<PAGE>
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
GENOVESE DRUG STORES, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-1556812
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
80 Marcus Drive
Melville, New York 11747
(Address of principal executive offices including zip code)
THE GENOVESE RETIREMENT AND SAVINGS PLAN
(Full title of the plan)
DONALD W. GROSS
Secretary
Genovese Drug Stores, Inc.
80 Marcus Drive
Melville, New York 11747
(Name and address of agent for service)
(516) 420-1900
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<PAGE>
Proposed
Title of maximum Proposed
securities Amount offering maximum Amount of
to be to be price aggregate registra-
regis- regis- per offering tion
tered(1) tered share price fee
Class A
Common
Stock,
par value
$1.00 per 200,000
share shares $12.3125(2) $2,462,500.00(2) $849.14
(1) Pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate
amount of interests to be offered pursuant to The Genovese
Retirement and Savings Plan.
(2) Pursuant to Rule 457(h) under the Securities Act of 1933,
this estimate is made solely for the purpose of calculating
the amount of the registration fee and is based on the
average of the high and low prices of the Class A Common
Stock on the American Stock Exchange on May 3, 1994.
<PAGE>
<PAGE>
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Genovese Drug
Stores, Inc. (the "Company") and The Genovese Retirement and
Savings Plan (the "Plan") with the Securities and Exchange
Commission are incorporated herein by reference:
(1) Annual Report of the Company on Form 10-K for
the fiscal year ended January 28, 1994;
(2) Annual Report of the Plan on Form 11-K for the
fiscal year ended December 31, 1992; and
(3) The description of the Company's Class A Common
Stock, par value $1.00 per share, contained in
the Company's Registration Statement filed
pursuant to Section 12 of the Securities
Exchange Act of 1934 and any amendments and
reports filed for the purpose of updating that
description.
All documents that shall be filed by the Company and the
Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 subsequent to the filing of this
registration statement and prior to the filing of a post-
effective amendment indicating that all securities offered under
the Plan have been sold or deregistering all securities then
remaining unsold thereunder shall be deemed to be incorporated
herein by reference and shall be deemed to be a part hereof from
the date of filing thereof.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
A director or officer of the Company, whether or not then
in office, or a person whose testator or intestate was such a
director or officer, shall be indemnified by the Company for the
defense of, or in connection with, civil or criminal actions or
proceedings, or appeals therein, in accordance with, and to the
fullest extent permitted by, the provisions of the General
Corporation Law of the State of Delaware, as it may from time to
time be amended.
A director or officer of any wholly-owned subsidiary of
the Company, whether or not then in office, or a person whose
testator or intestate was such a director or officer shall also
be indemnified by the Company for the defense of, or in
connection with, civil or criminal actions or proceedings, or
appeals therein, in accordance with, and to the fullest extent
permitted by, the provisions of the General Corporation Law of
the State of Delaware, as it may from time to time be amended.
Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers or persons controlling the registrant pursuant to the
foregoing provisions, the registrant has been informed 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.
ITEM 8. EXHIBITS.
4(a) Certificate of Incorporation of the Company (filed
as Exhibit 4, pages 4-1 - 4-4, to the Company's
Registration Statement No. 33-20284 on Form S-8 and
incorporated herein by reference)
(b) By-Laws of the Company, as amended
<PAGE>
(c) Adoption Agreement Dreyfus Nonstandardized Profit
Sharing Plan and Trust dated June 14, 1993, between
the Company and The Dreyfus Trust Company
(d) Dreyfus Prototype Defined Contribution Plan Basic
Plan Document No. 1 (The Genovese Retirement and
Savings Plan)
(e) Dreyfus Trust Agreement dated November 11, 1992,
between the Company and The Dreyfus Trust Company
(The Genovese Retirement and Savings Plan Trust)
23 Consent of Independent Auditors
24 Powers of Attorney
UNDERTAKING:
The undersigned registrant has submitted the Plan, and
will submit any amendments thereto or restatements
thereof, to the Internal Revenue Service and will make all
changes required by the Internal Revenue Service in order
to qualify the Plan.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement: (i) to include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the
effective date of 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; (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 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) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
<PAGE>
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF
1933, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO
BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING THIS
REGISTRATION STATEMENT 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 MELVILLE,
STATE OF NEW YORK, ON THIS 5TH DAY OF MAY, 1994.
GENOVESE DRUG STORES, INC.
By: /s/ Leonard Genovese
Leonard Genovese
Chairman of the Board
and President
<PAGE>
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date
*Leonard Genovese Chairman of the May 5, 1994
Leonard Genovese Board, President
and Director
(Principal Executive
Officer)
*Herbert J. Kett Vice Chairman May 5, 1994
Herbert J. Kett and Director
*Allan Patrick Executive Vice May 5, 1994
Allan Patrick President and
Director
*Jerome Stengel Vice President and May 5, 1994
Jerome Stengel Treasurer
(Principal
Financial and
Accounting
Officer)
*Frances Genovese Wangberg Director May 5, 1994
Frances Genovese Wangberg
*William J. McKenna Director May 5, 1994
William J. McKenna
*Charles Hayward Director May 5, 1994
Charles Hayward
*Abraham Allen Director May 5, 1994
Abraham Allen
*Thomas M. Cooney Director May 5, 1994
Thomas M. Cooney
<PAGE>
<PAGE>
* This registration statement has been signed on behalf of the
above-named directors and officers of the Company by Leonard
Genovese, Chairman of the Board and President of the Company,
as attorney-in-fact pursuant to powers of attorney filed with
the Securities and Exchange Commission as Exhibit 24 to this
registration statement.
DATED: May 5, 1994 By: /s/ Leonard Genovese
Leonard Genovese,
Attorney-in-Fact
<PAGE>
<PAGE> The Plan. Pursuant to the requirements of the
Securities Act of 1933, the Plan has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Melville,
State of New York, on this 5th day of May 1994.
THE GENOVESE RETIREMENT AND SAVINGS
PLAN
By: /s/ Leonard Genovese
Leonard Genovese
Chairman - Administrative
Committee
<PAGE>
<PAGE>
EXHIBIT INDEX
Page Number
in
Sequentially
Exhibit Numbered
Number Exhibit Description Copy
4(a) Certificate of Incorporation of the Company
(filed as Exhibit 4, pages 4-1 - 4-4, to the
Company's Registration Statement No. 33-20284
on Form S-8 and incorporated herein by
reference)
4(b) By-Laws of the Company, as amended
4(c) Adoption Agreement Dreyfus Nonstandardized
Profit Sharing Plan and Trust dated June 14,
1993, between the Company and The Dreyfus
Trust Company
4(d) Dreyfus Prototype Defined Contribution Plan
Basic Plan Document No. 1 (The Genovese
Retirement and Savings Plan)
4(e) Dreyfus Trust Agreement dated November 11,
1992, between the Company and The Dreyfus Trust
Company (The Genovese Retirement and Savings
Plan Trust)
23 Consent of Independent Auditors
24 Powers of Attorney
<PAGE>
BY-LAWS
OF
GENOVESE DRUG STORES, INC.
