<PAGE>
As filed with the Securities and Exchange Commission on April 7, 1997
Registration No. ____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------
H.B. FULLER COMPANY
(Exact name of issuer as specified in its charter)
Minnesota 41-0268370
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1200 Willow Lake Blvd., St. Paul, MN 55110-5132
(Address of principal executive offices, including Zip Code)
EFTEC Savings Plan
(Full title of the plan)
Richard C. Baker Copy to:
Vice President, General Counsel
& Corporate Secretary Elizabeth H. Cobb, Esq.
H.B. Fuller Company Mackall, Crounse & Moore, PLC
1200 Willow Lake Blvd. 1400 AT&T Tower
St. Paul, Minnesota 55110-5132 901 Marquette Avenue
(Name and address of agent for service). Minneapolis, Minnesota 55402
(612) 415-5900
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
Title of Amount Proposed Proposed Maxi- Amount of
Securities to be Maximum mum Aggregate Registration
to be Registered (1) Offering Price Offering Fee
Registered Per Share (2) Price (2)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 100,000 $50.375 $5,037,500 $1,527
$1.00 par value shares
- --------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interest to be
offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c), based upon the average of the high and low prices
for such Common Stock on April 2, 1997, as reported on NASDAQ.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Documents containing the information specified in this Part I will be sent
or given to eligible employees, as specified by Rule 428(b)(1). Such documents
need not be filed with the Securities and Exchange Commission either as part of
this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424. Such documents and the documents incorporated by reference
in this registration statement pursuant to Item 3 of Part II, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
In addition, if a "reoffer prospectus", is to be used in connection with
the resale of "control securities," such "reoffer prospectus" will be prepared
by the registrant in accordance with the requirements of Part I of Form S-3 and
will be filed with the Securities and Exchange Commission in a post-effective
amendment to this registration statement on Form S-8.
Item 1. Plan Information.
Item 2. Registrant Information Employee Plan Annual Information.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference:
a. Annual Report on Form 10-K of H.B. Fuller Company ("Company") for the
fiscal year ended November 30, 1996, as filed with the Securities and Exchange
Commission pursuant to Sections 13 or 15(d) of the Securities Exchange Act of
1934, as amended ("Exchange Act").
b. All other reports filed by the Company with the Securities and Exchange
Commission since November 30, 1996, pursuant to Sections 13 or 15(d) of the
Exchange Act.
c. Description of the Company's Common Stock, contained in the Company's
Registration Statement on Form 8-A filed on July 30, 1996 with the Securities
and Exchange Commission.
d. All documents filed by the Company and the plan pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
registration statement and prior to the filing
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<PAGE>
of a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all such securities then remaining to be
sold.
Item 4. Description of Securities.
The Common Stock, par value $1.00 per share (the "Common Stock"), of the
Company offered pursuant to this registration statement is registered under
Section 12(g) of the Exchange Act. The description of the Company's Common Stock
is incorporated by reference pursuant to Item 3.c. above.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Bylaws of the Company provide that officers and directors of the
Company and certain other shall be indemnified substantially to the same extent
permitted by Minnesota law. The Company also maintains a standard policy of
offices' and directors' liability insurance.
Section 302A.521 of the Minnesota Statutes provides that a Minnesota
business corporation shall indemnify directors, officers, employees and agents
in certain circumstances and under certain conditions. In addition, the terms of
the plan provide for indemnification of ceratin directors, officers and
employees in connection with the administration of the plan.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
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<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
- ------ -----------
4.1 EFTEC Savings Plan
5.1 Opinion of Mackall, Crounse & Moore, PLC as to the legality of Common
Stock of the Company
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Mackall, Crounse & Moore, PLC (included in its opinion
filed as Exhibit 5.1)
24.1 Powers of Attorney
The undersigned registrant will submit or has submitted the plan and
any amendment thereto to the Internal Revenue Service ("IRS") in a
timely manner and has made or will make all changes required by the IRS
in order to qualify the plan.
Item 9. Undertakings.
(a) Rule 415 Offering.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic
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<PAGE>
reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in 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) Filings Incorporating Subsequent Exchange Act Documents by Reference.
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 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.
(h) Statement Required in Connection with Filing of Registration Statement on
Form S-8.
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.
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<PAGE>
SIGNATURES
----------
The Registrant
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota on April 2, 1997.
H. B. FULLER COMPANY
By /s/ Walter Kissling
---------------------
Walter Kissling
Chief Executive Officer and President
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on April 2, 1997, by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
* Chair, Board of Directors
- --------------------------------
Anthony L. Andersen
* Director
- --------------------------------
Norbert R. Berg
* Director
- --------------------------------
Edward L. Bronstien, Jr.
* Director
- --------------------------------
Robert J. Carlson
* Director
- --------------------------------
Freeman A. Ford
* Director
- --------------------------------
Gail D. Fosler
* Director
- --------------------------------
Reatha Clark King
*
- -------------------------------- President, Chief Executive
Walter Kissling Officer and Director
* Director
- --------------------------------
John J. Mauriel, Jr.
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C>
* Director
- --------------------------------
Lee R. Mitau
* Chief Technology Officer and Director
- --------------------------------
Rolf Schubert
* Director
- --------------------------------
Lorne C. Webster
/s/ Jorge Walter Bolanos Senior Vice President,
- -------------------------------- Chief Financial Officer and Treasurer
Jorge Walter Bolanos
*By /s/ Richard C. Baker
- -------------------------------- Attorney-in-fact
Richard C. Baker
</TABLE>
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<PAGE>
Form S-8 Exhibit Index
- ----------------------
<TABLE>
<CAPTION>
Exhibit
Number Description Page
- ------ ----------- ----
<S> <C> <C>
4.1 EFTEC Savings Plan....................................................... 10
5.1 Opinion of Mackall, Crounse & Moore, PLC as to the legality of
Common Stock of the Company.............................................. 87
23.1 Consent of Price Waterhouse LLP.......................................... 89
23.2 Consent of Mackall, Crounse & Moore, PLC (included in its opinion
filed as Exhibit 5.1)
24.1 Powers of Attorney....................................................... 90
The undersigned registrant will submit or has submitted the plan and
any amendment thereto to the Internal Revenue Service ("IRS") in a
timely manner and has made or will make all changes required by the
IRS in order to qualify the plan.
</TABLE>
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<PAGE>
EXHIBIT 4.1
EFTEC SAVINGS PLAN
1997
Declaration of Adoption
The undersigned hereby adopts the EFTEC Savings Plan, as set forth in the
attached instrument entitled "EFTEC Savings Plan - 1997." This Plan shall be
effective as of the Closing Date as defined in Section 1.10 of the Umbrella
Agreement by and between EMS-CHEMIE HOLDING AG and H.B. Fuller Company dated
February 13, 1997.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its
duly authorized officer.
Dated: April 3, 1997
EFTEC NORTH AMERICA, L.L.C.
BY: /s/ James R. Conaty
-------------------------
ITS: President
<PAGE>
3/17/97
EFTEC SAVINGS PLAN
1997
<PAGE>
EFTEC SAVINGS PLAN
1997
Table of Contents
-----------------
<TABLE>
<CAPTION>
Page
- ------------
<C> <S> <C>
ARTICLE I Description and Purpose........................................ 1
1.1 Plan Name...................................................... 1
1.2 Plan Description............................................... 1
1.3 Plan Purposes.................................................. 1
ARTICLE II Definitions, Construction and Interpretations.................. 1
2.1 Account........................................................ 1
2.2 Active Participant............................................. 1
2.3 Administrator.................................................. 1
2.4 Affiliated Organization........................................ 1
2.5 Annual Compensation Limit...................................... 2
2.6 Beneficiary.................................................... 2
2.7 Code........................................................... 2
2.8 Company........................................................ 2
2.9 Consent of Spouse.............................................. 2
2.10 Disabled....................................................... 2
2.11 Effective Date................................................. 3
2.12 Eligible Earnings.............................................. 3
2.13 Employee....................................................... 3
2.14 Fund........................................................... 4
2.15 Governing Law.................................................. 4
2.16 Headings....................................................... 4
2.17 Highly Compensated Employee.................................... 4
2.18 Limitation Year................................................ 5
2.19 Matching Contribution Account.................................. 5
2.20 Matching Contributions......................................... 5
2.21 Normal Retirement Date......................................... 5
2.22 Number and Gender.............................................. 5
2.23 Participant.................................................... 5
2.24 Participating Employer......................................... 6
2.25 Plan........................................................... 6
2.26 Plan Rule...................................................... 6
2.27 Plan Year...................................................... 6
2.28 Pre-Tax Contribution Account................................... 6
2.29 Pre-Tax Contributions.......................................... 6
2.30 Profit Sharing Account......................................... 6
</TABLE>
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<TABLE>
<S> <C> <C>
2.31 Profit Sharing Contributions................................... 6
2.32 Qualified Employee............................................. 6
2.33 Reporting Person............................................... 7
2.34 Rollover Account............................................... 7
2.35 Section 415 Wages.............................................. 7
2.36 Termination of Employment...................................... 7
2.37 Testing Wages.................................................. 8
2.38 Treasury Regulations........................................... 8
2.39 Trust.......................................................... 9
2.40 Trustee........................................................ 9
2.41 Valuation Date................................................. 9
ARTICLE III Eligibility.................................................... 9
3.1 Eligibility Requirements....................................... 9
3.2 Termination or Transfer Prior to Entry Date.................... 10
3.3 Transfer Among Employers....................................... 10
3.4 Multiple Employment............................................ 10
3.5 Termination or Ceasing to be a Qualified Employee.............. 10
3.6 Condition of Participation..................................... 11
3.7 Termination of Participation................................... 11
ARTICLE IV Contributions.................................................. 11
4.1 Profit Sharing Contributions................................... 11
4.2 Pre-Tax Contributions.......................................... 12
4.3 Matching Contributions......................................... 14
4.4 Rollovers and Transfers........................................ 15
4.5 Corrective Contributions....................................... 15
4.6 Additional Discretionary Contributions......................... 15
ARTICLE V Trustee's Accounts and Valuation............................... 16
5.1 Establishment of Accounts...................................... 16
5.2 Valuation and Account Adjustment............................... 16
5.3 Allocations Do Not Create Rights............................... 16
ARTICLE VI Participant Investment Direction............................... 17
6.1 Establishment of Investment Funds.............................. 17
6.2 Contribution Investment Directions............................. 17
6.3 Transfer Among Investment Funds................................ 17
6.4 Investment Direction Responsibility Resides with Participants.. 18
6.5 Employer Stock Fund Rules...................................... 18
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE VII Withdrawals During Employment.................................. 20
7.1 Hardship Withdrawals from Pre-Tax Contribution Account......... 20
7.2 Withdrawals from Pre-Tax Contribution Account
After Age 59-1/2 or in the Event of Disability................. 21
7.3 Withdrawals from Rollover Accounts............................. 22
7.4 Rules for Withdrawals.......................................... 22
7.5 Withdrawals from Matching Contribution Account if Disabled..... 23
ARTICLE VIII Vesting and Forfeitures........................................ 23
8.1 Vesting........................................................ 23
8.2 Forfeiture upon Distribution................................... 23
8.3 Other Forfeitures.............................................. 24
8.4 Reallocation of Forfeitures.................................... 24
ARTICLE IX Distributions After Termination................................ 25
9.1 Time of Distribution........................................... 25
9.2 Form of Distribution........................................... 27
9.3 Beneficiary Designation........................................ 28
9.4 Assignment, Alienation of Benefits............................. 29
9.5 Payment in Event of Incapacity................................. 29
9.6 Payment Satisfies Claims....................................... 30
9.7 Disposition if Distributee Cannot be Located................... 30
9.8 Direct Rollovers............................................... 30
9.9 Transfers...................................................... 31
ARTICLE X Contribution Limitations....................................... 32
10.1 Pre-Tax Contribution Dollar Limitation......................... 32
10.2 Actual Deferral Percentage Limitations......................... 32
10.3 Actual Contribution Percentage Limitations..................... 35
10.4 Multiple Use Limitation........................................ 37
10.5 Earnings on Contributions...................................... 39
10.6 Aggregate Defined Contribution Limitations..................... 39
10.7 Aggregate Defined Contribution/Defined Benefit Limitations..... 41
10.8 Administrator's Discretion..................................... 42
ARTICLE XI Service Rules.................................................. 42
11.1 Continuous Service............................................. 42
11.2 Hour of Service................................................ 43
11.3 Break in Service............................................... 44
11.4 Loss of Service................................................ 44
11.5 Special Rule for Military Service.............................. 44
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE XII Adoption, Amendment and Termination............................ 44
12.1 Adoption by Affiliated Organizations........................... 44
12.2 Authority to Amend and Procedure............................... 44
12.3 Authority to Terminate and Procedure........................... 45
12.4 Vesting Upon Termination, Partial Termination or
Discontinuance of Contributions................................ 45
12.5 Distribution Following Termination, Partial Termination or
Discontinuance of Contributions................................ 45
ARTICLE XIII Administration of Plan......................................... 46
13.1 Administrator, Named Fiduciary................................. 46
13.2 Compensation and Expenses...................................... 46
13.3 Adoption of Rules.............................................. 46
13.4 Administrator's Discretion..................................... 46
13.5 Reliance on Information........................................ 47
13.6 Indemnification................................................ 47
13.7 Benefit Claim Procedure........................................ 47
13.8 Correction of Errors........................................... 48
ARTICLE XIV Miscellaneous.................................................. 48
14.1 Merger, Consolidation, Transfer of Assets...................... 48
14.2 Limited Reversion of Fund...................................... 48
14.3 Top-Heavy Provisions........................................... 49
14.4 No Employment Rights Created................................... 53
APPENDICES
A H.B. Fuller Company............................................ 54
B Protective Treatments, Inc..................................... 57
C EMS-TOGO Corporation........................................... 61
D Dinol International, Inc....................................... 64
EXHIBITS
A-1 Amount of Contributions Pursuant to Section 4.1(A)(1).......... 66
A-2 Amount of Contributions Pursuant to Section 4.1(A)(2).......... 68
A-3 Amount of Contributions Pursuant to Section 4.1(A)(3).......... 70
</TABLE>
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EFTEC SAVINGS PLAN
1997
ARTICLE I
Description and Purpose
-----------------------
1.1 Plan Name. The name of the Plan is the "EFTEC Savings Plan."
1.2 Plan Description. The Plan is a profit sharing plan providing for
salary reduction cash or deferred contributions, discretionary matching
contributions, and discretionary profit sharing contributions. The Plan is
intended to qualify under Code section 401(a) and to satisfy the requirements of
Code sections 401(k) and 401(m). Notwithstanding the designation of the Plan as
a profit sharing plan, a Participating Employer may make contributions to the
Plan even though such employer has no current or accumulated earnings and
profits.
1.3 Plan Purposes. The purposes of the Plan are to promote effort and
cooperation on the part of participating employees; to provide a measure of
economic security to each such employee by accumulating contributions for
distribution upon retirement, as a supplement to other resources then available;
and to permit participating employees to share in the profits and growth of the
Participating Employers.
ARTICLE II
Definitions, Construction and Interpretations
---------------------------------------------
The definitions and the rules of construction and interpretations set forth in
this article will be applied in construing this instrument unless the context
otherwise indicates.
2.1 Account. An "Account" with respect to a Participant is any or all of
the accounts maintained on his or her behalf pursuant to Section 5.1, as the
context requires.
2.2 Active Participant. An "Active Participant" is a Participant who is a
Qualified Employee.
2.3 Administrator. The "Administrator" of the Plan is the Company or the
person to whom administrative duties are delegated pursuant to Section 13.1, as
the context requires.
2.4 Affiliated Organization. An "Affiliated Organization" is the Company
and any corporation that is a member of a controlled group of corporations
(within the meaning of Code section 1563(a) without regard to Code sections
1563(a)(4) and 1563(e)(3)(C)) that includes the Company; any trade or business
(whether or not incorporated) that is controlled (within the meaning of Code
section 414(c)) by the Company; any member of an "affiliated service group"
(within the meaning of Code section 414(m)) of which the Company is a member; or
any other organization that, together with the Company, is treated as a single
employer pursuant to Code section 414(o) and Treasury Regulations; provided,
that, for purposes of applying the limitations set forth at Sections 10.6 and
10.7 of the Plan, Code section 1563(a) will be applied by
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substituting the phrase "more than 50%" for the phrase "at least 80%" wherever
it appears in such Code section.
2.5 Annual Compensation Limit. The "Annual Compensation Limit" for any
Plan Year is $150,000, as adjusted by the Commissioner of Internal Revenue for
increases in the cost of living in accordance with Code section 401(a)(17)(B).
If a Plan Year consists of fewer than 12 months, the Annual Compensation Limit
will be multiplied by a fraction, the numerator of which is the number of months
in the Plan Year and the denominator of which is 12.
2.6 Beneficiary. A "Beneficiary" is a person designated under the
provisions of Section 9.3 as the distributee of benefits payable after the death
of a Participant; provided that such a person will not become a Beneficiary, and
will have no interest in or rights under the Plan, until the Participant has
died.
2.7 Code. The "Code" is the Internal Revenue Code of 1986, as amended.
Any reference to a specific provision of the Code will include a reference to
such provision as it may be amended from time to time and to any successor
provision.
2.8 Company. The "Company" is EFTEC North America, L.L.C., a Michigan
limited liability company, and its successors.
2.9 Consent of Spouse. Whenever the consent of a Participant's spouse is
required with respect to any act of the Participant, such consent will be deemed
to have been obtained only if:
(A) the Participant's spouse executes a written consent to such act,
which consent acknowledges the effect of such act and is witnessed by the
Administrator or a notary public; or
(B) the Administrator determines that no such consent can be obtained
because the Participant has no spouse, because the Participant's spouse
cannot be located, or because of such other circumstances as may, under
Treasury Regulations, justify the lack of such consent.
Any such consent by the Participant's spouse or such determination by the
Administrator that such spouse's consent is not required will be effective only
with respect to the particular spouse of the Participant who so consented or
with respect to whom such determination was made. Any such consent by the
Participant's spouse to an act of the Participant under the Plan will be
irrevocable with respect to that act.
2.10 Disabled. A Participant will be considered to be "Disabled" only if
the Administrator determines that, by reason of illness, bodily injury or
disease, he or she has been disabled for 12 consecutive months under the
provisions of the EFTEC Disability Plan or, if he or she is not a participant in
such plan, under the applicable provisions of the Social Security Act.
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2.11 Effective Date. The "Effective Date" of the Plan is the Closing Date
as defined in Section 1.10 of the Umbrella Agreement by and between EMS-CHEMIE
HOLDING AG and H.B. Fuller Company dated February 13, 1997, which is the date as
of which the Plan was first established.
2.12 Eligible Earnings.
(A) The "Eligible Earnings" of a Participant for any period are,
except as provided in the succeeding subsections of this section, the sum of all
remuneration paid to the Participant during such period for service as a
Qualified Employee as base salary and wages, overtime pay, shift differential
premium, commissions, cash bonuses (other than vacation bonuses), sick pay and
short-term disability benefits, increased by the amount of Pre-Tax Contributions
made on behalf of the Participant by an Employer pursuant to this Plan for that
period and by the net amount of compensation reductions experienced by the
Participant during such period under any Code section 125 cafeteria plan
maintained by the Participating Employer. Eligible Earnings will not include
amounts deferred or paid under an agreement between the Participating Employer
and the Participant that is not a plan qualified under Code section 401(a), any
Matching Contributions, contributions made or benefits (other than short-term
disability benefits) paid by the Participating Employer under any other employee
benefit plan, expatriate premiums or amounts realized by the Participant upon
the exercise of a nonqualified stock option, the lapse of restrictions
applicable to restricted stock or any disposition of stock acquired under a
qualified or incentive stock option.
(B) Notwithstanding Subsection (A), in no event will a Participant's
Eligible Earnings for any Plan Year be taken into account to the extent they
exceed the Annual Compensation Limit.
(C) Notwithstanding the provisions of Subsection (A), a Participant's
Eligible Earnings will not include:
(1) any remuneration not paid in cash;
(2) the value of life insurance coverage included in the
Participant's wages under Code section 79;
(3) any car allowance or moving expense or mileage
reimbursement;
(4) severance pay;
(5) payments under any plan of deferred compensation; or
(6) any benefit under any qualified or nonqualified stock option
or stock purchase plan.
2.13 Employee. An "Employee" is an individual who performs services as a
common-law employee for a Participating Employer or another Affiliated
Organization, and who has not
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acknowledged or agreed that he or she is an independent contractor or that he or
she is ineligible for participation in the Plan. An individual's status as an
Employee for any period shall be determined solely on the basis of the
Participating Employer's classifications, and the Employee's acknowledgements
and agreements, in effect during such period. The classification or
reclassification of a person as an employee of a Participating Employer or
another Affiliated Organization for any period by any court, government agency
or other entity shall not result in the classification or reclassification of
such person as an Employee for such period for the purposes of this Plan.
