investments.
Alternatively, at the Plan Administrator's option, all financial activity will
be credited with an allocation of the actual investment earnings and gains and
losses from the actual date of deposit of each such activity until the end of
the period. Accounts with segregated investments shall receive only the income
or loss on such segregated investments. In no event shall the selection of a
method of allocating gains and losses be used to discriminate in favor of the
Highly Compensated Employees.
5.5 PARTICIPANT STATEMENTS. Upon completing the allocations described above
for the Valuation Date coinciding with the end of the Plan Year, the Employer
shall prepare a statement for each Participant showing the additions to and
subtractions from his or her account since the last such statement and the fair
market value of his or her account as of the current Valuation Date. Employers
so choosing may prepare Participant statements for each Valuation Date.
ARTICLE VI
RETIREMENT BENEFITS AND DISTRIBUTIONS
6.1 NORMAL RETIREMENT BENEFITS. A Participant shall be entitled to receive the
balance held in his or her account from Employer contributions upon attaining
Normal Retirement Age or at such earlier dates as the provisions of this
Article VI may allow. If the Participant elects to continue working past his
or her Normal Retirement Age, he or she will continue as an active Plan
Participant and no distribution shall be made to such Participant until his or
her actual retirement date unless the employer elects otherwise in the Adoption
Agreement, or a minimum distribution is required by law. Settlement shall be
made in the normal form, or if elected, in one of the optional forms of payment
provided below.
6.2 EARLY BENEFITS. If the Employer so provides in the Adoption Agreement, an
early retirement benefit will be available to individuals who meet the age and
Service requirements. An individual who meets the Early Retirement
Age requirements and separates from Service, will become fully vested regardless
of any vesting schedule which otherwise might apply. If a Participant
separates from Service before satisfying the age requirements, but after having
satisfied the Service requirement, the Participant will be entitled to elect an
Early Retirement benefit upon satisfaction of the age requirement.
6.3 BENEFITS ON TERMINATION OF EMPLOYMENT
(a) If a Participant terminates employment prior to Normal Retirement Age,
such Participant shall be entitled to receive the vested balance held in
his or her account payable at Normal Retirement Age in the normal form,
or if elected, in one of the optional forms of payment provided
hereunder. If applicable, the Early Retirement Benefit provisions may
be elected. Notwithstanding the preceding sentence, a former
Participant may, if allowed in the Adoption Agreement, make application
to the Employer requesting early payment of any deferred vested and
nonforfeitable benefit due.
(b) If a Participant terminates employment, and the value of that
Participant's vested account balance derived from Employer and Employee
contributions is not greater than $3,500, the Participant will receive a
lump sum distribution of the value of the entire vested portion of such
account balance and the non-vested portion will be treated as a
forfeiture. For purposes of this Article, if the value of a
Participant's vested account balance is zero,the Participant shall be
deemed to have received a distribution of such vested account balance.
For Plan Years beginning prior to 1989, a Participant's Vested Account
Balance shall not include Qualified Voluntary Contributions.
Notwithstanding the above, if the Employer maintains or has maintained a
policy of not distributing any amounts
Page 13
<PAGE> 15
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
until the Participant's Normal Retirement Age, the Employer can continue
to uniformly apply such policy.
(c) If a Participant terminates employment with a vested account balance
derived from Employer and Employee contributions in excess of $3,500, and
elects (with his or her Spouse's consent, if required) to receive 100% of
the value of his or her vested account balance in a lump sum, the
non-vested portion will be treated as a forfeiture. The Participant (and
his or her Spouse, if required) must consent to any distribution, when the
vested account balance described above exceeds $3,500 or if at the time of
any prior distribution it exceeded $3,500. For purposes of this
paragraph, for Plan Years beginning prior to 1989, a Participant's Vested
Account Balance shall not include Qualified Voluntary Contributions.
(d) Distribution of less than 100% of the Participant's vested account
balance shall only be permitted if the Participant is fully vested upon
termination of employment.
(e) If a Participant who is not 100% vested receives or is deemed to receive
a distribution pursuant to this paragraph and resumes employment covered
under this Plan, the Participant shall have the right to repay to the Plan
the full amount of the distribution attributable to Employer contributions
on or before the earlier of the date that the Participant incurs 5
consecutive 1-year Breaks in Service following the date of distribution
or five years after the first date on which the Participant is
subsequently reemployed. In such event, the Participant's account shall
be restored to the value thereof at the time the distribution was made and
may further be increased by the Plan's income and investment gains and/or
losses on the undistributed amount from the date of distribution to the
date of repayment.
(f) A Participant shall also have the option, to postpone payment of his or
her Plan benefits until the first day of April following the calendar
year in which he or she attains age 70-1/2. Any balance of a
Participant's account resulting from his or her Employee contributions not
previously withdrawn, if any, may be withdrawn by the Participant
immediately following separation from Service.
(g) If a Participant ceases to be an active Employee as a result of a
Disability as defined at paragraph 1.21, such Participant shall be able to
make an application for a disability retirement benefit payment. The
Participant's account balance will be deemed "immediately distributable"
as set forth in paragraph 6.4, and will be fully vested pursuant to
paragraph 9.2.
6.4 RESTRICTIONS ON IMMEDIATE DISTRIBUTIONS
(a) An account balance is immediately distributable if any part of the
account balance could be distributed to the Participant (or Surviving
Spouse) before the Participant attains (or would have attained if not
deceased) the later of the Normal Retirement Age or age 62.
(b) If the value of a Participant's vested account balance derived from
Employer and Employee Contributions exceeds (or at the time of any prior
distribution exceeded) $3,500, and the account balance is immediately
distributable, the Participant and his or her Spouse (or where
either the Participant or the Spouse has died, the survivor) must
consent to any distribution of such account balance. The consent of the
Participant and the Spouse shall be obtained in writing within the
90-day period ending on the annuity starting date, which is the first
day of the first period for which an amount is paid as an annuity or any
other form. The Plan Administrator shall notify the Participant and the
Participant's Spouse of the right to defer any distribution until the
Participant's account balance is no longer immediately distributable.
Such notification shall include a general description of the material.
features, and an explanation of the relative values of, the optional forms
of benefit available under the plan in a manner that would satisfy
the notice requirements of Code Section 417(a)(3), and shall be provided
no less than 30 days and no more than 90 days prior to the annuity
starting date.
(c) Notwithstanding the foregoing, only the Participant need consent to the
commencement of a distribution in the form of a qualified Joint and
Survivor Annuity while the account balance is immediately distributable.
Furthermore, if payment in the form of a Qualified Joint and Survivor
Annuity is not required with respect to the Participant pursuant to
paragraph 8.7 of the Plan, only the Participant need consent to the
distribution of an account balance that is immediately distributable.
Neither the consent of the Participant nor the Participant's Spouse
shall be required to the extent that a distribution is required to
satisfy Code Section 401(a)(9) or Code Section 415. In addition, upon
termination of this Plan if the Plan does not offer an annuity option
(purchased from a commercial provider), the Participant's account
balance may, without the Participant's consent, be distributed to the
Participant or transferred to another Defined Contribution Plan [other
than an employee stock ownership plan as defined in Code Section
4975(e)(7)] within the same controlled group.
(d) For purposes of determining the applicability of the foregoing consent
requirements to distributions made before the first day of the first
Plan Year beginning after 1988, the Participant's vested account balance
shall not include amounts attributable to Qualified Voluntary
Contributions.
6.5 NORMAL FORM OF PAYMENT. The normal form of payment for a profit-sharing
plan satisfying the requirements of paragraph 8.7 hereof shall be a lump sum
with no option for annuity payments. For all other plans, the normal form of
payment hereunder shall be a Qualified Joint and Survivor Annuity as provided
under Article VIII. A Participant whose vested account balance derived from
Employer and Employee contributions exceeds $3,500, or if at the time of any
prior distribution it exceeded $3,500, shall (with the consent of his or her
Spouse) have the right to receive his or her benefit in a lump sum or in
monthly, quarterly, semi-annual or annual payments from the Fund over any
period not extending beyond the life expectancy of the Participant and his or
her Beneficiary. For purposes of this paragraph, for Plan Years prior to 1989,
a Participant's Vested Account Balance shall not include Qualified Voluntary
Contributions. The normal form of payment shall be automatic, unless the
Participant files a written request with the Employer prior to the date on
which the benefit is automatically payable,
Page 14
<PAGE> 16
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
electing a lump sum or installment payment option. No amendment to the Plan
may eliminate one of the optional distribution forms listed above.
6.6 COMMENCEMENT OF BENEFITS
(a) Unless the Participant elects otherwise, distribution of benefits will
begin no later than the 60th day after the close of the Plan Year in
which the latest of the following events occurs:
(1) the Participant attains age 65 (or normal retirement age if
earlier),
(2) the 10th anniversary of the year in which the Participant
commenced participation in the Plan, or
(3) the Participant terminates Service with the Employer.
(b) Not withstanding the foregoing, the failure of a Participant and Spouse
(if necessary) to consent to a distribution while a benefit is
immediately distributable, within the meaning of paragraph 6.4 hereof,
shall be deemed an election to defer commencement of payment of any
benefit sufficient to satisfy this paragraph.
6.7 CLAIMS PROCEDURES. Upon retirement, death, or other severance of
employment, the Participant or his or her representative may make
application to the Employer requesting payment of benefits due and the manner
of payment. If no application for benefits is made, the Employer shall
automatically pay any vested benefit due hereunder in the normal form at the
time prescribed at paragraph 6.4. If an application for benefits is made, the
Employer shall accept, reject, or modify such request and shall notify the
Participant in writing setting forth the response of the Employer and in the
case of a denial or modification the Employer shall:
(a) state the specific reason or reasons for the denial,
(b) provide specific reference to pertinent Plan provisions on which the
denial is based,
(c) provide a description of any additional material or information
necessary for the Participant or his representative to perfect the
claim and an explanation of why such material or information is
necessary, and
(d) explain the Plan's claim review procedure as contained in this Plan.
In the event the request is rejected or modified, the Participant or his or her
representative may within 60 days following receipt by the Participant or
representative of such rejection or modification, submit a written request for
review by the Employer of its initial decision. Within 60 days following such
request for review, the Employer shall render its final decision in writing to
the Participant or representative stating specific reasons for such decision.
If the Participant or representative is not satisfied with the Employer's final
decision, the Participant or representative can institute an action in a
federal court of competent jurisdiction; for this purpose, process would be
served on the Employer.
6.8 IN-SERVICE WITHDRAWALS. An Employee may withdraw all or any part of the
fair market value of his or her Mandatory Contributions, Voluntary
Contributions, Qualified Voluntary Contributions or Rollover Contributions,
upon written request to the Employer. Transfer Contributions, which originate
from a Plan meeting the safe-harbor provisions of paragraph 8.7, may also be
withdrawn, by an Employee, upon written request to the Employer. Transfer
Contributions not meeting the safe-harbor provisions may only be withdrawn upon
retirement, death, disability, termination or termination of the Plan, and will
be subject to Spousal consent requirements contained in Code Sections
411(a)(11) and 417. Such request shall include the Participant's address,
social security number, birthdate, and amount of the withdrawal. If at the
time a distribution of Qualified Voluntary Contributions is received the
Participant has not attained age 59-1/2 and is not disabled, as defined at Code
Section 22(e)(3), the Participant will be subject to a federal income tax
penalty, unless the distribution is rolled over to a qualified plan or
individual retirement plan within 60 days of the date of distribution. A
Participant may withdraw all or any part of the fair market value of his or her
pre-1987 Voluntary Contributions with or without withdrawing the earnings
attributable thereto. Post-1986 Voluntary Contributions may only be withdrawn
along with a portion of the earnings thereon. The amount of the earnings to be
withdrawn is determined by using the formula: DA[1-(V _ V + E)], where DA is
the distribution amount, V is the amount of Voluntary Contributions and V + E
is the amount of Voluntary Contributions plus the earnings attributable
thereto. A Participant withdrawing his or her other contributions prior to
attaining age 59-1/2, will be subject to a federal tax penalty to the extent
that the withdrawn amounts are includible in income. Unless the Employer
provides otherwise in the Adoption Agreement, any Participant in a
profit-sharing plan who is 100% fully vested in his or her Employer
contributions may withdraw all or any part of the fair market value of any of
such contributions that have been in the account at least two years, plus the
investment earnings thereon, without separation from Service. Such
distributions shall not be eligible for redeposit to the Fund. A withdrawal
under this paragraph shall not prohibit such Participant from sharing in any
future Employer Contribution he or she would otherwise be eligible to share
in. A request to withdraw amounts pursuant to this paragraph must if
applicable, be consented to by the Participant's Spouse. The consent shall
comply with the requirements of paragraph 6.4 relating to immediate
distributions. Elective Deferrals, Qualified Non-elective Contributions, and
Qualified Matching Contributions, and income allocable to each are not
distributable to a Participant or his or her Beneficiary or Beneficiaries, in
accordance with such Participant's or Beneficiary's or Beneficiaries' election,
earlier than upon separation from Service, death, or Disability. Such amounts
may also be distributed upon:
(a) Termination of the Plan without the establishment of another Defined
Contribution Plan.
(b) The disposition by a corporation to an unrelated corporation of
substantially all of the assets [within the meaning of Code Section
409(d)(2)] used in a trade or business of such corporation if such
corporation continues to maintain this Plan after the disposition, but
only with respect to Employees who continue employment with the
corporation acquiring such assets.
(c) The disposition by a corporation to an unrelated entity of such
corporation's interest in a subsidiary [within the meaning of Code
Section 409(d)(3)] if such corporation continues to maintain this Plan,
but only with respect to
Page 15
<PAGE> 17
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
Employees who continue employment with such subsidiary.
(d) The attainment of age 59-1/2.
(e) The Hardship of the Participant as described in paragraph 6.9.
All distributions that may be made pursuant to one or more of the foregoing
distributable events are subject to the Spousal and Participant consent
requirements, if applicable, contained in Code Sections 401 (a)(11) and 417.
6.9 HARDSHIP WITHDRAWAL. If permitted by the Trustee/Custodian and the
Employer in the Adoption Agreement, a Participant may request a Hardship
withdrawal prior to attaining age 59-1/2. If the Participant has not attained
age 59-1/2, the Participant may be subject to a federal income tax penalty. Such
request shall be in writing to the Employer who shall have sole authority to
authorize a hardship withdrawal, pursuant to the rules below. Hardship
withdrawals may include Elective Deferrals regardless of when contributed and
any earnings accrued and credited thereon as of the last day of the Plan Year
ending before July 1, 1989 and Employer related contributions plus the
investment earnings thereon to the extent vested. Qualified Matching
Contributions, Qualified Non-Elective Contributions and Elective Deferrals
reclassified as Voluntary Contributions plus the investment earnings thereon
are only available for hardship withdrawal prior to age 59-1/2 to the extent
that they were credited to the Participant's Account as of the last day of the
Plan Year ending prior to July 1, 1989. The Plan Administrator may limit
withdrawals to Elective Deferrals and the earnings thereon as stipulated above.
Hardship withdrawals are subject to the Spousal consent requirements contained
in Code Sections 401(a)(11) and 417. Only the following reasons are valid to
obtain hardship withdrawal:
(a) medical expenses [within the meaning of Code Section 213(d)], incurred or
necessary for the medical care of the Participant, his or her Spouse,
children and other dependents,
(b) the purchase (excluding mortgage payments) of the principal residence for
the Participant,
(c) payment of tuition and related educational expenses for the next twelve
(12) months of post-secondary education for the Participant, his or her
Spouse, children or other dependents, or
(d) the need to prevent eviction of the Employee from or a foreclosure on the
mortgage of, the Employee's principal residence.
Furthermore, the following conditions must be met in order for a withdrawal to
be authorized:
(e) the Participant has obtained all distributions, other than hardship
distributions, and all nontaxable loans under all plans maintained by the
Employer,
(f) all plans maintained by the Employer, other than flexible benefit plans
under Code Section 125 providing for current benefits, provide that the
Employee's Elective Deferrals and Voluntary Contributions will be
suspended for twelve months after the receipt of the Hardship
distribution,
(g) the distribution is not in excess of the amount of the immediate and heavy
financial need [(a) through (d) above], including amounts necessary to pay
any federal, state or local income tax or penalties reasonably anticipated
to result from the distribution, and
(h) all plans maintained by the Employer provide that an Employee may not make
Elective Deferrals for the Employee's taxable year immediately following
the taxable year of the hardship distribution in excess of the applicable
limit under Code Section 402(g) for such taxable year, less the amount of
such Employee's pre-tax contributions for the taxable year of the hardship
distribution.
If a distribution is made at a time when a Participant has a nonforfeitable
right to less than 100% of the account balance derived from Employer
contributions and the Participant may increase the nonforfeitable percentage in
the account:
(a) A separate account will be established for the Participant's interest in
the Plan as of the time of the distribution, and
(b) At any relevant time the Participant's nonforfeitable portion of the
separate account will be equal to an amount ("X") determined by the
formula:
X = P [AB + (R X D)] - (R X D)
For purposes of applying the formula: "P" is the nonforfeitable percentage at
the relevant time, "AB" is the account balance at the relevant time, "D" is the
amount of the distribution and "R" is the ratio of the account balance at the
relevant time to the account balance after distribution.
ARTICLE VII
DISTRIBUTION REQUIREMENTS
7.1 JOINT AND SURVIVOR ANNUITY REQUIREMENTS. All distributions made under
the terms of this Plan must comply with the provisions of Article VIII
including, if applicable, the safe harbor provisions thereunder.
7.2 MINIMUM DISTRIBUTION REQUIREMENTS. All distributions required under this
Article shall be determined and made in accordance with the minimum
distribution requirements of Code Section 401(a)(9) and the regulations
thereunder, including the minimum distribution incidental benefit rules found
at Regulations Section 1.401(a)(9)-2. The entire interest of a Participant must
be distributed or begin to be distributed no later than the Participant's
Required Beginning Date. Life expectancy and joint and last survivor life
expectancy are computed by using the expected return multiples found in Tables
V and VI of Regulations Section 1.72-9.
7.3 LIMITS ON DISTRIBUTION PERIODS. As of the First Distribution Calendar
Year, distributions if not made in a single-sum, may only be made over one of
the following periods (or a combination thereof):
(a) the life of the Participant,
(b) the life of the Participant and a Designated Beneficiary,
(c) a period certain not extending beyond the life expectancy of the
participant, or
(d) a period certain not extending beyond the joint and last survivor
expectancy of the Participant and a designated beneficiary.
<PAGE> 18
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
7.4 REQUIRED DISTRIBUTIONS ON OR AFTER THE REQUIRED BEGINNING DATE
(a) If a participant's benefit is to be distributed over (1) a period not
extending beyond the life expectancy of the Participant or the joint life
and last survivor expectancy of the Participant and the Participant's
Designated Beneficiary or (2) a period not extending beyond the life
expectancy of the Designated Beneficiary, the amount required to be
distributed for each calendar year, beginning with distributions for the
First Distribution Calendar Year, must at least equal the quotient
obtained by dividing the Participant's benefit by the Applicable Life
Expectancy.
(b) For calendar years beginning before 1989, if the Participant's Spouse is
not the Designated Beneficiary, the method of distribution selected must
have assured that at least 50% of the Present Value of the amount
available for distribution was to be paid within the life expectancy of
the Participant.
(c) For calendar years beginning after 1988, the amount to be distributed each
year, beginning with distributions for the First Distribution Calendar
Year shall not be less than the quotient obtained by dividing the
Participant's benefit by the lesser of (1) the Applicable Life
Expectancy or (2) if the Participant's Spouse is not the Designated
Beneficiary, the applicable divisor determined from the table set forth
in Q&A-4 of Regulations Section 1.401(a)(9)-2. Distributions after the
death of the Participant shall be distributed using the Applicable Life
Expectancy as the relevant divisor without regard to Regulations
Section 1.401(a)(9)-2.
(d) The minimum distribution required for the Participant's First Distribution
Calendar Year must be made on or before the Participant's Required
Beginning Date. The minimum distribution for other calendar years,
including the minimum distribution for the Distribution Calendar Year in
which the Participant's Required Beginning Date occurs, must be made on or
before December 31 of that Distribution Calendar Year.
(e) If the Participant's benefit is distributed in the form of an annuity
purchased from an insurance company, distributions thereunder shall be
made in accordance with the requirements of Code Section 401(a)(9) and the
Regulations thereunder.
(f) For purposes of determining the amount of the required distribution for
each Distribution Calendar Year, the account balance to be used is the
account balance determined as of the last valuation preceding the
Distribution Calendar Year. This balance will be increased by the amount
of any contributions or forfeitures allocated to the account balance after
the valuation date in such preceding calendar year. Such balance will
also be decreased by distributions made after the Valuation Date in such
preceding Calendar Year.