ARTICLE I
Shareholders
Section 1.01. Annual Meeting. An annual meeting of
shareholders for the election of directors and the transaction of
any other business that may come before the meeting shall be held
at the offices of the corporation in the City of New York or such
other place as may be stated in the notice of the meeting on any
Monday in the month of June of each year, or if that day is a legal
holiday, then on the next succeeding business day, at eleven
o'clock in the forenoon; but if for any reason such meeting shall
not be held on such date, a special meeting may be held in lieu
thereof upon the same notice as is hereinafter prescribed for
annual meetings, and any elections held or other business
transacted thereat shall have the same effect as if held or
transacted at the annual meeting.
Section 1.02. Special Meetings. Special meetings of the
shareholders may be held for any purpose at any place as and when
called by the Board of Directors or by the President or by any
Senior Vice President of the Company. A Special Meeting of the
Shareholders shall be called by the President or Secretary whenever
requested in writing by the holders of at least eighty percent of
the votes entitled to vote at any such meeting.
Section 1.03. Action without a Meeting. Whenever the
shareholders shall take any action by their written consent or
consents without a meeting pursuant to General Corporation Laws of
the State of Delaware, all such consents shall be lodged with the
Secretary, who shall cause the same to be filed in due
chronological order with the minutes of the meetings of
shareholders.
Section 1.04. Quorum. The holders of a majority of the
votes entitled to vote, present in person or represented by proxy,
shall be necessary to constitute a quorum at all meetings
of shareholders. If a quorum is lacking at any meeting, the
shareholders present in person or by proxy may adjourn the meeting
to such time and place as they may determine, and such meeting may
be held as so adjourned without further notice.
<PAGE>
Section 1.05. Voting. At all meetings of shareholders
all questions shall be decided and all actions taken by a majority
of the votes cast at the meeting by the holders of shares present
in person or represented by proxy and entitled to vote thereat
except as a greater number of votes may be required by law or by
the Certificate of Incorporation, and except that in any election
of directors, only a plurality of the votes so cast shall be
required for an election. Voting shall not be by ballot on any
matter or at any election unless requested in advance of the vote
by the person presiding at the meeting or by a shareholder present
at the meeting in person or by proxy and entitled to vote thereat.
Section 1.06. Notice. Unless waived as provided in
Article IV of these By-Laws, written notice of the place, date and
hour, and (in the case of special meeting) of the purpose or
purposes of every meeting of shareholders shall be given personally
or by mail not less than ten or more than fifty days before the
date of the meeting to each shareholder entitled to vote thereat.
If given by mail, any such notice shall be addressed to each
shareholder at his address as it appears on the corporation's
record of shareholders or to such other address as the shareholder
shall have requested the Secretary in writing to use for such
purpose. The notice of every special meeting of shareholders shall
indicate the person or persons by whom or at whose direction the
meeting was called.
Section 1.07. Record Date. The record date for the
determination of shareholders entitled to notice of or to vote at
any meeting of shareholders shall, unless the board of directors
shall have fixed in advance a different date, be at the close of
business on the day next preceding the day on which notice is given
or, if no notice is given, then at the close of business on the day
next preceding the day on which such meeting is held.
ARTICLE II
Board of Directors
Section 2.01. Election - Number - Term. The board of
directors shall be elected at the annual meeting of shareholders or
at a special meeting held in lieu thereof. The number of directors
chosen by the incorporators or elected at any annual meeting of
shareholders or at any special meeting held in lieu thereof shall
constitute the entire board of directors, except that newly created
directorships or vacancies may be filled by the board of directors
prior to the next annual or special meeting of the shareholders, or
as otherwise expressly provided by resolution of the shareholders,
and except that in no event shall the number of directors be less
than three or more than fifteen. Each director shall hold office
<PAGE>until the next annual meeting or at such special meeting of
the shareholders called for the purpose of which includes the
election of directors, and until his or her successor has been
elected and qualified.
Upon the election of at least nine directors, the said
directors shall be divided into three classes consisting of a
minimum of three directors in each class; the terms of office
of the directors initially classified shall be as follows: the
first class shall expire at the next annual meeting of the
shareholders, the second class at the second succeeding annual
meeting and the third class at the third succeeding annual meeting;
at each annual meeting of shareholders after the initial
classification, directors to replace those whose term expires at
such annual meeting shall be elected to hold office until the third
succeeding annual meeting of shareholders.
Section 2.02. Removal. Any director may be removed for
cause by the vote of eighty (80%) percent of the votes entitled to
be cast at a special meeting of the shareholders called for that
purpose or by the unanimous written consent of the shareholders
without a meeting.
Section 2.03. Vacancies occurring in the board of
directors for any reason may be filled for the unexpired portion of
the term by the votes of a majority of the remaining directors,
although if less than a quorum exists, at any special meeting
called for that purpose or at any regular meeting, except that a
vacancy caused by the action of the shareholders in removing a
director or in increasing the number of directors shall be filled
only by the shareholders.
Section 2.04. Annual Meeting. The annual meeting of the
board of directors for the appointment of officers and the
transaction of any other business that may come before the meeting
may be held without notice immediately following the annual meeting
of shareholders or special meeting held in lieu thereof, and at the
same place, or it may be held at such other time or place as may be
designated by a resolution adopted at such annual meeting or
special meeting in lieu of the annual meeting of shareholders.
Section 2.05. Other Meetings. The board of directors
may from time to time by resolution fix in advance a place and time
for holding regular meetings of the board, and except as otherwise
provided by law or by the By-Laws, such meetings may be held and
any business may be transacted thereat without notice. Special
meetings of the board may be held at any place and time and for any
purpose when called by the Chairman, President or Senior Vice
President on two days written notice of the place and time thereof
given or mailed to each director.
<PAGE>
Section 2.06. Quorum - Voting. At all meetings of the
board of directors, the presence of a majority of the directors
then in office shall constitute a quorum for the transaction of all
business, but if a quorum is not present at any meeting, those
present by a majority vote may adjourn the meeting to such place
and time as they may determine, and such meeting may be held as so
adjourned without further notice. Except as otherwise provided by
law, by the certificate of incorporation or by the By-Laws, all
action of the board shall be taken by the votes of a majority of
the directors present at the time of the vote, a quorum being
present at such time.
Section 2.07. Conflict of Interest. No director shall
be disqualified by his office from contracting with the
corporation, either as a vendor, purchaser or otherwise, nor shall
any such contract, nor any contract or arrangement entered into by
or on behalf of the corporation in which any director shall be in
any way interested, be avoided; nor shall any director so
contracting, or being so interested, be liable to account to the
corporation for any profit realized in any such contract or
arrangement by reason of such director holding that office or of
the fiduciary relation thereby established; but the nature of the
director's interest must be disclosed by him at the meeting of the
board of directors at which the contract or arrangement is
determined on, if his interest then exists, or, in any other case,
at the first meeting of the directors after the acquisition of his
interest.
A general notice, in writing, that a director is a member
of any specified partnership, company or corporation, and is to be
regarded as interested in any subsequent transaction with such
partnership, company or corporation, shall be sufficient disclosure
hereunder and, after such general notice it shall not be necessary
to give any special notice relating to any particular transaction
with such partnership, company or corporation.
Section 2.08. Action without a Meeting. Unless the
Certificate of Incorporation provides otherwise, any action
required or permitted to be taken at a meeting of the board of
directors or any committee thereof may be taken without a meeting
if a consent in writing to the adoption of a resolution authorizing
the action so taken, shall be signed by all of the directors or
members of the committee entitled to vote with respect to the
subject matter thereof.