2.14 Fund. The "Fund" is the total of all of the assets of every kind and
nature, both principal and income, held in the Trust at any particular time or,
if the context so requires, one or more of the investment funds described in
Section 6.1.
2.15 Governing Law. To the extent that state law is not preempted by
provisions of the Employee Retirement Income Security Act of 1974 or any other
laws of the United States, this Plan will be administered, construed, and
enforced according to the internal, substantive laws of the State of Michigan,
without regard to its conflict of laws rules.
2.16 Headings. The headings of articles and sections are included solely
for convenience. If there exists any conflict between such headings and the text
of the Plan, the text will control.
2.17 Highly Compensated Employee. A "Highly Compensated Employee" for any
Plan Year is any employee of a Participating Employer or another Affiliated
Organization who:
(A) at any time during such Plan Year or the preceding Plan Year,
owns or owned (or is considered as owning or having owned within the
meaning of Code section 318) more than 5% of the outstanding stock of the
Participating Employer or another Affiliated Organization, or stock
possessing more than 5% of the total combined voting power of all
outstanding stock of the Participating Employer or another Affiliated
Organization, or
(B) during the Plan Year preceding such Plan Year:
(1) received Testing Wages in excess of $80,000 (or such dollar
amount, adjusted to reflect increases in the cost of living, as in
effect under Code section 414(q)(1)(B) for the calendar year during
which the Plan Year in question begins), and
(2) if the Company elects the application of this clause for
such preceding Plan Year, received Testing Wages that exceeded the
Testing Wages of at least 80% of all employees of the Participating
Employer and other Affiliated Organizations, excluding, for purposes
of determining the number of employees in such group but not for
purposes of determining the specific employees comprising the group,
all employees of the Participating Employer and other Affiliated
Organizations who:
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(a) have completed less than six months of service with the
Participating Employer and other Affiliated Organizations,
(b) normally work fewer than 17-1/2 hours per week for the
Participating Employer and other Affiliated Organizations,
(c) normally work for the Participating Employer and other
Affiliated Organizations during not more than six months during
any calendar year,
(d) have not attained age 21, and
(e) except to the extent provided in Treasury Regulations, are
collective bargaining employees described in Section 2.32, and
excluding for purposes of determining both the number of employees in
such group and the specific employees comprising the group, all of
such employees who are described in clause (A) of Section 2.32.
Solely for the purposes of this Section, an "employee" is any individual who,
during the Plan Year for which the determination is being made, performs
services as a common law employee for a Participating Employer or another
Affiliated Organization, is an employee pursuant to Code section 401(c)(1), or
is a leased employee who is treated as an employee of the Participating Employer
or another Affiliated Organization pursuant to Code sections 414(n)(2) or
414(o)(2).
2.18 Limitation Year. The "Limitation Year," for purposes of Sections 10.6
and 10.7, is the calendar year.
2.19 Matching Contribution Account. The "Matching Contribution Account" is
the account established pursuant to clause (B) of Section 5.1 to evidence
Matching Contributions made on behalf of a Participant.
2.20 Matching Contributions. "Matching Contributions" means contributions
made pursuant to Section 4.3 or 4.5; provided that for purposes of Article X,
"Matching Contributions" will include forfeitures allocated to the Participant's
Matching Contribution Account.
2.21 Normal Retirement Date. The "Normal Retirement Date" of a Participant
is the date on which he or she attains age 65.
2.22 Number and Gender. Wherever appropriate, the singular number may be
read as the plural, the plural may be read as the singular and the masculine
gender may be read as the feminine gender.
2.23 Participant. A "Participant" is a current or former Qualified
Employee who has satisfied the eligibility requirements of Article III,
following initial hire or rehire, as the case
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may be, with respect to whom contributions have been made and whose Account
balances have not yet been fully distributed.
2.24 Participating Employer. A "Participating Employer" is the Company
and any other Affiliated Organization that has adopted the Plan, or all of them
collectively, as the context requires, and their respective successors. An
Affiliated Organization will cease to be a Participating Employer upon a
termination of the Plan as to its Employees or upon its ceasing to be an
Affiliated Organization.
2.25 Plan. The "Plan" is that set forth in this instrument as it may be
amended from time to time.
2.26 Plan Rule. A "Plan Rule" is a rule adopted by the Administrator by
proclamation or by practice. Each Plan Rule will be uniform and
nondiscriminatory with respect to similarly situated Employees.
2.27 Plan Year. The "Plan Year" will be the calendar year; provided, that
the first Plan Year is the period beginning on the Effective Date and ending on
December 31, 1997.
2.28 Pre-Tax Contribution Account. The "Pre-Tax Contribution Account" is
the account established pursuant to clause (A) of Section 5.1 to evidence Pre-
Tax Contributions made on behalf of a Participant.
2.29 Pre-Tax Contributions. "Pre-Tax Contributions" means contributions
made pursuant to Section 4.2.
2.30 Profit Sharing Account. The "Profit Sharing Account" is the account
established pursuant to clause (D) of Section 5.1 to evidence Profit Sharing
Contributions made on behalf of a Participant.
2.31 Profit Sharing Contributions. "Profit Sharing Contributions" means
contributions made pursuant to Section 4.1.
2.32 Qualified Employee. A "Qualified Employee" is any Employee who
performs services for a Participating Employer, excluding, however, any such
person who is covered by a collective bargaining agreement, for whom retirement
benefits were the subject of good faith bargaining between such person's
representative and the Participating Employer, and who is not, as a result of
such bargaining, specifically covered by this Plan. Notwithstanding the
foregoing:
(A) An Employee shall not be a Qualified Employee for the purpose of
making Pre-Tax Contributions if he or she is a nonresident alien who
receives no earned income (within the meaning of Code section 911(d)(2))
from a Participating Employer that constitutes income from sources within
the United States (within the meaning of Code section 861(a)(3)).
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(B) An Employee shall not be a Qualified Employee for purposes of
receiving Profit Sharing Contributions unless he or she either performs
services for a Participating Employer primarily within the United States or
Puerto Rico, or is seconded by a Participating Employer to an Affiliated
Organization and in connection therewith performs services for the
Affiliated Organization primarily outside of the United States. In
addition, an Employee shall not be a Qualified Employee for purposes of
receiving Profit Sharing Contributions if he or she is:
(1) a foreign national on temporary or permanent assignment with
a Participating Employer who is excluded from participation by
agreement with a Participating Employer; or
(2) seconded by a Participating Employer to an Affiliated
Organization and in connection therewith performs services for the
Affiliated Organization primarily outside of the United States, and is
excluded from participation pursuant to the terms of the agreement by
which he or she is seconded.
2.33 Reporting Person. A "Reporting Person" is any Participant or
Beneficiary who is subject to the reporting requirements of section 16 of the
Securities Exchange Act of 1934 with respect to the securities of H.B. Fuller
Company or its affiliates.
2.34 Rollover Account. The "Rollover Account" is the account established
pursuant to clause (C) of Section 5.1 to evidence the amounts, if any, rolled
over from an individual retirement arrangement or another qualified plan, or
transferred directly from another qualified plan with respect to a Participant,
pursuant to Section 4.4.
2.35 Section 415 Wages.
(A) A person's "Section 415 Wages" for any period is the sum of all
remuneration received by such person during such period from a Participating
Employer or other Affiliated Organization that constitutes "compensation" within
the meaning of Code section 415(c)(3) and Treasury Regulations.
(B) The Administrator may, in his or her discretion, for any Plan
Year, determine the items of remuneration that, in accordance with Treasury
Regulations, will be included in Section 415 Wages for such Plan Year; provided,
that for each purpose under this Plan, the Administrator's determination will be
uniform throughout any Plan Year.
2.36 Termination of Employment. For purposes of determining entitlement
to a distribution under this Plan, a Participant will be deemed to have
terminated employment only if he or she has completely severed his or her
employment relationship with all Participating Employers and other Affiliated
Organizations or if the Affiliated Organization with which he or she is employed
ceases to be an Affiliated Organization. Neither transfer of employment among
Participating Employers and other Affiliated Organizations nor absence from
active service by reason of disability leave, other than in connection with a
permanent total disability, or any other leave of absence will constitute a
termination of employment. Notwithstanding the preceding
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sentence, a Participant who, in conjunction with the disposition of all or any
portion of a business operation of the Participating Employer or an Affiliated
Organization which is not a disposition of a subsidiary or substantially all of
the assets used in a trade or business of the Participating Employer or
Affiliated Organization within the meaning of Code section 401(k)(10)(A) with
respect to which the requirements of Code section 401(k)(10)(B) and (C) are
satisfied, transfers employment to the acquiror of such business operation or to
any affiliate of such acquiror will not be considered to have terminated
employment. If a Participant is deemed to have continued employment by reason of
the preceding sentence, such sentence will continue to apply to such Participant
in the event of any subsequent transfer of employment in conjunction with the
disposition of all or any portion of a business operation of the initial
acquiror or any subsequent acquirors that is not a disposition of a subsidiary
of such acquiror or of substantially all of the assets used in a trade or
business of such acquiror within the meaning of Code section 401(k)(10)(A) with
respect to which the requirements of Code section 401(k)(10)(B) and (C) are
satisfied. Except in conjunction with such a disposition of a subsidiary or
substantially all of the assets used in a trade or business of the seller that
satisfies the requirements of Code section 401(k)(10)(B) and (C), such a
Participant will be considered to have terminated employment only when he or she
has severed the employment relationship with all such acquirors and their
affiliates.
2.37 Testing Wages.
(A) Except as provided in Subsection (D), a person's "Testing Wages"
for any period is the sum of all remuneration paid to such person by Employers
and other Affiliated Organizations that is reportable in box 1 of Internal
Revenue Service Form W-2 or otherwise satisfies the definition of "compensation"
under Treasury Regulation section 414(s).
(B) In no event will a person's Testing Wages for any Plan Year be
taken into account to the extent they exceed the Annual Compensation Limit.
(C) The Administrator may, in his discretion, for any Plan Year,
determine the items of remuneration that, in accordance with Treasury
Regulations, will be included in Testing Wages for such Plan Year; provided,
that for each purpose under this Plan, the Administrator's determination will be
uniform throughout any Plan Year.
(D) For purposes of the definition of Highly Compensated Employee in
Section 2.17, "Testing Wages" means Section 415 Wages under Section 2.35,
without application of the limitations of Subsection (B) of this Section, plus,
for Plan Years beginning before January 1, 1998, the amounts by which a
Participant's wages or salary are reduced under Code sections 125 or 401(k).
2.38 Treasury Regulations. "Treasury Regulations" mean regulations,
rulings, notices and other promulgations issued under the authority of the
Secretary of the Treasury that apply to, or may be relied upon in the
administration of, this Plan.
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2.39 Trust. The "Trust" is that created by the Company, as grantor, for
purposes of implementing benefits under the Plan, and may, as from time to time
amended, be referred to as the "EFTEC Savings Plan Trust."
2.40 Trustee. The "Trustee" is the corporation and/or individual or
individuals who from time to time is or are the duly appointed and acting
trustee or trustees of the Trust.
2.41 Valuation Date. A "Valuation Date" is the last day of each Plan Year
quarter and any interim date on which Participants' Accounts are valued pursuant
to Section 5.2.
ARTICLE III
Eligibility
-----------
3.1 Eligibility Requirements.
(A) An individual who is a Qualified Employee for the purpose of
receiving Profit Sharing Contributions shall become a Participant for such
purpose as follows:
(1) A Qualified Employee who, pursuant to applicable employment
policies of the Participating Employer, is a regular, full-time
Employee will become a Participant in the Plan for the purpose of
receiving Profit Sharing Contributions as of the first day of the Plan
Year during which he or she first completes an Hour of Service or, if
later, as of the first day of the Plan Year in which he or she becomes
a Qualified Employee.
(2) A Qualified Employee who, pursuant to applicable employment
policies of the Participating Employer, is a regular, part-time
Employee will become a Participant in the Plan for the purpose of
receiving Profit Sharing Contributions as of the first day of the Plan
Year during which he or she completes one year of Continuous Service
or, if later, as of the first day of the Plan Year in which he or she
becomes a Qualified Employee.
(B) An individual who is a Qualified Employee for the purpose of
making Pre-Tax Contributions shall become eligible to be a Participant for such
purpose as follows:
(1) A Qualified Employee who has been employed with a
Participating Employer or an Affiliated Organization for a period of
six continuous months and has been scheduled to work at least 40 hours
per week throughout such period will be eligible to become a
Participant for the purpose of making Pre-Tax Contributions as of the
first payroll date of the Participating Employer that occurs after the
end of such six-month period or, if later, as of the date he or she
becomes a Qualified Employee.
(2) Each Qualified Employee who has been employed with a
Participating Employer or an Affiliated Organization for a period of
12 continuous months will be eligible to become a Participant for the
purpose of
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making Pre-Tax Contributions as of the first payroll date of the
Participating Employer that occurs after the end of such 12-month
period or, if later, as of the date he or she becomes a Qualified
Employee.
(C) Periods of service for purposes of Subsection (B) will be
determined in the same manner as Continuous Service; provided that if an
Employee incurs a Break in Service before he or she completes either period of
service required for eligibility under Subsection (B), any employment before
such Break in Service will be disregarded if he or she again becomes a Employee.
(D) Notwithstanding Subsections (A) or (B), a Qualified Employee may,
upon application to the Administrator, become a Participant prior to satisfying
the service condition of Subsections (A) or (B) for the sole purpose of making a
rollover contribution to the Plan pursuant to Section 4.4. A person who becomes
a Participant pursuant to this subsection will not be eligible to have any
contributions made to his or her Account other than a rollover contribution and
will not be considered to be a Participant for any purpose under the Plan, other
than with respect to his or her Rollover Account, until he or she has satisfied
the eligibility service requirement of Subsections (A) or (B).
3.2 Termination or Transfer Prior to Entry Date. An employee whose
employment is terminated or who is transferred to an employment classification
that is excluded from the definition of the term "Qualified Employee" after
satisfying the eligibility requirements but prior to the date he or she would
first become eligible to participate in the Plan will, upon subsequent
reemployment in, or retransfer to, an employment classification included in the
definition of "Qualified Employee," be eligible to commence participation in the
Plan as of the first payroll date of the Participating Employer following the
date on which he or she first completes an Hour of Service as a Qualified
Employee following the termination or transfer.
3.3 Transfer Among Employers. A Participant who transfers from one
Participating Employer to another Participating Employer as a Qualified Employee
will continue to participate in the Plan as a Qualified Employee of such other
Participating Employer.
3.4 Multiple Employment. A Participant who is simultaneously employed as
a Qualified Employee with more than one Participating Employer will participate
in the Plan as a Qualified Employee of all such Participating Employers on the
basis of his or her separate Eligible Earnings from each such Participating
Employer.
3.5 Termination or Ceasing to be a Qualified Employee. No contribution
will be made by or on behalf of a Participant after the Participant terminates
employment with all Participating Employers, transfers to an Affiliated
Organization that has not adopted the Plan, or transfers to an employment
classification excluded from the definition of "Qualified Employee," except for
any employer contribution due on account of the portion of the Plan Year
preceding the termination or transfer. Such a Participant will be eligible to
resume active participation in the Plan as of the date on which he or she first
completes an Hour of Service following his or her reemployment with a
Participating Employer as a Qualified Employee.
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3.6 Condition of Participation. Each eligible Qualified Employee, as a
condition of participation, will be bound by all of the terms and conditions of
the Plan and will furnish to the Administrator such pertinent information and
execute such instruments as the Administrator may require.
3.7 Termination of Participation. A person will cease to be a Participant
as of the later of his or her Termination of Employment or the date all
benefits, if any, to which he or she is entitled under this Plan have been
distributed.
ARTICLE IV
Contributions
-------------
4.1 Profit Sharing Contributions.
(A) Subject to the limitations of Article X, for each Plan Year for
which "Worldwide Company Earnings," as that term is defined in Subsection (B),
equal or exceed 2.7%, each Participating Employer may, in the Company's
discretion, make a contribution to the Trust on behalf of each Participant who
is eligible to receive Profit Sharing Contributions, who was employed with the
Participating Employer during such Plan Year, and who is employed with an
Affiliated Organization on the last day of such Plan Year in amounts, if any,
determined as follows:
(1) in the case of a Participant who, as of the last day of such
Plan Year, is not exempt from the overtime provisions of the Fair
Labor Standards Act of 1938, as amended, or has a pay grade
classification of 1 through 26, inclusive, in the amounts determined
pursuant to the matrix attached hereto as Exhibit A-1;
(2) in the case of a Participant who, as of the last day of such
Plan Year, has a pay grade classification of 27 through 31, inclusive,
in the amounts determined in the manner set forth on the schedule
attached hereto as Exhibit A-2; and
(3) in the case of a Participant who, as of the last day of such
Plan Year, has a pay grade classification in excess of 31, or is a
commissioned salesperson, in the amounts determined in the manner set
forth on the schedule attached hereto as Exhibit A-3.
(B) Worldwide Company Earnings means 70% of the combined net after-tax
earnings from worldwide operations of the Company plus 100% of the combined net
after-tax earnings from worldwide operations of H.B. Fuller Company (determined
after deducting the cash bonuses and contributions payable pursuant to this
Section 4.1, the EFTEC Profit Share Plan, the H.B. Fuller Company Profit Share
Plus Plan, and the H.B. Fuller Company International Profit Share Plus Plan, and
without regard to extraordinary financial events), as a percentage of 70% of the
combined gross sales revenue from worldwide operations of the Company plus 100%
of the combined gross sales revenue from worldwide operations of H.B. Fuller
Company. Worldwide Company Earnings for a given Plan Year will be determined by
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the Company on the basis of the Company's and H.B. Fuller Company's net earnings
and gross sales revenue for their respective fiscal years ending within such
Plan Year, and such determination will be final and binding on all Participants
and other interested persons.
(C) For each Plan Year, a Participating Employer may make an
additional contribution on behalf of any Participant who is not a Highly
Compensated Employee in such amount, if any, as the Participating Employer
determines to be necessary to satisfy applicable qualification requirements
under Code section 401(a), including, without limitation, the requirements
imposed by Code sections 401(a)(4) and 410(b).
(D) A Participating Employer's contributions pursuant to Subsection
(A) for any Plan Year will be paid to the Trustee on such date or dates during
or after the Plan Year as the Participating Employer may elect, but in no case
more than 12 months after the end of the Plan Year.
(E) No allocations will be made for a given Plan Year until the
Trustee has received all contributions required to be made by all Participating
Employers for the Plan Year. Any contributions received by the Trustee prior to
the completion of the allocation will remain unallocated and be carried in a
suspense account until the allocation is made, but the allocation, when made,
will be made as of the last day of the Plan Year for which such contributions
are made.
4.2 Pre-Tax Contributions.
(A) Subject to the limitations of Article X, for each Plan Year the
Participating Employer of each Active Participant who is eligible to make Pre-
Tax Contributions will make Pre-Tax Contributions to the Trust on behalf of such
Participant in the amount by which the Participant's Eligible Earnings have been
reduced in accordance with the succeeding provisions of this section. Pre-Tax
Contributions will he paid to the Trustee as soon as practicable after the date
on which the Participant would have otherwise received the Eligible Earnings
with respect to which such contribution is made, but in no event later than the
15th business day of the month following the month in which the Participant
would have otherwise received the Eligible Earnings.
(B) Except as provided in Subsection (C), a Participant's Eligible
Earnings will be reduced in accordance with the following rules:
(1) A Participant may elect to reduce his or her Eligible Earnings
by any 1% increment from 1% to 15%. The percentage so elected will
automatically apply to the Participant's Eligible Earnings as adjusted
from time to time. Plan Rules for any Plan Year may specify a maximum
percentage for Highly Compensated Employees that is less than the
percentage specified for non-Highly Compensated Employees.
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(2) Reduction of a Participant's Eligible Earnings will commence
as of the first payroll period of the Participating Employer that
follows by at least 30 days (or such shorter period as Plan Rules may
allow) the later of
(a) the date on which the Participant's complete and
accurate election is made in accordance with Plan Rules, and
(b) the date on which the Participant enters or reenters the
Plan pursuant to Article III.
(3) Neither reductions of a Participant's Eligible Earnings nor
Pre-Tax Contributions on behalf of a Participant will be made while he
or she is not a Qualified Employee. Only Eligible Earnings payable
after a Participant's election has been filed will be reduced pursuant
to the election.