(g) For purposes of subparagraph 7.4(f), if any portion of the minimum
distribution for the First Distribution Calendar Year is made in the
second Distribution Calendar Year on or before the Required Beginning
Date, the amount of the minimum distribution made in the second
Distribution Calendar Year shall be treated as if it had been made in
the immediately preceding Distribution Calendar Year.
7.5 REQUIRED BEGINNING DATE
(a) General Rule. The Required Beginning Date of a Participant is the first
day of April of the calendar year following the calendar year in which
the Participant attains age 70-1/2.
(b) Transitional Rules. The Required Beginning Date of a Participant who
attains age 70-1/2 before 1988, shall be determined in accordance with (1)
or (2) below:
(1) Non-5-percent owners. The Required Beginning Date of a Participant
who is not a 5-percent owner is the first day of April of the
calendar year following the calendar year in which the later of
retirement or attainment of age 70-1/2 occurs. In the case of a
Participant who is not a 5-percent owner who attains age 70-1/2
during 1988 and who has not retired as of January 1, 1989, the
Required Beginning Date is April 1, 1990.
(2) 5-percent owners. The Required Beginning Date of a Participant
who is a 5-percent owner during any year beginning after 1979, is
the first day of April following the later of:
(i) the calendar year in which the Participant attains age 70-1/2,
or
(ii) the earlier of the calendar year with or within which ends the
plan year in which the Participant becomes a 5-percent owner,
or the calendar year in which the Participant retires.
(c) A Participant is treated as a 5-percent owner for purposes of this
Paragraph if such Participant is a 5-percent owner as defined in Code
Section 416(i) (determined in accordance with Code Section 416 but without
regard to whether the Plan is Top-Heavy) at any time during the Plan Year
ending with or within the calendar year in which such Owner attains age
66-1/2 or any subsequent Plan Year.
(d) Once distributions have begun to a 5-percent owner under this paragraph,
they must continue to be distributed, even if the Participant ceases to be
a 5-percent owner in a subsequent year.
7.6 TRANSITIONAL RULE
(a) Notwithstanding the other requirements of this Article and subject to the
requirements of Article VIII, Joint and Survivor Annuity Requirements,
distribution on behalf of any Employee, including a 5-percent owner,
may be made in accordance with all of the following requirements
(regardless of when such distribution commences):
(1) The distribution by the Trust is one which would not have
disqualified such Trust under Code Section 401(a)(9) as in effect
prior to amendment by the Deficit Reduction Act of 1984.
(2) The distribution is in accordance with a method of distribution
designated by the Employee whose interest in the Trust is being
distributed or, if the
PAGE 17
<PAGE> 19
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
Employee is deceased, by a beneficiary of such Employee.
(3) Such designation was in writing, was signed by the Employee or
the beneficiary, and was made before 1984.
(4) The Employee had accrued a benefit under the Plan as of December
31, 1983.
(5) The method of distribution designated by the Employee or the
beneficiary specifies the time at which distribution will
commence, the period over which distributions will be made, and
in the case of any distribution upon the Employee's death, the
beneficiaries of the Employee listed in order of priority.
(b) A distribution upon death will not be covered by this transitional rule
unless the information in the designation contains the required
information described above with respect to the distributions to be
made upon the death of the Employee.
(c) For any distribution which commences before 1984, but continues after
1983, the Employee or the beneficiary, to whom such distribution is
being made, will be presumed to have designated the method of
distribution under which the distribution is being made if the method
of distribution was specified in writing and the distribution satisfies
the requirements in subparagraphs (a)(1) and (5) above.
(d) If a designation is revoked, any subsequent distribution must satisfy the
requirements of Code Section 401(a)(9) and the regulations thereunder.
If a designation is revoked subsequent to the date distributions are
required to begin, the Trust must distribute by the end of the calendar
year following the calendar year in which the revocation occurs the
total amount not yet distributed which would have been required to have
been distributed to satisfy Code Section 401(a)(9) and the regulations
thereunder, but for the section 242(b)(2) election of the Tax Equity
and Fiscal Responsibility Act of 1982. For calendar years beginning
after 1988, such distributions must meet the minimum distribution
incidental benefit requirements in section 1.401(a)(9)-2 of the Income
Tax Regulations. Any changes in the designation will be considered to
be a revocation of the designation. However, the mere substitution or
addition of another beneficiary (one not named in the designation) under
the designation will not be considered to be a revocation of the
designation, so long as such substitution or addition does not alter
the period over which distributions are to be made under the designation,
directly or indirectly (for example, by altering the relevant measuring
life). In the case in which an amount is transferred or rolled over
from one plan to another plan, the rules in Q&A J-2 and Q&A J-3 of the
regulations shall apply.
7.7 DESIGNATION OF BENEFICIARY FOR DEATH BENEFIT. Each Participant
shall file a written designation of beneficiary with the Employer upon
qualifying for participation in this Plan. Such designation shall remain in
force until revoked by the Participant by filing a new beneficiary form with
the Employer. The Participant may elect to have a portion of his or her
account balance invested in an insurance contract. If an insurance contract is
purchased under the Plan, the Trustee must be named as Beneficiary under the
terms of the contract. However, the Participant shall designate a Beneficiary
to receive the proceeds of the contract after settlement is received by the
Trustee. Under a profit-sharing plan satisfying the requirements of paragraph
8.7, the Designated Beneficiary shall be the Participant's Surviving Spouse, if
any, unless such Spouse properly consents otherwise.
7.8 NONEXISTENCE OF BENEFICIARY. Any portion of the amount payable
hereunder which is not disposed of because of the Participant's or former
Participant's failure to designate a beneficiary, or because all of the
Designated Beneficiaries predeceased the Participant, shall be paid to his or
her Spouse. If the Participant had no Spouse at the time of death, payment
shall be made to the personal representative of his or her estate in a lump
sum.
7.9 DISTRIBUTION BEGINNING BEFORE DEATH. If the Participant dies after
distribution of his or her interest has begun, the remaining portion of such
interest will continue to be distributed at least as rapidly as under the
method of distribution being used prior to the Participant's death.
7.10 DISTRIBUTION BEGINNING AFTER DEATH. If the Participant dies before
distribution of his or her interest begins, distribution of the Participant's
entire interest shall be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant's death except to the
extent that an election is made to receive distributions in accordance with (a)
or (b) below:
(a) If any portion of the Participant's interest is payable to a Designated
Beneficiary, distributions may be made over the life or over a period
certain not greater than the life expectancy of the Designated Beneficiary
commencing on or before December 3l of the calendar year immediately
following the calendar year in which the Participant died;
(b) If the Designated Beneficiary is the Participant's surviving Spouse, the
date distributions are required to begin in accordance with (a) above
shall not be earlier than the later of (1) December 31 of the calendar
year immediately following the calendar year in which the participant died
or (2) December 31 of the calendar year in which the Participant would
have attained age 70-1/2.
If the Participant has not made an election pursuant to this paragraph 7.10 by
the time of his or her death, the Participant's Designated Beneficiary must
elect the method of distribution no later than the earlier of (1) December 31
of the calendar year in which distributions would be required to begin under
this section, or (2) December 31 of the calendar year which contains the fifth
anniversary of the date of death of the participant. If the Participant has no
Designated Beneficiary, or if the Designated Beneficiary does not elect a
method of distribution, then distribution of the Participant's entire interest
must be completed by December 31 of the calendar year containing the fifth
anniversary of the Participant's death.
For purposes of this paragraph if the Surviving Spouse dies after the
Participant, but before payments to such Spouse begin, the provisions of this
paragraph with the exception of paragraph (b) therein, shall be applied as if
the Surviving Spouse were the Participant. For the purposes of this paragraph
and paragraph 7.9, distribution of a Participant's interest is considered to
begin
Page 18
<PAGE> 20
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
on the Participant's Required Beginning Date (or, if the preceding sentence is
applicable, the date distribution is required to begin to the Surviving
Spouse). If distribution in the form of an annuity described in paragraph
7.4(e) irrevocably commences to the Participant before the Required Beginning
Date, the date distribution is considered to begin is the date distribution
actually commences.
For purposes of paragraph 7.9 and this paragraph, any amount paid to a child of
the Participant will be treated as if it had been paid to the Surviving Spouse
if the amount becomes payable to the Surviving Spouse when the child attains
the age of majority.
7.11 DISTRIBUTION OF EXCESS ELECTIVE DEFERRALS
(a) Notwithstanding any other provision of the Plan, Excess Elective
Deferrals plus any income and minus any loss allocable thereto, shall be
distributed no later than April 15, 1988, and each April 15 thereafter, to
Participants to whose accounts Excess Elective Deferrals were allocated
for the preceding taxable year, and who claim Excess Elective Deferrals
for such taxable year. Excess Elective Deferrals shall be treated as
Annual Additions under the plan, unless such amounts are distributed no
later than the first April 15th following the close of the Participant's
taxable year. A Participant is deemed to notify the Plan Administrator of
any Excess Elective Deferrals that arise by taking into account only those
Elective Deferrals made to this Plan and any other plans of this Employer.
(b) Furthermore, a Participant who participates in another plan allowing
Elective Deferrals may assign to this Plan any Excess Elective Deferrals
made during a taxable year of the Participant, by notifying the Plan
Administrator of the amount of the Excess Elective Deferrals to be
assigned. The Participant's claim shall be in writing; shall be submitted
to the Plan Administrator not later than March 1 of each year; shall
specify the amount of the Participant's Excess Elective Deferrals for the
preceding taxable year and shall be accompanied by the Participant's
written statement that if such amounts are not distributed, such Excess
Elective Deferrals, when added to amounts deferred under other plans or
arrangements described in Code Sections 401(k), 408(k) [Simplified
Employee Pensions], or 403(b) [annuity programs for public schools and
charitable organizations] will exceed the $7,000 limit as adjusted under
Code Section 415(d) imposed on the Participant by Code Section 402(g) for
the year in which the deferral occurred.
(c) Excess Elective Deferrals shall be adjusted for any income or loss
up to the end of the taxable year, during which such excess was deferred.
Income or loss will be calculated under the method used to calculate
investment earnings and losses elsewhere in the Plan.
(d) If the Participant receives a return of his or her Elective
Deferrals, the amount of such contributions which are returned must be
brought into the Employee's taxable income.
7.12 DISTRIBUTIONS OF EXCESS CONTRIBUTIONS
(a) Notwithstanding any other provision of this Plan, Excess
Contributions, plus any income and minus any loss allocable thereto, shall
be distributed no later than the last day of each Plan Year to
Participants to whose accounts such Excess Contributions were allocated
for the preceding Plan Year. If such excess amounts are distributed more
than 2-1/2 months after the last day of the Plan Year in which such excess
amounts arose, a ten (10) percent excise tax will be imposed on the
Employer maintaining the Plan with respect to such amounts. Such
distributions shall be made to Highly Compensated Employees on the basis
of the respective portions of the Excess Contributions attributable to
each of such Employees. Excess Contributions of Participants who are
subject to the Family Member aggregation rules of Code Section 414(q)(6)
shall be allocated among the Family Members in proportion to the Elective
Deferrals (and amounts treated as Elective Deferrals) of each Family
Member that is combined to determine the Average Deferral Percentage.
(b) Excess Contributions (including the amounts recharacterized) shall
be treated as Annual Additions under the Plan.
(c) Excess Contributions shall be adjusted for any income or loss up to
the end of the Plan Year. Income or loss will be calculated under the
method used to calculate investment earnings and losses elsewhere in the
Plan.
(d) Excess Contributions shall be distributed from the Participant's
Elective Deferral account and Qualified Matching Contribution account (if
applicable) in proportion to the Participant's Elective Deferrals and
Qualified Matching Contributions (to the extent used in the ADP test) for
the Plan Year. Excess Contributions shall be distributed from the
Participant's Qualified Non-Elective Contribution account only to the
extent that such Excess Contributions exceed the balance in the
Participant's Elective Deferral account and Qualified Matching
Contribution account.
7.13 DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS
(a) Notwithstanding any other provision of this Plan, Excess Aggregate
Contributions, plus any income and minus any loss allocable thereto, shall
be forfeited, if forfeitable, or if not forfeitable, distributed no later
than the last day of each Plan Year to Participants to whose accounts such
Excess Aggregate Contributions were allocated for the preceding Plan Year.
Excess Aggregate Contributions shall be allocated to Participants who are
subject to the Family Member aggregation rules of Code Section 414(q)(6)
in the manner prescribed by the regulations. If such Excess Aggregate
Contributions are distributed more than 2-1/2 months after the last day of
the Plan Year in which such excess amounts arose, a ten (10) percent
excise tax will be imposed on the Employer maintaining the Plan with
respect to those amounts. Excess Aggregate Contributions shall be treated
as Annual Additions under the plan.
(b) Excess Aggregate Contributions shall be adjusted for any income or
loss up to the end of the Plan Year. The income or loss allocable to
Excess Aggregate Contributions is the sum of income or loss for the Plan
Year allocable to the Participant's Voluntary Contribution account,
Matching Contribution account (if any, and if all amounts therein are not
used in the ADP test) and, if applicable, Qualified Non-Elective
Contribution account and Elective Deferral account. Income or loss will
be calculated under the
PAGE 19
<PAGE> 21
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
method used to calculate investment earnings and losses elsewhere in the
Plan.
(c) Forfeitures of Excess Aggregate Contributions may either be
reallocated to the accounts of non-Highly Compensated Employees or applied
to reduce Employer contributions, as elected by the employer in the
Adoption Agreement.
(d) Excess Aggregate Contributions shall be forfeited if such amount is
not vested. If vested, such excess shall be distributed on a pro-rata
basis from the Participant's Voluntary Contribution account (and, if
applicable, the Participant's Qualified Non-Elective Contribution account,
Matching Contribution account, Qualified Matching Contribution account, or
Elective Deferral account, or both).
7.14 ESCHEAT. In the event any vested account balance is unclaimed
and the Plan Administrator is unable to determine the whereabouts of the
Participant, beneficiary or any other person whose benefits from the Plan are
due, within three years from the date such benefit would otherwise be payable,
such vested account balance shall be forfeited and revert to and become part of
the Trust upon written direction of the Plan Administrator; provided, however,
such unclaimed benefits shall be reinstated from earnings and forfeitures, and
Employer Contributions designated for that purpose if the claimant to whom such
benefit is due and owing subsequently makes written application to the Plan
Administrator. The Plan Administrator also reserves the right, with the
consent of the Trustee/Custodian, to direct the Trustee/Custodian to dispose of
any unclaimed benefits under the escheat statutes of the applicable state law,
as defined in Article XVI.
ARTICLE VIII
JOINT AND SURVIVOR ANNUITY
REQUIREMENTS
8.1 APPLICABILITY OF PROVISIONS. The provisions of this Article
shall apply to any Participant who is credited with at least one Hour of
Service with the Employer on or after August 23, 1984 and such other
Participants as provided in paragraph 8.8.
8.2 PAYMENT OF QUALIFIED JOINT AND SURVIVOR ANNUITY. Unless an optional
form of benefit is selected pursuant to a Qualified Election within the 90-day
period ending on the Annuity Starting Date, a married Participant's Vested
Account Balance will be paid in the form of a Qualified Joint and Survivor
Annuity and an unmarried Participant's Vested Account Balance will be paid in
the form of a life annuity. The Participant may elect to have such annuity
distributed upon attainment of the Early Retirement Age under the Plan.
8.3 PAYMENT OF QUALIFIED PRE-RETIREMENT SURVIVOR ANNUITY. Unless an optional
form of benefit has been selected within the Election Period pursuant to a
Qualified Election, if a Participant dies before benefits have commenced then
the Participant's vested account balance shall be paid in the form of an
annuity for the life of the Surviving Spouse. The Surviving Spouse may elect
to have such annuity distributed within a reasonable period after the
Participant's death.
A Participant who does not meet the age 35 requirement set forth in the
Election Period as of the end of any current Plan Year may make a special
qualified election to waive the qualified Pre-retirement Survivor Annuity for
the period beginning on the date of such election and ending on the first day
of the Plan Year in which the Participant will attain age 35. Such election
shall not be valid unless the Participant receives a written explanation of the
Qualified Pre-retirement Survivor Annuity in such terms as are comparable to
the explanation required under paragraph 8.5. Qualified Pre-retirement Survivor
Annuity coverage will be automatically reinstated as of the first day of the
Plan Year in which the Participant attains age 35. Any new waiver on or after
such date shall be subject to the full requirements of this Article.
8.4 QUALIFIED ELECTION. A Qualified Election is an election to either waive a
Qualified Joint and Survivor Annuity or a qualified pre-retirement survivor
annuity. Any such election shall not be effective unless:
(a) the Participant's Spouse consents in writing to the election;
(b) the election designates a specific beneficiary, including any class
of beneficiaries or any contingent beneficiaries, which may not be changed
without spousal consent (or the Spouse expressly permits designations by
the Participant without any further spousal consent);
(c) the Spouse's consent acknowledges the effect of the election; and
(d) the Spouse's consent is witnessed by a Plan representative or notary
public.
Additionally, a Participant's waiver of the Qualified Joint and Survivor
Annuity shall not be effective unless the election designates a form of benefit
payment which may not be changed without spousal consent (or the Spouse
expressly permits designations by the Participant without any further spousal
consent). If it is established to the satisfaction of the Plan Administrator
that there is no Spouse or that the Spouse cannot be located, a waiver will be
deemed a Qualified Election. Any consent by a Spouse obtained under this
provision (or establishment that the consent of a Spouse may not be obtained)
shall be effective only with respect to such Spouse. A consent that permits
designations by the Participant without any requirement of further consent by
such Spouse must acknowledge that the Spouse has the right to limit consent to
a specific beneficiary, and a specific form of benefit where applicable, and
that the Spouse voluntarily elects to relinquish either or both of such rights.
A revocation of a prior waiver may be made by a Participant without the consent
of the Spouse at any time before the commencement of benefits. The number of
revocations shall not be limited. No consent obtained under this provision
shall be valid unless the Participant has received notice as provided in
paragraphs 8.5 and 8.6 below.
8.5 NOTICE REQUIREMENTS FOR QUALIFIED JOINT AND SURVIVOR ANNUITY. In
the case of a Qualified Joint and Survivor Annuity, the Plan Administrator
shall, no less than 30 days and no more than 90 days prior to the Annuity
Starting date, provide each Participant 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 an election to waive the
Qualified Joint and Survivor Annuity form of benefit;
Page 20
<PAGE> 22
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
(c) the rights of a Participant's Spouse; and
(d) the right to make, and the effect of, a revocation of a previous
election to waive the Qualified Joint and Survivor Annuity.
8.6 NOTICE REQUIREMENTS FOR QUALIFIED PRE-RETIREMENT SURVIVOR ANNUITY.
In the case of a qualified pre-retirement survivor annuity as described in
paragraph 8.3, the Plan Administrator shall provide each Participant within the
applicable period for such Participant a written explanation of the qualified
pre-retirement survivor annuity in such terms and in such manner as would be
comparable to the explanation provided for meeting the requirements of
paragraph 8.5 applicable to a Qualified Joint and Survivor Annuity. The
applicable period for a Participant is whichever of the following periods ends
last:
(a) 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;
(b) a reasonable period ending after the individual becomes a Participant;
(c) a reasonable period ending after this Article first applies to the
Participant. Notwithstanding the foregoing, notice must be provided
within a reasonable period ending after separation from Service in the
case of a Participant who separates from Service before attaining age 35.
For purposes of applying the preceding paragraph, a reasonable period ending
after the events described in (b) and (c) is the end of the two-year period
beginning one-year prior to the date the applicable event occurs, and ending
one-year after that date. In the case of a Participant who separates from
Service before the Plan Year in which age 35 is attained, notice shall be
provided within the two-year period beginning one year prior to separation and
ending one year after separation. If such a Participant subsequently returns
to employment with the Employer, the applicable period for such Participant
shall be re-determined.
8.7 SPECIAL SAFE-HARBOR EXCEPTION FOR CERTAIN PROFIT SHARING PLANS
(a) This paragraph shall apply to a Participant in a profit-sharing
plan, and to any distribution, made on or after the first day of the first
plan year beginning after 1988, from or under a separate account
attributable solely to Qualified Voluntary contributions, as maintained on
behalf of a Participant in a money purchase pension plan, (including a
target benefit plan) if the following conditions are satisfied:
(1) the Participant does not or cannot elect payments in the form of a
life annuity; and
(2) on the death of a Participant, the Participant's Vested Account
Balance will be paid to the Participant's Surviving Spouse, but if
there is no Surviving Spouse, or if the Surviving Spouse has
consented in a manner conforming to a Qualified Election, then to
the Participant's Designated Beneficiary.
The Surviving Spouse may elect to have distribution of the Vested Account
Balance commence within the 90-day period following the date of the
Participant's death.