Section 2.09. Meeting by Electronic Means. Unless the
Certificate of Incorporation provides otherwise, members of the
board of directors or any committee thereof may participate in a
meeting of the board of directors, or any committee thereof,
by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear
<PAGE>each other at the same time, and such participation by such
means shall constitute presence in person at the meeting.
ARTICLE III
Officers
Section 3.01. Appointment - Term. The board of
directors at its first meeting after the adoption of these By-Laws
and at each annual meeting of the board held thereafter shall
appoint a Chairman of the Board of Directors, a President, Senior
Vice Presidents, a Treasurer and a Secretary, each of whom shall,
subject to the right of the board of directors to remove any
officer at pleasure, hold office until the next annual meeting and
until his successor has been appointed and qualified. Any two or
more offices may be held by the same person except the offices of
President and Secretary.
Section 3.02. The Chairman of the Board of Directors.
The Chairman of the Board of Directors shall preside at all
meetings of the board, and he shall perform all other duties as may
be delegated to him by the board of directors.
Section 3.03. The President. The President shall be the
chief executive officer and general manager of the corporation.
He shall be ex officio a member of all committees of the board.
He shall preside at all meetings of the shareholders, and he shall
have and perform all the other powers and duties customary to his
office.
Section 3.04. Senior Vice Presidents. The Senior Vice
Presidents shall, unless the board of directors shall otherwise
order, perform the duties and have the powers of the President
during his absence or disability or in the event of a vacancy in
his office. He shall have such other duties and powers as may from
time to time be delegated to him by the President or designated by
the board of directors.
Section 3.05. The Treasurer. Subject to the orders of
the board of directors, the Treasurer shall have charge of the
financial affairs of the corporation. He shall have the care and
custody of the funds, securities and valuable papers of the
corporation, shall keep or cause to be kept under his supervision
proper books of account for the corporation, and shall render such
reports on the financial condition of the corporation as the
President or the board of directors may from time to time require.
Section 3.06. The Secretary. The Secretary shall record
or file in a permanent book or books to be kept in his custody
<PAGE>minutes on all meetings of the shareholders, the board of
directors and any standing committee of the board and all original
signed consents of shareholders filed pursuant to Section 1.03 of
the By-Laws. He shall have custody of the corporate seal and of
the records of the corporation other than the books of account, and
shall have such other duties and powers, not inconsistent with
these By-Laws, as may from time to time be delegated to him by the
President or designated by the board of directors.
Section 3.07. Other Officers. The board of directors
may from time to time appoint such other officers as it shall deem
necessary or advisable. All such officers shall serve at the
pleasure of the board and have such powers and duties as the
President may delegate to them or as the board may prescribe.
Section 3.08. Compensation. The officers of the
corporation shall receive only such compensation as the board of
directors may from time to time determine.
ARTICLE IV
Miscellaneous Provisions
Section 4.01. Insurance, Transfer and Registration of
Certificates Representing Shares. The board of directors may
from time to time make and alter such rules and regulations,
not inconsistent with law, the Certificate of Incorporation or
the By-Laws, as it may determine concerning the form, issuance,
transfer and registration of certificates representing shares, and
by the issuance of duplicate certificates to replace certificates
lost or destroyed, provided that only a person registered in the
corporation's record of shareholders as the owner of shares of the
corporation shall be entitled to receive dividends, to vote, to
receive notices, or to exercise or enjoy any other rights as the
owner of such shares.
Section 4.02. Waiver of Notice. Notwithstanding any
provision of these By-Laws with respect to notice, no notice of any
meeting of shareholders or of the board of directors need be given
to any person who submits a signed waiver of notice of such meeting
before or after the meeting. Any shareholder who is present at any
meeting of shareholders in person or represented thereat by proxy
and who does not protest the failure to give notice of such meeting
prior to the conclusion thereof, and any director who is present
at any meeting of the board of directors and who does not protest
the failure to give notice of such meeting prior to or at the
commencement thereof, shall be deemed to have waived notice of
<PAGE>such meeting with the same effect for all purposes as if he
had submitted a signed waiver of notice as above provided.
Section 4.03. Seal. The corporation shall have a
corporate seal which shall contain the name of the corporation and
the state and year of its incorporation, and be in other respects
in such form as the board of directors shall approve.
Section 4.04. Fiscal Year. The fiscal year of the
corporation shall be the period of twelve calendar months ending on
the Friday closest to the last day of January in each year.
ARTICLE V
Indemnity
Section 5.01. Indemnity of Directors and Officers.
A director or officer of the corporation, whether or not then in
office, or a person whose testator or intestate was such a director
or officer, shall be indemnified by the corporation for the defense
of, or in connection with, civil or criminal actions or
proceedings, or appeals therein, in accordance with, and to the
fullest extent permitted by, the provisions of the General
Corporation Law of the State of Delaware as it may from time to
time be amended. Directors, officers, employees or agents shall
be entitled to indemnity except in instances where it is determined
that said director, officer, employee or agent was guilty of gross
negligence in the performance of his or her duty to the corporation
or its shareholders. The corporation may advance expenses for a
director's, officer's, employee's or agent's defense prior to a
final disposition of a claim provided said director, officer,
employee or agent executes an undertaking to repay advances from
the corporation if it is ultimately determined that he or she is
not entitled to indemnity.
Section 5.02. Indemnity of Directors and Officers of
Wholly Owned Subsidiaries. A director or officer of any wholly
owned subsidiary of the corporation, whether or not then in office,
or a person whose testator or intestate was such a director
officer, shall also be indemnified by the corporation for the
defense of, or in connection with, civil or criminal actions or
proceedings, or appeals therein, in accordance with, and to the
fullest extent permitted by, the provisions of the General
Corporation Law of the State of Delaware as it may from time to
time be amended. Directors, officers, employees or agents shall
be entitled to indemnity except in instances where it is determined
that said director, officer, employee or agent was guilty of gross
<PAGE>negligence in the performance of his or her duty to the
corporation or its shareholders. The corporation may advance
expenses for a director's, officer's, employee's or agent's defense
prior to a final disposition of a claim provided said director,
officer, employee or agent executes an undertaking to repay
advances from the corporation if it is ultimately determined that
he or she is not entitled to indemnity.
ARTICLE VI
Amendments
Section 6.01. Adoption and Amendment of By-Laws.
These By-Laws shall take effect upon adoption by all of the
stockholders. Thereafter, By-Laws may be adopted, amended or
repealed by the shareholders or by the board of directors at any
annual or regular meeting, or at any special meeting called for
that purpose, but any By-Law adopted by the board may be amended or
repealed by the shareholders, and if any By-Law regulating an
impending election of directors shall be adopted, amended or
repealed by the board, the notice of the next meeting of
shareholders for the election of directors shall include the text
of the By-Law so adopted, amended or repealed together with a
concise statement of the changes made.
<PAGE>
ADOPTION AGREEMENT
DREYFUS NONSTANDARDIZED
PROTOTYPE PROFIT SHARING PLAN AND TRUST
PLAN NUMBER 01002
IRS SERIAL NUMBER D340072a
The Employer named in Section l, A. below hereby establishes or
restates a Profit Sharing Plan ("Plan") and Trust, consisting of
such sums as shall be paid to the Trustee(s) under the Plan, the
investments thereof and earnings thereon. The terms of the Plan and
Trust are set forth in this Adoption Agreement and the applicable
provisions of the Dreyfus Prototype Defined Contribution Plan,
Basic Plan Document No. 01, and the Dreyfus Trust Agreement, both
as amended from time to time, which are hereby adopted and
incorporated herein by reference.