(4) A Participant may change the percentage rate at which his or
her Eligible Earnings will be reduced by giving notice in accordance
with Plan Rules. The change will be effective as of the first payroll
date that follows the Administrator's processing of the Participant's
notice.
(5) A Participant may suspend Eligible Earnings reductions for
at least six months by giving notice in accordance with Plan Rules.
The suspension will be effective beginning with the first payroll date
that begins after the Administrator's processing of the Participant's
notice. Eligible Earnings reductions for any Participant who makes a
hardship withdrawal under Section 7.1 will be automatically suspended
for the 12-month period beginning on the date of the withdrawal
distribution.
(6) A Participant whose Eligible Earnings reductions have ceased
by reason of loss of eligibility or automatic or voluntary suspension
may, after the restoration of eligibility or the end of the suspension
period, resume Eligible Earnings reductions by giving notice of the
change in accordance with Plan Rules.
(7) In no event will a Participant's Eligible Earnings
reductions with respect to payments, other than commissions, to which
the Participant may be entitled following termination of employment
continue beyond the end of the month next following the month in which
the Participant's employment terminated.
(C) A Participant's Eligible Earnings will be reduced in accordance
with uniform procedures established by the Administrator. Eligible Earnings may
be reduced only on a continuing payroll period basis; no lump sum reductions
will be permitted. If any election or notice submitted by a Participant to the
Administrator is not processed on a timely basis or if, for any reason, a
Participant's Eligible Earnings are not reduced in accordance with the
Participant's election, no retroactive adjustments of the Participant's Eligible
Earnings reductions will be made to take into account the effect of any such
delay or failure. Plan Rules may,
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however, permit a Participant to elect to reduce his or her Eligible Earnings
payable during any remaining portion of the Plan Year in which the delay or
failure occurred at more than the otherwise applicable percentage to adjust for
the effect of such delay or failure.
4.3 Matching Contributions.
(A) Subject to the limitations of Article X, each Participating
Employer will contribute to the Trust, out of its annual earnings or profits for
its fiscal year ending within the Plan Year in question or out of its
accumulated earnings or profits from prior years, on behalf of each Participant
who, during such Plan Year, was a Qualified Employee of such Participating
Employer and for whom Pre-Tax Contributions were made, an amount equal to the
lesser of:
(1) the total amount of Pre-Tax Contributions made for such
Participant for such Plan Year, and
(2) 3% of such Participant's Eligible Earnings for the portion of
such Plan Year during which he or she had Pre-Tax Contributions made
on his or her behalf.
Such contributions may, if the Employer's governing body so determines, be made
notwithstanding an insufficiency of the Employer's current or accumulated
profits.
(B) Any Matching Contributions for a Plan Year will be paid to the
Trustee on such date or dates as the Participating Employer may elect during or
following such year; provided, first, that the total amount of the Participating
Employer's contribution will be paid in full on or before the date required for
filing its federal income tax return for such year, or such date as duly
extended; and second, that the Participating Employer will either:
(1) designate the payment in writing to the Trustee as a payment
on account of such fiscal year, or
(2) claim such payment as a deduction on its federal income tax
return for such fiscal year.
(C) No Matching Contribution will be made with respect to any portion
of a Participant's Pre-Tax Contributions that is forfeited or returned to the
Participant pursuant to Section 10.1, 10.2, 10.4 or 10.6. (For this purpose all
such forfeitures and distributions will be deemed to be made first from any Pre-
Tax Contributions with respect to which no Matching Contribution was made.) Any
Matching Contribution that is, by reason of errors in projecting the amount of a
Participant's Pre-Tax Contributions or otherwise, allocated to a Participant's
Account and subsequently determined to violate the foregoing provision will be
subtracted from such Account as soon as practicable and will be applied to
reduce the Participating Employer contributions that would otherwise be made for
the Plan Year in which such excess contribution was made. If, because of the
passage of time, the employer contribution for such Plan Year cannot be reduced,
such excess contribution will, subject to Section 10.6, be allocated in the
discretion of the Administrator among the Accounts of all Participants who made
Pre-Tax
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Contributions as if it were an additional Matching Contribution for such Plan
Year, or as a corrective contribution pursuant to Section 4.5.
4.4 Rollovers and Transfers.
(A) A Participant or a Qualified Employee pursuant to Section 3.1(C)
may, with the prior consent of the Administrator, contribute to the Trust,
within 60 days of receipt,
(1) the balance of an individual retirement account to which the
only contributions have been one or more eligible rollover
distributions from a plan qualified under Code section 401(a), or
(2) an eligible rollover distribution from such a qualified plan.
(B) With the prior consent of the Administrator, the accounts of a
Participant or, pursuant to Section 3.1(C), a Qualified Employee under another
tax-qualified plan may be transferred directly to the Trust. In no event may
such a transfer be made that would require the Plan to provide any option with
respect to the form or time of distribution or any other right, benefit or
feature not available under the Plan prior to the transfer.
(C) Any contribution or transfer to the Trust pursuant to Subsection
(A) or (B) must be made in cash and will be credited to the Participant's
Rollover Account.
4.5 Corrective Contributions. For any Plan Year a Participating Employer
may, in its discretion, contribute to the Pre-Tax Contribution Accounts, the
Matching Contribution Accounts or both of Qualified Employees other than Highly
Compensated Employees or any group of such employees such amounts as it deems
advisable to assist the Plan in satisfying the requirements of Sections 10.2,
10.3 and 10.4 for such Plan Year. Such contributions will be allocated among
such accounts in proportion to the Qualified Employees' Eligible Earnings, in
proportion to the Pre-Tax Contributions made for such Qualified Employees or in
equal shares as the Participating Employer will direct at the time such
contribution is made. Except as provided in Section 7.1(B), each such
contribution will be treated, for all purposes of the Plan, in the same manner
as other contributions allocated to the same account. To the extent required by
Treasury Regulations, contributions under this section will be maintained in a
separate subaccount of the Account to which they are credited.
4.6 Additional Discretionary Contributions. For any Plan Year, a
Participating Employer may, in its discretion, contribute to the Accounts of
Qualified Employees other than Highly Compensated Employees an amount calculated
to approximate the fees charged to such Accounts during the Plan Year (either
directly or through a reduction in the investment earnings credited to such
Accounts) by any investment Funds in which such Accounts are invested.
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ARTICLE V
Trustee's Accounts and Valuation
--------------------------------
5.1 Establishment of Accounts. The following Accounts will be established
and maintained for each Participant:
(A) A Pre-Tax Contribution Account, to which there will be credited
the amount of Pre-Tax Contributions a Participating Employer has made on
the Participant's behalf, and any additional transferred amounts credited
to such Account pursuant to the provisions of any Appendix to this Plan.
(B) A Matching Contribution Account, to which there will be credited
the amount of the Matching Contributions made for the Participant pursuant
to this Plan, and any additional transferred amounts credited to such
Account pursuant to the provisions of any Appendix to this Plan.
(C) A Rollover Account, to which there will be credited the amount of
any Rollover Contributions and any additional transferred amounts credited
to such Account pursuant to the provisions of any Appendix to this Plan.
(D) A Profit Sharing Account, to which there will be credited the
amount of any Profit Sharing Contributions and any additional transferred
amounts credited to such Account pursuant to the provisions of any Appendix
to this Plan.
There shall also be established such additional Accounts as may be required
pursuant to the provisions of any Appendix to this Plan.
5.2 Valuation and Account Adjustment. As of the close of each business
day, each Participant's Accounts within each investment Fund established
pursuant to Section 6.1 will be separately adjusted in a uniform and equitable
manner for income, expense, gains and losses of the investment Fund since the
last prior adjustment.
5.3 Allocations Do Not Create Rights. The fact that allocations are made
and credited to the Accounts of a Participant will not vest in the Participant
any right, title or interest in or to any portion of the Fund except at the time
or times and upon the terms and conditions expressly set forth in the Plan.
Notwithstanding any allocation or credit to the Account of any Participant, the
issuance of any statement to the Participant or the distribution of all or any
portion of a Participant's Account balance, the Administrator may direct the
Participant's Account to be adjusted to the extent necessary to correct any
error in such Account, whether caused by a misapplication of any provision of
the Plan or otherwise, and may recover from the Participant or the Participant's
Beneficiary the amount of any excess distribution. Any such adjustment will be
made within a reasonable time after the error is discovered.
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ARTICLE VI
Participant Investment Direction
--------------------------------
6.1 Establishment of Investment Funds. In order to allow each Participant
to determine the manner in which his or her Accounts will be invested, the
Trustee will maintain, within the Trust, three or more separate investment Funds
of such nature and possessing such characteristics as the Company may specify
from time to time. Each Participant's Accounts will be invested in the
investment Funds in the proportions directed by the Participant in accordance
with the procedures set forth in Sections 6.2 and 6.3. The Company may, from
time to time, direct the Trustee to establish additional investment Funds or to
terminate any existing investment Fund.
6.2 Contribution Investment Directions.
(A) Subject to the provisions of Section 6.5 and of any Appendix to
this Plan, each Participant will direct the manner in which contributions to his
or her Accounts will be invested among the Funds maintained pursuant to Section
6.1. Investment selections must be made in such increments with respect to the
Participant's Account as the Plan Rules specify. Each direction must be made in
the manner prescribed by Plan Rules, and must first be made in conjunction with
the Participant's enrollment in the Plan. To the extent a Participant fails to
direct Account investments, the Accounts may be invested in a short-term money
market or similar Fund specified by Plan Rule.
(B) Subject to the provisions of Section 6.5 and of any Appendix to
this Plan, a Participant may direct a change in the manner in which future
contributions to his or her Accounts will be invested among the investment
Funds. Such a direction will be made in accordance with the procedures
established by the Trustee.
(C) Contributions made prior to a date on which they may be invested
in the investment Fund directed by the Participant may be invested in short-term
investments until such date, at which time the contributions will be invested in
the appropriate investment Fund or Funds in accordance with the Participants'
directions. Any income realized from such short-term investments will be
allocated in a uniform and equitable manner among the investment Funds in which
such contributions are invested.
6.3 Transfer Among Investment Funds.
(A) Subject to the provisions of Section 6.5 and of any Appendix to
this Plan, a Participant may direct the transfer of such increment of the
aggregate of his or her Accounts as the Plan Rules specify among the investment
Funds. Each transfer direction will be made in accordance with the procedures
established by the Trustee. A transfer will be based on the value of the
Participant's Accounts as of the close of business on the day on which the
transfer is effective. A transfer will be effective:
(1) As of the close of business on the day of receipt by the
Trustee, if received on a business day prior to the time specified by
the Trustee; or
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(2) As of the close of business on the first business day
following receipt by the Trustee, if received other than on a business
day or after the time specified by the Trustee.
(B) A Beneficiary of a deceased Participant or an alternate payee for
whom a segregated account is established will be entitled to direct the
investment of the portion of the account to which such person is entitled as if
such person were the Participant. A Beneficiary will not be entitled to give
such directions until the Administrator has determined his or her identity as a
Beneficiary and the portion of the Account to which he or she is entitled. An
alternate payee will not be entitled to give such directions if the order
designating him or her as an alternate payee provides that the Participant will
retain such authority or, in any event, until such order has been finally
determined to be a qualified domestic relations order and the specified portion
of the Participant's Account has been segregated. The investment directions
given by a Participant will remain in effect following his or her death until
the Beneficiary gives other directions.
6.4 Investment Direction Responsibility Resides With Participants.
Neither the Administrator nor the Trustee will have any authority, discretion,
responsibility or liability with respect to a Participant's, Beneficiary's or
alternate payee's selection of the investment Funds in which his or her Accounts
will be invested, the entire authority, discretion and responsibility for, and
any results attributable to, the selection being that of the Participant,
Beneficiary or alternate payee.
6.5 Employer Stock Fund Rules.
(A) The Trustee will establish as one of the investment Funds under
Section 6.1, a Fund, referred to as the "Company Stock Fund," which will be
invested primarily in publicly traded common stock of H.B. Fuller Company. The
succeeding provisions of this section will apply to the Company Stock Fund
notwithstanding any contrary provisions of this article.
(B) Notwithstanding any other provisions of the Plan or the instrument
evidencing the Trust, a Participant who is a Reporting Person will not be
permitted to change the investment of his or her existing Account balances in
the Company Stock Fund unless at least six months has expired since the
Participant's last election under this Plan (or under any other plan of H.B.
Fuller Company or its affiliates) to effect a "Discretionary Transaction" (as
such term is defined in SEC Rule 16b-3) which was:
(1) an acquisition of equity securities of H.B. Fuller Company or
its affiliates, if the current transaction involves a transfer of
funds out of the Company Stock Fund; or
(2) a disposition of equity securities of H.B. Fuller Company or
its affiliates, if the current transaction involves a transfer of
funds into the Company Stock Fund.
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(C) Each Participant and Beneficiary having an interest in the Company
Stock Fund will be afforded the opportunity to direct the manner in which shares
of common stock of H.B. Fuller Company credited to the Account of such person
will be voted in connection with any stockholder action of H.B. Fuller Company.
In the event of a public tender or exchange offer for shares of common stock of
H.B. Fuller Company, each Participant and Beneficiary will be entitled to direct
whether or not the shares credited to such person's Account will be tendered for
sale or exchange in connection with such offer. Solely for purposes of the
preceding sentence, each Participant and Beneficiary is designated as a "named
fiduciary" within the meaning of section 403(a)(1) of Employee Retirement Income
Security Act of 1974. Voting and tender decisions will be effected in
accordance with the following rules:
(1) The Administrator will, prior to each meeting of H.B. Fuller
Company stockholders, cause to be furnished to each such Participant
and Beneficiary a copy of the proxy solicitation materials, together
with a form requesting confidential directions on how the shares of
H.B. Fuller Company common stock allocated to such person's Account
are to be voted on each matter to be brought before such meeting. The
Administrator will use his best efforts to ensure that each
Participant and Beneficiary receives such information as will be
distributed to stockholders of H.B. Fuller Company in connection with
any public tender or exchange offer for shares of H.B. Fuller Company
common stock and that each receives a form on which confidential
directions may be given to the Trustee.
(2) The Trustee will vote the number of shares allocated to each
Participant's and Beneficiary's Account as directed by the Participant
or Beneficiary if the direction is received in time for the direction
to be processed. In the case of a public tender or exchange offer,
the Trustee will tender the shares allocated to the Participant's or
Beneficiary's Account if so directed by the Participant or
Beneficiary, and will not tender shares allocated to the Account of a
Participant or Beneficiary who either directs that such shares not be
tendered or does not furnish a timely direction to the Trustee. The
combined fractional shares of Participants and Beneficiaries will be
voted or tendered to the extent possible to effect the directions of
Participants and Beneficiaries to whose Accounts the fractional shares
are allocated.
(3) The Trustee will vote any H.B. Fuller Company common stock
that has not been allocated to any Participant's or Beneficiary's
Account and any allocated stock with respect to which it does not
receive timely directions on any matter in the same proportion as it
is instructed to vote shares with respect to which the Trustee has
received timely directions. The Trustee will tender for sale or
exchange in a public tender or exchange offer any H.B. Fuller Company
common stock not allocated to the Account of any Participant or
Beneficiary in the same proportion as it tenders the stock allocated
to the Accounts of Participants and Beneficiaries.
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(D) The Administrator will furnish all information provided to holders
of stock held in the Company Stock Fund to Participants and Beneficiaries whose
Accounts are invested in such Fund. Information relating to the purchase,
holding, and sale of interests in the Company Stock Fund, and the exercise by
Participants and Beneficiaries of voting, tender and similar rights with respect
to stock held in the Company Stock Fund, shall be maintained in accordance with
procedures which are designed to safeguard the confidentiality of such
information, except to the extent necessary to comply with federal laws or state
laws not preempted by the Employee Retirement Income Security Act of 1974. An
independent fiduciary shall be appointed to carry out any activities which the
Administrator determines involve a potential for undue influence upon
Participants and Beneficiaries with regard to the direct or indirect influence
of their rights under this Section 6.5. The Administrator shall ensure that the
procedures required by this clause (D) are sufficient to safeguard the
confidentiality of such information, that such procedures are being followed,
and that the independent fiduciary required by this clause (D) is appointed.
ARTICLE VII
Withdrawals During Employment
-----------------------------
7.1 Hardship Withdrawals from Pre-Tax Contribution Account.
(A) Subject to the provisions of Section 7.4, a Participant may
withdraw from his or her Pre-Tax Contribution Account an amount not in excess of
the amount of Pre-Tax Contributions made on the Participant's behalf on or prior
to the Valuation Date that last precedes the date of distribution, reduced by
the amount of Pre-Tax Contributions previously distributed from such Account.
Such withdrawal will be made only if the Administrator determines that the
distribution is made on account of an immediate and heavy financial need of the
Participant and is necessary to satisfy such financial need.
(B) The amount subject to withdrawal will include any earnings
credited to the Participant's Pre-Tax Contribution Account on or before December
31, 1988, to the extent not previously withdrawn or distributed, and will
exclude any corrective contributions made to the Participant's Pre-Tax
Contribution Account pursuant to Section 4.5, any Matching Contributions
redesignated as Pre-Tax Contributions pursuant to Section 10.2(D)(2), and any
Profit Sharing Contributions redesignated as Pre-Tax Contributions pursuant to
Section 10.2(D)(3).
(C) A distribution will be deemed to be made on account of an
immediate and heavy financial need only if it is determined by the Administrator
to be on account of:
(1) expenses for medical care, described in Code section 213(d),
incurred or to be incurred by the Participant, the Participant's
spouse or the Participant's dependent (as described in Code section
152);
(2) costs directly related to the purchase (excluding mortgage
payments) of a principal residence of the Participant;
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(3) payment of tuition and related educational expenses for the
next year of post-secondary education for the Participant or his or
her spouse, child or other dependent; or
(4) payments necessary to prevent the eviction of the Participant
from his or her principal residence or foreclosure of the mortgage on
the Participant's principal residence.
(D) A distribution will be deemed to be necessary to satisfy the
immediate and heavy financial need of the Participant only if the Administrator
determines that each of the following requirements are satisfied.
(1) The distribution is not in excess of the sum of the amount of
the immediate and heavy financial need of the Participant plus, if
elected by the Participant, the amount of federal taxes required to be
withheld from the distribution.
(2) The Participant has received all withdrawals and has taken
all nontaxable loans available under all qualified plans maintained by
any Affiliated Organization.
(3) All Pre-Tax Contributions under this Plan and all elective
deferrals and after tax employee contributions under all other plans
maintained by any Affiliated Organization by or on behalf of the
Participant will be suspended for a period of at least 12 months
following the date of the distribution.
(4) For the Participant's taxable year following the taxable year
during which he or she received the distribution, the amount of Pre-
Tax Contributions and elective contributions under all other qualified
plans maintained by any Affiliated Organization that may be made on
the Participant's behalf under Code Section 402(g) and Section 10.1 of
the Plan will be reduced by the sum of Pre-Tax Contributions and such
other elective contributions made on the Participant's behalf for the
taxable year during which he or she received the distribution.
(E) The Administrator's determination of the existence of a
Participant's financial hardship and the amount that may be withdrawn to satisfy
the need created by such hardship will be made in accordance with Treasury
Regulations, and will be final and binding on the Participant. Such withdrawal
distribution will be made as soon as administratively practicable following the
Administrator's determination that a financial hardship exists and will be based
on the amount of the Participant's Pre-Tax Contribution Account balance as of
the Valuation Date preceding the date of the distribution. The Administrator
will not be obligated to supervise or otherwise verify that amounts withdrawn
are applied in the manner specified in the Participant's withdrawal application.
7.2 Withdrawals from Pre-Tax Contribution Account After Age 59-1/2 or in
the Event of Disability. Subject to the provisions of Section 7.4, a
Participant who has attained age
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59-1/2 or has become Disabled may withdraw all or any portion of his or her Pre-
Tax Contribution Account balance. Eligible Earnings reductions under Section
4.2 for a Participant who makes a withdrawal under this section will be
suspended for a period of six months from the date of the withdrawal
distribution.
7.3 Withdrawals from Rollover Accounts. Subject to the provisions of
Section 7.4, a Participant may withdraw from the Rollover Account an amount not
in excess of the balance of such Account. Only one such withdrawal may be made
during any Plan Year.
7.4 Rules for Withdrawals. Except as otherwise provided in an Appendix to
this Plan:
(A) A withdrawal distribution will be made only upon the Participant's
application in the manner prescribed by Plan Rules. A withdrawal
distribution will be made as soon as administratively practicable following
the date of the Administrator's or Trustee's determination that the
Participant is entitled to the withdrawal.