The account balance shall be adjusted for gains or losses occurring after
the Participant's death in accordance with the provisions of the Plan
governing the adjustment of account balances for other types of
distributions. These safe-harbor rules shall not be operative with
respect to a Participant in a profit-sharing plan if that plan is a direct
or indirect transferee of a Defined Benefit Plan, money purchase plan, a
target benefit plan, stock bonus plan, or profit-sharing plan which is
subject to the survivor annuity requirements of Code Section 401(a)(11)
and Code Section 417, and would therefore have a Qualified Joint and
Survivor Annuity as its normal form of benefit.
(b) The Participant may waive the spousal death benefit described in
this paragraph at any time provided that no such waiver shall be effective
unless it satisfies the conditions (described in paragraph 8.4) that would
apply to the Participant's waiver of the Qualified Pre-Retirement Survivor
Annuity.
(c) If this paragraph 8.7 is operative, then all other provisions of
this Article other than paragraph 8.8 are inoperative.
8.8 TRANSITIONAL JOINT AND SURVIVOR ANNUITY RULES. Special transition
rules apply to Participants who were not receiving benefits on August 23, 1984.
(a) Any living Participant not receiving benefits on August 23, 1984,
who would otherwise not receive the benefits prescribed by the
previous paragraphs of this Article, must be given the opportunity to
elect to have the prior paragraphs of this Article apply if such
Participant is credited with at least one Hour of Service under this Plan
or a predecessor Plan in a Plan Year beginning on or after January 1, 1976
and such Participant had at least 10 Years of Service for vesting purposes
when he or she separated from Service.
(b) Any living Participant not receiving benefits on August 23, 1984,
who was credited with at least one Hour of Service under this Plan
or a predecessor Plan on or after September 2, 1974, and who is not
otherwise credited with any Service in a Plan Year beginning on or after
January 1, 1976, must be given the opportunity to have his or her benefits
paid in accordance with paragraph 8.9.
(c) The respective opportunities to elect [as described in (a) and
(b) above] must be afforded to the appropriate Participants during the
period commencing on August 23, 1984 and ending on the date benefits would
otherwise commence to said Participants.
8.9 AUTOMATIC JOINT AND SURVIVOR ANNUITY AND EARLY SURVIVOR ANNUITY. Any
Participant who has elected pursuant to paragraph 8.8(b) and any Participant
who does not elect under paragraph 8.8(a) or who meets the requirements of
paragraph 8.8(a), except that such Participant does not have at least 10 years
of vesting Service when he or she separates from Service, shall have his or her
benefits distributed in accordance with all of the following requirements if
benefits would have been payable in the form of a life annuity.
(a) Automatic Joint and Survivor Annuity. If benefits in the
form of a life annuity become payable to a married Participant who:
Page 21
<PAGE> 23
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
(1) begins to receive payments under the Plan on or after Normal
Retirement Age, or
(2) dies on or after Normal Retirement Age while still working for the
Employer, or
(3) begins to receive payments on or after the Qualified Early Retirement
Age, or
(4) separates from Service on or after attaining Normal Retirement (or the
Qualified Early Retirement Age) and after satisfying the eligibility
requirements for the payment of benefits under the Plan and
thereafter dies before beginning to receive such benefits, then such
benefits will be received under this Plan in the form of a Qualified
Joint and Survivor Annuity, unless the Participant has elected
otherwise during the Election Period. The Election Period must begin
at least 6 months before the Participant attains Qualified Early
Retirement Age and end not more than 90 days before the commencement
of benefits. Any election will be in writing and may be changed by
the Participant at any time.
(b) Election of Early Survivor Annuity. A Participant who is employed
after attaining the Qualified Early Retirement Age will be given the
opportunity to elect, during the Election Period, to have a survivor
annuity payable on death. If the Participant elects the survivor annuity,
payments under such annuity must not be less than the payments which would
have been made to the Spouse under the Qualified Joint and Survivor
Annuity if the Participant had retired on the day before his or her death.
Any election under this provision will be in writing and may be changed by
the Participant at any time. The Election Period begins on the later of:
(1) the 90th day before the Participant attains the Qualified Early
Retirement Age, or
(2) the date on which participation begins, and ends on
the date the Participant terminates employment.
8.10 ANNUITY CONTRACTS. Any annuity contract distributed under this
Plan must be nontransferable. The terms of any annuity contract purchased and
distributed by the Plan to a Participant or Spouse shall comply with the
requirements of this Plan.
ARTICLE IX
VESTING
9.1 EMPLOYEE CONTRIBUTIONS. A Participant shall always have a 100%
vested and nonforfeitable interest in his or her Elective Deferrals, Voluntary
Contributions, Qualified Voluntary Contributions, Rollover Contributions, and
Transfer Contributions plus the earnings thereon. No forfeiture of Employer
related contributions (including any minimum contributions made under paragraph
14.2) will occur solely as a result of an Employee's withdrawal of any Employee
contributions.
9.2 EMPLOYER CONTRIBUTIONS. A Participant shall acquire a vested and
nonforfeitable interest in his or her account attributable to Employer
contributions in accordance with the table selected in the Adoption Agreement,
provided that if a Participant is not already fully vested, he or she shall
become so upon attaining Normal Retirement Age, Early Retirement Age, on death
prior to normal retirement, on retirement due to Disability, or on termination
of the Plan.
9.3 COMPUTATION PERIOD. The computation period for purposes of
determining Years of Service and Breaks in Service for purposes of computing a
Participant's nonforfeitable right to his or her account balance derived from
Employer contributions shall be determined by the Employer in the Adoption
Agreement. In the event a former Participant with no vested interest in his or
her Employer contribution account requalifies for participation in the Plan
after incurring a Break in Service, such Participant shall be credited for
vesting with all pre-break and post-break Service.
9.4 REQUALIFICATION PRIOR TO FIVE CONSECUTIVE ONE-YEAR BREAKS IN
SERVICE. The account balance of such Participant shall consist of any
undistributed amount in his or her account as of the date of re-employment plus
any future contributions added to such account plus the investment earnings on
the account. The vested account balance of such Participant shall be
determined by multiplying the Participant's account balance (adjusted to
include any distribution or redeposit made under paragraph 6.3) by such
Participant's vested percentage. All Service of the Participant, both prior to
and following the break, shall be counted when computing the Participant's
vested percentage.
9.5 REQUALIFICATION AFTER FIVE CONSECUTIVE ONE-YEAR BREAKS IN SERVICE.
If such Participant is not fully vested upon re-employment, a new account shall
be established for such Participant to separate his or her deferred vested and
nonforfeitable account, if any, from the account to which new allocations will
be made. The Participant's deferred account to the extent remaining shall be
fully vested and shall continue to share in earnings and losses of the Fund.
When computing the Participant's vested portion of the new account, all
pre-break and post-break Service shall be counted. However, notwithstanding
this provision, no such former Participant who has had five consecutive
one-year Breaks in Service shall acquire a larger vested and nonforfeitable
interest in his or her prior account balance as a result of requalification
hereunder.
9.6 CALCULATING VESTED INTEREST. A Participant's vested and
nonforfeitable interest shall be calculated by multiplying the fair market
value of his or her account attributable to Employer contributions on the
Valuation Date preceding distribution by the decimal equivalent of the vested
percentage as of his or her termination date. The amount attributable to
Employer contributions for purposes of the calculation includes amounts
previously paid out pursuant to paragraph 6.3 and not repaid. The
Participant's vested and nonforfeitable interest, once calculated above, shall
be reduced to reflect those amounts previously paid out to the Participant and
not repaid by the Participant. The Participant's vested and nonforfeitable
interest so determined shall continue to share in the investment earnings and
any increase or decrease in the fair market value of the Fund up to the
Valuation Date preceding or coinciding with payment.
9.7 FORFEITURES. Any balance in the account of a Participant who has
separated from Service to which he or she is not entitled under the foregoing
provisions, shall be forfeited and applied as provided in the Adoption
Agreement. A forfeiture
Page 22
<PAGE> 24
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
may only occur if the Participant has received a distribution from the Plan or
if the Participant has incurred five consecutive 1-year Breaks in Service.
Furthermore, a Highly Compensated Employee's Matching Contributions may be
forfeited, even if vested, if the contributions to which they relate are Excess
Deferrals, Excess Contributions or Excess Aggregate Contributions.
9.8 AMENDMENT OF VESTING SCHEDULE. No amendment to the Plan shall have the
effect of decreasing a Participant's vested interest determined without regard
to such amendment as of the later of the date such amendment is adopted or the
date it becomes effective. Further, if the vesting schedule of the Plan is
amended, or the Plan is amended in any way that directly or indirectly affects
the computation of any Participant's nonforfeitable percentage or if the Plan
is deemed amended by an automatic change to or from a Top-Heavy vesting
schedule, each Participant with at least three Years of Service with the
Employer may elect, within a reasonable period after the adoption of the
amendment, to have his or her nonforfeitable percentage computed under the Plan
without regard to such amendment. For Participants who do not have at least
one Hour of Service in any Plan Year beginning after 1988, the preceding
sentence shall be applied by substituting "Five Years of Service" for "Three
Years of Service" where such language appears. The period during which the
election may be made shall commence with the date the amendment is adopted and
shall end on the later of:
(a) 60 days after the amendment is adopted;
(b) 60 days after the amendment becomes effective; or
(c) 60 days after the Participant is issued written notice of the amendment
by the Employer or the Trustee/Custodian. If the Trustee/Custodian is
asked to so notify, the Fund will be charged for the costs thereof.
No amendment to the Plan shall be effective to the extent that it has the
effect of decreasing a Participant's accrued benefit. Notwithstanding the
preceding sentence, a POarticipant's account balance may be reduced to the
extent permitted under section 412(c)(8) of the Code (relating to financial
hardships). For purposes of this paragraph, a Plan amendment which has the
effect of decreasing a Participant's account balance or eliminating an optional
form of benefit, with respect to benefits attributable to service before the
amendment, shall be treated as reducing an accrued benefit.
9.9 SERVICE WITH CONTROLLED GROUPS. All Years of Service with other
members of a controlled group of corporations [as defined in Code Section
414(b)], trades or businesses under common control [as defined in Code Section
414(c)], or members of an affiliated service group [as defined in Code Section
414(m)] shall be considered for purposes of determining a Participant's
nonforfeitable percentage.
ARTICLE X
LIMITATIONS ON ALLOCATIONS
AND ANTIDISCRIMINATION TESTING
10.1 PARTICIPATION IN THIS PLAN ONLY. If the Participant does not
participate in and has never participated in another qualified plan, a Welfare
Benefit Fund (as defined in paragraph 1.89) or an individual medical account,
as defined in Code Section 415(1)(2), maintained by the adopting Employer,
which provides an Annual Addition as defined in paragraph 1.4, the amount of
Annual Additions which may be credited to the Participant's account for any
Limitation Year will not exceed the lesser of the Maximum Permissible Amount or
any other limitation contained in this Plan. If the Employer contribution that
would otherwise be contributed or allocated to the Participant's account would
cause the Annual Additions for the Limitation Year to exceed the Maximum
Permissible Amount, the amount contributed or allocated will be reduced so that
the Annual Additions for the Limitation Year will equal the Maximum Permissible
Amount. Prior to determining the Participant's actual Compensation for the
Limitation Year, the Employer may determine the Maximum Permissible Amount for
a Participation the basis of a reasonable estimate of the Participant's
Compensation for the Limitation Year, uniformly determined for all Participants
similarly situated. As soon as is administratively feasible after the end of
the Limitation Year, the Maximum Permissible Amount for the Limitation Year
will be determined on the basis of the Participant's actual Compensation for
the Limitation Year.
10.2 DISPOSITION OF EXCESS ANNUAL ADDITIONS. If, pursuant to paragraph
10.1 or as a result of the allocation of forfeitures, there is an Excess
Amount,the excess will be disposed of under one of the following methods as
determined in the Adoption Agreement. If no election is made in the Adoption
Agreement then method "(a)" below shall apply.
(a) Suspense Account Method
(1) Any Elective Deferrals and nondeductible Employee Voluntary or
Required Voluntary Contributions, to the extent they would reduce
the Excess Amount, will be returned to the Participant;
(2) If after the application of paragraph (1) an Excess Amount still
exists, and the Participant is covered by the Plan at the end of
the Limitation Year, the Excess Amount in the Participant's
account will be used to reduce Employer contributions (including
any allocation of forfeitures) for such Participant in the next
Limitation Year,and each succeeding Limitation Year if necessary;
(3) If after the application of paragraph (1) an Excess Amount
still exists, and the Participant is not covered by the Plan at the
end of the Limitation Year, the Excess Amount will be held
unallocated in a suspense account. The suspense account will be
applied to reduce future Employer contributions (including
allocation of any forfeitures) for all remaining Participants in
the next Limitation Year, and each succeeding Limitation Year if
necessary;
(4) If a suspense account is in existence at any time during the
Limitation Year pursuant to this paragraph, it will not
participate in the allocation of investment gains and losses.
If a suspense account is in existence at any time during a
particular Limitation Year, all amounts in the suspense account
must be allocated and reallocated to Participants' accounts before
any Employer contributions or any Employee Contributions may be
made to the Plan for that Limitation Year. Excess amounts may not
be distributed to Participants or former Participants.
Page 23
<PAGE> 25
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
(b) Spillover Method
(1) Any Elective Deferrals and nondeductible Employee Voluntary or
Required Voluntary Contributions, to the extent they would
reduce the Excess Amount, will be returned to the Participant;
(2) Any Excess Amount which would be allocated to the account of an
individual Participant under the Plan's allocation formula will
be reallocated to other Participants in the same manner as other
Employer contributions. No such reallocation shall be made to
the extent that it will result in an Excess Amount being created
in such Participant's own account.
(3) To the extent that amounts cannot be reallocated under (1)
above, the suspense account provisions of (a) above will apply.
10.3 PARTICIPATION IN THIS PLAN AND ANOTHER MASTER AND PROTOTYPE DEFINED
CONTRIBUTION PLAN, WELFARE BENEFIT FUND OR INDIVIDUAL MEDICAL ACCOUNT
MAINTAINED BY THE EMPLOYER. The Annual Additions which may be credited to a
Participant's account under this Plan for any Limitation Year will not
exceed the Maximum Permissible Amount reduced by the Annual Additions credited
to a Participant's account under the other Master or Prototype Defined
Contribution Plans, Welfare Benefit Funds, and individual medical accounts as
defined in Code Section 415(1)(2), maintained by the Employer, which provide an
Annual Addition as defined in paragraph 1.4 for the same Limitation Year. If
the Annual Additions, with respect to the Participant under other Defined
Contribution Plans and Welfare Benefit Funds maintained by the Employer, are
less than the Maximum Permissible Amount and the Employer contribution that
would otherwise be contributed or allocated to the Participant's account under
this Plan would cause the Annual Additions for the Limitation Year to exceed
this limitation, the amount contributed or allocated will be reduced so that
the Annual Additions under all such plans and funds for the Limitation Year
will equal the Maximum Permissible Amount. If the Annual Additions with
respect to the Participant under such other Defined Contribution Plans and
Welfare Benefit Funds in the aggregate are equal to or greater than the Maximum
Permissible Amount, no amount will be contributed or allocated to the
Participant's account under this Plan for the Limitation Year. Prior to
determining the Participant's actual Compensation for the Limitation Year, the
Employer may determine the Maximum Permissible Amount for a Participant in the
manner described in paragraph 10.1. As soon as administratively feasible after
the end of the Limitation Year, the Maximum Permissible Amount for the
Limitation Year will be determined on the basis of the Participant's actual
Compensation for the Limitation Year.
10.4 DISPOSITION OF EXCESS ANNUAL ADDITIONS UNDER TWO PLANS. If, pursuant to
paragraph 10.3 or as a result of forfeitures, a Participant's Annual Additions
under this Plan and such other plans would result in an Excess Amount for a
Limitation Year, the Excess Amount will be deemed to consist of the Annual
Additions last allocated except that Annual Additions attributable to a Welfare
Benefit Fund or Individual Medical Account as defined in Code Section 415(1)(2)
will be deemed to have been allocated first regardless of the actual allocation
date. If an Excess Amount was allocated to a Participant on an allocation date
of this Plan which coincides with an allocation date of another plan, the
Excess Amount attributed to this Plan will be the product of:
(a) the total Excess Amount allocated as of such date, times
(b) the ratio of:
(1) the Annual Additions allocated to the Participant for the
Limitation Year as of such date under the Plan, to
(2) the total Annual Additions allocated to the Participant for the
Limitation Year as of such date under this and all the other
qualified Master or Prototype Defined Contribution Plans.
Any Excess Amount attributed to this Plan will be disposed of in the manner
described in paragraph 10.2.
10.5 PARTICIPATION IN THIS PLAN AND ANOTHER DEFINED CONTRIBUTION PLAN
WHICH IS NOT A MASTER OR PROTOTYPE PLAN. If the Participant is covered under
another qualified Defined Contribution Plan maintained by the Employer which is
not a Master or Prototype Plan, Annual Additions which may be credited to the
Participant's account under this Plan for any Limitation Year will be limited
in accordance with paragraphs 10.3 and 10.4 as though the other plan were a
Master or Prototype Plan, unless the Employer provides other limitations in the
Adoption Agreement.
10.6 PARTICIPATION IN THIS PLAN AND A DEFINED BENEFIT PLAN. If the Employer
maintains, or at any time maintained, a qualified Defined Benefit Plan covering
any Participant in this Plan, the sum of the Participant's Defined Benefit Plan
Fraction and Defined Contribution Plan Fraction will not exceed 1.0 in any
Limitation Year. For any Plan Year during which the Plan is Top-Heavy, the
Defined Benefit and Defined Contribution Plan Fractions shall be calculated in
accordance with Code Section 416(h). The Annual Additions which may be
credited to the Participant's account under this Plan for any Limitation Year
will be limited in accordance with the provisions set forth in the Adoption
Agreement.
10.7 AVERAGE DEFERRAL PERCENTAGE (ADP) TEST. With respect to any Plan Year,
the Average Deferral Percentage for Participants who are Highly Compensated
Employees and the Average Deferral Percentage for Participants who are
non-Highly Compensated Employees must satisfy one of the following tests:
(a) BASIC TEST - the Average Deferral Percentage for Participants who are
Highly Compensated Employees for the Plan Year is not more than 1.25
times the Average Deferral Percentage for Participants who are
non-Highly Compensated Employees for the same Plan Year, or
(b) ALTERNATIVE TEST - The Average Deferral Percentage for Participants
who are Highly Compensated Employees for the Plan Year does not exceed the
Average Deferral Percentage for Participants who are non-Highly
Compensated Employees for the same Plan Year by more than 2 percentage
points provided that the Average Deferral Percentage for Participants
who are Highly Compensated Employees is not more than 2.0 times the
Average Deferral Percentage for Participants who are non-Highly
Compensated Employees.
Page 24
<PAGE> 26
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
10.8 SPECIAL RULES RELATING TO APPLICATION OF ADP TEST
(a) The Actual Deferral Percentage for any Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to have
Elective Deferrals (and Qualified Non-Elective Contributions or
Qualified Matching Contributions, or both, if treated as Elective
Deferrals for purposes of the ADP test) allocated to his or her
accounts under two or more arrangements described in Code Section 401(k),
that are maintained by the Employer, shall be determined as if
such Elective Deferrals (and, if applicable, such Qualified
Non-Elective Contributions or Qualified Matching Contributions, or
both) were made under a single arrangement. If a Highly Compensated
Employee participates in two or more cash or deferred arrangements
that have different Plan Years, all cash or deferred arrangements
ending with or within the same calendar year shall be treated as a
single arrangement.
(b) In the event that this Plan satisfies the requirements of Code
Sections 401(k), 401(a)(4), or 410(b), only if aggregated with one or
more other plans, or if one or more other plans satisfy the
requirements of such Code Sections only if aggregated with this Plan,
then this Section shall be applied by determining the Actual Deferral
Percentage of Employees as if all such plans were a single plan. For
Plan Years beginning after 1989, plans may be aggregated in order to
satisfy Code Section 401(k) only if they have the same Plan Year.
(c) For purposes of determining the Actual Deferral Percentage of a
Participant who is a 5-percent owner or one of the ten most highly-paid
Highly Compensated Employees, the Elective Deferrals (and Qualified
Non-Elective Contributions or Qualified Matching Contributions, or both,
if treated as Elective Deferrals for purposes of the ADP test) and
Compensation of such Participant shall include the Elective Deferrals
(and, if applicable, Qualified Non-Elective Contributions and Qualified
Matching Contributions, or both) and Compensation for the Plan Year of
Family Members as defined in paragraph 1.36 of this Plan. Family
Members, with respect to such Highly Compensated Employees, shall be
disregarded as separate Employees in determining the ADP both for
Participants who are non-Highly Compensated Employees and for
Participants who are Highly Compensated Employees. In the event of
repeal of the family aggregation rules under Code Section 414(q)(6), all
applications of such rules under this Plan will cease as of the
effective date of such repeal.
(d) For purposes of determining the ADP test, Elective Deferrals, Qualified
Non-Elective Contributions and Qualified Matching Contributions must be
made before the last day of the twelve-month period immediately
following the Plan Year to which contributions relate.