I. BASIC PROVISIONS
A. Employer's Name: GENOVESE DRUG STORES, INC.
Address: 80 MARCUS DRIVE
MELVILLE, NY 11747
B. Employer is a (X) corporation; ( ) S Corporation
partnership; ( ) sole proprietor; ( ) other.
C. Employer's Tax ID Number: 11-1556812
D. Employer's Fiscal Year: ENDS THE FRIDAY CLOSEST TO
JANUARY 31
E. Plan name: THE GENOVESE RETIREMENT AND SAVINGS PLAN
F. Effective Date of Plan:
If this is an amendment and restatement of an existing Plan,
enter the date originally adopted JULY 1, 1990. The Effective
Date of this amended Plan is JANUARY 1, 1993.
<PAGE>
G. The Trustee shall be:
(X) The Dreyfus Trust Co.
( ) Other: (Name) [....]
(Address) [....]
(Address) [....]
(Phone #) [....]
H. Anniversary Date: JANUARY 1
I. Plan Year shall mean the 12-consecutive-month period
commencing on JANUARY 1 and ending on DECEMBER 31.
J. Service with the following predecessor employer(s) shall
be credited for purposes of eligibility and vesting:
[....] (Note Such Service must be provided if the
adopting Employer maintains the plan of the predecessor
employer.] N/A
K. The following employer(s) associated with the Employer
under section 414(b), (c), (m) or (o) of the Internal
Revenue Code ("Code") shall be Participating Employers in
the Plan: N/A
L. Are all employers associated with the Employer under
section 414(b), (c), (m) or (o) of the Code participating
in this Plan?
(X) Yes ( ) No
II. HOURS OF SERVICE
Hours of Service under the Plan will be determined for all
Employees on the basis of the method selected below:
<PAGE>
(X) On the basis of actual hours for which an Employee is
paid or entitled to payment.
( ) On the basis of days worked. An Employee will be credited
with ten (10) Hours of Service for any day such Employee
would be credited with at least one (1) Hour of Service
during the day under the Plan.
( ) On the basis of weeks worked. An Employee will be
credited with forty-five (45) Hours of Service for any
week such Employee would be credited with at least one
(1) Hour of Service during the week under the Plan.
( ) On the basis of semi-monthly payroll periods. An
Employee will be credited with ninety-five (95) Hours of
Service for any semi-monthly payroll period such Employee
would be credited with at least one (1) Hour of Service
under the Plan.
( ) On the basis of months worked. An Employee will be
credited with one hundred ninety (190) Hours of Service
for any month such Employee would be credited with at
least one (1) Hour of Service under the Plan.
( ) On the basis of elapsed time.
III. ELIGIBLE EMPLOYEES
All Employees shall be Eligible Employees, except:
(X) Employees included in a unit of Employees covered by a
collective bargaining agreement between the Employer and
employee representatives, if retirement benefits were the
subject of good faith bargaining. For this purpose, the
term "employee representatives" does not include any
organization more than half of whose members are
Employees who are owners, officers, or executives of the
Employer.
( ) Employees who are nonresident aliens and who receive no
earned income from the Employer which constitutes income
from sources within the United States.
<PAGE>
( ) Employees included in the following job classifications:
( ) Employees of the following employers aggregated under
section 414(b), (c), (m) or (o) of the Code:
( ) Individuals required to be considered Employees under
section 414(n) of the Code.
Note: The term Employee includes all employees of the Employer
and any employer required to be aggregated with the
Employer under section 414(b), (c), (m) or (o) of the
Code, and individuals considered employees of any such
employer under section 414(n) or (o) of the Code.
IV. AGE AND SERVICE REQUIREMENTS
Each Eligible Employee shall become a Participant on the Entry
Date coincident with or following completion of the following
age and service requirements:
( ) No age or service requirement.
(X) The attainment of age 21 (not to exceed age 21).
(X) For Employer Discretionary Contributions only -- The
Completion of 1 (not to exceed 1 unless 100% immediate
vesting is elected, in which case, may not exceed 2)
Eligibility Years of Service. [NOTE: If more than 1
Eligibility Year of Service is required, Participants
must be 100% immediately vested. If the Eligibility Years
of Service is or includes a fractional year, an Employee
may not be required to complete any specified number of
Hours of Service to receive credit for such fractional
year.]
(X) For all other contributions -- The completion of 1 (not
to exceed 1) Eligibility Year of Service.
AND
<PAGE>
( ) Effective Date Entry. Each Eligible Employee who is
employed on the Effective Date shall become a Participant
on the Effective Date. Each Eligible Employee employed
after the Effective Date shall become a Participant on
the Entry Date coincident with or following completion of
the age and service requirements specified above.
V. ELIGIBILITY YEARS OF SERVICE
In order to be credited with an Eligibility Year of
Service, an Employee shall complete 1,000 (not to exceed
1,000) Hours of Service. (Not applicable if elapsed time
method of crediting service is elected.)
VI. ENTRY DATE
The Entry Date shall mean:
( ) Annual Entry. The first day of the Plan Year.
Note: If Annual Entry is selected, the age and service
requirements cannot exceed 2 1/2 and 1/2 Eligibility Year of
Service. (1 1/2 Eligibility Years of Service for Employer
Discretionary Contributions if 100% immediate vesting is
elected.)]
( ) Dual Entry. The first day of the Plan Year and the first
day of the seventh month of the Plan Year.
( ) Quarterly Entry. The first day of the Plan Year and the
first day of the fourth, seventh and tenth months of the
Plan Year.
(X) Monthly Entry. The first day of the Plan Year and the
first day of each following month of the Plan Year.
( ) Multiple Entry. ________ entry dates as determined by
the Employer (Note: Eligible Employees must commence
participation no later than the earlier of: a) the
beginning of the plan year after meeting the age and
service requirements, or b) 6 months after the date the
Employee meets the age and service requirements).
<PAGE>
VII. COMPENSATION
A. Except for purposes of "annual additions" testing under
Section 415 of the Code, Compensation shall mean all of
each Participant's
(X) Information required to be reported under sections 6041
and 6051 of the Code. (Wages, tips and other
compensation box on Form W-2) Compensation is defined as
wages as defined in section 3401(a) and all other
payments of compensation to the Employee by the Employer
(in the course of the Employer's trade or business) for
which the Employer is required to furnish the Employee a
written statement under sections 6041(d) and 6051(a)(3)
of the Code. Compensation must be determined without
regard to any rules under section 3401(a) that limit the
remuneration included in wages based on the nature or
location of the employment or services performed (such as
the exception for agricultural labor in section
3401(a)(2) of the Code). This definition of Compensation
shall exclude amounts paid or reimbursed by the Employer
for moving expenses incurred by an Employee, but only to
the extent that at the time of the payment it is
reasonable to believe that these amounts are deductible
by the Employee under section 217 of the Code.
( ) Section 3401(a) wages. Compensation is defined as wages
within the meaning of section 3401(a) of the Code for
purposes of income tax withholding at the source but
determined without regard to any rules that limit the
remuneration included in wages based on the nature or
location of the employment or the services performed
(such as the exception for agricultural labor in section
3401(a)(2) of the Code).