(B) The amount of a withdrawal must be at least equal to the balance
of the Account from which it is made or $200, whichever is less.
(C) If the amount of a withdrawal could properly be distributed from
more than one Account it shall be distributed from the Participant's
Accounts in such order as the Administrator shall establish by Plan Rules.
(D) The amount withdrawn shall be distributed from the investment
Funds in which the Account(s) from which the withdrawal is made are
invested, in proportion to the balance of such Account(s) invested in each
such Fund.
(E) If an Account from which a withdrawal is made is invested in the
Company Stock Fund, distribution of such Account will be made in shares of
H.B. Fuller Company common stock or cash, whichever the Participant elects;
provided, first, that only a whole number of shares may be distributed in
kind and the balance of any distribution will be paid in cash; and second,
that, if the Administrator does not receive an election from the
Participant at least 30 days prior to the date of distribution (or such
shorter period as Plan Rules may prescribe), distribution will be made in
cash.
(F) The provisions of Section 9.8 will apply to any withdrawal
distribution that constitutes an eligible rollover distribution within the
meaning of Code section 402(c).
(G) The value of a Participant's Accounts will be determined as of the
Valuation Date that last precedes the date on which the withdrawal
distribution is made.
(H) A Participant who is a Reporting Person may not withdraw any
portion of his or her Accounts that is invested in the Company Stock Fund
until at least six months has expired since the Participant's last election
under this Plan (or under any other plan of H.B. Fuller Company or its
affiliates) to effect a "Discretionary Transaction" (as such
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term is defined in SEC Rule 16b-3) which was an acquisition of equity
securities of H.B. Fuller Company or its affiliates. This clause (H) shall
be construed consistently with SEC Rule 16b-3, and shall not apply to
withdrawals on account of a Participant's Termination of Employment,
Disability, retirement or death.
7.5 Withdrawals from Matching Contribution Account if Disabled. Subject
to the provisions of Section 7.4, a Participant who has become Disabled may
withdraw all or any portion of his or her Matching Contribution Account balance.
ARTICLE VIII
Vesting and Forfeitures
-----------------------
8.1 Vesting.
(A) Each Participant will always have a fully vested, nonforfeitable
interest in his or her Pre-Tax Contribution Account and Rollover Account.
(B) Each Participant will acquire a fully vested, nonforfeitable
interest in his or her Matching Contribution Account and Profit Sharing Account
upon attaining his or her Normal Retirement Date while employed with the Company
or an Affiliated Organization.
(C) A Participant will acquire a fully vested, nonforfeitable interest
in his or her Matching Contribution Account and Profit Sharing Account if he or
she dies or becomes Disabled while employed with an Affiliated Organization.
(D) A Participant will acquire a fully vested, nonforfeitable interest
in his or her Matching Contribution Account (but not his or her Profit Sharing
Account) if the termination of his or her employment occurs on account of the
complete and permanent closing of the Participating Employer facility at which
the Participant is employed.
(E) If a Participant's employment terminates at a time when the
Participant is not fully vested in his or her Matching Contribution or Profit
Sharing Account pursuant to Subsection (B), (C), or (D), the Participant will
have no vested interest in such Account if he or she has fewer than five years
of Continuous Service and will have a fully vested interest in such Account if
he or she has five or more years of Continuous Service.
8.2 Forfeiture Upon Distribution.
(A) If the entire vested balance of a Participant's Accounts is
distributed before the Participant incurs five consecutive One-Year Breaks in
Service, and if the amount of such distribution was not more than $3,500 or the
distribution was made with the Participant's consent, the nonvested portion of
the Participant's Accounts will, at the time of such distribution, be forfeited.
A Participant who has no vested interest in any Account at termination of
employment will be deemed to have received distribution of the entire vested
balance in such Accounts upon such termination.
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(B) If such a Participant:
(1) received a distribution of less than the entire balance of
his or her Accounts;
(2) resumes employment with a Participating Employer as a
Qualified Employee; and
(3) repays to the Trustee the full amount distributed (other than
his or her after-tax contributions, if any) before the earlier of (a)
five years following the date of reemployment with the Participating
Employer as a Qualified Employee or (b) the date on which he or she
incurs five consecutive One-Year Breaks in Service following the
distribution;
then the Employer will restore the amounts forfeited from the Participant's
Matching Contribution and Profit Sharing Accounts, unadjusted for any change in
value occurring after the Valuation Date immediately preceding the distribution.
Such restoration will be made from forfeitures that arise for the Plan Year for
which such restoration is to be made. To the extent such forfeitures are
insufficient for such purpose, the Participating Employer will contribute the
amount required to restore such Accounts.
8.3 Other Forfeitures.
(A) Except as provided in Section 8.2, the nonvested portions of a
Participant's Matching Contribution and Profit Sharing Accounts will continue to
be held in a separate subaccount of such Accounts until the Participant incurs
five consecutive One-Year Breaks in Service, at which time such portion of the
Accounts will be forfeited. If the Participant resumes employment with an
Affiliated Organization prior to incurring five consecutive One-Year Breaks in
Service, such subaccount will be disregarded and its balance will be included in
the Participant's Account balance. Such subaccount will at all times be
invested in a short term money market or similar Fund specified by Plan Rules.
(B) A Participant's vested interest in each subaccount created under
Subsection (A) at any given time will not be less than the amount "X" determined
by the formula: X = P(AB + (R x D)) - (R x D), where P is the Participant's
vested percentage at the time of determination; AB is the subaccount balance at
the time of determination; D is the amount of the distribution; and R is the
ratio of the subaccount balance at the time of determination to the subaccount
balance immediately following the distribution. For purposes of determining a
Participant's vested interest in the portion of the Account that has been
restored as provided in Subsection (A), the foregoing formula will be applied,
with the term "Account balance" being substituted for "subaccount balance"
wherever the latter term is used.
8.4 Reallocation of Forfeitures. All forfeitures occurring under this
article in a Plan Year will be allocated as of the last day of such Plan Year as
follows:
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(A) Such forfeitures will first be applied to restore the accounts of
Participants as provided in Section 8.2(B); and
(B) Any remaining forfeitures will be applied to reduce the Employer
contributions for the Plan Year in which the forfeiture occurs.
ARTICLE IX
Distributions After Termination
-------------------------------
9.1 Time of Distribution.
(A) Following a Participant's Termination of Employment, the Trustee
will distribute to the Participant or, if the Participant has died, to the
Participant's Beneficiary, the value of the Participant's vested interest in his
or her Accounts. The amount of such distribution will be equal to the aggregate
balance of the Participant's vested interest in his or her Accounts as of the
Valuation Date that coincides with or last precedes the distribution date.
Subject to the remaining subsections of this section and to any Appendix to this
Plan, distribution will be made in accordance with the following provisions.
(1) If the aggregate balance of the Participant's vested interest
in his or her Accounts, at the time of the distribution, is not more
than $3,500, distribution will be made as soon as administratively
practicable following the termination of the Participant's employment.
This clause will not apply, however, if the Participant's vested
account balance exceeded $3,500 at the time of any previous
distribution to the Participant.
(2) Except as provided in clause (1), distribution will be made
on or as soon as administratively practicable following such date as
the Participant specifies by written notice to the Administrator,
which date will be no later than the date specified under Subsection
(B).
(3) If the Participant dies before distribution has commenced,
the Participant's entire interest will be distributed to the
Beneficiary in a lump sum not later than five years after the date of
the Participant's death; provided that if the aggregate value of the
Participant's Accounts exceeds $3,500, the Participant is married on
the date of death and has been married throughout the one year period
ending on the date of death, and the Participant's spouse is the
Beneficiary, the Participant's spouse may elect, in a written, signed
statement delivered to the Administrator prior to the first
anniversary of the Participant's death, to defer the distribution to
such time as such spouse elects, but not later than the date the
Participant would have attained age 70-1/2.
Prior to the commencement of any distribution, the Administrator shall provide
the Participant or Beneficiary with a written 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). Such shall be provided no less than
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30 days and no more than 90 days prior to the distribution date; however, a
distribution may be made less than 30 (but not less than seven) days after such
notice is given if the Administrator clearly informs the distributee that he or
she has a right to a period of at least 30 days after receiving the notice to
consider whether to elect a distribution (and, if applicable, a particular
distribution option) and the distributee, after receiving the notice,
affirmatively elects a distribution.
(B) Except as provided below in this Subsection (B), each
Participant's Account balance will be distributed not later than the earlier of:
(1) the 60th day following the close of the Plan Year during
which there occurs the later of:
(a) the date the Participant terminates employment, and
(b) the Participant's Normal Retirement Date; and
(2) April 1 of the calendar year following the later of the
calendar year during which the Participant attains age 70-1/2 and the
calendar year during which the Participant retires.
A Participant whose Account balance is not distributable under clause (1) of
Subsection (A) or the surviving spouse who is the Beneficiary of a deceased
Participant whose Account balance is not so distributable may, by written notice
to the Administrator, defer distribution to a date not later than the date
specified in item (1)(b). The notice must be delivered to the Administrator not
later than 30 days prior to the date specified in item (1)(a) and must specify
the date on which distribution is to be made or begin.
(C) Notwithstanding the foregoing provisions, no portion of the
Participant's Pre-Tax Contribution Account or Matching Contribution Account will
be distributed to the Participant following Termination of Employment other than
because of the Participant's death or Disability unless the Administrator
determines that the Participant has attained age 59-1/2, or has separated from
service within the meaning of Code section 401(k)(2)(B), or that the
Participant's termination of employment occurred upon the sale by the
Participant's Employer of a subsidiary, or of substantially all the assets of a
trade or business, in which such Participant was employed.
(D) Notwithstanding the foregoing provisions of this article,
distribution to a Participant who is a 5-Percent Owner (as defined in Code
section 416(i)) will commence no later than April 1 of the calendar year
following the year in which the Participant attains age 70-1/2, whether or not
the Participant has then terminated employment. Prior to termination of
employment, a distribution will be made for each calendar year, beginning with
the calendar year in which the Participant attains age 70-1/2, in an amount
equal to the quotient of the Participant's Account balance as of the last
Valuation Date in the calendar year preceding the year for which the
distribution is made, divided by the life expectancy of the Participant or, if
the Participant so elects, the joint and survivor life expectancy of the
Participant and his or her
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designated beneficiary, determined under section 1.72-9 of Treasury Regulations.
Each such distribution will be made not later than the end of the calendar year
for which it is made, except that the distribution for the year in which the
Participant attains age 70-1/2 will be made not later than April 1 of the
succeeding calendar year. Any amount remaining in the Participant's Accounts on
the date employment terminates will be distributed in accordance with the
provisions of Subsection (A), subject to the limitations of Code section
401(a)(9).
(E) Except as provided in Subsection (D), no distribution will be made
to the Participant prior to the payment of all Eligible Earnings that are
subject to reductions in conjunction with Pre-Tax Contributions.
(F) Notwithstanding any contrary provision of the Plan, all
distributions will be made in accordance with Treasury Regulations under Code
section 401(a)(9), including Treasury Regulation section 1.401(a)(9)-2, and any
provisions of the Plan reflecting Code section 401(a)(9) take precedence over
any distribution options that are inconsistent with Code section 401(a)(9).
9.2 Form of Distribution. Except as otherwise provided in an Appendix to
this Plan:
(A) Each distribution under the Plan, other than distributions
pursuant to Section 9.1(D) and Subsection (C) of this section, will be made
in a single lump sum payment.
(B) If the Participant's Account is to be distributed in a lump sum,
then to the extent that one or more of the Participant's Accounts is
invested in the Company Stock Fund on the Valuation Date as of which the
distribution is determined, distribution of such Account will be made in
shares of H.B. Fuller Company common stock or cash, whichever the
Participant or Beneficiary, as the case may be, elects; provided, first,
that only a whole number of shares may be distributed in kind and the
balance of any distribution will be paid in cash; and second, that, if the
Administrator does not receive an election from the Participant or
Beneficiary at least 30 days prior to the date of distribution (or such
shorter period as Plan Rules may prescribe), distribution will be made in
cash.
(C) A Participant who terminates employment after completing at least
ten years of Continuous Service and attaining age 55 may elect to receive
distribution in quarterly installments. If a Participant dies before
commencing distributions but after attaining age 55 and completing at least
ten years of Continuous Service and such Participant's surviving spouse is
the Beneficiary, such surviving spouse may elect to receive distribution in
quarterly installments. Any such election will be made in the manner and
at the time prescribed by Plan Rules. The election must specify the period
over which the installment distributions are to be made and must conform to
the requirements of Subsection (D). A Participant or surviving spouse who
is receiving installment payments from the Trust may at any time request
distribution of all or any portion of the undistributed Account balance.
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(D) Notwithstanding any contrary provision of an election under
Subsection (C), installment distributions will be subject to the following
rules.
(1) Installment distributions to the Participant or the
Participant's Surviving spouse will be made over a period that does
not exceed the joint and survivor life expectancy of the Participant,
or such spouse, and the designated Beneficiary, determined in
accordance with Treasury Regulations. Unless the Participant, or such
spouse, otherwise elects, the life expectancies of the Participant and
such spouse will be redetermined at the beginning of each calendar
year. The life expectancy of a designated Beneficiary other than the
Participant's spouse will, except as otherwise required by Code
section 401(a)(9), be determined at the time distributions commence
and will be reduced by one year for each succeeding calendar year.
Life expectancies will be determined by using the expected return
multiples set forth in Treasury Regulation 72-9.
(2) If a Participant or surviving spouse dies before his or her
entire interest has been distributed, distribution of the remaining
interest will be made to the Beneficiary in a cash lump sum as soon as
practicable after the Participant's death; provided that, if the
Participant's spouse is the Beneficiary, such spouse may elect to
continue the installment payments over the remainder of the
installment period, with any payments remaining unpaid at such
spouse's death being made in a cash lump sum as soon as practicable
after such spouse's death.
(3) Each quarterly installment must be at least $100.
9.3 Beneficiary Designation.
(A) Each Participant may designate, upon forms furnished by the
Administrator, one or more persons to be primary Beneficiaries or alternative
Beneficiaries for all or a specified fractional part of his or her aggregate
Accounts and may change or revoke any such designation from time to time. No
such designation, change or revocation will be effective unless executed by the
Participant and received by the Administrator during the Participant's lifetime.
Except as provided in Subsection (D), no such change or revocation will require
the consent of any person.
(B) If a Participant
(1) fails to designate a Beneficiary, or
(2) revokes a Beneficiary designation without naming another
Beneficiary, or
(3) designates as Beneficiaries one or more persons none of whom
survives the Participant,
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for all or any portion of the Participant's Accounts, such Accounts or portion
will be distributed to the first class of the following classes of automatic
Beneficiaries that includes a member surviving the Participant:
(a) the Participant's spouse;
(b) the Participant's issue, per stirpes and not per capita;
(c) the representative of the Participant's estate.
(C) When used in this section and, unless the designation otherwise
specifies, when used in a Beneficiary designation: the term "per stirpes" means
in equal shares among living children and the issue (taken collectively) of each
deceased child, with such issue taking by right of representation; "children"
means issue of the first generation; and "issue" means all persons who are
descended from the person referred to, either by birth or adoption. The
automatic Beneficiaries specified above and, unless the designation otherwise
specifies, the Beneficiaries designated by the Participant, will become fixed as
of the Participant's death so that, if a Beneficiary survives the Participant
but dies before the receipt of all payments due such Beneficiary, any remaining
payments will be made to the representative of such Beneficiary's estate. Any
designation of a Beneficiary by name that is accompanied by a description of
relationship or only by statement of relationship to the Participant will be
effective only to designate the person or persons standing in such relationship
to the Participant at the Participant's death.
(D) Notwithstanding Subsection (A), if the Participant and the
Participant's spouse have been married throughout the one-year period ending on
the date of the Participant's death, no designation of a Beneficiary other than
the Participant's spouse will be effective unless such spouse consents to the
designation. Any such consent will be effective only with respect to the
Beneficiary or class of Beneficiaries so designated and only with respect to the
spouse who so consented.
9.4 Assignment, Alienation of Benefits.
(A) Except as required under a qualified domestic relations order, no
benefit under the Plan may in any manner be anticipated, alienated, sold,
transferred, assigned, pledged, encumbered or charged, and any attempt to do so
will be void; and no such benefit will in any manner be liable for, or subject
to, the debts, contracts, liabilities, engagements or torts of the person
entitled to such benefit.
(B) To the extent provided in a qualified domestic relations order,
distribution of benefits assigned to an alternate payee by such order may be
distributed to the alternate payee prior to the Participant's earliest
retirement age. The terms "qualified domestic relations order," "alternate
payee" and "earliest retirement age" have the meanings given in Code section
414(p).
9.5 Payment in Event of Incapacity. If any person entitled to receive any
payment under the Plan is physically, mentally, or legally incapable of
receiving or acknowledging receipt
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of the payment, and no legal representative has been appointed for such person,
the Administrator in his discretion may (but will not be required to) cause any
sum otherwise payable to such person to be paid to any one or more as may be
chosen by the Administrator from the following: the Beneficiaries, if any,
designated by such person, the institution maintaining such person, a custodian
for such person under the Uniform Transfers to Minors Act of any state or such
person's spouse, children, parents or other relatives by blood or marriage. Any
payment so made will be a complete discharge of all liability under the Plan
with respect to any such payment.
9.6 Payment Satisfies Claims. Any payment to or for the benefit of any
Participant, legal representative or Beneficiary in accordance with the
provisions of the Plan will, to the extent of such payment, be in full
satisfaction of all claims against the Trustee, the Administrator and the
Employer, any of whom may require the payee to execute a receipted release as a
condition precedent to such payment.
9.7 Disposition if Distributee Cannot be Located. If the Administrator is
unable to locate a Participant or Beneficiary to whom a distribution is due, the
Participant's Accounts will continue to be held in the Fund until such time as
the Administrator has located the Participant or Beneficiary or the Participant
or Beneficiary makes a proper claim for the benefit, as the case may be;
provided, that any Accounts not claimed within the period prescribed by
applicable escheat laws will be paid to such governmental authorities, in such
manner, as is specified in such laws.
9.8 Direct Rollovers.
(A) Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a Distributee's election under this section, a Distributee
may elect, at the time and in the manner prescribed by the Administrator, to
have any portion of an Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan specified by the Distributee in a Direct Rollover,
except as otherwise provided by the Employer's administrative procedures as
permitted by regulations. In addition, a Distributee's election of a Direct
Rollover shall be subject to the following requirements:
(1) If the Distributee elects to have only a portion of an
Eligible Rollover Distribution paid to an Eligible Retirement Plan in
a Direct Rollover, that portion must be equal to at least $500.
(2) If the entire amount of a Distributee's Eligible Rollover
Distribution is $500 or less, the distribution may not be divided.
Instead, the entire amount must either be paid to the Distributee or
to an Eligible Retirement Plan in a Direct Rollover.
(3) A Distributee may not elect a Direct Rollover if the
Distributee's Eligible Rollover Distributions during a year are
reasonably expected by the Administrator to total less than $200 (or
any lower minimum amount specified by the Administrator).
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(4) A Distributee's election to make or not make a Direct Rollover with
respect to one payment in a series of periodic payments shall apply to
all subsequent payments in the series, except that a Distributee shall
be permitted at any time to change, with respect to subsequent
payments in the series of periodic payments, a previous election to
make or not make a Direct Rollover. A change of election shall be
accomplished by the Distributee notifying the Administrator of the
change. Such notice must be in the form and manner prescribed by the
Administrator.
(B) Definitions. Solely for the purposes of this Section 9.8:
(1) Direct Rollover: A "Direct Rollover" is a payment by the
Plan to the Eligible Retirement Plan specified by the Distributee.
(2) Distributee: A "Distributee" includes an Employee or former
Employee. In addition, the Employee's or former Employee's surviving
spouse and the Employee's or former Employee's spouse who is the
alternate payee under a qualified domestic relations order, as defined
in Code section 414(p), are Distributees with regard to the interest
of the spouse or former spouse.
(3) Eligible Retirement Plan: An "Eligible Retirement Plan" is
an individual retirement account described in Code section 408(a), an
individual retirement annuity described in Code section 408(b), an
annuity plan described in Code section 403(a), or a qualified trust
described in Code section 401(a), that accepts the Distributee's
Eligible Rollover Distribution. However, in the case of an Eligible
Rollover Distribution to the surviving spouse, an Eligible Retirement
Plan is an individual retirement account or an individual retirement
annuity.