(e) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ADP test and the amount of Qualified Non-Elective
Contributions or Qualified Matching Contributions, or both, used in such
test.
(f) The determination and treatment of the Actual Deferral Percentage
amounts of any Participant shall satisfy such other requirements as may
be prescribed by the Secretary of the Treasury.
10.9 RECHARACTERIZATION. If the Employer allows for Voluntary
Contributions in the Adoption Agreement, a Participant may treat his or her
Excess Contributions as an amount distributed to the Participant and then
contributed by the Participant to the Plan. Recharacterized amounts will
remain nonforfeitable and subject to the same distribution requirements as
Elective Deferrals. Amounts may not be recharacterized by a Highly Compensated
Employee to the extent that such amount in combination with other Employee
Contributions made by that Employee would exceed any stated limit under the
Plan on Voluntary Contributions. Recharacterization must occur no later than
two and one-half months after the last day of the Plan Year in which such
Excess Contributions arose and is deemed to occur no earlier than the date the
last Highly Compensated Employee is informed in writing of the amount
recharacterized and the consequences thereof. Recharacterized amounts will be
taxable to the Participant for the Participant's tax year in which the
Participant would have received them in cash.
10.10 AVERAGE CONTRIBUTION PERCENTAGE (ACP) TEST. If the Employer makes
Matching Contributions or if the Plan allows Employees to make Voluntary
Contributions the Plan must meet additional nondiscrimination requirements
provided under Code Section 401(m). If Employee Contributions (including any
Elective Deferrals recharacterized as Voluntary Contributions) are made
pursuant to this Plan, then in addition to the ADP test referenced in paragraph
10.7, the Average Contribution Percentage test is also applicable. The Average
Contribution Percentage for Participants who are Highly Compensated Employees
for each Plan Year and the Average Contribution Percentage for Participants who
are Non-Highly Compensated Employees for the same Plan Year must satisfy one
of the following tests:
(a) BASIC TEST - The Average Contribution Percentage for Participants who
are Highly Compensated Employees for the Plan Year shall not exceed the
Average Contribution Percentage for Participants who are non-Highly
Compensated Employees for the same Plan Year multiplied by 1.25; or
(b) ALTERNATIVE TEST - The ACP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the Average Contribution
Percentage for Participants who are non-Highly Compensated
Employees for the same Plan Year multiplied by two (2), provided that
the Average Contribution Percentage for Participants who are Highly
Compensated Employees does not exceed the Average Contribution
Percentage for Participants who are non-Highly Compensated Employees by
more than two (2) percentage points.
10.11 SPECIAL RULES RELATING TO APPLICATION OF ACP TEST
(a) If one or more Highly Compensated Employees participate in both a cash or
deferred arrangement and a plan subject to the ACP test maintained by
the Employer and the sum of the ADP and ACP of those Highly
Compensated Employees subject to either or both tests exceeds the
Aggregate Limit, then the ADP or ACP of those Highly Compensated Employees
who also participate in a cash or deferred arrangement will be reduced
(beginning with such Highly Compensated Employee whose ADP or ACP is the
highest) as set forth in the Adoption Agreement so that the limit is not
exceeded. The amount by which
Page 25
<PAGE> 27
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
each Highly Compensated Employee's Contribution Percentage Amounts is
reduced shall be treated as an Excess Aggregate Contribution. The ADP
and ACP of the Highly Compensated Employees are determined after any
corrections required to meet the ADP and ACP tests. Multiple use does
not occur if both the ADP and ACP of the Highly Compensated Employees
does not exceed 1.25 multiplied by the ADP and ACP of the non-Highly
Compensated Employees.
(b) For purposes of this Article, the Contribution Percentage for any
Participant who is a Highly Compensated Employee and who is eligible
to have Contribution Percentage Amounts allocated to his or her
account under two or more plans described in Code Section 401(a), or
arrangements described in Code Section 401(k) that are maintained by
the Employer, shall be determined as if the total of such Contribution
Percentage Amounts was made under each Plan. If a Highly Compensated
Employee participates in two or more cash or deferred arrangements
that have different plan years, all cash or deferred arrangements
ending with or within the same calendar year shall be treated as a
single arrangement.
(c) In the event that this Plan satisfies the requirements of Code Sections
401(a)(4), 401(m), or 410(b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the requirements of such
Code Sections only if aggregated with this Plan, then this Section
shall be applied by determining the Contribution Percentage of
Employees as if all such plans were a single plan. For plan years
beginning after 1989, plans may be aggregated in order to satisfy Code
Section 401(m) only if the aggregated plans have the same Plan Year.
(d) For purposes of determining the Contribution percentage of a Participant
who is a five-percent owner or one of the ten most highly-paid, Highly
Compensated Employees, the Contribution Percentage Amounts and
Compensation of such Participant shall include the Contribution
Percentage Amounts and Compensation for the Plan Year of Family
Members as defined in Paragraph 1.36 of this Plan. Family Members,
with respect to Highly Compensated Employees, shall be disregarded as
separate Employees in determining the Contribution Percentage both for
Participants who are non-Highly Compensated Employees and for
Participants who are Highly Compensated Employees. In the event of
repeal of the family aggregation rules under Code Section 414(q)(6),
all applications of such rules under this Plan will cease as of the
effective date of such repeal.
(e) For purposes of determining the Contribution Percentage test, Employee
Contributions are considered to have been made in the Plan Year in which
contributed to the trust. Matching Contributions and Qualified
Non-Elective Contributions will be considered made for a Plan Year if
made no later than the end of the twelve-month period beginning on the
day after the close of the Plan Year.
(f) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ACP test and the amount of Qualified Non-Elective
Contributions or Qualified Matching Contributions, or both, used in such
test.
(g) The determination and treatment of the Contribution Percentage of any
Participant shall satisfy such other requirements as may be prescribed
by the Secretary of the Treasury.
(h) Qualified Matching Contributions and Qualified Non-Elective Contributions
used to satisfy the ADP test may not be used to satisfy the ACP test.
ARTICLE XI
ADMINISTRATION
11.1 PLAN ADMINISTRATOR. The Employer shall be the named fiduciary and Plan
Administrator. These duties shall include:
(a) appointing the Plan's attorney, accountant, actuary, or any other party
needed to administer the Plan,
(b) directing the Trustee/Custodian with respect to payments from the Fund,
(c) communicating with Employees regarding their participation and benefits
under the Plan, including the administration of all claims procedures,
(d) filing any returns and reports with the Internal Revenue Service,
Department of Labor, or any other governmental agency,
(e) reviewing and approving any financial reports, investment reviews, or
other reports prepared by any party appointed by the Employer under
paragraph (a),
(f) establishing a funding policy and investment objectives
consistent with the purposes of the Plan and the Employee Retirement
Income Security Act of 1974, and
(g) construing and resolving any question of Plan interpretation. The Plan
Administrator's interpretation of Plan provisions including
eligibility and benefits under the Plan is final, and unless it can be
shown to be arbitrary and capricious will not be subject to "de novo"
review.
11.2 TRUSTEE/CUSTODIAN. The Trustee/Custodian shall be responsible for
the administration of investments held in the Fund. These duties shall include:
(a) receiving contributions under the terms of the Plan,
(b) making distributions from the Fund in accordance with written
instructions received from an authorized representative of the Employer,
and
(c) keeping accurate records reflecting its administration of the Fund and
making such records available to the Employer for review and audit.
Within 90 days after each Plan Year, and within 90 days after its
removal or resignation, the Trustee/Custodian shall file with the
Employer an accounting of its administration of the Fund during such
year or from the end of the preceding Plan Year to the date of removal
or resignation. Such accounting shall include a statement of cash
receipts and disbursements since the date of its last accounting and
shall contain an asset list showing the fair market value of investments
held in the Fund as of the end of the Plan Year. The value of
marketable investments shall be determined using the most recent price
quoted on a national securities exchange or over the counter market.
The value of non-marketable
Page 26
<PAGE> 28
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
investments shall be determined in the sole judgement of the
Trustee/Custodian which determination shall be binding and conclusive.
The value of investments in securities or obligations of the Employer
in which there is no market shall be determined in the sole judgement
of the Employer, and the Trustee/Custodian shall have no
responsibility with respect to the valuation of such assets. The
Employer shall review the Trustee/Custodian's accounting and notify
the Trustee/Custodian in the event of its disapproval of the report
within 90 days, providing the Trustee/Custodian with a written
description of the items in question. The Trustee/Custodian shall
have 60 days to provide the Employer with a written explanation of the
items in question. If the Employer again disapproves, the
Trustee/Custodian may file its accounting in a court of competent
jurisdiction for audit and adjudication.
(d) employing such agents, including but not limited to an investment
advisor which may or may not be a subsidiary or an affiliate of the
Trustee, attorneys or other professionals as the Trustee may deem
necessary or advisable in the performance of its duties.
The Trustee's/Custodian's duties shall be limited to those described above.
The Employer shall be responsible for any other administrative duties required
under the Plan or by applicable law.
11.3 ADMINISTRATIVE FEES AND EXPENSES. All reasonable costs, charges and
expenses incurred by the Trustee/Custodian in connection with the
administration of the Fund and all reasonable costs, charges and expenses
incurred by the Plan Administrator in connection with the administration of the
Plan (including fees for legal services rendered to the Trustee/Custodian or
Plan Administrator) may be paid by the Employer, but if not paid by the Employer
when due, shall be paid from the Fund. Such reasonable compensation to the
Trustee/Custodian as may be agreed upon from time to time between the Employer
and the Trustee/Custodian and such reasonable compensation to the Plan
Administrator as may be agreed upon from time to time between the Employer and
Plan Administrator may be paid by the Employer, but if not paid by the Employer
when due shall be paid by the Fund. The Trustee/Custodian shall have the right
to liquidate trust assets to cover its fees. Notwithstanding the foregoing, no
compensation other than reimbursement for expenses shall be paid to a Plan
Administrator or a Trustee/Custodian who is the Employer or a full-time
Employee of the Employer. In the event any part of the Trust/Custodial Account
becomes subject to tax, all taxes incurred will be paid from the Fund unless
the Plan Administrator advises the Trustee/Custodian not to pay such tax.
11.4 DIVISION OF DUTIES AND INDEMNIFICATION
(a) The Trustee/Custodian shall have the authority and discretion to
manage and govern the Fund to the extent provided in this instrument, but
does not guarantee the Fund in any manner against investment loss or
depreciation in asset value, or guarantee the adequacy of the Fund to meet
and discharge all or any liabilities of the Plan.
(b) The Trustee/Custodian shall not be liable for the making, retention or
sale of any investment or reinvestment made by it, as herein
provided, or for any loss to, or diminution of the Fund, or for any other
loss or damage which may result from the discharge of its duties hereunder
except to the extent it is judicially determined that the Trustee/Custodian
has failed to exercise 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 a like character with like aims.
(c) The Employer warrants that all directions issued to the Trustee/Custodian
by it, the Plan Administrator, an investment manager appointed pursuant
to Section 13.7, or any other authorized person, will be in accordance
with the terms of the Plan and not contrary to the provisions of the
Employee Retirement Income Security Act of 1974 and regulations issued
thereunder.
(d) The Trustee/Custodian shall not be answerable for any action taken
pursuant to any direction, consent, certificate, or other paper or document
on the belief that the same is genuine and signed by the proper person.
All directions by the Employer, Participant or the Plan Administrator
shall be in writing. The Employer shall deliver to the Trustee/Custodian
certificates evidencing the individual or individuals authorized to act
as set forth in the Adoption Agreement or as the Employer may
subsequently inform the Trustee/Custodian in writing and shall deliver
to the Trustee/Custodian specimens of their signatures.
(e) The duties and obligations of the Trustee/Custodian shall be
limited to those expressly imposed upon it by this instrument or
subsequently agreed upon by the parties. Responsibility for administrative
duties required under the Plan or applicable law not expressly imposed upon
or agreed to by the Trustee/Custodian, shall rest solely with the Employer.
(f) The Trustee/Custodian shall be indemnified and saved harmless by the
Employer from and against any and all liability to which the
Trustee/Custodian may be subjected, including all expenses reasonably
incurred in its defense, for any action or failure to act resulting from
compliance with the instructions of the Employer, the employees or
agents of the Employer, the Plan Administrator, or any other fiduciary
to the Plan, and for any liability arising from the actions or
non-actions of any predecessor Trustee/Custodian or fiduciary or other
fiduciaries of the Plan.
(g) The Trustee/Custodian shall not be responsible in any way for the
application of any payments it is directed to make or for the adequacy
of the Fund to meet and discharge any and all liabilities under the Plan.
ARTICLE XII
TRUST FUND/CUSTODIAL ACCOUNT
12.1 THE FUND. The Fund shall consist of all contributions made
under Article III and Article IV of the Plan and the investment thereof and
earnings thereon. All contributions and the earnings thereon less payments
made under the terms of the Plan, shall constitute the Fund. The Fund shall be
administered as provided in this document.
12.2 CONTROL OF PLAN ASSETS. The assets of the Fund or evidence of ownership
shall be held by the Trustee/Custodian under the terms of the Plan and
Trust/Custodial Account. If the assets represent amounts transferred from
another trustee/custodian under a former plan, the Trustee/Custodian named
Page 27
<PAGE> 29
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
hereunder shall not be responsible for the propriety of any investment under
the former plan.
12.3 EXCLUSIVE BENEFIT RULES. No part of the Fund shall be used for, or
diverted to, purposes other than for the exclusive benefit of Participants,
former participants with a vested interest, and the beneficiary or
beneficiaries of deceased Participants having a vested interest in the Fund at
death.
12.4 ASSIGNMENT AND ALIENATION OF BENEFITS. No right or claim to, or
interest in, any part of the Fund, or any payment from the Fund, shall be
assignable, transferable, or subject to sale, mortgage, pledge, hypothecation,
commutation, anticipation, garnishment, attachment, execution, or levy of any
kind. The Trustee/Custodian shall not recognize any attempt to assign,
transfer, sell, mortgage, pledge, hypothecate, commute, or anticipate the same,
except to the extent required by law. The preceding sentences shall also apply
to the creation, assignment, or recognition of a right to any benefit payable
with respect to a Participant pursuant to a domestic relations order, unless
such order is determined to be a qualified domestic relations order, as
defined in Code Section 414(p), or any domestic relations order entered before
January 1, 1985 which the Plan attorney and Plan Administrator deem to be
qualified.
12.5 DETERMINATION OF QUALIFIED DOMESTIC RELATIONS ORDER (QDRO). A Domestic
Relations Order shall specifically state all of the following in order to be
deemed a Qualified Domestic Relations Order ("QDRO"):
(a) The name and last known mailing address (if any) of the Participant
and of each alternate payee covered by the QDRO. However, if
the QDRO does not specify the current mailing address of the alternate
payee, but the Plan Administrator has independent knowledge of that
address, the QDRO will still be valid.
(b) The dollar amount or percentage of the Participant's benefit to be paid by
the Plan to each alternate payee, or the manner in which the amount or
percentage will be determined.
(c) The number of payments or period for which the order applies.
(d) The specific plan (by name) to which the Domestic Relations Order applies.
The Domestic Relations Order shall not be deemed a QDRO if it requires the Plan
to provide:
(e) any type or form of benefit, or any option not already provided for in the
Plan;
(f) increased benefits, or benefits in excess of the Participant's vested
rights;
(g) payment of a benefit earlier than allowed by the Plan's earliest
retirement provisions or in the case of a profit-sharing plan, prior to
the allowability of in-service withdrawals, or
(h) payment of benefits to an alternate payee which are required to be paid
to another alternate payee under another QDRO.
Promptly, upon receipt of a Domestic Relations Order ("Order") which may or may
not be "Qualified", the Plan Administrator shall notify the Participant and any
alternate payee(s) named in the Order of such receipt, and include a copy of
this paragraph 12.5. The Plan Administrator shall then forward the Order to the
Plan's legal counsel for an opinion as to whether or not the Order is in fact
"Qualified" as defined in Code Section 414(p). Within a reasonable time after
receipt of the Order, not to exceed 60 days, the Plan's legal counsel shall
make a determination as to its "Qualified" status and the Participant and any
alternate payee(s) shall be promptly notified in writing of the determination.
If the "Qualified" status of the Order is in question, there will be a delay in
any payout to any payee including the Participant, until the status is
resolved. In such event, the Plan Administrator shall segregate the amount
that would have been payable to the alternate payee(s) if the Order had been
deemed a QDRO. If the Order is not Qualified, or the status is not resolved
(for example, it has been sent back to the Court for clarification or
modification) within 18 months beginning with the date the first payment would
have to be made under the Order, the Plan Administrator shall pay the
segregated amounts plus interest to the person(s) who would have been entitled
to the benefits had there been no Order. If a determination as to the
Qualified status of the Order is made after the 18-month period described
above, then the Order shall only be applied on a prospective basis. If the
Order is determined to be a QDRO, the Participant and alternate payee(s) shall
again be notified promptly after such determination. Once an Order is deemed a
QDRO, the Plan Administrator shall pay to the alternate payee(s) all the amounts
due under the QDRO, including segregated amounts plus interest which may have
accrued during a dispute as to the Order's qualification.
Unless specified otherwise in the Adoption Agreement, the earliest retirement
age with regard to the Participant against whom the order is entered shall be
the date the order is determined to be qualified. This will only allow payouts
to alternate payee(s) and not the Participant.
ARTICLE XIII
INVESTMENTS
13.1 FIDUCIARY STANDARDS. The Trustee shall invest and reinvest principal and
income in the same Fund in accordance with the investment objectives
established by the Employer, provided that:
(a) such investments are prudent under the Employee Retirement Income Security
Act of 1974 and the regulations thereunder,
(b) such investments are sufficiently diversified or otherwise insured or
guaranteed to minimize the risk of large losses, and
(c) such investments are similar to those which would be purchased by
another professional money manager for a like plan with similar
investment objectives.
13.2 FUNDING ARRANGEMENT. The Employer shall, in the Adoption Agreement,
appoint a Trustee to administer the Fund and/or a Custodian to have custody of
the Fund. The Trustee shall invest the Fund in any of the alternatives
available under paragraph 13.3. If a Custodian is appointed, the Fund shall be
invested as provided in paragraph 13.4.
Page 28
<PAGE> 30
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
13.3 INVESTMENT ALTERNATIVES OF THE TRUSTEE. The Trustee shall implement an
investment program based on the Employer's investment objectives and the
Employee Retirement Income Security Act of 1974. In addition to powers given
by law, the Trustee may:
(a) invest the Fund in any form of property, including common and preferred
stocks, exchange traded put and call options, bonds, money market
instruments, mutual funds (including funds for which the
Trustee/Custodian or its subsidiaries or its affiliates serve as
investment advisor), savings accounts, certificates of deposit, Treasury
bills, insurance policies and contracts, or in any other property, real
or personal, having a ready market including securities issued by the
Trustee and/or affiliates of the Trustee. The Trustee may also make
loans to Plan Participants in accordance with paragraph 13.5 hereof.
The Trustee may invest in its own deposits and, if applicable, those of
affiliates, which bear a reasonable interest rate. No portion of any
Qualified Voluntary Contribution, or the earnings thereon, may be
invested in life insurance contracts or, as with any
Participant-directed investment, in tangible personal property
characterized by the IRS as a collectible,
(b) transfer any assets of the Fund to a group or collective trust
established to permit the pooling of funds of separate pension and
profit-sharing trusts, provided such group or collective trust is
qualified under Code Section 401(a) and exempt under Code Section 501(a)
(or the applicable corresponding provision of any other Revenue Act) or to
any other common, collective, or commingled trust fund which has been or
may hereafter be established and maintained by the Trustee/Custodian
and/or affiliates of the Trustee/Custodian. Such commingling of assets of
the Fund with assets of other qualified trusts is specifically authorized,
and to the extent of the investment of the Fund in such a group or
collective trust, the terms of the instrument establishing the group or
collective trust shall be a part hereof as though set forth herein. The
terms of said instrument(s) may authorize the Trustee of the group or
collective trust to engage in securities lending transactions where fees
may be deducted from the group or collective trust's loan income,
(c) invest the Fund in the common stock, debt obligations, or
any other security issued by the Employer or by an affiliate of the
Employer within the limitations provided under Sections 406, 407, and 408
of the Employee Retirement Income Security Act of 1974 and further
provided that such investment does not constitute a prohibited
transaction under Code Section 4975. Any such investment in Employer
securities shall only be made upon written direction of the Employer who
shall be solely responsible for propriety of such investment,
(d) hold cash uninvested and deposit same with any banking or savings
institution, including its own banking department,
(e) join in or oppose the reorganization, recapitalization, consolidation,
sale or merger of corporations or properties, including those in which
it is interested as Trustee, upon such terms as it deems wise,
(f) hold investments in nominee or bearer form,
(g) vote proxies and, if appropriate, pass them on to any investment manager
which may have directed the investment in the equity giving rise to the
proxy,
(h) exercise all ownership rights with respect to assets held in the Fund.