( ) Section 415 safe-harbor compensation. Compensation is
defined as wages, salaries, and fees for professional
services and other amounts received (without regard to
whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment
with the Employer to the extent that the amounts are
includible in gross income (including, but not limited
to, commissions paid salesmen, compensation for services
on the basis of a percentage of profits, commissions on
insurance premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a
nonaccountable plan (as described in Section 1.62-2(c)),
and excluding the following:
<PAGE>
(a) Employer contributions to a plan of deferred
compensation which are not includible in the
Employee's gross income for the taxable year in
which contributed, or Employer contributions
under a simplified employee pension plan
described in section 408(k), or any distributions
from a plan of deferred compensation regardless
of whether such amounts are includible in the
gross income of the Employee;
(b) Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock
(or property) held by the Employee either becomes
freely transferable or is no longer subject to a
substantial risk of forfeiture;
(c) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified
stock option; and
(d) Other amounts which receive special tax benefits,
such as premiums for group-term life insurance
(but only to the extent that the premiums are not
includible in the gross income of the Employee),
or contributions made by the Employer (whether or
not under a salary reduction agreement) towards
the purchase of an annuity contract described in
section 403(b) of the Code (whether or not the
contributions are actually excludable from the
gross income of the Employee).
which is actually paid to the Participant during
(X) the Plan Year.
<PAGE>
( ) the calendar year ending with or within the Plan Year.
( ) Compensation shall be reduced by all of the following
items (even if includible in gross income):
reimbursements or other expense allowances, fringe
benefits (cash and noncash), moving expenses, deferred
compensation and welfare benefits.
Compensation (X) shall; ( ) shall not include Employer
contributions made pursuant to a salary reduction agreement with an
Employee which are not includible in the gross income of the
Employee by reason of sections 125, 402(a)(8), 402(h) or 403(b) of
the Code.
If the Employer's contributions to the Plan are not allocated on an
integrated basis, the following may be excluded from the definition
of Compensation selected above for any year in which the Plan is
not Top Heavy:
(X) bonuses
( ) overtime
( ) commissions
( ) amounts in excess of $ [....]
( ) [....]
For any Self-Employed Individual covered under the Plan,
Compensation means Earned Income.
B. For purposes of "annual additions" testing under Section
415 of the Code, Compensation for any Limitation Year
shall mean all of each Participant's
(X) Information required to be reported under sections 6041
and 6051 of the Code. (Wages, tips and other
compensation box on Form W-2) Compensation is defined as
wages as defined in section 3401(a) and all other
payments of compensation to the Employee by the Employer
(in the course of the Employer's trade or business) for
which the Employer is required to furnish the Employee a
written statement under sections 6041(d) and 6051 (a)(3)
of the Code. Compensation must be determined without
regard to any rules under section 3401(a) that limit the
remuneration included in wages based on the nature or
location of the employment or services performed (such as
the exception for agricultural labor in section
3401(a)(2) of the Code). This definition of Compensation
shall exclude amounts paid or reimbursed by the Employer
for moving expenses incurred by an Employee, but only to
the extent that at the time of the payment it is
reasonable to believe that these amounts are deductible
by the Employee under section 217 of the Code.
<PAGE>
( ) Section 3401(a) wages. Compensation is defined as wages
within the meaning of section 3401(a) of the Code for
purposes of income tax withholding at the source but
determined without regard to any rules that limit the
remuneration included in wages based on the nature or
location of the employment or the services performed
(such as the exception for agricultural labor in section
3401 (a)(2) of the Code).
( ) Section 415 safe-harbor compensation. Compensation is
defined as wages, salaries, and fees for professional
services and other amounts received (without regard to
whether or not an amount is paid in cash) for personal
services actually rendered in the course of employment
with the Employer to the extent that the amounts are
includible in gross income (including, but not limited
to, commissions paid salesmen, compensation for services
on the basis of a percentage of profits, commissions on
insurance premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a
nonaccountable plan (as described in Section 1.62-2(c)),
and excluding the following:
<PAGE>
(a) Employer contributions to a plan of deferred
compensation which are not includible in the
Employee's gross income for the taxable year in
which contributed, or Employer contributions
under a simplified employee pension plan
described in section 408(k), or any distributions
from a plan of deferred compensation regardless
of whether such amounts are includible in the
gross income of the Employee;
(b) Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock
(or property) held by the Employee either becomes
freely transferable or is no longer subject to a
substantial risk of forfeiture;
(c) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified
stock option; and
(d) Other amounts which receive special tax benefits,
such as premiums for group-term life insurance
(but only to the extent that the premiums are not
includible in the gross income of the Employee),
or contributions made by the Employer (whether or
not under a salary reduction agreement) towards
the purchase of an annuity contract described in
section 403(b) of the Code (whether or not the
contributions are actually excludable from the
gross income of the Employee).
which is actually paid to the Participant during
(X) the Plan Year.
( ) the calendar year ending with or within the Plan Year.
( ) Compensation shall be reduced by all of the following
items (even if includible in gross income):
reimbursements or other expense allowances, fringe
benefits (cash and noncash), moving expenses, deferred
compensation and welfare benefits.
<PAGE>
Compensation (X) shall; ( ) shall not include Employer
contributions made pursuant to a salary reduction agreement with an
Employee which are not includible in the gross income of the
Employee by reason of sections 125, 402(a)(8), 402(h) or 403(b) of
the Code.
For any Self-Employed Individual covered under the Plan,
Compensation means Earned Income.
VIII. LIMITATION YEAR
Limitation Year shall mean the twelve (12) consecutive-month
period:
(X) Identical to the Plan Year.
( ) Identical to the Employer's fiscal year ending with or
within the Plan Year of reference.
( ) As fixed by a resolution of the Board of Directors of the
Employer, or the Employer if no Board of Directors
exists.
IX. NORMAL RETIREMENT AGE
Normal Retirement Age shall mean:
(X) Age 65 (not to exceed 65).
( ) Age [....] (not to exceed 65), or the [....] (not to
exceed the 5th) anniversary of the date the Participant
commenced participation in the Plan, if later.
X. EARLY RETIREMENT AGE
Early Retirement Age shall mean:
(X) There shall be no early retirement provision in this
Plan.
( ) Age [....].
<PAGE>
( ) Age [....] and [....] Years of Service.
XI. EMPLOYER AND EMPLOYEE CONTRIBUTIONS
A. Types of Contributions
1. Employer Discretionary Contributions
( ) Not provided.
(X) An amount fixed by appropriate action of the
Employer.
( ) [...]% of Compensation of Participants for the
Plan Year (not to exceed 15%).
Employer Discretionary Contributions ( ) shall; (X)
shall not be integrated with Social Security.
a. ( ) The Permitted Disparity Percentage shall
be [....]%.
b. ( ) The Permitted Disparity Percentage shall
be determined annually by appropriate
action of the Employer.
c. ( ) The Integration Level shall be
( ) the Taxable Wage Base
( ) $__________ (a dollar amount less
than the Taxable Wage Base).
( ) % (not to exceed 100% of the Taxable
Wage Base).