(4) Eligible Rollover Distribution: An "Eligible Rollover
Distribution" is any distribution of all or any portion of the balance
to the credit of the Distributee, except that an Eligible Rollover
Distribution does not include: (i) any distribution that is one of a
series of substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of the
Distributee and the Distributee's designated Beneficiary, or for a
specified period of ten years or more; (ii) any distribution to the
extent such distribution is required under Code section 401(a)(9); and
(iii) the portion of any distribution that is not includible in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
9.9 Transfers. If a Participant ceases to be an Employee, the
Administrator will, if so directed by the Participant, direct the Trustee to
transfer the balance of the Participant's Accounts to the trustee of another
plan in which the Participant is a participant, provided
(A) such other plan is qualified under Code section 401(a),
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(B) such other plan satisfies the withdrawal requirements set forth in
Code section 401(k) and other similar limitations that continue to apply
with respect to such transferred Accounts, and
(C) such other trustee is willing to accept such transfer.
ARTICLE X
Contribution Limitations
------------------------
10.1 Pre-Tax Contribution Dollar Limitation. The aggregate amount of Pre-
Tax Contributions and other "elective deferrals" (within the meaning of Code
section 402(g)(3)) under any other qualified plan maintained by any Affiliated
Organization with respect to a Participant for any taxable year of the
Participant may not exceed $9,500 (automatically adjusted for increases in the
cost of living in accordance with Treasury Regulations). The limitation for any
Participant who received a hardship distribution under Section 7.1 will, for the
year following the year in which such distribution was made, be reduced as
provided in Section 7.1(D)(4). If the foregoing limitation is exceeded for any
taxable year of the Participant, the amount of Pre-Tax Contributions in excess
of such limitation, increased by Fund earnings or decreased by Fund losses
attributable to the excess, will be returned to the Participant. Such
distribution may be made at any time after the excess contributions are
received, but not later than April 15 of the taxable year following the taxable
year to which such limitation relates. The amount returned to a Participant who
has made elective deferrals for the calendar year other than pursuant to Section
4.2 will, to the extent of such other elective deferrals, be determined in
accordance with written allocation instructions received by the Administrator
from the Participant not later than March 1 of the taxable year following the
taxable year with respect to which the Pre-Tax Contributions were made. The
amount of Fund earnings or losses attributable to Pre-Tax Contributions returned
to a Participant pursuant to this Section will be determined in the manner
specified in Section 10.5.
10.2 Actual Deferral Percentage Limitations.
(A) Notwithstanding Section 4.2, to the extent deemed necessary by the
Administrator in order to comply with the requirements of Code section
401(k)(3), as set forth below in this Subsection (A), the Administrator may, in
his or her discretion exercised uniformly among Participants similarly situated,
prospectively decrease the rate at which a Participant's Eligible Earnings will
be reduced. The requirements of Code section 401(k)(3) will be satisfied for
any Plan Year if, for that Plan Year, the Plan satisfies the requirements of
Code section 410(b)(1) with respect to "eligible Employees" and either of the
following tests.
(1) The "actual deferral percentage" for eligible Employees who
are Highly Compensated Employees is not more than the product of the
actual deferral percentage for eligible Employees who are not Highly
Compensated Employees multiplied by 1.25.
(2) The excess of the actual deferral percentage for eligible
Employees who are Highly Compensated Employees over the actual
deferral percentage for
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eligible Employees who are not Highly Compensated Employees is not
more than two percentage points and the actual deferral percentage for
such Highly Compensated Employees is not more than the product of the
actual deferral percentage of eligible Employees who are not Highly
Compensated Employees multiplied by two.
(B) For purposes of Subsection (A):
(1) An "eligible Employee" is a Qualified Employee who is
eligible to have Pre-Tax Contributions made on his or her behalf for
the applicable Plan Year or would be so eligible but for a suspension
imposed under Section 7.1(D)(3).
(2) The "actual deferral percentage for eligible Employees who
are Highly Compensated Employees" is the average of the ratios,
calculated separately for each such eligible Employee, of the amount
of Pre-Tax Contributions made on the eligible Employee's behalf for
the current Plan Year, to the Employee's Testing Wages for the portion
of the current Plan Year during which he or she was an eligible
Employee.
(3) The "actual deferral percentage for eligible Employees who
are not Highly Compensated Employees" is the average of the ratios,
calculated separately for each individual who was an eligible
Employee, but not a Highly Compensated Employee, for the preceding
Plan Year, of the amount of Pre-Tax Contributions made on the eligible
Employee's behalf for the preceding Plan Year, to the Employee's
Testing Wages for the portion of the preceding Plan Year during which
he or she was an eligible Employee. This clause (3) may be applied on
the basis of the current Plan Year rather than the preceding Plan Year
if the Administrator so elects; however, such an election may not be
changed except as permitted by the Commissioner of Internal Revenue.
(4) In computing actual deferral percentages, the following rules
will apply:
(a) Unless this Plan is deemed to be a "successor plan"
within the meaning of Code section 401(k)(3)(E), the amount taken
into account as the "actual deferral percentage for eligible
Employees who are not Highly Compensated Employees" for the first
Plan Year of the Plan shall be 3% or, if the Administrator so
elects in accordance with the provisions of Code section
401(k)(3)(E)(ii), the actual deferral percentage for eligible
Employees who are not Highly Compensated Employees for such first
Plan Year.
(b) Any Pre-Tax Contributions made on behalf of an eligible
Employee who is not a Highly Compensated Employee that are in
excess
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of the limitation of Section 10.1 or that are distributed to the
Employee pursuant to Section 10.6(C) or 10.7(D) will be excluded.
(c) Except as otherwise provided in Treasury Regulations,
Pre-Tax Contributions taken into account pursuant to Section
10.3(C)(3) in determining the actual contribution percentage
under Section 10.3(B) will be excluded.
(d) Elective contributions under any other plan that is
aggregated with this Plan to satisfy the requirements of Code
section 410(b) will be taken into account.
(e) To the extent provided in Treasury Regulations, elective
contributions made under any other cash or deferred arrangement
of the Participating Employer or another Affiliated Organization
on behalf of any eligible Employee who is a Highly Compensated
Employee will be taken into account.
(C) If, for any Plan Year, the requirements of Subsection (B) are not
satisfied, the Administrator will determine the amount by which Pre-Tax
Contributions made on behalf of each Highly Compensated Employee for the Plan
Year exceeds the permissible amount as determined under Subsection (B). The
determination will be made by successively decreasing the amount of Pre-Tax
Contributions of Highly Compensated Employees who, during the Plan Year, had the
greatest amount of Pre-Tax Contributions made on their behalf, to the next lower
amount, then again decreasing the amount of such Highly Compensated Employees'
Pre-Tax Contributions, together with the amount of Pre-Tax Contributions of such
Highly Compensated Employees who were already at such lower amount, to the next
lower amount, and continuing such procedure for as many decreases as the
Administrator deems necessary.
(D) At such time as the Administrator specifies on or following the
last day of the Plan Year for which such determination is made, but in no case
later than the last day of the following Plan Year, the excess will be corrected
by taking any one or more of the following steps.
(1) The amount of excess Pre-Tax Contributions so determined,
increased by Fund earnings or decreased by Fund losses attributable to
such excess as determined under Section 10.5, will be returned to each
such Highly Compensated Employee. The amount to be returned pursuant
to the foregoing sentence with respect to any Plan Year will be
reduced by the portion of the amount, if any, distributed pursuant to
Section 10.1 that is attributable to Pre-Tax Contributions that relate
to such Plan Year, determined by assuming that Pre-Tax Contributions
in excess of the limitation described in Section 10.1 for a given
taxable year are the first contributions made for a Plan Year falling
within such taxable year.
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(2) All or any portion of the Matching Contribution for the Plan
Year with respect to which the determination is made will be
redesignated as Pre-Tax Contributions (and, except as provided in
Section 7.1(B), will have all of the characteristics of Pre-Tax
Contributions) for all, or any similarly situated group of, eligible
Employees.
(3) All or any portion of the Profit Sharing Contribution for the
Plan Year with respect to which the determination is made will be
redesignated as Pre-Tax Contributions (and, except as provided in
Section 7.1(B), will have all of the characteristics of Pre-Tax
Contributions) for all, or any similarly situated group of, eligible
Employees.
(4) The Participating Employers will make an additional
contribution for the Plan Year pursuant to Section 4.5.
10.3 Actual Contribution Percentage Limitations.
(A) Notwithstanding Section 4.3, for any Plan Year Matching
Contributions may be made on behalf of Participants who are Highly Compensated
Employees with respect to that Plan Year only to the extent that either of the
following tests is satisfied.
(1) The "actual contribution percentage" for eligible Employees
who are Highly Compensated Employees is not more than the product of
the actual contribution percentage for eligible Employees who are not
Highly Compensated Employees multiplied by 1.25.
(2) The excess of the actual contribution percentage for eligible
Employees who are Highly Compensated Employees over the actual
contribution percentage for eligible Employees who are not Highly
Compensated Employees is not more than two percentage points and the
actual contribution percentage for such Highly Compensated Employees
is not more than the product of the actual contribution percentage of
eligible Employees who are not Highly Compensated Employees multiplied
by two.
(B) For purposes of this section:
(1) An "eligible Employee" means a Qualified Employee who is
eligible to have Matching Contributions made on his or her behalf for
the applicable Plan Year, or who would have been so eligible if he or
she had elected to make Pre-Tax Contributions for such Plan Year.
(2) The "actual contribution percentage for eligible Employees
who are Highly Compensated Employees" is the average of the ratios,
calculated separately for each such eligible Employee, of the amount
of Matching Contributions made on the eligible Employee's behalf for
the current Plan Year,
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to the Employee's Testing Wages for the portion of the current Plan
Year during which he or she was an eligible Employee.
(3) The "actual contribution percentage for eligible Employees
who are not Highly Compensated Employees" is the average of the
ratios, calculated separately for each individual who was an eligible
Employee, but not a Highly Compensated Employee, for the preceding
Plan Year, of the amount of Matching Contributions made on the
eligible Employee's behalf for the preceding Plan Year, to the
Employee's Testing Wages for the portion of the preceding Plan Year
during which he or she was an eligible Employee. This clause (3) may
be applied on the basis of the current Plan Year rather than the
preceding Plan Year if the Administrator so elects; however, such an
election may not be changed except as permitted by the Commissioner of
Internal Revenue.
(4) In computing actual deferral percentages, the following rules
will apply:
(a) Unless this Plan is deemed to be a "successor plan"
within the meaning of Code section 401(k)(3)(E), the amount taken
into account as the "actual contribution percentage for eligible
Employees who are not Highly Compensated Employees" for the first
Plan Year of the Plan shall be 3% or, if the Administrator so
elects in accordance with the provisions of Code section
401(m)(3), the actual contribution percentage for eligible
Employees who are not Highly Compensated Employees for such first
Plan Year.
(b) Matching contributions (within the meaning of Code
section 401(m)(4)(A)) and after-tax contributions made under any
other plan that is aggregated with this Plan to satisfy the
requirements of Code section 410(b) will be taken into account.
(c) To the extent required by Treasury Regulations, matching
contributions (within the meaning of Code section 401(m)(4)(A))
and after-tax contributions made under any other qualified plan
of any Affiliated Organization on behalf of or by any eligible
Employee who is a Highly Compensated Employee will be taken into
account.
(d) Except as otherwise provided in Treasury Regulations,
Matching Contributions taken into account pursuant to Section
10.2(D)(2) in determining the actual deferral percentage under
Section 10.2(B) will be excluded.
(e) Matching Contributions taken into account for purposes
of the minimum contribution required by Section 14.3(A) will be
excluded.
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(C) If, for any Plan Year, the requirements of Subsection (A) are not
satisfied, the Administrator will determine the amount by which Matching
Contributions made on behalf of each Highly Compensated Employee for the Plan
Year exceeds the permissible amount as determined under Subsection (A), such
determination being made in accordance with the procedure described in Section
10.2(C) with respect to reductions of Eligible Earnings. At such time as the
Administrator specifies on or following the last day of the Plan Year for which
such determination is made, but in no case later than the last day of the
following Plan Year, the excess will be corrected by taking any one or more of
the following steps.
(1) The amount of excess Matching Contributions so determined
with respect to each Highly Compensated Employee and family member,
increased by Fund earnings or decreased by Fund losses attributable to
such excess, will be distributed to such person; provided, however,
that to the extent the excess Matching Contributions would not be
fully vested if retained in the Plan, such excess will be forfeited
rather than distributed, and any such forfeitures will be applied as
provided in Section 4.3(C). The amount of distributable Fund earnings
or losses will be determined in the manner specified in Section 10.5.
(2) The Participating Employer will make an additional Matching
Contribution for the Plan Year pursuant to Section 4.5.
(3) All or any portion of Pre-Tax Contributions for the Plan
Year for which the determination is made will, in accordance with
Treasury Regulations, be taken into account in determining the actual
contribution percentage as if they were Matching Contribution.
(4) To the extent permitted by Treasury Regulations, all or any
portion of the Profit Sharing Contribution for the Plan Year with
respect to which the determination is made will be redesignated as
Matching Contributions (and, except as provided in Section 7.1(B),
will have all of the characteristics of Pre-Tax Contributions) for
all, or any similarly situated group of, eligible Employees.
10.4 Multiple Use Limitation.
(A) This section applies for any Plan Year for which the aggregate
limit of the actual deferral percentage test under Section 10.2 and the actual
contribution percentage test under Section 10.3 is exceeded. For purposes of
this subsection, the aggregate unit is the greater of:
(1) The sum of:
(a) the product of 1.25, multiplied by the greater of:
(i) the actual deferral percentage, as determined under
Section 10.2(B)(3), for the applicable Plan Year for
eligible Employees who are not Highly Compensated Employees,
or
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(ii) the actual contribution percentage, as determined
under Section 10.3(B)(3), for the applicable Plan Year for
eligible Employees who are not Highly Compensated Employees;
plus
(b) the sum of two percentage points plus the lesser of the
actual deferral percentage determined under item (i) of clause
(a) above or the actual contribution percentage determined under
item (ii) of clause (a) above, with such sum in no case exceeding
twice the lesser of such actual deferral percentage or actual
contribution percentage;
or
(2) The sum of:
(a) the product of 1.25, multiplied by the lesser of:
(i) the actual deferral percentage, as determined under
Section 10.2(B)(3), for the applicable Plan Year for
eligible Employees who are not Highly Compensated Employees,
or
(ii) the actual contribution percentage, as determined
under Section 10.3(B)(3), for the applicable Plan Year for
eligible Employees who are not Highly Compensated Employees;
plus
(b) the sum of two percentage points plus the greater of the
actual deferral percentage determined under item (i) of clause
(a) above or the actual contribution percentage determined under
item (ii) of clause (a) above, with such sum in no case exceeding
twice the lesser of such actual deferral percentage or actual
contribution percentage.
(B) If, for any Plan Year, the calculations under Subsection (A)
require that this section be applied, the Administrator will determine the
amount by which Matching Contributions made on behalf of each Highly Compensated
Employee for the Plan Year causes the excess amount determined under Subsection
(A), such determination being made in accordance with the provisions of Section
10.3(C). At such time as the Administrator specifies on or following the last
day of the Plan Year for which such determination is made, but in no case later
than the last day of the following Plan Year, the excess will be corrected by
taking any one or more of the steps described in Sections 10.2(D) and 10.3(C).
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10.5 Earnings on Contributions.
(A) The amount of Fund earnings or losses with respect to the excess
amount of contributions returned to a Highly Compensated Employee pursuant to
the foregoing provisions of this article will be the sum of the earnings or
losses attributable to such excess amount for the Plan Year with respect to
which the determination is being made, as determined in accordance with
Subsection (B), plus the earnings or losses attributable to such excess amount
for the period between the end of that Plan Year and the date on which such
excess contributions are distributed to the Participant as determined in
accordance with Subsection (C).
(B) The earnings or losses attributable to such excess amount for the
Plan Year is the product of the total earnings or losses for the Participant's
Account to which the excess contributions were credited for the Plan Year,
multiplied by a fraction, the numerator of which is the excess amount of
contributions made on the Participant's behalf to such Account for the Plan
Year, and the denominator of which is the closing balance of such Account for
the Plan Year, decreased by the amount of earnings credited to that Account, or
increased by the amount of losses debited to that Account, for the Plan Year.
(C) The earnings or losses attributable to such excess amount for the
period between the end of the Plan Year for which the determination is being
made and the date on which such excess contributions are distributed to the
Participant will be the amount determined in a reasonable manner permitted under
Treasury Regulations, including the product of 10% of the earnings or losses
attributable to such excess amount for the Plan Year, as determined in
accordance with Subsection (B), multiplied by the number of calendar months
during the period for which the determination is being made, with a distribution
being made on or before the 15th day of a month being deemed to have been made
on the last day of the preceding month and a distribution being made after the
15th day of a month being deemed to have been made on the first day of the
following month.
10.6 Aggregate Defined Contribution Limitations.
(A) Notwithstanding any contrary provisions of this Plan, there will
not be allocated to any Participant's Accounts for a Limitation Year any amount
that would cause the aggregate "annual additions" with respect to the
Participant for the Limitation Year to exceed the lesser of:
(1) $30,000 (or, if greater, one-fourth of the dollar limitation
in effect under Code section 415(b)(1)(A)); and
(2) 25% of the Participant's Section 415 Wages for the Limitation
Year.
(B) For purposes of Subsection (A), the "annual additions" with
respect to a Participant for a Limitation Year are the sum of:
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(1) the aggregate amount of Pre-Tax, Matching and Profit Sharing
Contributions and forfeitures allocated to the Participant's Accounts
under the Plan for the Limitation Year (including any Pre-Tax
Contributions and Matching Contributions that are distributed or
forfeited pursuant to Section 10.2, 10.3 or 10.4, but excluding any
Pre-Tax Contributions in excess of the limitation of Section 10.1 that
are distributed to the Participant by the April 15 following the Plan
Year to which such contributions relate) and employer contributions,
employee contributions and forfeitures allocated to the Participant's
accounts under any other qualified defined contribution plan
maintained by any Affiliated Organization for the Plan Year; plus
(2) amounts allocated to an individual medical account, as
defined in Code section 415(l)(2), which is part of a pension or
annuity plan maintained by an Affiliated Organization; plus
(3) the amount, if any, attributable to post-retirement medical
benefits that is allocated to a separate account for the Participant
as a "key employee" (as defined in Section 14.3(C)), to the extent
required under Code section 419A(d)(1).
(C) If the Administrator, in his or her discretion, determines that
the limitation under Subsection (A) would otherwise be exceeded for a Limitation
Year to the extent necessary to prevent such excess from occurring, the amount
of a Participant's Eligible Earnings reductions and Pre-Tax Contributions will
be prospectively reduced. If a further reduction of contributions is required,
the amount of the Profit Sharing Contribution that would otherwise be allocated
to the Participant's Profit Sharing Contribution Account will be reduced and the
aggregate amount of the Profit Sharing Contribution for the Plan Year will be
reduced by the same amount. If, in spite of such reductions and as a result of
reasonable error in estimating the amount of the Participant's Eligible
Earnings, Pre-Tax Contributions, other elective deferrals within the meaning of
Code section 402(g)(3) or Section 415 Wages for the Plan Year, the limitation
would otherwise be exceeded, then, to the extent required to prevent such
excess,
(1) the amount of Pre-Tax Contributions made for the Participant
will be distributed to the Participant and any Matching Contributions
attributable to the amount so distributed, together with earnings on
such contributions, will be forfeited, and
(2) if a further excess would otherwise exist, the amount of such
excess will be held unallocated in a suspense account and will be
allocated to all other Active Participants for the Limitation Year
and, to the extent necessary, subsequent Limitation Years, before
Participating Employer contributions are made for such Limitation Year
or Years, and will operate to reduce the amount of Participating
Employer contributions for such Limitation Year or Years.
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10.7 Aggregate Defined Contribution/Defined Benefit Limitations.
(A) In no event will the amount of a Participant's annual additions
under the Plan for a Limitation Year ending prior to January 1, 2000 exceed an
amount that would cause the decimal equivalent of the sum of the "defined
benefit fraction" plus the "defined contribution fraction" to exceed 1.0.
(B) The "defined benefit fraction" is a fraction, the numerator of
which is the Participant's aggregate projected annual benefit under all defined
benefit pension plans maintained by the Participating Employer or another
Affiliated Organization (determined as of the end of the Plan Year), and the
denominator of which is the lesser of:
(1) 125% of the maximum dollar benefit limitation in effect for
the Limitation Year under such defined benefit pension plans; and
(2) 140% of the average Section 415 Wages of the Participant
during the three consecutive Limitation Years during which he or she
was a Participant in any such defined benefit pension plan that
produce the highest average.