13.4 INVESTMENT ALTERNATIVES OF THE CUSTODIAN. The Custodian shall be
depository of all or part of the Fund and shall, at the written direction of
the Trustee hold any assets received from the Trustee or its agents. The
Custodian may rely upon any order, certificate, notice, direction or other
written directive issued by the Trustee or its agents. The Custodian shall
receive and deliver assets as instructed by the Trustee or its agents, or an
investment manager appointed pursuant to Section 13.7 through written
direction. To the extent that the Custodian holds title to Plan assets and
such ownership requires action on the part of the registered owner, such action
will be taken by the Custodian only upon receipt of specific written
instructions from the Trustee or its agents or an investment manager. Proxies
shall be voted by or pursuant to the express direction of the Trustee or
authorized agent of the Trustee. The Custodian shall not give any investment
advice, including any opinion on the prudence of directed investments. The
Employer and Trustee and the agents thereof assume all responsibility for
adherence to fiduciary standards under the Employee Retirement Income Security
Act of 1974 (ERISA) and all amendments thereof, and regulations thereunder.
13.5 PARTICIPANT LOANS. If agreed upon by the Trustee and permitted by the
Employer in the Adoption Agreement, a Plan Participant may make application to
the Employer requesting a loan from the Fund. The Employer shall have the sole
right to approve or disapprove a Participant's application provided that loans
shall be made available to all Participants on a reasonably equivalent basis.
Loans shall not be made available to Highly Compensated Employees [as defined
in Code Section 414(q)] in an amount greater than the amount made available to
other Employees. Any loan granted under the Plan shall be made subject to the
following rules:
(a) No loan shall exceed the lesser of (i) $50,000 reduced by the
excess, if any, of the highest outstanding balance of loans during the
one year period ending on the day before the loan is made, over the
outstanding balance of loans from the Plan on the date the loan is made
or (ii) one-half of the fair market value of a Participant's vested
account balance built up from Employer Contributions, Voluntary
Contributions, and Rollover Contributions. If the Participant's vested
account balance is $20,000 or less, the maximum loan shall not exceed the
lesser of $10,000 or 100% of the Participant's vested account balance.
For the purpose of the above limitation, all loans from all plans of the
Employer and other members of a group of employers described in Code
Sections 414(b), 414(c), and 414(m) are aggregated. An assignment or
pledge of any portion of the Participant's interest in the Plan and a
loan, pledge, or assignment with respect to any insurance contract
purchased under the Plan, will be treated as a loan under this paragraph.
(b) All applications must be made on forms provided by the Employer and
must be signed by the Participant.
(c) Any loan shall bear interest at a rate reasonable at the time of
application, considering the purpose of the loan and the
Page 29
<PAGE> 31
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
rate being charged by representative commercial banks in the local area
for a similar loan unless the Employer sets forth a different method for
determining loan interest rates in its loan procedures. The loan
agreement shall also provide that the payment of principal and interest
be amortized in level payments not less than quarterly.
(d) The term of such loan shall not exceed five years except in the
case of a loan for the purpose of acquiring any house, apartment,
condominium, or mobile home (not used on a transient basis) which is used
or is to be used within a reasonable time as the principal residence of
the Participant. The term of such loan shall be determined by the
Employer considering the maturity dates quoted by representative
commercial banks in the local area for a similar loan.
(e) The principal and interest paid by a Participant on his or her
loan shall be credited to the Fund in the same manner as for any other
Plan investment. If elected in the Adoption Agreement, loans may be
treated as segregated investments of the individual Participants. This
provision is not available if its election will result in discrimination
in operation of the Plan.
(f) If a Participant's loan application is approved by the Employer,
such Participant shall be required to sign a note, loan agreement, and
assignment of 50% of his or her interest in the Fund as collateral for
the loan. The Participant, except in the case of a profit-sharing plan
satisfying the requirements of paragraph 8.7 must obtain the consent of
his or her Spouse, if any, within the 90 day period before the time his
or her account balance is used as security for the loan. A new consent
is required if the account balance is used for any renegotiation,
extension, renewal or other revision of the loan, including an increase
in the amount thereof. The consent must be written, must acknowledge the
effect of the loan, and must be witnessed by a plan representative or
notary public. Such consent shall subsequently be binding with respect
to the consenting Spouse or any subsequent Spouse.
(g) If a valid Spousal consent has been obtained, then,
notwithstanding any other provision of this Plan, the portion of the
Participant's vested account balance used as a security interest held by
the Plan by reason of a loan outstanding to the Participant shall be
taken into account for purposes of determining the amount of the account
balance payable at the time of death or distribution, but only if the
reduction is used as repayment of the loan. If less than 100% of the
Participant's vested account balance (determined without regard to the
preceding sentence) is payable to the Surviving Spouse, then the account
balance shall be adjusted by first reducing the vested account balance
by the amount of the security used as repayment of the loan, and then
determining the benefit payable to the Surviving Spouse.
(h) The Employer may also require additional collateral in order to
adequately secure the loan.
(i) A Participant's loan shall immediately become due and payable if
such Participant terminates employment for any reason or fails to make a
principal and/or interest payment as provided in the loan agreement. If
such Participant terminates employment, the Employer shall immediately
request payment of principal and interest on the loan. If the
Participant refuses payment following termination, the Employer shall
reduce the Participant's vested account balance by the remaining
principal and interest on his or her loan. If the Participant's vested
account balance is less than the amount due, the Employer shall take
whatever steps are necessary to collect the balance due directly from the
Participant. However, no foreclosure on the Participant's note or
attachment of the Participant's account balance will occur until a
distributable event occurs in the Plan.
(j) No loans will be made to Owner-Employees (as defined in paragraph 1.51)
or Shareholder-Employees (as defined in paragraph 1.74), unless the
Employer obtains a prohibited transaction exemption from the Department
of Labor.
13.6 INSURANCE POLICIES. If agreed upon by the Trustee and permitted by the
Employer in the Adoption Agreement, Employees may elect the purchase of life
insurance policies under the Plan. If elected, the maximum annual premium for
a whole life policy shall not exceed 50% of the aggregate Employer
contributions allocated to the account of a Participant. For profit-sharing
plans the 50% test need only be applied against Employer contributions
allocated in the last two years. Whole life policies are policies with both
nondecreasing death benefits and nonincreasing premiums. The maximum annual
premium for term contracts or universal life policies and all other policies
which are not whole life shall not exceed 25% of aggregate Employer
contributions allocated to the account of a Participant. The two-year rule for
profit-sharing plans again applies. The maximum annual premiums for a
Participant with both a whole life and a term contract or universal life
policies shall be limited to one-half of the whole life premium plus the term
premium, but shall not exceed 25% of the aggregate Employer contributions
allocated to the account of a Participant, subject to the two year rule for
profit-sharing plans. Any policies purchased under this Plan shall be held
subject to the following rules:
(a) The Trustee shall be applicant and owner of any policies issued.
(b) All policies or contracts purchased hereunder, shall be endorsed as
nontransferable, and must provide that proceeds will be payable to the
Trustee; however, the Trustee shall be required to pay over all proceeds
of the contracts to the Participant's Designated Beneficiary in
accordance with the distribution provisions of this Plan. Under no
circumstances shall the Trust retain any part of the proceeds.
(c) Each Participant shall be entitled to designate a beneficiary
under the terms of any contract issued; however, such designation will be
given to the Trustee which must be the named beneficiary on any policy.
Such designation shall remain in force, until revoked by the Participant,
by filing a new beneficiary form with the Trustee. A Participant's
Spouse will be the Designated Beneficiary of the proceeds in all
circumstances unless a Qualified Election has been made in accordance
with paragraph 8.4. The beneficiary of a deceased Participant shall
receive, in addition to the proceeds of the Participant's policy or
policies, the amount credited to such Participant's investment account.
Page 30
<PAGE> 32
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
(d) A Participant who is uninsurable or insurable at substandard
rates, may elect to receive a reduced amount of insurance, if available,
or may waive the purchase of any insurance.
(e) All dividends or other returns received on any policy purchased shall be
applied to reduce the next premium due on such policy, or if no further
premium is due, such amount shall be credited to the Fund as part of the
account of the Participant for whom the policy is held.
(f) If Employer contributions are inadequate to pay all premiums on all
insurance policies, the Trustee may, at the option of the Employer,
utilize other amounts remaining in each Participant's account to pay
the premiums on his or her respective policy or policies, allow the
policies to lapse, reduce the policies to a level at which they may be
maintained, or borrow against the policies on a prorated basis,
provided that the borrowing does not discriminate in favor of the
policies on the lives of Officers, Shareholders, and highly
compensated Employees.
(g) On retirement or termination of employment of a Participant, the
Employer shall direct the Trustee to cash surrender the Participant's
policy and credit the proceeds to his or her account for distribution
under the terms of the Plan. However, before so doing, the Trustee may
first offer to transfer ownership of the policy to the Participant in
exchange for payment by the Participant of the cash value of the policy
at the time of transfer. Such payment shall be credited to the
Participant's account for distribution under the terms of the Plan. All
distributions resulting from the application of this paragraph shall be
subject to the Joint and Survivor Annuity Rules of Article VIII, if
applicable.
(h) The Employer shall be solely responsible to see that these
insurance provisions are administered properly and that if there is any
conflict between the provisions of this Plan and any insurance contracts
issued that the terms of this Plan will control.
13.7 EMPLOYER INVESTMENT DIRECTION. If agreed upon by the Trustee and
approved by the Employer in the Adoption Agreement, the Employer shall have the
right to direct the Trustee with respect to investments of the Fund, may
appoint an investment manager (registered as an investment advisor under the
Investment Advisors Act of 1940) to direct investments, or may give the Trustee
investment management responsibility. The Employer may purchase and sell
interests in a registered investment company (i.e., mutual funds) for which the
Sponsor, its parent, affiliates, subsidiaries, or successors, may serve as
investment advisor and receive compensation from the registered investment
company for its services as investment advisor. The Employer shall advise the
Trustee in writing regarding the retention of investment powers, the
appointment of an investment manager, or the delegation of investment powers to
the Trustee. The Trustee may rely upon any order, certificate, notice,
direction or other written directive issued by the Employer, investment manager
or any other authorized party which the Trustee believes to be genuine. In the
absence of such written directive, the Trustee may invest the available cash in
its discretion in an appropriate interim investment until specific investment
directions are received and shall not be responsible for a resulting loss. Such
instructions regarding the delegation of investment responsibility shall remain
in force until revoked or amended in writing. The Employer must provide the
Trustee with written notice of the termination of the appointment of an
investment manager. The Trustee shall not be responsible for the propriety of
any directed investment made and shall not be required to consult with or
advise the Employer regarding the investment quality of any directed investment
held hereunder. The Trustee shall not be responsible for any loss resulting to
the Fund by reason of any sale or investment made pursuant to the direction of
the Employer or an investment manager. Notwithstanding anything in this Plan to
the contrary, the Trustee shall be indemnified and saved harmless by the
Employer from any and all personal liability to which the Trustee may be
subjected by carrying out any directions of the Employer or an investment
manager, including all expenses reasonably incurred in its defense in the event
the Employer fails to provide such; provided, however, the Trustee shall not be
so indemnified if it participates knowingly in, or knowingly undertakes to
conceal, an act or omission of an investment manager, having actual knowledge
that such is a breach of a fiduciary duty. The Trustee shall not be deemed to
have knowingly participated in or knowingly undertaken to conceal an act or
omission of an investment manager with knowledge that such act or omission was
a breach of fiduciary duty by merely complying with directions of an investment
manager, or for failure to act in the absence of directions of an investment
manager, or by reason of maintaining accounting records. If the Employer fails
to designate an investment manager, the Trustee shall have full investment
authority. If the Employer does not issue investment directions, the Trustee
shall have authority to invest the Fund in its sole discretion. While the
Employer may direct the Trustee with respect to Plan investments, the Employer
may not:
(a) borrow from the Fund or pledge any of the assets of the Fund as security
for a loan,
(b) buy property or assets from or sell property or assets to the Fund,
(c) charge any fee for services rendered to the Fund, or
(d) receive any services from the Fund on a preferential basis.
13.8 EMPLOYEE INVESTMENT DIRECTION. If agreed to by the Trustee and
approved by the Employer in the Adoption Agreement, Participants shall be given
the option to direct the investment of their personal contributions and their
share of the Employer's contribution among alternative investment funds
established as part of the overall Fund. Unless otherwise specified by the
Employer in the Adoption Agreement, such investment funds shall be under the
full control of the management of the Trustee/Custodian. If investments
outside the Trustee/Custodian's control are allowed, Participants may not
direct that investments be made in collectibles, other than U.S. Government or
State issued gold and silver coins. In this connection, a Participant's right
to direct the investment of any contribution shall apply only to selection of
the desired fund. The following rules shall apply to the administration of
such funds.
(a) At the time an Employee becomes eligible for the Plan, he
or she shall complete an investment designation form stating the
percentage of his or her contributions to be invested in the available
funds.
Page 31
<PAGE> 33
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
(b) A Participant may change his or her election with respect to future
contributions by filing a new investment designation form with the
Employer in accordance with the procedures established by the Plan
Administrators.
(c) A Participant may elect to transfer all or part of his or her balance from
one investment fund to another by filing an investment designation form
with the Employer in accordance with the procedures established by the
Plan Administrators.
(d) The Employer shall be responsible when transmitting Employee and Employer
contributions to show the dollar amount to be credited to each investment
fund for each Employee.
(e) Except as otherwise provided in the Plan, neither the Trustee, nor the
Custodian, nor the Employer, nor any fiduciary of the Plan shall be liable
to the Participant or any of his or her beneficiaries for any loss
resulting from action taken at the direction of the Participant and shall
be indemnified and held harmless.
ARTICLE XIV
TOP-HEAVY PROVISIONS
14.1 APPLICABILITY OF RULES. If the Plan is or becomes Top-Heavy in any Plan
Year beginning after 1983, the provisions of this Article will supersede any
conflicting provisions in the Plan or Adoption Agreement.
14.2 MINIMUM CONTRIBUTION. Notwithstanding any other provision in the
Employer's Plan, for any Plan Year in which the Plan is Top-Heavy or Super
Top-Heavy, the aggregate Employer contributions and forfeitures allocated on
behalf of any Participant (without regard to any Social Security contribution)
under this Plan and any other Defined Contribution Plan of the Employer shall
be lesser of 3% of such Participant's Compensation or the largest percentage of
Employer contributions and forfeitures, as a percentage of the first $200,000
of the Key Employee's Compensation, allocated on behalf of any Key Employee for
that year.
Each Participant who is employed by the Employer on the last day of the Plan
Year shall be entitled to receive an allocation of the Employer's minimum
contribution for such Plan Year. The minimum allocation applies even though
under other Plan provisions the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation for the year
because the Participant fails to make Mandatory Contributions to the Plan, the
Participant's Compensation is less than a stated amount, or the Participant
fails to complete 1,000 Hours of Service (or such lesser number designated by
the Employer in the Adoption Agreement) during the Plan Year. A Paired
profit-sharing plan designated to provide the minimum Top-Heavy contribution
must do so regardless of profits. An Employer may make the minimum Top-Heavy
contribution available to all Participants or just non-Key Employees.
For purposes of computing the minimum allocation, Compensation shall mean
Compensation as defined in the second paragraph of paragraph 1.12 of the Plan.
The Top-Heavy minimum contribution does not apply to any Participant to the
extent the Participant is covered under any other plan(s) of the Employer and
the Employer has provided in Section 11 of the Adoption Agreement that the
minimum allocation or benefit requirements applicable to Top-Heavy Plans will
be met in the other plan(s).
If a Key Employee makes an Elective Deferral or has an allocation of Matching
Contributions made to his or her account, a Top-Heavy minimum will be required
for non-Key Employees who are Participants, however, neither Elective Deferrals
by nor Matching Contributions to non-Key Employees may be taken into account
for purposes of satisfying the top-heavy Minimum Contribution requirement.
14.3 MINIMUM VESTING. For any Plan Year in which this Plan is Top-Heavy, the
minimum vesting schedule elected by the Employer in the Adoption Agreement will
automatically apply to the Plan. If the vesting schedule selected by the
Employer in the Adoption Agreement is less liberal than the allowable schedule,
the schedule will automatically be modified. If the vesting schedule under the
Employer's Plan shifts in or out of the Top-Heavy schedule for any Plan Year,
such shift is an amendment to the vesting schedule and the election in
paragraph 9.8 of the Plan applies. The minimum vesting schedule applies to all
accrued benefits within the meaning of Code Section 41l(a)(7) except those
attributable to Employee contributions, including benefits accrued before the
effective date of Code Section 416 and benefits accrued before the Plan became
Top-Heavy. Further, no reduction in vested benefits may occur in the event the
Plan's status as Top-Heavy changes for any Plan Year.
However, this paragraph does not apply to the account balances of any Employee
who does not have an Hour of Service after the Plan initially becomes Top-Heavy
and such Employee's account balance attributable to Employer contributions and
forfeitures will be determined without regard to this paragraph.
14.4 LIMITATIONS ON ALLOCATIONS. In any Plan Year in which the
Top-Heavy Ratio exceeds 90% (i.e., the Plan becomes Super Top-Heavy), the
denominators of the Defined Benefit Fraction (as defined in paragraph 1.16) and
Defined Contribution Fraction (as defined in paragraph 1.19) shall be computed
using 100% of the dollar limitation instead of 125%.
ARTICLE XV
AMENDMENT AND TERMINATION
15.1 AMENDMENT BY SPONSOR. The Sponsor may amend any or all provisions
of this Plan and Trust/Custodial Account at any time without obtaining the
approval or consent of any Employer which has adopted this Plan and
Trust/Custodial Account provided that no amendment shall authorize or permit
any part of the corpus or income of the Fund to be used for or diverted to
purposes other than for the exclusive benefit of Participants and their
beneficiaries, or eliminate an optional form of distribution. In the case of a
mass-submitted plan, the mass-submitter shall amend the Plan on behalf of the
Sponsor.
15.2 AMENDMENT BY EMPLOYER. The Employer may amend any option in
the Adoption Agreement, and may include language as permitted in the Adoption
Agreement,
(a) to satisfy Code Section 415, or
(b) to avoid duplication of minimums under Code Section
416 because of the required aggregation of multiple plans.
Page 32
<PAGE> 34
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
The Employer may add certain model amendments published by the Internal Revenue
Service which specifically provide that their adoption will not cause the Plan
to be treated as an individually designed plan for which the Employer must
obtain a separate determination letter.
If the Employer amends the Plan and Trust/Custodial Account other than as
provided above, the Employer's Plan shall no longer participate in this
Prototype Plan and will be considered an individually designed plan.
15.3 TERMINATION. The Employer shall have the right to terminate the
Plan upon 60 days notice in writing to the Trustee/Custodian. If the Plan is
terminated, partially terminated, or if there is a complete discontinuance of
contributions under a profit-sharing plan maintained by the Employer, all
amounts credited to the accounts of Participants shall vest and become
nonforfeitable. In the event of a partial termination, only those who separate
from Service shall be fully vested. In the event of termination, the Employer
shall direct the Trustee/Custodian with respect to the distribution of accounts
to or for the exclusive benefit of Participants or their beneficiaries. The
Trustee/Custodian shall dispose of the Fund in accordance with the written
directions of the Plan Administrator, provided that no liquidation of assets
and payment of benefits, (or provision therefor), shall actually be made by the
Trustee/Custodian until after it is established by the Employer in a manner
satisfactory to the Trustee/Custodian, that the applicable requirements, if
any, of the Employee Retirement Income Security Act of 1974 and the Internal
Revenue Code governing the termination of employee benefit plans, have been or
are being, complied with, or that appropriate authorizations, waivers,
exemptions, or variances have been, or are being obtained. The Trustee/
Custodian shall not be obliged to distribute the Fund until it receives notice
of a favorable ruling from the Internal Revenue Service upon the Employer's
application for determination as to the effect of termination.
15.4 QUALIFICATION OF EMPLOYER'S PLAN. If the adopting Employer fails
to attain or retain Internal Revenue Service qualification, such Employer's
Plan shall no longer participate in this Prototype Plan and will be considered
an individually designed plan.
15.5 MERGERS AND CONSOLIDATIONS
(a) In the case of any merger or consolidation of the Employer's Plan with,
or transfer of assets or liabilities of the Employer's Plan to, any
other plan, Participants in the Employer's Plan shall be entitled to
receive benefits immediately after the merger, consolidation, or
transfer which are equal to or greater than the benefits they would have
been entitled to receive immediately before the merger, consolidation,
or transfer if the Plan had then terminated.
(b) Any corporation into which the Trustee/Custodian or any successor
trustee/custodian may be merged or with which it may be consolidated, or
any corporation resulting from any merger or consolidation to which the
Trustee/Custodian or any successor trustee/custodian may be a party, or
any corporation to which all or substantially all the trust business of
the Trustee/Custodian or any successor trustee/custodian may be
transferred, shall be the successor of such Trustee/Custodian without
the filing of any instrument or performance of any further act, before
any court.