Note: The Permitted Disparity Percentage cannot exceed the
greater of 5.7% or the tax rate under Section 3111(a) of
the Code attributable to the old age insurance portion of
the Old Age, Survivors and Disability Income provisions
of the Social Security Act (as in effect on the first day
of the Plan Year). If the Integration Level selected
above is other than the Taxable Wage Base ("TWB"), the
5.7% factor in the preceding sentence must be replaced by
the applicable percentage determined from the following
table.
<PAGE>
If the Integration Level is:
The Applicable
more than but not more than Factor is
$0 X* 5.7%
X* 80% of TWB 4.3%
80% of TWB Y** 5.4%
_______________
the greater of $10,000 or 20% of TWB
*X = the greater of $10,000 or 20% of TWB.
**Y = any amount more than 80% of TWB, but less than 100%
of TWB
Allocation of Employer Discretionary Contributions
--
In order to share in the allocation of Employer
Discretionary Contributions (and forfeitures, if
forfeitures are reallocated to Participants) an
Active Participant:
( ) Need not be employed on the last day of the
Plan Year.
(X) Must be employed on the last day of the Plan
Year, unless the Participant terminates
employment on account of:
( ) No exceptions.
(X) Death.
(X) Disability.
(X) Retirement.
<PAGE>
( ) Must have ( ) 501 Hours of Service;
( ) [...] Hours of Service (cannot exceed 1,000);
( ) 1,000 Hours of Service (not applicable if
elapsed time method of crediting service is
elected).
2. Elective Deferrals
( ) Not permitted.
(X) Shall be permitted.
A Participant may elect to have his or her
Compensation reduced by the following percentage or
amount per pay period:
(X) An amount not in excess of 18% of Compensation
(cannot exceed the dollar limitation of section
402(g) of the Code for the calendar year
($8,475 for 1991)].
An amount not in excess of $ [....] of
Compensation [cannot exceed the dollar
limitation of section 402(g) of the Code for
the calendar year ($8,475 for 1991)].
A Participant may elect to commence Elective
Deferrals the next pay period following: JANUARY 1,
FEBRUARY 1, MARCH 1, APRIL 1, MAY 1, JUNE 1, JULY
1, AUGUST 1, SEPTEMBER 1, OCTOBER 1, NOVEMBER 1,
DECEMBER 1 (enter date or period -- at least once
each calendar year).
A Participant may modify the amount of Elective
Deferrals as of JANUARY 1, APRIL 1, JULY 1, OCTOBER
1 (enter date or period at least once each calendar
year).
A Participant ( ) may; (X) may not base Elective
Deferrals on cash bonuses that, at the
Participant's election, may be contributed to the
CODA or received by the Participant in cash. Such
election shall be effective as of the next pay
period following [....] or as soon as
administratively feasible thereafter.
Participants who claim Excess Elective Deferrals
for the preceding calendar year must submit their
claims in writing to the plan administrator by
MARCH 1 (enter date between March 1 and April 15).
<PAGE>
A Participant ( ) may; (X) may not elect to
recharacterize Excess Contributions as Thrift
Contributions. (Note: Available only if Thrift
Contributions are permitted.)
Participants who elect to recharacterize Excess
Contributions for the preceding Plan Year as Thrift
Contributions must submit their elections in
writing to the Committee by [...] (enter date no
later than 2 1/2 months after close of Plan Year).
3. Thrift Contributions
(X) Not permitted.
( ) Participants shall be permitted to make Thrift
Contributions from [....]% (not less than 1) to
[....]% (not more than 10) of their total
aggregate Compensation.
The Change Date for a Participant to change the
amount of his Thrift Contributions shall be:
( ) The first day of the month.
( ) Any Anniversary Date and the first day of the
month which is 6 months thereafter.
( ) Any Anniversary Date.
( ) [....]
4. Matching Contributions
( ) Not provided.
(X) The Employer shall or may (in the event that
the Matching Contribution amount is within the
discretion of the Employer) make Matching
Contributions to the Plan with respect to:
(X) Elective Deferrals
<PAGE>
( ) Thrift Contributions
Such Matching Contributions will be made on behalf
of:
(X) All Participants.
( ) All Participants who are Non-highly Compensated
Employees.
The amount of such Matching Contributions made on
behalf of each such Participant shall be:
Elective Deferrals -
( ) A percentage of Elective Deferrals fixed by
appropriate action of the Employer.
(X) 50% of the Elective Deferrals.
( ) [....]% of the first [....]% of Elective
Deferrals, plus [....]% of the next [....]% of
Elective Deferrals, plus [....]% of the
remaining Elective Deferrals.
The Employers shall not match Elective Deferrals as
provided above in excess of $[....] or in excess of
2% of the Participant's Compensation.
The Employers shall not match Elective Deferrals
made by the following class(es) of Employees:
[....]
Thrift Contributions -
( ) an amount (in intervals of $.25) for each
dollar of Thrift Contributions fixed by
appropriate action of the Employer.
( ) $ [....] (in intervals of $.25) for each dollar
of Thrift Contributions.
The Employer shall not match Thrift Contributions
made by the following class(es) of Employees: [...]
<PAGE>
Matching Contributions shall be made with respect
to (as applicable) Elective Deferrals and/or Thrift
Contributions made during each:
( ) Payroll period.
(X) Monthly.
( ) Calendar quarter.
( ) Plan Year.
5. Qualified Matching Contributions
( ) Not provided.
(X) The Employer shall or may (in the event that
the Qualified Matching Contribution amount is
within the discretion of the Employer) make
Qualified Matching Contributions.
Qualified Matching Contributions will be made on
behalf of:
( ) All Participants who make Elective Deferrals.
(X) All Participants who are Non-highly Compensated
Employees and who make Elective Deferrals.
The amount of such Qualified Matching Contributions
made on behalf of each Participant shall be:
(X) a percentage of the Elective Deferrals made for
each Plan Year fixed by appropriate action of
the Employer.
( ) [....]% of the Elective Deferrals made for each
Plan Year.
The Employer shall not match Elective Deferrals as
provided above in excess of $ [....] or in excess
of [....]% of the Participant's Compensation.
6. Qualified Non-elective Contributions
<PAGE>
( ) Not provided.
(X) The Employer shall have the discretion to
contribute Qualified Non-elective Contributions
for any Plan Year in an amount to be determined
each year by the Employer.
Qualified Non-elective Contributions will be made
on behalf of:
( ) All Participants who make Elective Deferrals.
(X) All Participants who are Non-highly Compensated
Employees and who make Elective Deferrals.
B. Forfeitures (Do not complete if 100% immediate vesting is
elected).
Forfeitures of Employer Discretionary Contributions,
Matching Contributions or Excess Aggregate Contributions
shall be:
( ) Allocated to Participants in the manner provided in
Sections 4.2 and 4.7(c) of the Plan.
(X) Used to reduce future Employer contributions.
C. Contributions Not Limited By Net Profits
Indicate for each type of Employer contribution allowed
under the Plan whether such contributions are to be
limited to Net Profits of the Employer for the taxable
year of the Employer ending with or within the Plan Year.
( ) Yes (X) No Employer Discretionary Contributions
( ) Yes (X) No Elective Deferrals
( ) Yes (X) No Qualified Non-elective Contributions
( ) Yes (X) No Matching Contributions
( ) Yes (X) No Qualified Matching Contributions
<PAGE>
XII. DISTRIBUTIONS AND IN-SERVICE WITHDRAWALS
A. Elective Deferrals, Qualified Non-elective Contributions
and Qualified Matching Contributions (as applicable) and
income allocable to such amounts shall be distributable
upon separation from service, death, or disability, as
defined in the Plan, and, in addition:
(X) Termination of the Plan without establishment or
maintenance of a successor plan.