(C) The "defined contribution fraction" is a fraction, the numerator
of which is the sum of the annual additions to the Participant's accounts for
the Limitation Year under this Plan and any other defined contribution plans
maintained by the Participant's Employer or another Affiliated Organization,
determined in the manner described in Section 10.6, and the denominator of which
is the aggregate of the lesser of:
(1) 125% of the maximum annual addition dollar limit in effect
for the Limitation Year under such defined contributions plans; and
(2) 35% of the Participant's Section 415 Wages for the Limitation
Year,
applied for all years during which the Participant was employed with the
Participating Employer or another Affiliated Organization, without regard to
whether there was a defined contribution plan in effect during all such years;
provided, that, if a plan satisfied the applicable provisions of Code section
415 as in effect for all Limitation Years beginning before January 1, 1987, then
the numerator of this fraction will be adjusted by permanently subtracting an
amount, determined as of such date, so that the sum of the defined contribution
fraction and the defined benefit faction computed under Code section 415(e)(1)
does not exceed 1.0 for such Limitation Year; and provided further, that Annual
Additions for any Limitation Year beginning before January 1, 1987 will be
determined by taking into account only such amounts as were treated as annual
additions under Code section 415 as in effect for such year.
(D) If the annual additions that would otherwise be made with respect
to a Participant for a Limitation Year would cause the limitation of Subsection
(A) to be exceeded, the Participant's benefit under one or more defined benefit
pension plans maintained by the Participating Employer or another Affiliated
Organization will, to the extent provided in such
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plans, be reduced to the extent necessary to prevent such excess from occurring,
and, if a sufficient reduction cannot be made under such plans, the provisions
of Section 10.6(C) will be applied to reduce the amount of the annual additions
to the Participant's Accounts under this Plan for such Limitation Year to the
extent necessary to prevent such excess.
10.8 Administrator's Discretion. Notwithstanding the foregoing provisions
of this article, the Administrator may, in his or her discretion, apply the
provisions of Sections 10.1 through 10.7 in any manner permitted by Treasury
Regulations that will cause the Plan to satisfy the limitations of the Code
incorporated in such sections, and the Administrator's good faith application of
Treasury Regulations will be binding on all Participants and Beneficiaries.
ARTICLE XI
Service Rules
-------------
11.1 Continuous Service. Except as otherwise provided in an Appendix to
this Plan:
(A) An Employee's "Continuous Service" means the sum of the lengths of
the periods of the Employee's service with a Participating Employer or with
another Affiliated Organization, commencing as of the Employee's employment
commencement date or reemployment commencement date, as the case may be,
and ending with the Employee's next employment severance date, as
determined in accordance with the following rules:
(1) an Employee's "employment commencement date" is the date on
which he or she first performs an Hour of Service;
(2) an Employee's "reemployment commencement date" is the first
date, following a period of severance from employment which is not
required to be taken into account under either item (4) or (5), on
which the Employee performs an Hour of Service;
(3) for purposes of this Section 11.1 only, an Employee's
"employment severance date" is the earlier to occur of:
(a) the date on which the Employee terminates employment
with the Participating Employer and all other Affiliated
Organizations because he or she quits, retires, is discharged or
dies; or
(b) the first anniversary of the first date of a period
during which the Employee remains absent from service (with or
without pay) with the Participating Employer or with another
Affiliated Organization for any reason other than a quit,
retirement, discharge or death following the employment
commencement date or reemployment commencement date, as the case
may be;
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provided, however, that if an Employee becomes absent after November
30, 1985 on account of (i) the pregnancy of such Employee, (ii) the
birth of a child of such Employee, (iii) the placement of a child with
such Employee on account of the adoption of such child by such
Employee or (iv) the Employee's caring for such child immediately
following such birth or placement, then the Employee's employment
severance date will not be earlier than the first anniversary of the
date such absence commenced or the date on which the absence ceases to
be on account of one or more of such reasons, whichever first occurs;
provided further that this proviso will not apply unless such Employee
furnishes to the Administrator upon his request, such information as
the Administrator will require to determine the reasons for the
Employee's absence or continued absence;
(4) if the Employee's employment is severed by reason of a quit,
discharge or retirement and he or she subsequently performs an Hour of
Service within 12 months following the employment severance date, the
period of such severance will be taken into account;
(5) if the Employee's employment is severed by reason of a quit,
discharge or retirement during an absence from service of 12 months or
less for any reason other than a quit, discharge, retirement or death
and the Employee subsequently performs an Hour of Service within 12
months following the date on which such absence commenced, the period
of such severance will be taken into account.
(B) To the extent provided in Subsection (A), service by a person who
is a "leased employee" (within the meaning of Code section 414(n)(2)) of a
Participating Employer or an Affiliated Organization will be deemed to be
Continuous Service for purposes of the Plan in the event such person ever
becomes a Participant.
(C) To the extent provided in Subsection (A), service by a person who,
although employed with a Participating Employer, is not an "Qualified
Employee" or who is employed with an Affiliated Organization which has not
adopted the Plan, will be deemed to be Continuous Service for purposes of
the Plan, and will be taken into account under the Plan in the event such
person ever becomes a Participant.
(D) Notwithstanding the foregoing provisions of this section, the
period of a Participant's service in the employ of a corporation or other
organization whose business is acquired by a Participating Employer, prior
to such acquisition, may be taken into account if specifically provided by
the Management Committee of the Company, but only to the extent so
provided.
11.2 Hour of Service. Except as otherwise provided herein, "Hour of
Service," with respect to an Employee, includes and is limited to each hour for
which the Employee is paid, or entitled to payment, for the performance of
duties for a Participating Employer or another Affiliated Organization.
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11.3 Break in Service. An Employee will incur a "Break in Service" if the
period commencing on the employment severance date (as defined in Section
11.1(A)(3)) and ending on the reemployment commencement date (as defined in
Section 11.1(A)(2)) is equal to or in excess of one year.
11.4 Loss of Service. If a Participant experiences a Break in Service equal
to the greater of five years and the number of years of Continuous Service the
Participant earned prior to such Break in Service (disregarding any years of
Continuous Service not required to be taken into account because of any previous
Break in Service), then
(A) If the Participant has a vested interest in any Account,
(1) Continuous Service completed prior to such Break in Service
will be taken into account in determining his or her vested interest
in his or her Accounts attributable to contributions made for periods
after such Break in Service only if the Employee completes one year of
Continuous Service following such Breaks in Service; and
(2) the extent of the Employee's vested interest in his or her
Accounts as determined under Section 8.1 prior to such Break in
Service will not be increased by Continuous Service completed
following such Break in Service, or
(B) If the Participant has no vested interest in any Account, the
Participant's service prior to such Break in Service will not be taken into
account for any purpose under the Plan.
11.5 Special Rule for Military Service. Notwithstanding any provision of
this Plan to the contrary, contributions, benefits, and service credit with
respect to qualified military service will be provided in accordance with Code
section 414(u).
ARTICLE XII
Adoption, Amendment and Termination
-----------------------------------
12.1 Adoption by Affiliated Organizations. An Affiliated Organization may
adopt this Plan and become a Participating Employer with the prior approval of
the Administrator by furnishing a certified copy of a resolution of its
governing body adopting the Plan. Any adoption of the Plan by an Affiliated
Organization, however, must be authorized by the Administrator.
12.2 Authority to Amend and Procedure.
(A) The Company reserves the right to amend the Plan at any time, to
any extent that it may deem advisable. Each amendment will be stated in a
written instrument, executed in the name of the Company by its officer
designated for such purpose by the Company's Management Committee. Upon the
execution of such instrument, the Plan will be deemed to have been amended as
set forth in the instrument, and all Participants and
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Participating Employers will be bound by the amendment; provided, first, that no
amendment will increase the duties or liabilities of the Trustee without its
written consent; and, second, that no amendment will have any retroactive effect
so as to deprive any Participant, or any Beneficiary of a deceased Participant,
of any benefit already accrued or vested or of any option with respect to the
form of such benefit that is protected by Code section 411(d)(6), except that
any amendment that is required to conform the Plan with government regulations
so as to qualify the Trust for income tax exemption may be made retroactively to
the Effective Date of the Plan or to any later date.
(B) If the schedule for determining the extent to which benefits under
the Plan are vested is changed, whether by amendment or on account of the Plan's
becoming or ceasing to be a top-heavy plan, each Participant with at least three
years of Continuous Service may elect to have his or her vested benefits
determined without regard to such change by giving written notice of such
election to the Administrator within the period beginning on the date such
change was adopted (or the Plan's top heavy status changed) and ending 60 days
after the latest of (1) the date such change is adopted, (2) the date such
change becomes effective or (3) the date the Participant is issued notice of
such change by the Administrator or the Trustee. Except as otherwise provided in
an amendment permitted by Treasury Regulations, if an optional form of benefit
payment protected under Code section 411(d)(6) is eliminated, each Participant
may elect to have that portion of the value of his or her Accounts that was
accrued as of the date of such elimination, distributed in the optional form of
benefit payment that was eliminated.
(C) The provisions of the Plan in effect at the termination of a
Participant's employment will, except as specifically provided otherwise by a
subsequent amendment, continue to apply to such Participant.
12.3 Authority to Terminate and Procedure. The Company expects to continue
the Plan indefinitely but reserves the right to terminate the Plan in its
entirety at any time. Each Participating Employer expects to continue its
participation in the Plan indefinitely but reserves the right to cease its
participation in the Plan at any time. The Plan will terminate in its entirety
or with respect to a particular Participating Employer as of the date specified
by the Company or such Participating Employer, as the case may be, to the
Trustee in a written notice executed in the manner of an amendment.
12.4 Vesting Upon Termination, Partial Termination or Discontinuance of
Contributions. Upon termination of the Plan or upon the complete discontinuance
of contributions by all Participating Employers, the Accounts of each
Participant who is an Employee of a Participating Employer or another Affiliated
Organization will, to the extent funded, vest in full. Upon a partial
termination of the Plan, the Accounts of each Participant as to whom the Plan
has been partially terminated will, to the extent funded, vest in full.
12.5 Distribution Following Termination, Partial Termination or
Discontinuance of Contributions. After termination or partial termination of the
Plan or the complete discontinuance of contributions under the Plan, the Trustee
will continue to hold and distribute the Fund at the times and in the manner
provided by Article IX as if such event had not
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occurred or, if the Administrator so directs in accordance with Treasury
Regulations, will distribute to each Participant the entire balance of his or
her Accounts.
ARTICLE XIII
Administration of Plan
----------------------
13.1 Administrator, Named Fiduciary. The general administration of the Plan
and the duty to carry out its provisions will be vested in the Company, which
will be the "named fiduciary" of the Plan for purposes of the Employee
Retirement Income Security Act of 1974. The officer of the Company designated
for such purpose by the Company's Management Committee will perform such duty on
behalf of the Company and may delegate all or any portion of such duty to a
named person and may from time to time revoke such authority and delegate it to
another person. Each such delegation to a person who is not an employee of the
Company will be in writing, and a copy will be furnished to the person to whom
the duty is delegated. Such person will file a written acceptance with the
officer who delegated the duty. Such person's duty will terminate upon
withdrawal of such authority by the officer who delegated the duty or upon
withdrawal of such acceptance by the person to whom the duty was delegated. Any
such withdrawal will be in writing, and will be effective upon delivery of a
copy to the person to whom the duty was delegated or to the officer who
delegated the duty as the case may be. Any delegation to an employee of the
Company will terminate when such person ceases to be an employee or upon its
earlier revocation by the officer who delegated the duty.
13.2 Compensation and Expenses. An employee of a Participating Employer
or another Affiliated Organization performing administrative duties in
connection with the Plan will receive no compensation from the Fund for such
services, but will be entitled to reimbursement from the Fund for all sums
reasonably and necessarily expended in the performance of such duties. The
Administrator may retain such independent accounting, legal, clerical and other
services as may reasonably be required in the administration of the Plan and may
pay reasonable compensation from the Fund for such services. Any such
reimbursement or compensation and all other costs of administering the Plan
will, to the extent not paid by the Participating Employers, be paid by the
Trustee from the Fund upon statements issued by the Administrator.
13.3 Adoption of Rules. The Administrator has the discretionary power to
make and enforce such Plan Rules as he or she deems to be required or advisable
for the effective administration of the Plan.
13.4 Administrator's Discretion. The Administrator has the power and
discretion to make all determinations necessary for the administration of the
Plan, except those determinations that the Plan requires others to make, and to
construe, interpret, apply and enforce the provisions of the Plan, including the
power to remedy ambiguities, inconsistencies, omissions and erroneous account
balances. In the exercise of its discretionary powers, the Administrator will
treat all similarly situated Participants and Beneficiaries uniformly. A
decision of the Administrator as to any matter shall be conclusive and binding
unless it is found by a court of competent jurisdiction to have been arbitrary
and capricious.
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13.5 Reliance on Information.
(A) The Administrator and any other person having fiduciary
responsibilities under the Plan are entitled to rely upon all tables,
valuations, certificates and reports furnished by any duly appointed independent
qualified public accountant (under the terms of the Employee Retirement Income
Security Act of 1974), and upon all opinions given by legal counsel. The
Administrator and any such person will be fully protected in respect of any
action taken or suffered in good faith in reliance upon all such tables,
valuations, certificates, reports, opinions or other advice.
(B) The Administrator is entitled to rely upon any data or information
furnished by a Participating Employer or by a Participant as to age, service or
compensation of any person, and as to any other information pertinent to any
calculation or determination to be made under the provisions of the Plan and, as
a condition to payment of any benefit under the Plan, may request any
Participant to furnish such information as the Administrator deems necessary or
desirable in administering the Plan.
13.6 Indemnification. The Participating Employers jointly and severally
agree to indemnify and hold harmless, to the extent permitted by law, each
director, officer, and employee of any Affiliated Organization against any and
all liabilities, losses, costs and expenses (including legal fees) of every kind
and nature that may be imposed on, incurred by, or asserted against such person
at any time by reason of such person's services in connection with the Plan, but
only if such person did not act dishonestly or in bad faith or in willful
violation of the law or regulations under which such liability, loss, cost or
expense arises. The Participating Employers will have the right, but not the
obligation, to select counsel and control the defense and settlement of any
action for which a person may be entitled to indemnification under this
provision.
13.7 Benefit Claim Procedure. Within a reasonable time following
termination of a Participant's employment, the Administrator will notify the
Participant or the Beneficiary, of the amount of benefits, if any, payable under
the Plan. Not later than 30 days after receipt of such notice, the Participant
or Beneficiary, as the case may be, may file with the Administrator a written
claim objecting to the amount of benefits payable under the Plan. Not later than
90 days after receipt of such claim, the Administrator will render a written
decision on the claim to the claimant. If the claim is denied in whole or in
part, such decision will include: the reasons for the denial; a reference to the
Plan provision that is the basis for the denial; a description of any additional
material or information necessary for the claimant to perfect the claim; an
explanation as to why such information or material is necessary; and an
explanation of the Plan's claim procedure. Not later than 60 days after
receiving the Administrator's written decision, the claimant may file with the
Administrator a written request for review of the Administrator's decision, and
the claimant or the representative may thereafter review Plan documents that
relate to the claim and submit written comments to the Administrator. Not later
than 60 days after the Administrator's receipt of the request for review, the
Administrator will render a written decision on the claim, which decision will
include the specific reasons for the decision, including references to specific
Plan provisions where appropriate. The 90- and 60-day periods during which the
Administrator must respond to the claimant may be extended by up to an
additional
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<PAGE>
90 or 60 days, respectively, if circumstances beyond the Administrator's control
so require and if notice of such extension is given to the claimant.
13.8 Correction of Errors. If the Administrator determines that, by reason
of administrative error or other cause attributable to a Participating Employer,
the Account of any Participant has incurred a loss, the Administrator may enter
into an agreement with such Participating Employer under which the Account is
fully restored and may, upon such restoration, release the Participating
Employer from further responsibility.
ARTICLE XIV
Miscellaneous
-------------
14.1 Merger, Consolidation, Transfer of Assets. If this Plan is merged or
consolidated with, or its assets or liabilities are transferred to, any other
plan, each Participant will be entitled to receive a benefit immediately after
such merger, consolidation or transfer (if such other plan were then terminated)
that is equal to or greater than the benefit he or she would have been entitled
to receive immediately before such merger, consolidation or transfer (if this
Plan had then terminated). If any other plan is merged into this Plan, any
provisions unique to the Accounts resulting from such merger will be set forth
in an exhibit, which will be appended to this instrument.
14.2 Limited Reversion of Fund.
(A) Except as provided in Subsection (B), no corpus or income of the
Trust will at any time revert to a Participating Employer or be used other than
for the exclusive benefit of Eligible Employees, Participants and Beneficiaries
by paying benefits and, if applicable, administrative expenses of the Plan.
(B) Notwithstanding any contrary provision in the Plan,
(1) All contributions made by a Participating Employer to the
Trustee prior to the initial determination of the Internal Revenue
Service as to qualification of the Plan under Code section 401(a) and
the tax exempt status of the Trust under Code section 501(a) will be
repaid by the Trustee to such Participating Employer upon the
Participating Employer's written request, if the Internal Revenue
Service rules that the Plan, as adopted by that Participating
Employer, is not qualified or the Trust is not tax exempt; provided,
that the Participating Employer requests such determination within a
reasonable time after adoption of the Plan and the repayment by the
Trustee to such Participating Employer is made within one year after
the date of denial of qualification of the Plan. Each contribution to
the Plan by a Participating Employer is expressly conditioned on the
initial qualification of the Plan under section 401(a) of the Code and
the tax exempt status of the Trust under Code section 501(a).
(2) To the extent a contribution is made by a Participating
Employer by a mistake of fact or a deduction is disallowed a
Participating Employer under
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Code section 404, the Trustee will repay the contribution to such
Participating Employer upon the Participating Employer's written
request; provided, that such repayment is made within one year after
the mistaken payment is made or the deduction is disallowed, as the
case may be. The amount returned to the Participating Employer will
not include any investment gains or earnings but will be reduced by
any investment losses. Each contribution to the Plan by a
Participating Employer is expressly conditioned on such contribution's
being fully deductible by the Participating Employer under Code
section 404.
14.3 Top-Heavy Provisions.
(A) If the Plan becomes a "top-heavy plan," the following provisions
will apply to, and control the operation and administration of, the Plan for
those Plan Years during which the Plan is a top-heavy plan.
(1) Notwithstanding the provisions of Article IV, the amount of
contributions (excluding Pre-Tax Contributions) made and allocated for
such Plan Year on behalf of each Active Participant who is not a key
employee and who is employed with a Participating Employer or another
Affiliated Organization on the last day of the Plan Year (whether or
not such Participant completed at least 1,000 Hours of Service during
the Plan Year), expressed as a percentage of the Participant's Testing
Wages for the Plan Year, will be at least equal to the lesser of 3% or
the largest percentage of such Testing Wages at which contributions
(including Pre-Tax Contributions) that are made and allocated on
behalf of any key employee for such Plan Year.
(2) If, in addition to this Plan, the Participating Employer or
another Affiliated Organization maintains another qualified defined
contribution plan or one or more qualified defined benefit pension
plans during a Plan Year, the provisions of clause (1) will be applied
for such Plan Year:
(a) by taking into account the Participating Employer
contributions (other than elective contributions for a non-key
employee) on behalf of the Participant under all such defined
contribution plans;
(b) without regard to any Participant who is not a key
employee and whose accrued benefit, expressed as a single life
annuity, under a defined benefit pension plan maintained by the
Participating Employer or another Affiliated Organization for
such Plan Year is not less than the product of:
(i) the Participant's average Testing Wages for the
period of consecutive years (not exceeding five) when the
Participant had the highest aggregate Testing Wages,
disregarding years in which the Participant completed less
than 1,000 Hours of Service, multiplied by
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(ii) the lesser of (A) 2% per year of service,
disregarding years of service beginning after the close of
the last Plan Year in which such defined benefit plan was a
top heavy plan, or (B) 20%.
(3) Each Participant's vested interest in his or her Matching
and Profit Sharing Contribution Accounts will be the vested interest
determined under Section 8.1(D) or determined in accordance with the
following schedule, whichever provides the greater vested interest for
the Participant:
Years of Vesting Service Extent of Vested Interest
------------------------ -------------------------
Less than Two Years 0%
Two Years 20%
Three Years 40%
Four Years 60%
Five Years 80%
Six or more Years 100%
If the Plan ceases to be a top-heavy plan, the portion of a
Participant's Matching and Profit Sharing Contribution Accounts that
has vested pursuant to the foregoing schedule will remain
nonforfeitable, notwithstanding the subsequent application of the
vesting schedule set forth in Section 8.1(E) to amounts subsequently
allocated to the Matching and Profit Sharing Contribution Accounts.