15.6 RESIGNATION AND REMOVAL. The Trustee/Custodian may resign by written
notice to the Employer which shall be effective 60 days after delivery. The
Employer may discontinue its participation in this Prototype Plan and
Trust/Custodial Account effective upon 60 days written notice to the Sponsor.
In such event the Employer shall, prior to the effective date thereof, amend
the Plan to eliminate any reference to this Prototype Plan and Trust/Custodial
Account and appoint a successor trustee or custodian or arrange for another
funding agent. The Trustee/Custodian shall deliver the Fund to its successor
on the effective date of the resignation or removal, or as soon thereafter as
practicable, provided that this shall not waive any lien the Trustee/Custodian
may have upon the Fund for its compensation or expenses. If the Employer fails
to amend the Plan and appoint a successor trustee, custodian, or other funding
agent within the said 60 days, or such longer period as the Trustee/Custodian
may specify in writing, the Plan shall be deemed individually designed and the
Employer shall be deemed the successor trustee/custodian. The Employer must
then obtain its own determination letter.
15.7 QUALIFICATION OF PROTOTYPE. The Sponsor intends that this
Prototype Plan will meet the requirements of the Code as a qualified Prototype
Retirement Plan and Trust/Custodial Account. Should the Commissioner of
Internal Revenue or any delegate of the Commissioner at any time determine that
the Plan and Trust/Custodial Account fails to meet the requirements of the
Code, the Sponsor will amend the Plan and Trust/Custodial Account to maintain
its qualified status.
ARTICLE XVI
GOVERNING LAW
Construction, validity and administration of the Prototype Plan and
Trust/Custodial Account, and any Employer Plan and Trust/Custodial Account as
embodied in the Prototype document and accompanying Adoption Agreement, shall
be governed by Federal law to the extent applicable and to the extent not
applicable by the laws of the State/Commonwealth in which the principal office
of the Sponsor or its affiliate which is designated as Trustee or Custodian in
the Adoption Agreement, is located.
Page 33
<PAGE> 1
Exhibit 4.3
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
NONSTANDARDIZED
ADOPTION AGREEMENT
PROTOTYPE CASH OR DEFERRED PROFIT-SHARING PLAN AND
TRUST/CUSTODIAL ACCOUNT
SPONSORED BY
COMERICA BANK
The Employer named below hereby establishes a Cash or Deferred
Profit-Sharing Plan for eligible Employees as provided in this Adoption
Agreement and the accompanying Basic Prototype Plan and Trust/Custodial
Account Basic Plan Document #05.
1. EMPLOYER INFORMATION
NOTE: If multiple Employers are adopting the Plan, complete this section
based on the lead Employer. Additional Employers may adopt this Plan by
attaching executed signature pages to the back of the Employer's Adoption
Agreement.
(a) NAME AND ADDRESS: Ford Microelectronics, Inc.
9965 Federal Dr.
Colorado Springs, CO 80921
(b) TELEPHONE NUMBER: (719) 528-7600
(e) EMPLOYER TAX ID NUMBER: 38-3295872
TRUST TAX ID NUMBER: ___________________________________________
(d) FORM OF BUSINESS:
[ ] (i) Sole Proprietor
[ ] (ii) Partnership
[X] (iii) Corporation
[ ] (iv) "S" Corporation (formerly known as Subchapter S)
[ ] (v) Other: _________________________________________
(e) NAME OF INDIVIDUAL AUTHORIZED TO ISSUE INSTRUCTIONS TO THE
TRUSTEE/CUSTODIAN:
The Administrative Committee for the Ford Microelectronics Salaried
Retirement Savings Plan
(f) NAME OF PLAN: FMI Salaried Retirement Savings Plan
(g) THREE DIGIT PLAN NUMBER FOR ANNUAL RETURN/REPORT: 001
2. EFFECTIVE DATE
(a) This is a new Plan having an effective date of 9/1/94 for Company
Discretionary Contributions & 1/1/95 for Employee Contributions
(b) This is an amended Plan.
The effective date of the original Plan was ____________________________.
The effective date of the amended Plan is ________________________________
with the exception of Sections 7(f), 7(g) and 12 herein which shall be
effective as of the first day of the 1989 Plan Year.
(c) If different from above, the Effective Date for the Plan's Elective
Deferral provisions shall be.
(d) The effective date of Trustee or Custodian appointment:
___________________________________________________________________________
To the extent the effective date of the appointment of the Trustee or the
Custodian is later than the effective date of the amended Plan, the
Trustee or the Custodian will have no liability for the acts or the
omissions of the prior Trustee or prior Custodian. The Employer shall hold
the Trustee or the Custodian harmless with respect to prior acts or
omissions of the prior Trustee or prior Custodian.
Page 1
<PAGE> 2
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
3. DEFINITIONS
(a) "Compensation"
Compensation shall be determined on the basis of the following
definition of Compensation:
[ ] (i) Code Section 6041 and 6051 Compensation,
[X] (ii) Code Section 3401(a) Compensation, or
[ ] (iii) Code Section 415 Compensation.
Compensation shall be determined on the basis of the:
[ ] (i) Plan Year.
[ ] (ii) Employer's Taxable Year.
[X] (iii) Calendar Year.
Compensation [ ] shall [ ] shall not include Employer contributions made
pursuant to a Salary Savings Agreement which are not includable in the
gross income of the Employee for the reasons indicated in the definition
of Compensation at 1.12 of the Basic Plan Document #05.
If the Employer chooses a non-integrated allocation formula, Compensation
will exclude:
[X] overtime.
[X] bonuses.
[ ] commissions.
[X] other:
Shift Premium, cost of fringe benefits (including pre-tax payment of
medical dental contributions), long-term disability benefits, worker's
compensation and other such benefits.
NOTE: Any exclusion of Compensation must satisfy the requirements of
Section 1.401(a)(4) of the Income Tax Regulations and Code Section 414(s)
and the regulations thereunder.
For purposes of the Plan, Compensation shall be limited to $______, the
maximum amount which will be considered for Plan purposes. [If an amount is
specified, it will limit the amount of contributions allowed on behalf of
higher compensated Employees. Completion of this section is not intended
to coordinate with the $200,000 of Code Section 415(d), thus the amount
should be less than $200,000 as adjusted for cost-of-living increases.]
(b) "Entry Date"
[ ] (i) The first day of the Plan Year nearest the date on which an
Employee meets the eligibility requirements.
[ ] (ii) The earlier of the first day of the Plan Year or the first day
of the seventh month of the Plan Year coinciding with or
following the date on which an Employee meets the eligibility
requirements.
[ ] (iii) The first day of the Plan Year following the date on which the
Employee meets the eligibility requirements. If this election is
made, the Service requirement at 4(a)(ii) may not exceed 1/2
year and the age requirement at 4(b)(ii) may not exceed 20-1/2.
[X] (iv) The first day of the month coinciding with or following the date
on which an Employee meets the eligibility requirements.
[ ] (v) The first day of the Plan Year, or the first day of the fourth
month, or the first day of the seventh month or the first day of
the tenth month, of the Plan Year coinciding with or following
the date on which an Employee meets the eligibility requirements.
(c) "Hours of Service" Shall be determined on the basis of the method selected
below. Only one method may be selected. The method selected shall be
applied to all Employees covered under the Plan as follows:
[X] (i) On the basis of actual hours for which an Employee is paid or
entitled to payment.
Page 2
<PAGE> 3
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
[ ] (ii) On the basis of days worked.
An Employee shall be credited with ten (10) Hours of
Service if under paragraph 1.42 of the Basic Plan Document
#05 such Employee would be credited with at least one (1)
Hour of Service during the day.
[ ] (iii) On the basis of weeks worked.
An Employee shall be credited with forty-five (45) Hours
of Service if under paragraph 1.42 of the Basic Plan
Document #05 such Employee would be credited with at least
one (1) Hour of Service during the week.
[ ] (iv) On the basis of semi-monthly payroll periods.
An Employee shall be credited with ninety-five (95) Hours
of Service if under paragraph 1.42 of the Basic Plan
Document #05 such Employee would be credited with at least
one (1) Hour of Service during the semi-monthly payroll
period.
[ ] (v) On the basis of months worked.
An Employee shall be credited with one-hundred-ninety
(190) Hours of Service if under paragraph 1.42 of the
Basic Plan Document #05 such Employee would be credited
with at least one (1) Hour of Service during the month.
(d) "Limitation Year" The 12-consecutive month period commencing on January 1
and ending on December 31.
(e) "Net Profit"
[X] (i) Not applicable (profits will not be required for any
contributions to the Plan).
[ ] (ii) As defined in paragraph 1.49 of the Basic Plan Document #05.
[ ] (iii) Shall be defined as: _________________________________________
______________________________________________________________
______________________________________________________________
(Only use if definition in paragraph 1.49 of the Basic
Plan Document #05 is to be superseded.)
(f) "Plan Year" The 12-consecutive month period commencing on January 1 and
ending on December 31.
If applicable, the first Plan Year will be a short Plan Year commencing on
September 1, 1994 and ending on December 31, 1994. Thereafter, the Plan
Year shall be as above.
(g) "Qualified Early Retirement Age" For purposes of making distributions
under the provisions of a Qualified Domestic Relations Order, the Plan's
Qualified Early Retirement Age with regard to the Participant against whom
the order is entered [X] shall [ ] shall not be the date the order is
determined to be qualified. If "shall" is elected, this will only allow
payout to the alternate payee(s).
(h) "Qualified Joint and Survivor Annuity" The safe-harbor provisions of
paragraph 8.7 of the Basic Plan Document #05 [X] are [ ] are not
applicable. If not applicable, the survivor annuity shall be ______%
(50%, 66-2/3%, 75% or 100%) of the annuity, payable during the lives of the
Participant and Spouse. If no answer is specified, 50% will be used.
(i) "Taxable Wage Base"
[X] (i) Not Applicable -- Plan is not integrated with Social Security.
[ ] (ii) The maximum earnings considered wages for such Plan Year
under Code Section 3121(a).
[ ] (iii) ___% (not more than 100%) of the amount considered wages for
such Plan Year under Code Section 3121(a).
[ ] (iv) $_____________, provided that such amount is not in excess of
the amount determined under paragraph 3(i)(ii) above.
[ ] (v) For the 1989 Plan Year $10,000. For all subsequent Plan
Years, 20% of the maximum earnings considered wages for such
Plan Year under Code Section 3121(a).
NOTE: Using less than the maximum at (ii) may result in a change in the
allocation formula in Section 7.
Page 3
<PAGE> 4
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
(j) "Valuation Date(s)" Allocations to Participant Accounts will be done in
accordance with Article V of the Basic Plan Document #05:
[X] (i) Daily
[ ] (ii) Monthly
[ ] (iii) Quarterly
[ ] (iv) Semi-Annually
[ ] (v) Annually
(k) "Year of Service"
(i) For Eligibility Purposes: The 12-consecutive month period
during which an Employee is credited with 1,000 (not more than
1,000) Hours of Service.
(ii) For Allocation Accrual Purposes: The 12-consecutive month
period during which an Employee is credited with 1,000 (not
more than 1,000) Hours of Service.
(iii) For Vesting Purposes: The 12-consecutive month period during
which an Employee is credited with 1,000 (not more than 1,000)
Hours of Service.
4. ELIGIBILITY REQUIREMENTS
(a) Service:
[ ] (i) The Plan shall have no service requirement.
[X] (ii) The Plan shall cover only Employees having completed at least 3
Months [not more than three (3)] Years of Service. If more than
one (1) is specified, for Plan Years beginning in 1989 and
later, the answer will be deemed to be one (1).
NOTE: If the eligibility period selected is less than one year, an
Employee will not be required to complete any specified number of Hours
of Service to receive credit for such period.
(b) Age:
[X] (i) The Plan shall have no minimum age requirement.
[ ] (ii) The Plan shall cover only Employees having attained age ___ (not
more than age 21).
(c) Classification:
The Plan shall cover all Employees who have met the age and service
requirements with the following exceptions:
[ ] (i) No exceptions.
[ ] (ii) The Plan shall exclude Employees included in a unit of
Employees covered by a collective bargaining agreement between
the Employer and Employee Representatives, if retirement
benefits were the subject of good faith bargaining. For this
purpose, the term "Employee Representative" does not include
any organization more than half of whose members are Employees
who are owners, officers, or executives of the Employer.
[ ] (iii) The Plan shall exclude Employees who are nonresident aliens and
who receive no earned income from the Employer which constitutes
income from sources within the United States.
[X] (iv) The Plan shall exclude from participation any nondiscriminatory
classification of Employees determined as follows:
Hourly Employees, Leased Employees and Temporary Employees
_____________________________________________________________
_____________________________________________________________
(d) Employees on Effective Date:
[ ] (i) Employees employed on the Plan's Effective Date do not have to
satisfy the Service requirements specified above.
Page 4
<PAGE> 5
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
[ ] (ii) Employees employed on the Plan's Effective Date do not
have to satisfy the age requirements specified above.
5. RETIREMENT AGES
(a) Normal Retirement Age:
If the Employer imposes a requirement that Employees retire upon reaching
a specified age, the Normal Retirement Age selected below may not exceed
the Employer imposed mandatory retirement age.
[X] (i) Normal Retirement Age shall be 65 (not to exceed age 65).
[ ] (ii) Normal Retirement Age shall be the later of attaining age (not
to exceed age 65) or the (not to exceed the 5th) anniversary of
the first day of the first Plan Year in which the Participant
commenced participation in the Plan.
(b) Early Retirement Age:
[ ] (i) Not Applicable.
[X] (ii) The Plan shall have an Early Retirement Age of 55 (not less
than 55) and completion of 5 Years of Service.
6. EMPLOYEE CONTRIBUTIONS
[X] (a) Participants shall be permitted to make Elective Deferrals in any
amount from 1% up to 15% of their Compensation.
If (a) is applicable, Participants shall be permitted to amend
their Salary Savings Agreements to change the contribution
percentage as provided below:
[ ] (i) On the Anniversary Date of the Plan,
[ ] (ii) On the Anniversary Date of the Plan and on the first day
of the seventh month of the Plan Year.
[ ] (iii) On the Anniversary Date of the Plan and on the first
day following any Valuation Date, or
[X] (iv) Upon 30 days notice to the Employer.
[X] (b) Participants shall be permitted to make after tax Voluntary
Contributions.
[X] (c) If necessary to pass the Average Deferral Percentage Test,
Participants [x] may [ ] may not have Elective Deferrals
recharacterized as Voluntary Contributions.
NOTE: The Average Deferral Percentage Test will apply to contributions
under (a) above. The Average Contribution Percentage Test will apply to
contributions under (b) above, and may apply to (a).
7. EMPLOYER CONTRIBUTIONS AND ALLOCATION THEREOF
NOTE: The Employer shall make contributions to the Plan in accordance with
the formula or formulas selected below. The Employer's contribution shall
be subject to the limitations contained in Articles III and X. For this
purpose, a contribution for a Plan Year shall be limited for the
Limitation Year which ends with or within such Plan Year. Also, the
integrated allocation formulas below are for Plan Years beginning in 1989
and later. The Employer's allocation for earlier years shall be as
specified in its Plan prior to amendment for the Tax Reform Act of 1986.
(a) Profits Requirement:
(i) Current or Accumulated Net Profits are required for:
[ ] (A) Matching Contributions.
[ ] (B) Qualified Non-Elective Contributions.
[ ] (C) discretionary contributions.
(ii) No Net Profits are required for:
[X] (A) Matching Contributions.
[X] (B) Qualified Non-Elective Contributions.
Page 5
<PAGE> 6
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
[X] (C) discretionary contributions.
NOTE: Elective Deferrals can always be contributed regardless of
profits.
[X] (b) Salary Savings Agreement:
The Employer shall contribute and allocate to each Participant's account an
amount equal to the amount withheld from the Compensation of such
Participant pursuant to his or her Salary Savings Agreement. If
applicable, the maximum percentage is specified in Section 6 above.
An Employee who has terminated his or her election under the Salary
Savings Agreement other than for hardship reasons may not make another
Elective Deferral:
[ ] (i) until the first day of the next Plan Year.
[ ] (ii) until the first day of the next valuation period.
[X] (iii) for a period of 1 month(s) (not to exceed 12 months).
[X] (c) Matching Employer Contribution [See paragraphs (h) and (i)]:
[ ] (i) PERCENTAGE MATCH: The Employer shall contribute and allocate to
each eligible Participant's account an amount equal to _______%
of the amount contributed and allocated in accordance with
paragraph 7(b) above and (if checked) ________% of [ ] the
amount of Voluntary Contributions made in accordance with
paragraph 4.1 of the Basic Plan Document #05. The Employer shall
not match Participant Elective Deferrals as provided above in
excess of $_________ or in excess of ________% of the
Participant's Compensation or if applicable, Voluntary
Contributions in excess of $_______ or in excess of _______%
of the Participant's Compensation. In no event will the match
on both Elective Deferrals and Voluntary Contributions exceed a
combined amount of $_________ or ______________%.
[ ] (ii) DISCRETIONARY MATCH: The Employer shall contribute and allocate
to each eligible Participant's account a percentage of the
Participant's Elective Deferral contributed and allocated
in accordance with paragraph 7(b) above. The Employer shall
set such percentage prior to the end of the Plan Year. The
Employer shall not match Participant Elective Deferrals in
excess of $ ________________ or in excess of ___________% of the
Participant's Compensation.
[X] (iii) TIERED MATCH: The Employer shall contribute and allocate to
each Participant's account an amount equal to
100% of the first 3% of the Participant's contribution,
60% of the next 7% of the Participant's contribution,
_____% of the next _______% of the Participant's contribution.
NOTE: Percentages specified in (iii) above may not increase as the percentage
of Participant's contribution increases.
[ ] (iv) FLAT DOLLAR MATCH: The Employer shall contribute and allocate
to each Participant's account $________ if the Participant
defers at least 1% of Compensation.
[ ] (v) PERCENTAGE OF COMPENSATION MATCH: The Employer shall contribute
and allocate to each Participant's account _________% of
Compensation if the Participant defers at least 1% of
Compensation.
[ ] (vi) PROPORTIONATE COMPENSATION MATCH: The Employer shall contribute
and allocate to each Participant who defers at least 1% of
Compensation, an amount determined by multiplying such Employer
Matching Contribution by a fraction the numerator of which is
the Participant's Compensation and the denominator of which is
the Compensation of all Participants eligible to receive such an
allocation.
[ ] (vii) QUALIFIED MATCH: Employer Matching Contributions will be treated
as Qualified Matching Contributions to the extent specified
below:
[ ] (A) All Matching Contributions.
[ ] (B) None.
[ ] (C) ______% of the Employer's Matching Contribution.
[ ] (D) Up to ________% of each Participant's Compensation.
Page 6
<PAGE> 7
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
[ ] (E) The amount necessary to meet the [ ] Average
Deferral Percentage (ADP) Test, [ ] Average
Contribution Percentage (ACP) Test, [ ] Both
the ADP and ACP Tests.
(viii) ELIGIBILITY FOR MATCH: Employer Matching Contributions,
whether or not Qualified, will only be made on Employee
Contributions not withdrawn prior to the end of the [ ] valuation
period [ ] Plan Year.
[ ] (d) Qualified Non-Elective Employer Contribution -- [See paragraphs
(h) and (i)] These contributions are fully vested when contributed.
The Employer shall have the right to make an additional discretionary
contribution which shall be allocated to each eligible Employee in
proportion to his or her Compensation as a percentage of the
Compensation of all eligible Employees. This part of the Employer's
contribution and the allocation thereof shall be unrelated to any Employee
contributions made hereunder. The amount of Qualified non-Elective
Contributions taken into account for purposes of meeting the ADP or ACP
test requirements is:
[ ] (i) All such Qualified non-Elective Contributions.
[ ] (ii) The amount necessary to meet [ ] the ADP test, [ ] the ACP test,
[ ] Both the ADP and ACP tests.
Qualified non-Elective Contributions will be made to:
[ ] (iii) All Employees eligible to participate.
[ ] (iv) Only non-Highly Compensated Employees eligible to participate.
[X] (e) Additional Employer Contribution Other Than Qualified Non-Elective
Contributions -- Non-Integrated [See paragraphs (h) and (i)]
The Employer shall have the right to make an additional
discretionary contribution which shall be allocated to each
eligible Employee in proportion to his or her Compensation
as a percentage of the Compensation of all eligible Employees.
This part of the Employer's contribution and the allocation thereof
shall be unrelated to any Employee contributions made hereunder.
[ ] (f) Additional Employer Contribution -- Integrated Allocation Formula
[See paragraphs (h) and (i)]
The Employer shall have the right to make an additional
discretionary contribution. The Employer's contribution for
the Plan Year plus any forfeitures shall be allocated to the
accounts of eligible Participants as follows:
(i) First, to the extent contributions and forfeitures are
sufficient, all Participants will receive an allocation
equal to 3% of their Compensation.