(X) The disposition to an entity that is not an
Affiliated Employer of substantially all of the
assets used by the Employer in a trade or business,
but only if the Employer continues to maintain the
Plan and only with respect to Participants who
continue employment with the acquiring corporation.
(X) The disposition to an entity that is not an
Affiliated Employer of the Employer's interest in a
subsidiary, but only if the Employer continues to
maintain the Plan and only with respect to
Participants who continue employment with such
subsidiary.
(X) Upon the Participant's attainment of age 59 1/2.
(X) Elective Deferrals Only - On account of a
Participant's financial hardship, to the extent
permitted by Section 4.9 of the Plan.
B. In-service withdrawals from a Participant's Regular and
Matching Contribution Accounts ( ) shall; (X) shall not
be permitted upon the attainment of age 59 1/2.
(Permitted only if Plan is not integrated with Social
Security and a Participant's Regular and Matching
Contribution Accounts are 100% vested at time of
distribution.)
C. Distribution of benefits upon retirement or death of a
Participant (X) shall; ( ) shall not be subject to the
Automatic Annuity rules of Section 8.2 of the Plan.
D. (Complete only if Plan is subject to Automatic Annuity
rules of Section 8.2) The following optional forms of
benefit shall be available in addition to the optional
forms of benefit available under Section 8.6 of the Plan:
<PAGE>
( ) ______________________________________________________
______________________________________________________
______________________________________________________
(Note: If the Plan is an amendment and restatement of an
Existing Plan, optional forms of benefit protected under
section 411 (d)(6) of the Code may not be eliminated,
unless permitted by IRS regulations sections 1.401(a)-(4)
and 1.411(d)-4].
XIII. VESTING SERVICE
In order to be credited with a year of Service for vesting
purposes, a Participant shall complete 1,000 (not to exceed
1,000) Hours of Service. (Not applicable if elapsed time
method of crediting service is elected).
XlV. VESTING SERVICE - EXCLUSIONS
All of an Employee's years of Service with the Employer shall
be counted to determine the vested interest of such Employee
except:
(X) Years of Service before age 18.
( ) Years of Service before the Employer maintained this Plan
or a predecessor plan.
( ) Years of Service before the effective date of ERISA if
such Service would have been disregarded under the
Service Break rules of the prior plan in effect from time
to time before such date. For this purpose, Service Break
rules are rules which result in the loss of prior vesting
or benefit accruals, or deny an Employee's eligibility to
participate by reason of separation or failure to
complete a required period of Service within a specified
period of time.
<PAGE>
XV. VESTING SCHEDULES
The vested interest of each Employee (who has an Hour of
Service on or after January 1, 1989) in his Employer- derived
account balance shall be determined on the basis of the
following schedules:
A. Employer Discretionary Contributions.
( ) 100% immediately vested. [Note: Mandatory if more
than l Eligibility Year of Service is required.]
( ) 100% immediately vested after [....] (not to exceed
5) Years of Service.
(X) 20% (not less than 20%) vested for each year of
Service, beginning with the 1st (not more than the
3rd) year of Service until 100% vested.
( ) The Top Heavy Minimum Vesting Schedule selected in
C., below.
( ) Other: [....] (Must be at least as favorable as any
one of the above 4 options).
AND
( ) Effective Date Vesting. Each Employee who is a
Participant on the Effective Date shall be 100%
immediately vested.
B. Matching Contributions.
( ) 100% immediately vested.
(X) In accordance with the schedule selected in A.
above.
C. Top Heavy Minimum Vesting Schedules.
One of the following schedules will be used for years
when the Plan is or is deemed to be Top-Heavy.
( ) 100% immediately vested after [...] (not to exceed
3) years of Service.
<PAGE>
( ) 20% vested after 2 years of Service, plus [...]%
vested (not less than 20%) for each additional year
of Service until 100% vested.
(X) In accordance with the schedule selected in A.
above.
If the vesting schedule under the Plan shifts in or out
of the Minimum Schedule above for any Plan Year because
of the Plan's Top-Heavy status, such shift is an
amendment to the vesting schedule and the election in
Section 7.3 of the Plan applies.
XVI. LIFE INSURANCE
Life insurance ( ) shall; (X) shall not be a permissible
investment.
XVII. LOANS
Loans (X) shall; ( ) shall not be permitted.
XVIII. TOP-HEAVY PROVISIONS
A. Top Heavy Status
( ) The provisions of Article XIII of the Plan shall
always apply.
(X) The provisions of Article XIII of the Plan shall
only apply in Plan Years after 1983, during which
the Plan is or becomes Top-Heavy.
B. Minimum Allocations
If a Participant in this Plan who is a Non-Key Employee
is covered under another qualified plan maintained by the
Employer, the minimum top heavy allocation or benefit
required under section 416 of the Code shall be provided
to such Non-key Employee under:
(X) this Plan.
<PAGE>
( ) the Employer's other qualified defined contribution
plan.
( ) the Employer's qualified defined benefit plan.
C. Determination of Present Value
If the Employer maintains a defined benefit plan in
addition to this Plan, and such plan fails to specify the
interest rate an mortality table to be used for purposes
of establishing present value to compute the Top-Heavy
Ratio, then the following assumptions shall be used:
Interest Rate: 6%
Mortality Table: UP 84 MORTALITY TABLE (SET BACK 2 YEARS
FOR MALE AND FEMALE)
XIX. LIMITATION ON ALLOCATIONS
If the adopting Employer maintains or has ever maintained
another qualified plan in which any Participant in this Plan
is (or was) a participant or could possibly become a
participant, the adopting Employer must complete this Section.
The Employer must also complete this Section if it maintains
a welfare benefit fund, as defined in section 419(e) of the
Code, or an individual medical account, as defined in section
415(l)(2) of the Code, under which amounts are treated as
Annual Additions with respect to any Participant in the Plan.
(a) If the Participant is covered under another qualified
defined contribution plan maintained by the Employer,
other than a Master or Prototype Plan, Annual Additions
for any Limitation Year shall be limited to comply with
section 415(c) of the Code:
(X) in accordance with Sections 6.4(e)-(j) as though
the other plan were a Master or Prototype Plan.
( ) by freezing or reducing Annual Additions in the
other qualified defined contribution plan.
( ) other:
_________________________________________________
__________________________________________________
<PAGE>
(b) If a Participant is or has ever been a participant in a
qualified defined benefit plan maintained by the
Employer, the "1.0" aggregate limitation of section
415(e) of the Code shall be satisfied by:
(X) freezing or reducing the rate of benefit accrual
under the qualified defined benefit plan.
( ) freezing or reducing the Annual Additions under
this Plan (or, if the Employer maintains more than
one qualified defined contribution plan, as
indicated in (a) above).
( ) other:
____________________________________________
____________________________________________
XX. INVESTMENTS
Participants (X) shall; ( ) shall not be permitted to direct
the investment of their Accounts in the investment options
selected by the Employer or the Committee.