(B) For purposes of Subsection (A),
(1) The Plan will be a "top-heavy plan" for a particular Plan
Year if, as of the last day of the initial Plan Year or, with respect
to any other Plan Year, as of the last day of the preceding Plan Year,
the aggregate of the Account balances of key employees is greater than
60% of the aggregate of the Account balances of all Participants. For
purposes of calculating the aggregate Account balances for both key
employees and employees who are not key employees:
(a) Any distributions made within the five-year period
preceding the Plan Year for which the determination is being
made, other than a distribution transferred or rolled over to a
plan maintained by a Participating Employer or another Affiliated
Organization, will be included;
(b) Amounts transferred or rolled over from a plan not
maintained by a Participating Employer or another Affiliated
Organization at the initiation of the Participant will be
excluded;
(c) The Account balances of any key employee and any
employee who is not a key employee who has not performed an Hour
of
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Service at any time during the five-year period ending on the
date as of which the determination is being made will be
excluded; and
(d) The terms "key employee" and "employee" will include the
Beneficiaries of such persons who have died.
(2) Notwithstanding the provisions of clause (1), this Plan will
not be a top-heavy plan if it is part of either a "required
aggregation group" or a "permissive aggregation group" and such
aggregation group is not top-heavy. An aggregation group will be top-
heavy if the sum of the present value of accrued benefits and account
balances of key employees is more than 60% of the sum of the present
value of accrued benefits and account balances for all Participants,
such accrued benefits and account balances being calculated in each
case in the same manner as set forth in clause (1). Each plan in a
required aggregation group will be top-heavy if the group is top-
heavy. No plan in a required aggregation group will be top-heavy if
the group is not top-heavy. If a permissive aggregation group is top-
heavy, only those plans that are part of an underlying top-heavy,
required aggregation group will be top-heavy. No plan in a permissive
aggregation group will be top-heavy if the group is not top-heavy.
(3) The "required aggregation group" consists of (i) each plan of
an Affiliated Organization in which a key employee participates, and
(ii) each other plan of an Affiliated Organization that enables a plan
in which a key employee participates to meet the nondiscrimination
requirements of Code sections 401(a)(4) and 410(b).
(4) A "permissive aggregation group" consists of those plans that
are required to be aggregated and one or more plans (providing
comparable benefits or contributions) that are not required to be
aggregated, which, when taken together, satisfy the requirements of
Code sections 401(a)(4) and 410(b).
(5) For purposes of applying clauses (2), (3) and (4) of this
Subsection (B), any qualified defined contribution plan maintained by
a Participating Employer or another Affiliated Organization at any
time within the five-year period preceding the Plan Year for which the
determination being made which, as of the date of such determination,
has been formally terminated, has ceased crediting service for benefit
accruals and vesting and has been or is distributing all plan assets
to participants or their beneficiaries, will be taken into account to
the extent required or permitted under such clauses and under Code
section 416.
(C) A "key employee" is any person who is or was employed with a
Participating Employer and who, at any time during the Plan Year in question or
any of the preceding four Plan Years is or was:
(1) An officer of the Participating Employer (an administrative
executive in regular and continued service with the Participating
Employer) whose
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Testing Wages for such Plan Year exceeds 50% of the amount in effect
under Code section 415(b)(1)(A) for such Plan Year, but in no case
will there be taken into account more than the lesser of (a) 50
persons, or (b) the greater of (i) three persons or (ii) 10% of the
number of the Participating Employer's employees;
(2) The owner of an interest in the Participating Employer,
including business entities that are required to be aggregated under
Code section 414(b), (c) or (m), that is not less than the interest
owned by at least ten other persons employed with the Participating
Employer; provided, that, such owner will not be a key employee solely
by reason of such ownership for a Plan Year if he or she does not own
more than one-half of one percent of the value of the outstanding
interests of the Participating Employer or if the amount of his
Testing Wages for such Plan Year are less than the amount in effect
under Code section 415(c)(1)(A) for such Plan Year;
(3) The owner of more than 5% of the Participating Employer's
outstanding stock or more than 5% of the total combined voting power
of the Participating Employer's stock; or
(4) The owner of more than 1% of the Participating Employer's
outstanding stock or more than 1% of the total combined voting power
of the Participating Employer's stock, whose Testing Wages for such
Plan Year exceed $150,000.
For purposes of this Subsection (C), ownership of the Participating Employer's
stock will be determined in accordance with Code section 318; provided, first,
that Code section 318(a)(2)(C) will be applied by substituting the phrase "5%"
for the phrase "50%" wherever it appears in such Code section; and, second,
that, for purposes of clauses (3) and (4), the rules of Code section 414(b),
(c), (m), (n) and (o) will not apply.
(D) If the Participating Employer maintains a qualified defined
contribution plan and a qualified defined benefit plan, the limitation on
combined contributions and accrued benefits will be adjusted by substituting
"100%" for "125%" in the definitions of the defined benefit fraction and the
defined contribution fraction in Section 10.7; provided, first, that this
Subsection (1) will be applied prospectively only to prohibit additional
contributions allocated, and forfeitures reallocated, to, and defined benefit
accruals for, a Participant and will not reduce any allocations or reallocations
made to, or benefits accrued for, such Participant prior to the Plan Year for
which it first becomes effective; and, second, that if the Plan would not be a
top heavy plan if "90%" were substituted for "60%" in clause (1) of Subsection
(B), this Subsection (D) will not apply if:
(1) the aggregate Participating Employer contribution (other than
elective contributions) under all such qualified defined contribution
plans on behalf of each Participant who is not a key employee and who
is employed with a Participating Employer or another Affiliated
Organization on the last day of the
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Plan Year is not less than 7-1/2% of his or her Testing Wages for the
Plan Year, or
(2) the accrued benefit for each Participant under the qualified
defined benefit pension plan is not less than the benefit described in
Subsection (A)(2)(b), applied by substituting "3%" for "2%" in item
(A) of clause (ii) and "30%" for "20%" in item (B) of clause (ii).
14.4 No Employment Rights Created. The establishment and maintenance
of the Plan neither give any employee a right to continuing employment nor limit
the right of a Participating Employer to discharge any employee or otherwise
deal with the employee without regard to the effect such action might have on
his or her initial or continued participation in the Plan.
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APPENDIX A
TO THE
EFTEC SAVINGS PLAN
1997
H.B. FULLER COMPANY
-------------------
Following the Effective Date of this Plan, the Trustee may accept from the
trustees of the H.B. Fuller Company Thrift Plan and the H.B. Fuller Company
Profit Share Plus Plan the assets and liabilities of such plans that are
attributable to employees of H.B. Fuller Company or its subsidiaries who are
transferred to employment with the Company, on or before July 1, 1997, at the
request or with the consent of both the Company and their previous employer, and
who become Participants in this Plan ("H.B. Fuller Participants"). This Appendix
A applies to any H.B. Fuller Participant. Any defined term used in this Appendix
A shall have the meaning assigned to such term under the Plan unless otherwise
specifically provided.
1. Participation.
(A) Each H.B. Fuller Participant who was an active participant in the
H.B. Fuller Company Thrift Plan on the day before the date he or she became a
Qualified Employee will become eligible to be a Participant in this Plan for the
purpose of making Pre-Tax Contributions on the date he or she becomes a
Qualified Employee. An H.B. Fuller Participant's election to reduce Eligible
Earnings that is in effect under the H.B. Fuller Company Thrift Plan when such
Participant becomes a Qualified Employee shall remain in effect under this Plan
until it is changed or terminated in accordance with the provisions of this
Plan.
(B) Each H.B. Fuller Participant who was an active participant in the
H.B. Fuller Company Profit Share Plus Plan on the day before the date he or she
became a Qualified Employee will become a Participant in this Plan for the
purpose of receiving Profit Sharing Contributions on the date he or she becomes
a Qualified Employee.
2. Continuous Service. For the purposes of Article XI of this Plan,
continuous service credited to an H.B. Fuller Participant under the H.B. Fuller
Company Thrift Plan prior to the date he or she became a Qualified Employee
shall be treated as Continuous Service for the purposes of this Plan.
3. Accounts. In addition to the Accounts established under Section 5.1
of the Plan, the following Accounts will be established and maintained for H.B.
Fuller Participants:
(A) After-Tax Contribution Account. An After-Tax Contribution Account
will be established for each H.B. Fuller Participant for whom such an
Account was established under the H.B Fuller Company Thrift Plan and
transferred to this Plan, to which there will be credited the amount so
transferred.
(B) H.B. Fuller Matching Contribution Account. An H.B. Fuller
Matching Contribution Account will be established for each H.B. Fuller
Participant for whom a
54
<PAGE>
Matching Contribution Account was established under the H.B Fuller Company
Thrift Plan and transferred to this Plan, to which there will be credited
the amount so transferred.
(C) H.B. Fuller Profit Share Plus Account. An H.B. Fuller Profit
Share Plus Account will be established for each H.B. Fuller Participant for
whom an Account was established under the H.B Profit Share Plus Plan and
transferred to this Plan, to which there will be credited the amount so
transferred.
Amounts Credited to the Pre-Tax Contribution and Rollover Accounts established
for an H.B. Fuller Participant under the H.B. Fuller Company Thrift Plan shall
be credited to the corresponding Accounts established for the Participant under
this Plan.
4. Special Distribution Rules. Subject to the provisions of Section 7.4
of the Plan, an H.B. Fuller Participant may withdraw from his or her After-Tax
Contribution Account an amount not in excess of the balance of such Account.
Only one such withdrawal may be made during any Plan Year. In all other
respects, Accounts established pursuant to this Appendix A shall be
distributable as provided in this Plan.
5. Special Vesting Rules. Accounts established pursuant to this Appendix
A shall vest as provided in Section 8.1 of the Plan, except as follows:
(A) After Tax Contribution Account. Each H.B. Fuller Participant will
always have a fully vested, nonforfeitable interest in his or her After-Tax
Contribution Account.
(B) H.B. Fuller Matching Contribution Account. Each H.B. Fuller
Participant for whom a PAYSOP Account was maintained by H.B. Fuller Company
on April 30, 1992 will have a fully vested interest in his or her H.B.
Fuller Matching Contribution Account.
(C) H.B. Fuller Profit Share Plus Account. Each H.B. Fuller
Participant will have a fully vested interest in his or her H.B. Fuller
Profit Share Plus Account immediately following the tenth day after the
occurrence of a "Change in Control" of H.B. Fuller Company (as defined in
Section 5.1(D) of the H.B. Fuller Company Profit Share Plus Plan in effect
on the Effective Date of this Plan) unless, prior thereto, a majority of
the "Continuing Directors" (as defined in Section 5.1(E) of the H.B. Fuller
Company Profit Share Plus Plan in effect on the Effective Date of this
Plan) determines there will be no acceleration of vesting with respect to
such Change in Control.
6. Special Investment Rules. Accounts established pursuant to this
Appendix A shall be invested as provided in Article VI of this Plan, except as
follows:
(A) H.B. Fuller Matching Contribution Accounts. Each H.B. Fuller
Matching Contribution Account will be invested in the Company Stock Fund
and will not be subject to any change in form pursuant to any Participant's
investment direction.
55
<PAGE>
However, following the date on which an H.B. Fuller Participant has either
attained age 62 and completed at least ten years of Continuous Service or
terminated employment and become eligible for an immediate pension benefit
under the EFTEC Retirement Plan, the limitation of this subsection will not
apply to the Participant, and the Participant will be entitled to direct
the transfer of all or any portion of his or her H.B. Fuller Matching
Contribution Account to any one or more of the other investment Funds in
the manner prescribed by Plan Rule.
(B) H.B. Fuller Profit Share Plus Accounts. Each H.B. Fuller Profit
Share Plus Account will be invested in the Company Stock Fund and will not
be subject to any change in form pursuant to any Participant's investment
direction, except as follows:
(1) Within the 90-day period immediately following the last day of
each Plan Year within the "qualified election period," as defined at
paragraph (b) of clause (2), a "qualified Participant," as defined at
paragraph (a) of clause (2), may make a written election, in form
prescribed by the Administrator, to transfer not more than the amount
by which (a) 25% of the sum of (i) the qualified Participant's H.B.
Fuller Profit Share Plus Account balance as of the last day of the
immediately preceding Plan Year, plus (ii) the aggregate amount of all
previous transfers with respect to the Participant pursuant to this
clause (1) or Section 6.4 of the H.B. Fuller Company Profit Share Plus
Plan exceeds (b) the aggregate amount of all previous transfers with
respect to the Participant pursuant to this clause (1) or Section 6.4
of the H.B. Fuller Company Profit Share Plus Plan to one or more of
the other investment Funds maintained pursuant to Section 6.1 of this
Plan, to be invested among such Funds pursuant to the Participant's
directions made in accordance with the provisions of such section. For
purposes of applying the preceding sentence in connection with a
qualified Participant's election in the final Plan Year within the
qualified election period pursuant to this clause, the phrase "50%"
will be substituted for the phrase "25%" for purposes of determining
the maximum amount that may be transferred in connection with such
final election. Such transfer will be made not later than 90 days
after the last day of the period within which the qualified
Participant could elect such transfer.
(2) For purposes of this Section 6(B):
(a) "qualified Participant" means a Participant who is not
otherwise entitled to a distribution and who has attained age 55
and completed at least ten full years of participation in this
Plan and the H.B. Fuller Company Profit Share Plus Plan; and
(b) "qualified election period" with respect to a Participant
means the six consecutive Plan Years beginning with the first Plan
Year in which the Participant becomes a qualified Participant.
56
<PAGE>
APPENDIX B
TO THE
EFTEC SAVINGS PLAN
1997
PROTECTIVE TREATMENTS, INC.
---------------------------
Effective as of August 1, 1994, the Protective Treatments, Inc. Profit Sharing
Retirement Savings Plan was merged with and into the H.B. Fuller Company Thrift
Plan. This Appendix B applies to any H.B. Fuller Participant who had an
undistributed account balance in the Protective Treatments, Inc. Profit Sharing
Retirement Savings Plan (the "PTI Plan") at the close of business on July 31,
1994, and whose account balances under the H.B. Fuller Company Thrift Plan were
transferred to this Plan as described in Appendix A. Any defined term used in
this Appendix B shall have the meaning assigned to such term under the Plan
unless otherwise specifically provided.
1. Accounts. In addition to the Accounts established under Section 5.1
of the Plan, the following Accounts (the "PTI Plan Accounts") will be
established and maintained for H.B. Fuller Participants:
(A) PTI Salary Reduction Account. A PTI Salary Reduction Account will
be established for each H.B. Fuller Participant for whom such an Account
was established under the H.B Fuller Company Thrift Plan and transferred to
this Plan, to which there will be credited the amount so transferred.
(B) PTI Matching Contribution Account. A PTI Matching Contribution
Account will be established for each H.B. Fuller Participant for whom such
an Account was established under the H.B Fuller Company Thrift Plan and
transferred to this Plan, to which there will be credited the amount so
transferred.
(C) PTI Voluntary Nondeductible Contribution Account. A PTI Voluntary
Nondeductible Contribution Account will be established for each H.B. Fuller
Participant for whom such an Account was established under the H.B Fuller
Company Thrift Plan and transferred to this Plan, to which there will be
credited the amount so transferred.
In addition, the Administrator may establish such other separate Accounts for an
H.B. Fuller Participant with a PTI Plan Account balance as the Administrator
deems necessary or desirable to facilitate the administration of the Plan.
2. Withdrawals During Employment. Prior to Termination of Employment, an
H.B. Fuller Participant may withdraw funds from his or her PTI Plan Accounts
under the following circumstances:
(A) Hardship Withdrawals. A Participant may withdraw all or any
portion of his or her PTI Salary Reduction Account balance (other than
earnings credited thereto
57
<PAGE>
after December 31, 1988), and all or any portion of his or her PTI General
Account balance, in the event of financial hardship.
(B) Attainment of Age 59-1/2. A Participant who has attained age 59-
1/2 may withdraw all or any portion of his or her PTI Plan Account balances
as of the end of any calendar quarter.
Any such withdrawal shall be subject to the rules set forth in Section 7.4 and,
to the extent applicable, Section 7.1 of the Plan; provided, that such rules
shall not be applied in a manner that would reduce a Participant's "section
411(d)(6) benefits" in a manner not permitted by Treasury Regulation section
1.411(d)-4.
3. Vesting. A Participant shall have a fully vested, nonforfeitable
interest in his or her PTI Plan Accounts at all times.
4. Distributions after Termination. Distributions from a Participant's
PTI Plan Accounts shall be made as provided in Article IX of the Plan, except
that if the amount available for distribution from such Accounts exceeds $3,500
(or exceeded $3,500 at the time of any previous distribution):
(A) the installment method of distribution described in Sections
9.2(C) and (D) of the Plan shall be available for distributions from such
Accounts without regard to the Participant's age or years of Continuous
Service; and
(B) the Participant may elect to receive a distribution from such
Accounts in the form of an annuity, as provided in paragraph 6 below.
5. Annuities.
(A) If a Participant has elected to receive a distribution from his or
her PTI Plan Accounts in the form of an annuity, or if any portion of a
Participant's PTI Plan Accounts was transferred to the PTI Plan after December
31, 1984 from a plan to which the joint and survivor annuity rules of Code
section 401(a)(11) apply, the amounts available for distribution from such
Accounts shall be used to purchase a single premium, nontransferable annuity
contract. The annuity contract shall be distributed to the Participant or, in
the event of the Participant's death, to the Participant's surviving spouse.
(B) The annuity contract described in Subsection (A) shall provide for
the payment of benefits in the form of a "qualified joint and survivor annuity"
if the Participant is living and married on the date his or her PTI Plan
Accounts become distributable, in the form of a "life annuity" if the
Participant is living and not married on such date, or in the form of a
"qualified survivor annuity" if the Participant is not living on such date but
was married on the date of his or her death. For the purposes of this paragraph:
(1) A "qualified joint and survivor annuity" is an annuity for the
life of the Participant, with a survivor annuity for the Participant's
surviving spouse
58
<PAGE>
which is 50% of the amount payable during the joint lives of the
Participant and the Participant's spouse. A qualified joint and
survivor annuity shall be the actuarial equivalent (determined under
the assumptions then in use for such purpose by the insurer from which
the contract is purchased) of a single annuity for the life of the
Participant.
(2) A "life annuity" is a single annuity for the life of the
Participant.
(3) A "qualified survivor annuity" is a single annuity for the
life of the Participant's surviving spouse.
(C) Subsection (A) shall not apply to any Participant if:
(1) in the case of a qualified joint and survivor or life
annuity, the Participant elects to waive such form of benefit; or
(2) in the case of a qualified survivor annuity:
(a) the Participant has designated someone other than the
Participant's spouse as his or her Beneficiary, and the spouse
has consented to such designation, as provided in Section 9.3 of
the Plan;
(b) the Participant's spouse elects a different form of
payment; or
(c) the Participant has not been married to the same spouse
throughout the one year period ending on the date of the
Participant's death.
(D) An election to waive the qualified joint and survivor or life
annuity shall be made in writing during the 90 day period ending on the date the
Participant's benefit payments are scheduled to begin; provided, that such
period shall not end until at least 30 days after the date the Participant is
provided with a written explanation of:
(1) the terms and conditions of the qualified joint and survivor
or life annuity;
(2) the Participant's right to make, and the effect of, an
election to waive the qualified joint and survivor or life annuity;
(3) the rights of the Participant's spouse with respect to any
such election; and
(4) the Participant's right to make, and the effect of, a
revocation of such election.
59
<PAGE>
A distribution may be made less than 30 (but not less than seven) days after
such written explanation is given if the Administrator clearly informs the
distributee that he or she has a right to a period of at least 30 days after
receiving the explanation to consider whether to waive the joint and survivor
annuity and the distributee, after receiving the explanation, affirmatively
elects waive the joint and survivor annuity.
(E) An election to waive a qualified joint and survivor annuity or a
qualified survivor annuity shall not be effective unless accompanied by a valid
written consent which is signed by the Participant's spouse. Such consent shall
be irrevocable, and shall be valid only if it is signed by the spouse to whom
the Participant is married on the earlier of the date of the Participant's death
or the date the Participant's benefit payments begin, and then only if it
acknowledges the effect of the Participant's election and is witnessed by a
representative of the Plan or a notary public. The Beneficiary or form of
benefit designated by a Participant pursuant to a valid spousal consent may not
be changed without the spouse's consent, unless the original consent permitted
such changes without further consent. An election to waive a qualified joint and
survivor or life annuity may be revoked by the Participant, in writing, at any
time during the applicable periods specified in Subsection (D).