(ii) Next, any remaining Employer Contributions and forfeitures
will be allocated to Participants who have Compensation in
excess of the Taxable Wage Base (excess Compensation).
Each such Participant will receive an allocation in the
ratio that his or her excess compensation bears to the
excess Compensation of all Participants. Participants may
only receive an allocation of 3% of excess Compensation.
(iii) Next, any remaining Employer contributions and forfeitures
will be allocated to all Participants in the ratio that
their Compensation plus excess Compensation bears to the
total Compensation plus excess Compensation of all
Participants. Participants may only receive an allocation
of up to 2.7% of their Compensation plus excess
Compensation, under this allocation method. If the
Taxable Wage Base defined at Section 3(j) is less than or
equal to the greater of $10,000 or 20% of the maximum, the
2.7% need not be reduced. If the amount specified is
greater than the greater of $10,000 or 20% of the maximum
Taxable Wage Base, but not more than 80%, 2.7% must be
reduced to 1.3%. If the amount specified is greater than
80% but less than 100% of the maximum Taxable Wage Base,
the 2.7% must be reduced to 2.4%.
NOTE: If the Plan is not Top-Heavy or if the Top-Heavy minimum contribution or
benefit is provided under another Plan [see Section 11(c)(ii)] covering the
same Employees, sub-paragraphs (i) and (ii) above may be disregarded and 5.7%,
4.3% or 5.4% may be substituted for 2.7%, 1.3% or 2.4% where it appears in
(iii) above.
(iv) Next, any remaining Employer contributions and
forfeitures will be allocated to all Participants
(whether or not they received an allocation under the
preceding paragraphs) in the ratio that each
Participant's Compensation bears to all Participants'
Compensation.
Page 7
<PAGE> 8
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
[ ] (g) Additional Employer Contribution-Alterative Integrated Allocation
Formula. [See paragraph (h) and (i)]
The Employer shall have the right to make an additional
discretionary contribution. To the extent that such contributions
are sufficient, they shall be allocated as follows:
_______% of each eligible Participant's Compensation plus ________%
of Compensation in excess of the Taxable Wage Base defined at
Section 3(i) hereof. The percentage on excess compensation may not
exceed the lesser of (i) the amount first specified in this
paragraph or (ii) the greater of 5.7% or the percentage rate of tax
under Code Section 3111(a) as in effect on the first day of the
Plan Year attributable to the Old Age (OA) portion of the OASDI
provisions of the Social Security Act. If the Employer specifies a
Taxable Wage Base in Section 3(i) which is lower than the Taxable
Wage Base for Social Security purposes (SSTWB) in effect as of the
first day of the Plan Year, the percentage contributed with respect
to excess Compensation must be adjusted. If the Plan's Taxable Wage
Base is greater than the larger of $10,000 or 20% of the SSTWB but
not more than 80% of the SSTWB, the excess percentage is 4.3%. If
the Plan's Taxable Wage Base is greater than 80% of the SSTWB but
less than 100% of the SSTWB, the excess percentage is 5.4%.
NOTE: Only one plan maintained by the Employer may be integrated with
Social Security.
(h) Allocation of Excess Amounts (Annual Additions)
In the event that the allocation formula above results in an Excess
Amount, such excess shall be:
[ ] (i) placed in a suspense account accruing no gains or losses for
the benefit of the Participant.
[X] (ii) reallocated as additional Employer contributions to all other
Participants to the extent that they do not have any
Excess Amount.
(i) Minimum Employer Contribution Under Top-Heavy Plans:
For any Plan Year during which the Plan is Top-Heavy, the sum of the
contributions and forfeitures as allocated to eligible Employees under
paragraphs 7(d), 7(e), 7(f), 7(g) and 9 of this Adoption Agreement shall
not be less than the amount required under paragraph 14.2 of the Basic
Plan document #05. Top-Heavy minimums will be allocated to:
[X] (i) all eligible Participants.
[ ] (ii) only eligible non-Key Employees who are Participants.
(j) Return of Excess Contributions and/or Excess Aggregate Contributions:
In the event that one or more Highly Compensated Employees is subject to
both the ADP and ACP tests and the sum of such tests exceeds the
Aggregate Limit, the limit will be satisfied by reducing:
[ ] (i) the ADP of the affected Highly Compensated Employees.
[ ] (ii) the ACP of the affected Highly Compensated Employees.
[X] (iii) either the ADP and/or the ACP of the affected Highly
Compensated Employees.
8. ALLOCATIONS TO TERMINATED EMPLOYEES
[ ] (a) The Employer will not allocate Employer related contributions
to Employees who terminate during a Plan Year, unless required
to satisfy the requirements of Code Section 401(a)(26) and
410(b). (These requirements are effective for 1989 and
subsequent Plan Years.)
[X] (b) The Employer will allocate Employer matching and other related
contributions as indicated below to Employees who terminate
during the Plan Year as a result of:
Matching Other
-------- -----
[X] [X] (i) Retirement.
[X] [X] (ii) Disability.
[X] [X] (iii) death.
[ ] [ ] (iv) Other termination of employment provided
that the Participant has completed a Year
of Service as defined for Allocation
Accrual Purposes.
Page 8
<PAGE> 9
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
[ ] [ ] (v) Other termination of employment even
though the Participant has not completed
a Year of Service.
9. ALLOCATION OF FORFEITURES
NOTE: Subsections (a), (b) and (c) below apply to forfeitures of amounts
other than Excess Aggregate Contributions.
(a) Allocation Alternatives:
[ ] (i) Forfeitures shall be allocated to Participants in the same
manner as the Employer's contribution. If allocation to
other Participants is selected, the allocation shall be as
follows:
[1] Amount attributable to Employer discretionary contributions
and Top-Heavy minimums will be allocated to:
[ ] all eligible Participants under the Plan.
[ ] only those Participants eligible for an allocation of
Employer contributions in the current year.
[ ] only those Participants eligible for an allocation of
matching contributions in the current year.
[2] Amounts attributable to Employer Matching contributions will
be allocated to:
[ ] all eligible Participants.
[ ] only those Participants eligible for allocations of
matching contributions in the current year.
[ ] (ii) Forfeitures shall be applied to reduce the Employer's
contribution for such Plan Year.
[X] (iii) Forfeitures shall be applied to offset administrative expenses of
the Plan. If forfeitures exceed these expenses, (ii) above shall
apply.
(b) Date for Reallocation:
NOTE: If no distribution has been made to a former Participant, sub-section
(i) below will apply to such Participant even if the Employer elects
(ii) or (iii) below as its normal administrative policy.
[ ] (i) Forfeitures shall be reallocated at the end of the Plan Year
during which the former Participant incurs his or her fifth
consecutive one year Break In Service.
[X] (ii) Forfeitures will be reallocated immediately (as of the next
Valuation Date).
[ ] (iii) Forfeitures shall be reallocated at the end of the Plan Year
during which the former Employee incurs his or her ________
(1st, 2nd, 3rd, or 4th) consecutive one year Break In Service.
(c) Restoration of Forfeitures:
If amounts are forfeited prior to five consecutive 1-year Breaks in
Service, the Funds for restoration of account balances will be obtained
from the following resources in the order indicated (fill in the
appropriate number):
[1] (i) Current year's forfeitures.
[2] (ii) Additional Employer contribution.
[3] (iii) Income or gain to the Plan.
(d) Forfeitures of Excess Aggregate Contributions shall be:
[X] (i) Applied to reduce Employer contributions.
[ ] (ii) Allocated, after all other forfeitures under the Plan, to the
Matching Contribution account of each non-highly compensated
Participant who made Elective Deferrals or Voluntary
Contributions in the ratio which each such Participant's
Compensation for the Plan Year bears to the total Compensation of
all Participants for such Plan Year. Such forfeitures cannot be
allocated to the account of any Highly Compensated Employee.
Forfeitures of Excess Aggregate Contributions will be so applied at the
end of the Plan Year in which they occur.
Page 9
<PAGE> 10
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
10. CASH OPTION
[ ] (a) The Employer may permit a Participant to elect to defer to the
Plan, an amount not to exceed __% of any Employer paid cash bonus
made for such Participant for any year. A Participant must file
an election to defer such contribution at least fifteen (15)
days prior to the end of the Plan Year. If the Employee
fails to make such an election, the entire Employer paid cash
bonus to which the Participant would be entitled shall be paid
as cash and not to the Plan. Amounts deferred under this
section shall be treated for all purposes as Elective Deferrals.
Notwithstanding the above, the election to defer must be made
before the bonus is made available to the Participant.
[X] (b) Not Applicable.
11. LIMITATIONS ON ALLOCATIONS
[ ] This is the only Plan the Employer maintains or ever maintained,
therefore, this section is not applicable.
[X] The Employer does maintain or has maintained another Plan
(including a Welfare Benefit Fund or an individual medical
account (as defined in Code Section 415(1)(2)), under which
amounts are treated as Annual Additions) and has completed the
proper sections below.
Complete (a), (b) and (c) only if the Employer maintains
or ever maintained another qualified plan, including a
Welfare Benefit Fund or an individual medical account [as
defined in Code Section 415(1)(2)] in which any
Participant in this Plan is (or was) a participant or
could possibly become a participant.
(a) If the Participant is covered under another qualified Defined
Contribution Plan maintained by the Employer, other than a Master
or Prototype Plan:
[X] (i) the provisions of Article X of the Basic Plan Document
#05 will apply, as if the other plan were a Master or
Prototype Plan.
[ ] (ii) Attach provisions stating the method under which the
plans will limit total Annual Additions to the Maximum
Permissible Amount, and will properly reduce any Excess
Amounts, in a manner that precludes Employer discretion.
(b) If a Participant is or ever has been a participant in a Defined
Benefit Plan maintained by the Employer:
Attach provisions which will satisfy the 1.0 limitation of
Code Section 415(e). Such language must preclude Employer
discretion. The Employer must also specify the interest and
mortality assumptions used in determining Present Value in the
Defined Benefit Plan.
(c) The minimum contribution or benefit required under Code Section 416
relating to Top-Heavy Plans shall be satisfied by:
[ ] (i) this Plan.
[ ] (ii) ______________________________________________________
_________________ (Name of other qualified plan of the
Employer).
[ ] (iii) Attach provisions stating the method under which the
minimum contribution and benefit provisions of Code
Section 416 will be satisfied. If a Defined Benefit
Plan is or was maintained, an attachment must be
provided showing interest and mortality assumptions
used in the Top-Heavy Ratio.
12. VESTING
Employees shall have a fully vested and nonforfeitable interest in any
Employer contribution and the investment earnings thereon made in
accordance with paragraphs (select one or more options) [ ] 7(c), [ ]
7(e), [ ] 7(f), [ ] 7(g) and [ ] 7(i) hereof. Contributions under
paragraph 7(b), 7(c)(vii) and 7(d) are always fully vested. If one or
more of the foregoing options are not selected, such Employer
contributions shall be subject to the vesting table selected by the
Employer.
Each Participant shall acquire a vested and nonforfeitable percentage in
his or her account balance attributable to Employer contributions and the
earnings thereon under the procedures selected below except with respect
to any Plan Year during which the Plan is Top-Heavy, in which case the
Two-twenty vesting schedule [Option (b)(iv)] shall automatically apply
unless the Employer has already elected a faster vesting schedule. If the
Plan is switched to option (b)(iv), because of its Top-Heavy status, that
vesting schedule will remain in effect even if the Plan later becomes
non-Top-Heavy until the Employer executes an amendment of this Adoption
Agreement indicating otherwise.
Page 10
<PAGE> 11
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
(a) Computation Period:
The computation period for purposes of determining Years of Service and
Breaks in Service for purposes of computing a Participant's nonforfeitable
right to his or her account balance derived from Employer contributions:
[ ] (i) shall not be applicable since Participants are always fully
vested,
[X] (ii) shall commence on the date on which an Employee first performs
an Hour of Service for the Employer and each subsequent
12-consecutive month period shall commence on the anniversary
thereof, or
[ ] (iii) shall commence on the first day of the Plan Year during which
an Employee first performs an Hour of Service for the Employer
and each subsequent 12-consecutive month period shall commence on
the anniversary thereof.
A Participant shall receive credit for a Year of Service if he or she
completes at least 1,000 Hours of Service [or if lesser, the number of
hours specified at 3(k)(iii) of this Adoption Agreement] at any time during
the 12-consecutive month computation period. Consequently, a Year of
Service may be earned prior to the end of the 12-consecutive month
computation period and the Participant need not be employed at the end of
the 12-consecutive month computation period to receive credit for a Year of
Service.
(b) Vesting Schedules:
NOTE: The vesting schedules below only apply to a Participant who has at
least one Hour of Service during or after the 1989 Plan Year. If
applicable, Participants who separated from Service prior to the 1989 Plan
Year will remain under the vesting schedule as in effect in the Plan prior
to amendment for the Tax Reform Act of 1986.
(i) Full and immediate Vesting.
<TABLE>
<CAPTION>
Years of Service
-----------------------------------------------
1 2 3 4 5 6 7
-----------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
(ii) --% 100%
(iii) --% --% 100%
(iv) --% 20% 40% 60% 80% 100%
(v) --% -% 20% 40% 60% 80% 100%
(vi) 10% 20% 30% 40% 60% 80% 100%
(vii) 0% 0% 0% 0% 100%
(viii) --% --% --% --% --% --% 100%
</TABLE>
NOTE: The percentages selected for schedule (viii) may not be less
for any year than the percentages shown at schedule (v).
[X] All contributions other than those which are fully vested when
contributed will vest under schedule vii above.
[ ] Contributions other than those which are fully vested when
contributed will vest as provided below:
Vesting
Option Selected Type Of Employer Contribution
--------------- -----------------------------
[S] [C]
_______________ 7(c) Employer Match on Salary Savings
_______________ 7(c) Employer Match on Employee Voluntary
_______________ 7(e) Employer Discretionary
_______________ 7(f) & (g) Employer Discretionary - Integrated
(c) Service disregarded for Vesting:
[ ] (i) Service prior to the Effective Date of this Plan or a
predecessor plan shall be disregarded when computing a
Participant's vested and nonforfeitable interest.
[ ] (ii) Service prior to a Participant having attained age 18 shall
be disregarded when computing a Participant's vested and
nonforfeitable interest.
Page 11
<PAGE> 12
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
13. SERVICE WITH PREDECESSOR ORGANIZATION
For purposes of satisfying the Service requirements for eligibility, Hours
of Service shall include Service with the following predecessor
organization(s): (These hours will also be used for vesting purposes.)
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
14. ROLLOVER/TRANSFER CONTRIBUTIONS
(a) Rollover Contributions, as described at paragraph 4.3 of the Basic
Plan Document #05, [X] shall [ ] shall not be permitted. If permitted,
Employees [ ] may [X] may not make Rollover Contributions prior to
meeting the eligibility requirements for participation in the Plan.
(b) Transfer Contributions, as described at paragraph 4.4 of the Basic
Plan Document #05 [X] shall [ ] shall not be permitted. If permitted,
Employees [ ] may [X] may not make Transfer Contributions prior to
meeting the eligibility requirements for participation in the Plan.
NOTE: Even if available, the Employer may refuse to accept such
contributions if its Plan meets the safe-harbor rules of paragraph
8.7 of the Basic Plan Document #05.
15. HARDSHIP WITHDRAWALS
Hardship withdrawals, as provided for in paragraph 6.9 of the Basic Plan
Document #05, [X] are [ ] are not permitted.
16. PARTICIPANT LOANS
Participant loans, as provided for in paragraph 13.5 of the Basic
Plan Document #05, [ ] are [X] are not permitted. If permitted,
repayments of principal and interest shall be repaid to [X] the
Participant's segregated account or [ ] the general Fund.
17. INSURANCE POLICIES
The insurance provisions of paragraph 13.6 of the Basic Plan Document #05
[ ] shall [X] shall not be applicable.
18. EMPLOYER INVESTMENT DIRECTION
The Employer investment direction provisions, as set forth in paragraph
13.7 of the Basic Plan Document #05, [ ] shall [X] shall not be
applicable.
19. EMPLOYEE INVESTMENT DIRECTION
(a) The Employee investment direction provisions, as set forth in paragraph
13.8 of the Basic Plan Document #05, [ ] shall [ ] shall not be applicable.
If applicable, Participants may direct their investments:
[ ] (i) among funds offered by the Trustee.
[X] (ii) among any allowable investments.
(b) Participants may direct the following kinds of contributions and the
earnings thereon (check all applicable):
[ ] (i) All Contributions
[X] (ii) Elective Deferrals
[X] (iii) Employee Voluntary Contributions (after-tax)
[ ] (iv) Employee Mandatory Contributions (after-tax)
[ ] (v) Employer Qualified Matching Contributions
[ ] (vi) Other Employer Matching Contributions
[ ] (vii) Employer Qualified Non-Elective Contributions
[ ] (viii) Employer Discretionary Contributions
Page 12
<PAGE> 13
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
[X] (ix) Rollover Contributions
[X] (x) Transfer Contributions
[ ] (xi) All of above which are checked, but only to the extent that the
Participant is vested in those contributions.
NOTE: To the extent that Employee investment direction was previously
allowed, it shall continue to be allowed on those amounts and the
earnings thereon.
20. EARLY PAYMENT OPTION
(a) A Participant who separates from Service prior to retirement, death or
Disability [X] may [ ] may not make application to the Employer requesting
an early payment of his or her vested account balance.
(b) A Participant who has not separated from Service [ ] may [X] may not obtain
a distribution of his or her vested Employer contributions. Distribution
can only be made if the Participant is 100% vested.
(c) A Participant who has attained the Plan's Normal Retirement Age and who
has not separated from Service [X] may [ ] may not receive a distribution
of his or her vested account balance.
NOTE: If the Participant has had the right to withdraw his or her account
balance in the past, this right may not be taken away. Notwithstanding the
above, to the contrary, required minimum distributions will be paid. For
timing of distributions, see item 21(a) below.
21. DISTRIBUTION OPTIONS
(a) Timing of Distributions:
In cases of termination for other than death, Disability or
retirement, benefits shall be paid:
[ ] (i) As soon as administratively feasible following the
close of the Plan Year during which a distribution is
requested or is otherwise payable.
[X] (ii) As soon as administratively feasible, following the date
on which a distribution is requested or is otherwise
payable.
[ ] (iii) As soon as administratively feasible, after the close of
the Plan Year during which the Participant incurs _____
consecutive one-year Breaks in Service.
[ ] (iv) Only after the Participant has achieved the Plan's
Normal Retirement Age, or Early Retirement Age, if
applicable.
In cases of death, Disability or retirement, benefits shall be paid:
[ ] (v) As soon as administratively feasible following the
close of the Plan Year during which a distribution is
requested or is otherwise payable.
[X] (vi) As soon as administratively feasible, following the
date on which a distribution is requested or is otherwise
payable.
[ ] (vii) As soon as administratively feasible, after the close of
the Plan Year during which the Participant incurs ______
consecutive one-year Breaks in Service.
[ ] (viii) Only after the Participant has achieved the Plan's Normal
Retirement Age, or Early Retirement Age, if applicable.
(b) Optional Forms of Payment:
[X] (i) Lump Sum.
[ ] (ii) Installment Payments.
[ ] (iii) Life Annuity*.
[ ] (iv) Life Annuity Term Certain.
Life Annuity with payments guaranteed for _______ period
(not to exceed 20 years, specify all applicable).
[ ] (v) Joint and [ ] 50%, [ ]66-2/3%, [ ] 75% or [ ] 100% survivor
annuity* (specify all applicable).
Page 13
<PAGE> 14
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
[ ] (vi) Other form(s) specified:______________________________
*Not available in Plan meeting provisions of paragraph 8.7 of Basic Plan
Document #05.
(c) Recalculation of Life Expectancy:
In determining required distributions under the Plan, Participants and/or
their Spouse)(Surviving Spouse) [ ] shall [X] shall not have the right to
have their life expectancy recalculated annually.
If "shall",
[ ] only the Participant shall be recalculated.
[ ] both the Participant and Spouse shall be recalculated.
[ ] who is recalculated shall be determined by the Participant.
22. PROTECTED BENEFITS UNDER INTERNAL REVENUE CODE SECTION 411(d)(6)
[ ] The Employer is attaching to this Adoption Agreement a list of
Section 411(d)(6) protected benefits from a prior plan document which
this Plan amends.
[X] Not applicable.
23. SPONSOR CONTACT
Employers should direct questions concerning the language contained in and
qualification of the Prototype to:
Robert C. Short
(Job Title) Vice President
(Phone Number) (313) 2229899
In the event that the Sponsor amends, discontinues or abandons this
Prototype Plan, notification will be provided to the Employer's address
provided on the first page of this Agreement.
24. SIGNATURES
DUE TO THE SIGNIFICANT TAX RAMIFICATIONS,THE SPONSOR RECOMMENDS THAT
BEFORE YOU EXECUTE THIS ADOPTION AGREEMENT, YOU CONTACT YOUR ATTORNEY OR
TAX ADVISOR, IF ANY.
(a) EMPLOYER:
Name and address of Employer if different than specified in Section 1
above.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
This agreement and the corresponding provisions of the Plan and
Trust/Custodial Account Basic Plan Document #05 were adopted by the
Employer the 1st day of January, 1995.
Signed for the Employer by: Dr. Ralph F. Schauer
Title: President, Ford MicroelectroNics, Inc.
Signature: RALPH F. SCHAUER
THE EMPLOYER UNDERSTANDS THAT ITS FAILURE TO PROPERLY COMPLETE THE
ADOPTION AGREEMENT MAY RESULT IN DISQUALIFICATION OF ITS PLAN.
Employer's Reliance: The adopting Employer may not rely on an opinion
letter issued by the National Office of the Internal Revenue Service
as evidence that the Plan is qualified under Code Section 401. In
order to obtain reliance with respect to Plan qualification, the
Employer must apply to the appropriate Key District Office for a
determination letter.
This Adoption Agreement may only be used in conjunction with Basic
Plan Document #05.
Page 14
<PAGE> 15
[LOGO]
INSTITUTIONAL TRUST & INVESTMENT MANAGEMENT
[X] (b) TRUSTEE:
Name of Trustee:
Comerica Bank
____________________________________________________________________________
____________________________________________________________________________
The assets of the Fund shall be invested in accordance with paragraph 13.3 of
the Basic Plan Document #05 as a Trust. As such, the Employer's Plan as
contained herein was accepted by the Trustee the 1st day of January, 1995.
Signed for the Trustee by: Robert C. Short
Title: Vice President
Signature: Robert C. Short
[ ] (c) CUSTODIAN:
Name of Custodian:
_____________________________________________________________________________
_____________________________________________________________________________
The assets of the Fund shall be invested in accordance with paragraph 13.4
of the Basic Plan Document #05 as a Custodial Account. As such, the Employer's
Plan as contained herein was accepted by the Custodian the 1st day of January,
1995.
Signed for the Custodian by: ______________________________________
Title: ______________________________________
Signature: ______________________________________
[X] (d) SPONSOR:
The Employer's agreement and the corresponding provisions of the Plan and
Trust/Custodial Account Basic Plan Document #05 were accepted by the Sponsor
the 1st day of January, 1995.
Signed for the Sponsor by: Robert C. Short
Title: Vice President
Signature: Robert C. Short
[ ] (e) ATTORNEY CONTACT:
Name: Fred King or Timothy McGraw
Firm Name: Ford Motor Company
Address: The American Road Dearborn, MI 48121
Telephone No.: (313) 323-0264 or (313) 337-8085
Page 15
<PAGE> 1
EXHIBIT 5.1
FORD MOTOR COMPANY
THE AMERICAN ROAD
DEARBORN, MICHIGAN 48121
December 8, 1994
Ford Motor Company
The American Road
Dearborn, Michigan 48121
Ladies and Gentlemen:
This will refer to the Registration Statement on Form S-8 (the "Registration
Statement") that is being filed by Ford Motor Company (the "Company") with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
25,000 shares of Common Stock, par value $1.00 per share, of the Company
("Common Stock"), relating to the Ford Microelectronics, Inc. Salaried
Retirement Savings Plan (the "Plan").
As an Assistant Secretary and Associate Counsel of the Company, I am familiar
with the Certificate of Incorporation and the By-Laws of the Company and with
its affairs, including the actions taken by the Company in connection with the
Plan. I also have examined such other documents and instruments and have made
such further investigation as I have deemed necessary or appropriate in
connection with this opinion.
Based upon the foregoing, it is my opinion that:
(1) The Company is duly incorporated and validly existing as a corporation
under the laws of the State of Delaware.
(2) All necessary corporate proceedings have been taken to authorize the
issuance of the shares of Common Stock being registered under the Registration
Statement, and all such shares of Common Stock acquired by the Trustee under
the Plan in accordance with the Plan will be legally issued, fully paid and
non-assessable when the Registration Statement shall have become effective and
the Company shall have received therefor the consideration provided in the Plan
(but not less than the par value thereof).
<PAGE> 2
I hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement. In giving this consent, I do not admit that I am in
the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission issued
thereunder.
Very truly yours,
/s/ Thomas J. DeZure
-----------------------
Thomas J. DeZure
Assistant Secretary and
Associate Counsel
<PAGE> 1
EXHIBIT 5.2
FORD MOTOR COMPANY
THE AMERICAN ROAD
DEARBORN, MICHIGAN 48121
December 8, 1994
Ford Motor Company
The American Road
Dearborn, Michigan 48121
Ladies and Gentlemen:
This will refer to the Registration Statement on Form S-8 (the "Registration
Statement") that is being filed by Ford Motor Company (the "Company") with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), relating to the Ford
Microelectronics, Inc. Salaried Retirement Savings Plan (the "Plan").
As an Associate Counsel of the Company, I am familiar with the affairs of the
Company, including the action taken by the Company in connection with the Plan.
I have examined, or caused to be examined, the provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") and the provisions
of the Plan. I also have examined or caused to be examined such other
documents and instruments and have made such further investigation as I have
deemed appropriate in connection with this opinion.
Based upon the foregoing, it is my opinion that the provisions of the Plan,
as amended and subsequently modified if necessary to obtain a favorable
determination letter from the Internal Revenue Service, will comply with the
requirements of ERISA pertaining to such provisions.
I hereby consent to the use of this opinion as Exhibit 5.2 to the
Registration Statement. In giving this consent, I do not admit that I am in
the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission issued
thereunder.
Very truly yours,
/s/ William J. Rooney
---------------------
William J. Rooney
Associate Counsel
<PAGE> 1
EXHIBIT 15
Ford Motor Company
The American Road
Dearborn, Michigan
Re: Ford Motor Company Registration Statement on Form S-8
We are aware that our reports dated April 27, 1994, July 27, 1994 and October
26, 1994 accompanying the unaudited interim financial information of Ford Motor
Company and Subsidiaries for the periods ended March 31, 1994 and 1993, for the
periods ended June 30, 1994 and 1993 and for the periods ended September 30,
1994 and 1993 and included in the Ford Motor Company Quarterly Report on Form
10-Q for the quarters ended March 31, 1994, June 30, 1994 and September 30,
1994, respectively, are incorporated by reference in this Registration
Statement. Pursuant to Rule 436(c) under the Securities Act of 1933, this
report should not be considered a part of the registration statement prepared
or certified by us within the meaning of Sections 7 and 11 of the Act.
/s/ Coopers & Lybrand L.L.P.
- ----------------------------
COOPERS & LYBRAND L.L.P.
400 Renaissance Center
Detroit, Michigan 48243
December 6, 1994
<PAGE> 1
EXHIBIT 23
Ford Motor Company
The American Road
Dearborn, Michigan
CONSENT OF COOPERS & LYBRAND L.L.P.
Re: Ford Motor Company Registration Statement on Form S-8
We consent to the incorporation by reference in this Registration Statement of
our report dated February 1, 1994 on our audits of the consolidated financial
statements and financial statement schedules of Ford Motor Company at December
31, 1993 and 1992, and for the years ended December 31, 1993, 1992 and 1991,
which report is included in Ford's 1993 Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
- ----------------------------
COOPERS & LYBRAND L.L.P.
400 Renaissance Center
Detroit, Michigan 48243
December 6, 1994
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY WITH RESPECT TO REGISTRATION
STATEMENTS COVERING COMMON STOCK OF FORD MOTOR
COMPANY FOR ISSUANCE UNDER EMPLOYEE STOCK PLANS
Each of the undersigned, an officer and/or director of FORD MOTOR COMPANY
(the "Company"), does hereby constitute and appoint J. M. Devine, J. A. Hall,
D. N. McCammon, M. L. Reichenstein, J. W. Martin, Jr., J. M. Rintamaki, L. J.
Ghilardi, K. S. Lamping and P. J. Sherry, Jr., and each of them, severally, his
or her true and lawful attorney and agent at any time and from time to time to
do any and all acts and things and execute, in his or her name (whether on
behalf of the Company, or as an officer or director of the Company, or by
attesting the seal of the Company, or otherwise), any and all instruments which
said attorney and agent may deem necessary or advisable in order to enable the
Company and its subsidiaries to comply with the Securities Act of 1933, as
amended, and any requirements of the Securities and Exchange Commission (the
"Commission") in respect thereof, in connection with a Registration Statement
or Registration Statements and any and all amendments (including post-effective
amendments) thereto relating to the issuance of Common Stock under the Ford
Motor Company Savings and Stock Investment Plan for Salaried Employees, the
Ford Motor Company Tax-Efficient Savings Plan for Hourly Employees, the Ford
Credit Savings Plan, the Associates First Capital Corporation Retirement
Savings and Profit Sharing Plan, the Ford Motor Company 1985 Stock Option Plan,
the Ford Motor Company 1990 Long-Term Incentive Plan, the Ford Motor Company
Supplemental Compensation Plan and the Ford Microelectronics Savings Retirement
Plan, as authorized by the Board of Directors of the Company at meetings held
on July 14, 1994 and November 10, 1994, including specifically but without
limitation thereto, power and authority to sign his or her name (whether on
behalf of the Company, or as an officer or director of the Company, or by
attesting the seal of the Company, or otherwise) to such a Registration
Statement or Registration Statements and to such amendments to be filed with
the Commission, or any of the exhibits, financial statements and schedules, or
the Prospectuses, filed therewith, and to file the same with the Commission;
and each of the undersigned does hereby ratify and confirm all that said
attorneys and agents, and each of them, shall do or cause to be done by virtue
hereof. Any one of said attorneys and agents shall have, and may exercise, all
the powers hereby conferred.
IN WITNESS WHEREOF, each of the undersigned has signed his or her name
hereto as of November 10, 1994.
/s/ Colby H. Chandler /s/ Michael D. Dingman
- ------------------------------- ----------------------------------
(Colby H. Chandler) (Michael D. Dingman)
/s/ Edsel B. Ford II /s/ William C. Ford
- ------------------------------- ----------------------------------
(Edsel B. Ford II) (William C. Ford)
<PAGE> 2
/s/ William C. Ford, Jr. /s/ Allan D. Gilmour
- ------------------------------- ----------------------------------
(William C. Ford, Jr.) (Allan D. Gilmour)
/s/ Roberto C. Goizueta /s/ Irvine O. Hockaday, Jr.
- ------------------------------- ----------------------------------
(Roberto C. Goizueta) (Irvine O. Hockaday, Jr.
/s/ Ellen R. Marram
- ------------------------------- ----------------------------------
(Drew Lewis) (Ellen R. Marram)
/s/ Kenneth H. Olsen /s/ Carl E. Reichardt
- ------------------------------- ----------------------------------
(Kenneth H. Olsen) (Carl E. Reichardt)
/s/ Louis R. Ross /s/ Stanley A. Seneker
- ------------------------------- ----------------------------------
(Louis R. Ross) (Stanley A. Seneker)
/s/ Alex Trotman /s/ Clifton R. Wharton, Jr.
- ------------------------------- ----------------------------------
(Alex Trotman) (Clifton R. Wharton, Jr.)
/s/ John M. Devine /s/ Murray L. Reichenstein
- ------------------------------- ----------------------------------
(John M. Devine) (Murray L. Reichenstein)
<PAGE> 1
EXHIBIT 24.2
FORD MOTOR COMPANY
Certificate of an Assistant Secretary
The undersigned, T. J. DeZure, an Assistant Secretary of Ford Motor
Company, a Delaware corporation (the "Company"), DOES HEREBY CERTIFY that (i)
the resolutions attached hereto as Attachment I are true and correct excerpts
from the minutes of the meeting of the Board of Directors of the Company duly
called and held on July 14, 1994, (ii) the resolutions attached hereto as
Attachment II are true and correct excerpts from the minutes of the meeting of
the Board of Directors of the Company duly called and held on November 10,
1994, and (iii) the resolutions attached as Attachment I, as revised and
supplemented by the resolutions attached as Attachment II, are in full force
and effect on the date hereof.
WITNESS my hand and the seal of the Company this 8th day of
December, 1994.
/s/ T. J. DeZure
-------------------
T. J. DeZure
Assistant Secretary
(Corporate Seal)
<PAGE> 2
Attachment I
Excerpts from the Minutes of the Meeting
of the Board of Directors of Ford Motor
Company Held on July 14, 1994
RESOLVED, That the proposals described in the communication dated July
14, 1994, signed by S. A. Seneker and addressed to the members of the Board of
Directors, entitled "Issuance of Common Stock for Employee Stock Plans",
presented to and discusssed at this meeting, be and hereby are approved.
RESOLVED, That, in order to comply with the Securities Act of 1933, as
amended, the directors and appropriate officers of the Company be and hereby
are authorized to sign and execute in their own behalf, or in the name and on
behalf of the Company, or both, as the case may be, any and all Registration
Statements and amendments to Registration Statements relating to the Ford Motor
Company Savings and Stock Investment Plan for Salaried Employees, the Ford
Motor Company Tax-Efficient Savings Plan for Hourly Employees, the Ford Credit
Savings Plan, the Associates First Capital Corporation Retirement Savings and
Profit Sharing Plan, the Ford Motor Company 1985 Stock Option Plan, the Ford
Motor Company 1990 Long-Term Incentive Plan and the Ford Motor Company
Supplemental Compensation Plan (collectively, the "Employee Stock Plans"),
including the Prospectuses and the exhibits and other documents relating
thereto or required by law or regulation in connection therewith, all in such
form as such directors and officers may deem necessary, appropriate or
desirable, as conclusively evidenced by their execution thereof; and that the
appropriate officers of the Company, and each of them, be and hereby are
authorized to cause such Registration Statements and amendments, so executed,
to be filed with the Securities and Exchange Commission (the "Commission").
RESOLVED, That each officer and director who may be required to sign
and execute any of the aforesaid Registration Statements or amendments or any
document in connection therewith (whether on behalf of the Company, or as an
officer or director of the Company, or otherwise) be and hereby is authorized
to execute a power of attorney appointing S. A. Seneker, J. A. Hall, D. N.
McCammon, M. L. Reichenstein, J. W. Martin, Jr., J. M. Rintamaki, L. J.
Ghilardi, K. S. Lamping and P. J. Sherry, Jr., and each of them, severally,
his or her true and lawful attorney or attorneys to sign in his or her name,
place and stead in any such capacity any and all such Registration Statements
and amendments, further amendments thereto and documents in connection
therewith, and to file the same with the Commission, each of said attorneys to
have power to act with or without the other, and to have full power and
authority to do and perform, in the name and on behalf of each of said officers
and directors who shall have executed such a power of attorney, every act
whatsoever necessary or advisable to be done in connection therewith as fully
and to all intents and purposes as such officer or director might or could do
in person.
RESOLVED, That up to 35,000,000 of the authorized but unissued shares
of the Company's Common Stock, par value $1.00 per share, ("Common Stock")
(collectively, the "Securities") be and hereby are authorized to be registered
with the Commission and
<PAGE> 3
issued from time to time to satisfy Common Stock requirements of the Employee
Stock Plans, and when so issued and paid for in accordance with the Employee
Stock Plans, will be fully paid and non-assessable.
RESOLVED, That the shares of Common Stock registered with the
Commission pursuant to the three preceding resolutions shall be reserved for
issuance from time to time to satisfy Common Stock requirements of the Employee
Stock Plans.
RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized, in the name and on behalf of the Company,
to take such action as such officers, or any of them, may deem necessary,
appropriate or desirable to make application for the listing of the Securities
on the New York, Boston, Chicago, Pacific Coast and Philadelphia Stock
Exchanges in the United States, the Tokyo Stock Exchange in Japan, and the
Antwerp, Brussels, London, Scottish, Berlin, Dusseldorf, Frankfort, Hamburg,
Munich, Amsterdam, Luxembourg, Zurich, Basle, Geneva, Lausanne and Paris Stock
Exchanges or any other Stock Exchange on which the Common Stock is then listed,
and that the Chairman of the Board of Directors, President and Chief Executive
Officer, any Vice Chairman, any Executive Vice President, any Group Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer and any Assistant Treasurer, and each of them, be and hereby are
designated a representative of the Company to appear before the Corporate
Services Division or other appropriate body of any such Exchange and to take
all such other steps as such persons, or any of them, may deem necessary,
appropriate or desirable to effect such listing.
RESOLVED, That, in connection with each application of the Company to
the New York Stock Exchange, Inc., any of the above-listed Stock Exchanges or
any other Stock Exchange, for the listing on such Exchange of the Securities,
the Company enter into an agreement providing for the indemnification by the
Company of such Exchange, its governors, officers, employees and its subsidiary
companies and innocent purchasers for value of the Securities or any one or
more of them, as the case may be, from and against losses, liabilities, claims,
damages or accidents in connection with the use of facsimile signatures on
certificates representing the Securities; and that the Chairman of the Board of
Directors, President and Chief Executive Officer, any Vice Chairman, any
Executive Vice President, any Group Vice President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer and any Assistant Treasurer,
and each of them, be and hereby are authorized in the name and on behalf of the
Company and under its corporate seal to execute and deliver to such Exchange,
the aforesaid indemnification agreement in such form as the person or persons
executing the same may deem necessary, appropriate or desirable, as
conclusively evidenced by his, her or their execution thereof.
RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized and empowered, in the name and on behalf of
the Company, to take any action (including, without limitation, the payment of
expenses) and to execute (by manual or facsimile signature) and deliver any and
all agreements, certificates, instruments and documents (under the corporate
seal of the Company or otherwise) as such officer or
<PAGE> 4
officers may deem necessary, appropriate or desirable in order to carry out the
purposes and intents of each and all of the foregoing resolutions.
<PAGE> 5
Attachment II
Excerpts from the Minutes of the Meeting
of the Board of Directors of Ford Motor
Company Held on November 10, 1994
RESOLVED, That the proposals described in the communication dated
November 10, 1994, signed by J. A. Hall and addressed to the members of the
Board of Directors, entitled "Approval for use of authorized shares of Ford
stock for a new FMI savings plan", presented to and discussed at this meeting,
be and hereby are approved.
RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized and empowered, in the name and on behalf of
the Company, to take any action (including, without limitation, the payment of
expenses) and to execute (by manual or facsimile signature) and deliver any and
all agreements, certificates, instruments and documents (under the corporate
seal of the Company or otherwise) as such officer or officers may deem
necessary, appropriate or desirable in order to carry out the purposes and
intents of the foregoing resolution.
Revised Resolutions From July 14, 1994 Meeting
RESOLVED, That, in order to comply with the Securities Act of 1933, as
amended, the directors and appropriate officers of the Company be and hereby
are authorized to sign and execute in their own behalf, or in the name and on
behalf of the Company, or both, as the case may be, any and all Registration
Statements and amendments to Registration Statements relating to the Ford Motor
Company Savings and Stock Investment Plan for Salaried Employees, the Ford
Motor Company Tax-Efficient Savings Plan for Hourly Employees, the Ford Credit
Savings Plan, the Associates First Capital Corporation Retirement Savings and
Profit Sharing Plan, the Ford Motor Company 1985 Stock Option Plan, the Ford
Motor Company 1990 Long-Term Incentive Plan, the Ford Motor Company
Supplemental Compensation Plan and the Ford Microelectronics Savings Retirement
Plan (collectively, the "Employee Stock Plans"), including the Prospectuses and
the exhibits and other documents relating thereto or required by law or
regulation in connection therewith, all in such form as such directors and
officers may deem necessary, appropriate or desirable, as conclusively
evidenced by their execution thereof; and that the appropriate officers of the
Company, and each of them, be and hereby are authorized to cause such
Registration Statements and amendments, so executed, to be filed with the
Securities and Exchange Commission (the "Commission").
RESOLVED, That each officer and director who may be required to sign
and execute any of the aforesaid Registration Statements or amendments or any
document in connection therewith (whether on behalf of the Company, or as an
officer or director of the Company, or otherwise) be and hereby is authorized
to execute a power of attorney appointing J. M. Devine, J. A. Hall, D. N.
McCammon, M. L., Reichenstein, J. W. Martin, Jr., J. M. Rintamaki, L. J.
Ghilardi, K. S. Lamping and P. J. Sherry, Jr., and each of them, severally,
his or her true and lawful attorney or attorneys to sign in his or her name,
place and stead in any such capacity any and all such Registration Statements
and amendments, further
<PAGE> 6
amendments thereto and documents in connection therewith, and to file the same
with the Commission, each of said attorneys to have power to act with or
without the other, and to have full power and authority to do and perform, in
the name and on behalf of each of said officers and directors who shall have
executed such a power of attorney, every act whatsoever necessary or advisable
to be done in connection therewith as fully and to all intents and purposes as
such officer or director might or could do in person.