60
<PAGE>
APPENDIX C
TO THE
EFTEC SAVINGS PLAN
1997
EMS-TOGO CORPORATION
--------------------
Following the Effective Date of this Plan, the Trustee may accept from the
trustees of the EMS-TOGO Corporation 401(k) Investment Plan the assets and
liabilities of such plan that are attributable to participants who are
transferred to employment with the Company, on or before July 1, 1997, at the
request or with the consent of both the Company and their previous employer, and
who become Participants in this Plan ("EMS-TOGO Participants"). This Appendix C
applies to any EMS-TOGO Participant. Any defined term used in this Appendix C
shall have the meaning assigned to such term under the Plan unless otherwise
specifically provided.
1. Participation. Each EMS-TOGO Participant who was an active
participant in the EMS-TOGO Corporation 401(k) Investment Plan on the day before
the date he or she became a Qualified Employee, will become eligible to be a
Participant in this Plan on the date he or she becomes a Qualified Employee.
2. Continuous Service. For the purposes of Article XI of this Plan,
service credited to an EMS-Togo Participant under the EMS-TOGO Corporation
401(k) Investment Plan prior to the date he or she became a Qualified Employee
shall be treated as Continuous Service for the purposes of this Plan.
3. Accounts. In addition to the Accounts established under Section 5.1
of the Plan, the following Accounts will be established and maintained for EMS-
TOGO Participants:
(A) EMS-TOGO Elective Account. An EMS-TOGO Elective Account will be
established for each EMS-TOGO Participant for whom a Participant's Elective
Account was established under the EMS-TOGO Corporation 401(k) Investment
Plan and transferred to this Plan, to which there will be credited the
amount so transferred.
(B) EMS-TOGO Employer Contribution Account. An EMS-TOGO Employer
Contribution Account will be established for each EMS-TOGO Participant for
whom a Participant's Account was established under the EMS-TOGO Corporation
401(k) Investment Plan and transferred to this Plan, to which there will be
credited the amount so transferred. A separate accounting shall be
maintained for that portion of an EMS-TOGO Employer Contribution Account
that is attributable to the Participant's matching contributions that were
Employer Non-Elective Contributions and Employer Discretionary
Contributions under the EMS-TOGO Corporation 401(k) Investment Plan.
(C) EMS-TOGO Rollover Account. An EMS-TOGO Rollover Account will be
established for each EMS-TOGO Participant for whom a Participant's Rollover
61
<PAGE>
Account was established under the EMS-TOGO Corporation 401(k) Investment
Plan and transferred to this Plan, to which there will be credited the
amount so transferred.
(D) Voluntary Contribution Account. A Voluntary Contribution Account
will be established for each EMS-TOGO Participant for whom a Voluntary
Contribution Account was established under the EMS-TOGO Corporation 401(k)
Investment Plan and transferred to this Plan, to which there will be
credited the amount so transferred. Such Account shall include any
subaccounts established for the Participant under the EMS-TOGO Corporation
401(k) Investment Plan.
An EMS-TOGO Participant's EMS-TOGO Elective, EMS-TOGO Employer Contribution,
EMS-TOGO Rollover, and Voluntary Contribution Accounts are collectively referred
to in this Appendix as the "EMS-TOGO Accounts."
4. Special Distribution Rules.
(A) Withdrawals During Employment. Prior to Termination of
Employment, an EMS-TOGO Participant may withdraw funds from his or her EMS-TOGO
Accounts under the following circumstances:
(1) Voluntary Contribution Account. An EMS-TOGO Participant may
withdraw from his or her Voluntary Contribution Account an amount not
in excess of the balance of such Account. If any subaccounts have been
established for the Participant under his or her Voluntary
Contribution Account, the Participant may designate the subaccount
from which the withdrawal will be made.
(2) Hardship Withdrawals. A Participant may withdraw all or any
portion of his or her EMS-TOGO Elective Account balance (other than
earnings credited thereto after December 31, 1988), and all or any
part of the vested portion of his or her EMS-TOGO Employer
Contribution Account balance, in the event of financial hardship.
Any such withdrawal shall be subject to the rules set forth in Section 7.4 and,
to the extent applicable, Section 7.1 of the Plan; provided, that such rules
shall not be applied in a manner that would reduce a Participant's "section
411(d)(6) benefits" in a manner not permitted by section 1.411(d)-4 of the
Income Tax Regulations.
(B) Distributions after Termination of Employment. Distributions from
an EMS-TOGO Participant's EMS-TOGO Accounts shall be made as provided in Article
IX of the Plan, except that if the amount available for distribution from such
Accounts exceeds $3,500 (or exceeded $3,500 at the time of any previous
distribution), the installment method of distribution described in Sections
9.2(C) and (D) of the Plan shall be available for distributions from such
Accounts without regard to the Participant's age or years of Continuous Service.
62
<PAGE>
5. Special Vesting Rules. Each EMS-TOGO Participant will always have a
fully vested, nonforfeitable interest in all of his or her EMS-TOGO Accounts.
6. Plan Loans. No new loans shall be made to an EMS-TOGO Participant
following the transfer of the Participant's EMS-TOGO Accounts to this Plan;
however, any participant loan that is outstanding on the date of such transfer
may be repaid to this Plan in accordance with its terms.
63
<PAGE>
APPENDIX D
TO THE
EFTEC SAVINGS PLAN
1997
DINOL INTERNATIONAL, INC.
-------------------------
On or about July 28, 1992, the Dinol International, Inc. 401(k) Investment Plan
was merged with and into the EMS-TOGO Corporation 401(k) Investment Plan. This
Appendix D applies to any EMS-TOGO Participant who had an undistributed account
balance in the Dinol International, Inc. 401(k) Investment Plan, and whose
account balances under the EMS-TOGO Corporation 401(k) Investment Plan were
transferred to this Plan as described in Appendix C. Any defined term used in
this Appendix D shall have the meaning assigned to such term under the Plan
unless otherwise specifically provided.
1. Dinol Thrift Account. In addition to the Accounts established under
Section 5.1 of the Plan, a separate "Dinol Thrift Account" will be established
and maintained for each EMS-TOGO Participant for whom such an Account was
established under the EMS-TOGO Corporation 401(k) Investment Plan and
transferred to this Plan, to which there will be credited the amount so
transferred. A Dinol Thrift Account will consist of the following parts:
(A) Sub-Account A, being the part attributable to the Participant's
"Voluntary Contributions" made for plan years prior to January 1, 1985; and
(B) Sub-Account B, being the part attributable to the employer "Basic
Contributions" made on the Participant's behalf for periods prior to
January 1, 1985.
2. Special Distribution Rules. Prior to Termination of Employment, an
EMS-TOGO Participant may withdraw funds from his or her Dinol Thrift Account
under the following circumstances:
(A) Not more often than once during any 12 month period, an EMS-TOGO
Participant who has completed at least three years of Continuous Service
may withdraw all or a portion of the balance credited to his or her Dinol
Thrift Account which is attributable to his own contributions. Withdrawals
from a Participant's Dinol Thrift Account shall be made in the following
order:
(1) An amount, not exceeding the aggregate of the Participant's
Voluntary Contributions not previously withdrawn.
(2) An amount, not exceeding the aggregate of the Participant's
Basic Contributions not previously withdrawn.
(3) An amount, not exceeding the amount attributable to the
Participant's Voluntary Contributions which remains after the entire
amount available under clause (1) has been withdrawn.
64
<PAGE>
(4) An amount, not exceeding the amount attributable to the
Participant's Basic Contributions which remains after the entire
amount available under clause (2) has been withdrawn.
The minimum withdrawal is $500 or, if less, the balance in the
Participant's Dinol Thrift Account.
(B) In all other respects, Dinol Thrift Accounts shall be
distributable in the same manner as an EMS-TOGO Employer Contribution
Account established pursuant to Appendix C.
3. Special Vesting Rules. Each EMS-TOGO Participant will always have a
fully vested, nonforfeitable interest in his or her Dinol Thrift Account.
65
<PAGE>
EXHIBIT A-1
TO THE
EFTEC SAVINGS PLAN
1997
AMOUNT OF CONTRIBUTIONS PURSUANT TO SECTION 4.1(A)(1)
-----------------------------------------------------
This Exhibit A-1 is the exhibit referenced in Section 4.1(A)(1) of the Plan. The
following matrix specifies the amount of the contribution for a Plan Year as a
percentage of a Participant's Profit Sharing Earnings for the Plan Year.
EMPLOYEE PERFORMANCE RATING
---------------------------
<TABLE>
<CAPTION>
==============================================================================
Worldwide (1) (2) (3) (4) (5)
Company Earnings Unsatisfactory Marginal Good Excels Outstanding
==============================================================================
<S> <C> <C> <C> <C> <C>
Below 2.7% 0% 0% 0% 0% 0%
------------------------------------------------------------------------------
2.7% - 3.1% 0% 1.40% 2.52% 3.36% 3.50%
------------------------------------------------------------------------------
3.2% - 3.6% 0% 1.75% 3.15% 3.50% 3.50%
------------------------------------------------------------------------------
3.7% - 4.1% 0% 1.92% 3.47% 3.50% 3.50%
------------------------------------------------------------------------------
4.2% - 4.6% 0% 2.10% 3.50% 3.50% 3.50%
------------------------------------------------------------------------------
4.7% - 5.1% 0% 2.28% 3.50% 3.50% 3.50%
------------------------------------------------------------------------------
5.2% - 5.6% 0% 2.45% 3.50% 3.50% 3.50%
------------------------------------------------------------------------------
5.7% - 6.1% 0% 2.63% 3.50% 3.50% 3.50%
------------------------------------------------------------------------------
6.2% - 6.6% 0% 2.80% 3.50% 3.50% 3.50%
------------------------------------------------------------------------------
6.7% - 7.1% 0% 2.97% 3.50% 3.50% 3.50%
------------------------------------------------------------------------------
7.2% - 7.6% 0% 3.15% 3.50% 3.50% 3.50%
------------------------------------------------------------------------------
7.7% - 8.2% 0% 3.32% 3.50% 3.50% 3.50%
------------------------------------------------------------------------------
Above 8.2% 0% 3.50% 3.50% 3.50% 3.50%
===============================================================================
</TABLE>
For the purposes of this exhibit, the "Profit Sharing Earnings" of a Participant
from a Participating Employer for any Plan Year is the amount paid by the
Participating Employer to the Participant during the Plan Year, for services as
an Employee, as base salary, base wages, overtime pay, shift differential
premium, sick pay and short-term disability benefits or, in the case of a
commissioned salesperson, as base salary, base commissions, sick pay and short-
term disability benefits; increased by the amount of reductions to Profit
Sharing Earnings experienced by the Participant during the Plan Year pursuant to
the Plan or any other qualified cash or deferred arrangement or cafeteria plan
maintained by an Affiliated Organization. Solely for the purpose of applying the
foregoing to a Participant who is seconded by a Participating Employer to an
Affiliated Organization, the Participant's Profit Sharing Earnings include any
amounts paid by the Affiliated Organization to the Participant that would have
been Profit Sharing Earnings had such amounts been paid to the Participant by
his or her Participating Employer. However,
66
<PAGE>
in no event will a Participant's Profit Sharing Earnings for any Plan Year be
taken into account to the extent they exceed the Annual Compensation Limit set
forth in Section 2.5 of the Plan.
67
<PAGE>
EXHIBIT A-2
TO THE
EFTEC SAVINGS PLAN
1997
AMOUNT OF CONTRIBUTIONS PURSUANT TO SECTION 4.1(A)(2)
-----------------------------------------------------
This Exhibit A-2 is the exhibit referenced in Section 4.1(A)(2) of the Plan.
<TABLE>
<CAPTION>
====================================================================
Basic Bonus Percentage Contribution Percentage
====================================================================
<S> <C>
1% 0.6%
- --------------------------------------------------------------------
2% 1.2%
- --------------------------------------------------------------------
3% 1.8%
- --------------------------------------------------------------------
4% 2.4%
- --------------------------------------------------------------------
5% or more 3.0%
====================================================================
</TABLE>
If a Participant's Basic Bonus Percentage is less than 5% and is not an integer,
the amount of the Profit Sharing Contribution with respect to the Participant
will be determined by interpolation with the Basic Bonus and Contribution
Percentages rounded to the nearest one-hundredth of one percent.
For purposes of applying the foregoing:
1. The Basic Bonus Percentage with respect to a Participant for a Plan Year is
the amount of his or her annual incentive bonus for the Plan Year,
expressed as a percentage of his Eligible Earnings for the Plan Year
(determined without regard to the limitation set forth at Section 2.5), as
communicated to the Participant by the Participating Employer;
2. The Contribution Percentage with respect to a Participant for a Plan Year
is the amount of the contribution made on his or her behalf pursuant to
Section 4.1(A)(2) for the Plan Year, expressed as a percentage of his or
her Profit Sharing Earnings for the Plan Year;
3. The "Profit Sharing Earnings" of a Participant from a Participating
Employer for any Plan Year is the amount paid by the Participating Employer
to the Participant during the Plan Year, for services as an Employee, as
base salary, base wages, overtime pay and shift differential premium, sick
pay and short-term disability benefits or, in the case of a commissioned
salesperson, as base salary, base commissions, sick pay and short-term
disability benefits; increased by the amount of reductions to Profit
Sharing Earnings experienced by the Participant during the Plan Year
pursuant to the Plan or any other qualified cash or deferred arrangement or
cafeteria plan maintained by an Affiliated Organization. Solely for the
purpose of applying the foregoing to a Participant who is
68
<PAGE>
seconded by a Participating Employer to an Affiliated Organization, the
Participant's Profit Sharing Earnings include any amounts paid by the
Affiliated Organization to the Participant that would have been Profit
Sharing Earnings had such amounts been paid to the Participant by his or
her Participating Employer; and
4. Notwithstanding the foregoing provisions of this exhibit, if a Participant
has Profit Sharing Earnings for a Plan Year in excess of the Annual
Compensation Limit in effect for the Plan Year, no contribution will be
made with respect to the excess amount.
69
<PAGE>
EXHIBIT A-3
TO THE
EFTEC SAVINGS PLAN
1997
AMOUNT OF CONTRIBUTIONS PURSUANT TO SECTION 4.1(A)(3)
-----------------------------------------------------
This Exhibit A-3 is the exhibit referenced in Section 4.1(A)(3) of the Plan.
<TABLE>
<CAPTION>
====================================================================
Basic Bonus Percentage Contribution Percentage
====================================================================
<S> <C>
1% 0.5%
- --------------------------------------------------------------------
2% 1.0%
- --------------------------------------------------------------------
3% 1.5%
- --------------------------------------------------------------------
4% 2.0%
- --------------------------------------------------------------------
5% or more 2.5%
====================================================================
</TABLE>
If a Participant's Basic Bonus Percentage is less than 5% and is not an integer,
the amount of the Employer contribution with respect to the Participant will be
determined by interpolation with the Basic Bonus and Contribution Percentages
rounded to the nearest one-hundredth of one percent.
For purposes of applying the foregoing:
1. The Basic Bonus Percentage with respect to a Participant for a Plan Year is
the amount of his or her annual incentive bonus for the Plan Year,
expressed as a percentage of his Eligible Earnings for the Plan Year
(determined without regard to the limitation set forth at Section 2.5), as
communicated to the Participant by the Participating Employer;
2. The Contribution Percentage with respect to a Participant for a Plan Year
is the amount of the contribution made on his or her behalf pursuant to
Section 4.1(A)(3) for the Plan Year, expressed as a percentage of his or
her Profit Sharing Earnings for the Plan Year;
3. The "Profit Sharing Earnings" of a Participant from a Participating
Employer for any Plan Year is the amount paid by the Participating Employer
to the Participant during the Plan Year, for services as an Employee, as
base salary, base wages, overtime pay and shift differential premium, sick
pay and short-term disability benefits or, in the case of a commissioned
salesperson, as base salary, base commissions, sick pay and short-term
disability benefits; increased by the amount of reductions to Profit
Sharing Earnings experienced by the Participant during the Plan Year
pursuant to the Plan or any other qualified cash or deferred arrangement or
cafeteria plan maintained by an Affiliated Organization. Solely for the
purpose of applying the foregoing to a Participant who is
70
<PAGE>
seconded by a Participating Employer to an Affiliated Organization, the
Participant's Profit Sharing Earnings include any amounts paid by the
Affiliated Organization to the Participant that would have been Profit
Sharing Earnings had such amounts been paid to the Participant by his or
her Participating Employer; and
4. Notwithstanding the foregoing provisions of this exhibit, if a Participant
has Profit Sharing Earnings for a Plan Year in excess of the Annual
Compensation Limit in effect for the Plan Year, no contribution will be
made with respect to the excess amount.
71
<PAGE>
April 7, 1997
[LETTERHEAD OF MACKALL CROUNSE & MOORE PLC]
Exhibit 5.1
H.B. Fuller Company
1200 Willow Lake Blvd.
St. Paul, MN 55110-5132
Re: Registration Statement on Form S-8
-------------------------------------------
Ladies and Gentlemen:
We have examined (a) the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by you with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, and the current
Prospectus to be used in connection therewith (collectively, the "Prospectus"),
relating to the issuance by you of up to 100,000 shares of your common stock,
par value $1.00 per share (the "Common Stock"), pursuant to the EFTEC Savings
Plan (the "Plan") in the manner set forth in the Registration Statement and the
related Prospectus; (b) your Articles of Incorporation and your Bylaws, both as
amended to date; and (c) your corporate proceedings relative to the issuance of
the shares of Common Stock (the "Shares") pursuant to the Plan, the Registration
Statement and the related Prospectus.
In addition to the examination outlined above, we have reviewed such
other proceedings, documents, and records and have ascertained or verified such
additional facts as we deem necessary or appropriate for purposes of this
opinion.
Based upon the foregoing, we are of the opinion that:
1. H.B. Fuller Company has been legally incorporated and is validly
existing under the laws of the State of Minnesota.
2. The Shares will, when issued by you and paid for by the
participant in the Plan, as contemplated in the Registration Statement and
the related Prospectus, be legally issued, fully paid, and nonassessable.
<PAGE>
[LETTERHEAD OF MACKALL CROUNSE & MOORE PLC]
H.B. Fuller Company
April 7, 1997
Page 2
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit hereby that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ MACKALL, CROUNSE & MOORE, PLC
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 and the Prospectus forming a part thereof of our report
dated January 10, 1997, which appears on page 37 of the 1996 Annual Report to
the Shareholders of H.B. Fuller Company, which is incorporated by reference in
H.B. Fuller Company's Annual Report on Form 10-K for the year ended November 30,
1996. We also consent to the incorporation by reference of our report on the
Financial Statement Schedules, which appears on page 16 of such Annual Report on
Form 10-K.
/s/ PRICE WATERHOUSE LLP
Minneapolis, Minnesota,
April 4, 1997
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned directors of
M.B. FULLER COMPANY, a Minnesota corporation, hereby constitute and appoint
WALTER KISSLING, JORGE WALTER BOLANOS AND RICHARD C. BAKER, his/her true and
lawful attorneys-in-fact and agents, and each of them, with full power to act
without the other, for him/her in his/her name, place and stead, in any and all
capacities to sign a Registration Statement on Form S-8 under the Securities Act
of 1933, as amended, and any and all amendments thereto, including post-
effective amendments, relating to the issuance of share of Common Stock of H.B.
Fuller Company pursuant to the EFTEC Savings Plan, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he/she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, each
acting alone, or either of them, amy lawfully do or cause to be done by virtue
hereof.
Signature Title Date
---------- ----- ----
/s/Anthony L. Andersen Chair-Board of Directors April 2, 1997
- ---------------------------
Anthony L. Andersen
/s/Norbert R. Berg Director March 31, 1997
- ---------------------------
Norbert R. Berg
/s/Edward L. Bronstien, Jr. Director March 28, 1997
- ---------------------------
Edward L. Bronstien Jr.
/s/Robert J. Carlson Director April 1, 1997
- ---------------------------
Robert J. Carlson
/s/Freeman A. Ford Director March 28, 1997
- ---------------------------
Freeman A. Ford
/s/Gail D. Fosler Director March 29, 1997
- ---------------------------
Gail D. Fosler
/s/Reatha C. King Director March 30, 1997
- ---------------------------
Reatha Clark King
/s/Walter Kissling President, Chief Executive March 31, 1997
- --------------------------- Officer and Director
Walter Kissling
/s/John J. Mauriel, Jr. Director March 29, 1997
- ---------------------------
John J. Mauriel, Jr.
/s/Lee R. Mitau Director March 28, 1997
- ---------------------------
Lee R. Mitau
/s/Rolf Schubert Chief Technology Officer March 31, 1997
- --------------------------- and Director
Rolf Schubert
/s/Lorne C. Webster Director March 30, 1997
- ---------------------------
Lorne C. Webster