XXI. EMPLOYER REPRESENTATIONS
The Employer hereby represents that:
a. It is aware of, and agrees to be bound by, the terms of
the Plan.
b. It understands that the Sponsor will not furnish legal or
tax advice in connection with the adoption or operation
of the Plan and has consulted legal and tax counsel to
the extent necessary.
c. The failure to properly fill out this Adoption Agreement
may result in disqualification of the Plan.
XXII. RELIANCE ON PLAN QUALIFICATION
<PAGE>
The adopting Employer may not rely on an opinion letter issued
by the National Office of the Internal Revenue Service as
evidence that the Plan is qualified under section 401 of the
Code. In order to obtain reliance with respect to plan
qualification, the Employer must apply to the appropriate key
district office of the Internal Revenue Service for a
determination letter.
XXIII. PROTOTYPE PLAN DOCUMENTS
This Adoption Agreement may be used only in conjunction with
the Dreyfus Prototype Defined Contribution Plan, Basic Plan
Document No. 01, and the Dreyfus Trust Agreement both as
amended from time to time. In the event the Sponsor amends the
Basic Plan Document or this Adoption Agreement or discontinues
this type of plan, it will inform the Employer. The Sponsor,
Dreyfus Service Corporation, is available to answer questions
regarding the intended meaning of any Plan provisions,
adoption of the Plan and the effect of an Opinion Letter at
144 Glenn Curtiss Boulevard, Uniondale, New York 11556-0144
((516) 338-3418].
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Employer and the Trustee have executed this
instrument the 14th day of June, 1993. If applicable, the
appropriate corporate seal has been affixed and attested to.
GENOVESE DRUG STORES. INC.
Name of Business Entity
/s/ Jerome Stengel
Signature (Sole Proprietors only)
By: Jerome Stengel, Vice President & Treasurer
Name and Title Corporations
or Partnerships)
ATTEST:
/s/ Donald W. Gross
Secretary (Corporations only)
THE DREYFUS TRUST COMPANY
Name(s) of Trustee(s)
____________________________________
Signature (Individual Trustee)
____________________________________
Signature (Individual Trustee)
By: /s/ Martin Lebowitz, Vice President
Name and Title (Corpore Trustee only)
<PAGE>
DREYFUS PROTOTYPE
DEFINED CONTRIBUTION PLAN
BASIC PLAN DOCUMENT NO. 01
<PAGE>
<PAGE>
DREYFUS PROTOTYPE DEFINED CONTRIBUTION PLAN
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS 1
1.1 "Account" 1
1.2 "Act" 1
1.3 "Actual Deferral Percentage" 1
1.4 "Adoption Agreement" 1
1.5 "Affiliated Employer" 1
1.6 "Anniversary Date" 1
1.7 "Annuity Starting Date" 1
1.8 "Average Actual Deferral Percentage" 1
1.9 "Average Contribution Percentage" 2
1.10 "Beneficiary" or "Beneficiaries" 2
1.11 "Board of Directors" 2
1.12 "CODA" 2
1.13 "Code" 2
1.14 "Committee" 2
1.15 "Compensation" 2
1.16 "Contribution Percentage" 3
1.17 "Contribution Percentage Amounts" 3
1.18 "Early Retirement Age" 3
1.19 "Earned Income" 3
1.20 "Easy Retirement Plan" 4
1.21 "Effective Date" 4
1.22 "Elective Deferrals" 4
1.23 "Eligible Employee" 4
1.24 "Eligibility Year(s) of Service" 4
1.25 "Employee" 5
1.26 "Employer" 5
1.27 "Employment Commencement Date" 5
1.28 "Entry Date" 6
1.29 "Excess Aggregate Contributions" 6
1.30 "Excess Contributions" 6
1.31 "Excess Elective Deferrals" 6
1.32 "Family Member" 6
1.33 "Fund" 6
1.34 "Highly Compensated Employee" 6
1.35 "Hour of Service" 8
1.36 "Integration Level" 9
1.37 "Matching Contribution" 9
<PAGE>
1.38 "Net Profits" 9
1.39 "Non-highly Compensated Employee" 9
1.40 "Normal Retirement Age" 9
1.41 "Owner-Employee" 10
1.42 "Participant" 10
(a) "Active Participant" 10
(b) "Eligible Participant" 10
1.43 "Participating Employer" 10
1.44 "Period of Severance" 10
1.45 "Plan" 11
1.46 "Plan Year" 11
1.47 "Prototype Plan" 11
1.48 "Qualified Matching Contributions" 11
1.49 "Qualified Non-elective Contributions" 11
1.50 "Re-Employment Commencement Date" 11
1.51 "5-Corporation" 11
1.52 "Self-Employed Individual" 11
1.53 "Service" 12
1.54 "Service Break" 12
1.55 "Severance From Service Date" 13
1.56 "Shareholder-Employee" 13
1.57 "Sponsor" 13
1.58 "Taxable Wage Base" 13
1.59 "Thrift Contributions" 13
1.60 "Total and Permanent Disability" 13
1.61 "Trustee" or "Custodian" 13
1.62 "Trust Agreement" or "Custodial Agreement" 14
1.63 "Valuation Date" 14
1.64 "Voluntary Contributions" 14
ARTICLE II - PARTICIPATION 14
2.1 Membership 14
2.2 Excluded Employees 14
2.3 Re-Employment 15
2.4 Change in Employment Status 15
2.5 Limitations on Participation
of Owner-Employees 16
<PAGE>
ARTICLE III - CONTRIBUTIONS AND CREDITS TO
MONEY PURCHASE PLANS 17
3.1 Employer Contributions 17
3.2 Forfeitures 17
3.3 Credits to Participants 17
ARTICLE IV - CONTRIBUTIONS AND CREDITS TO
PROFIT SHARING PLANS 18
4.1 Limits on Employer Contributions 18
4.2 Forfeitures 18
4.3 Employer Discretionary Contributions 19
4.4 401(k) Cash or Deferred Arrangements 20
4.5 Maximum Amount of Elective Deferrals 23
4.6 Average Actual Deferral Percentage Tests 24
4.7 Average Contribution Percentage Tests 29
4.8 Non-Hardship Withdrawals 33
4.9 Distribution on Account of Financial Hardship 33
4.10 Special Distribution Rules 35
ARTICLE V - CONTRIBUTIONS AND CREDITS TO
TARGET BENEFIT PLANS 36
[RESERVED]
ARTICLE VI - CONTRIBUTION AND ALLOCATION UNITS 36
6.1 Timing of Contributions 36
6.2 Deductibility of Contributions 36
6.3 Return of Employer Contributions 36
6.4 Limitation on Allocations 37
6.5 Separate Accounts 45
6.6 Valuation 45
6.7 Segregation of Former Participant's Account 46
ARTICLE VII - VESTING 46
7.1 Vesting Interest 46
7.2 Vesting of a Participant 47
7.3 Amendment of Vesting Provisions 47
7.4 Forfeitures 48
<PAGE>
ARTICLE VIII - BENEFITS ON RETIREMENT AND
SEPARATION FROM SERVICE 49
8.1 Commencement of Benefits 49
8.2 Automatic Annuity Requirements 50
8.3 Profit Sharing Plans: Exception from
Automatic Annuity Requirements 54
8.4 Transitional Rules Applicable to
Joint and Survivor Annuities 54
8.5 Required Payment of Benefits 56
8.6 Available Forms of Distributions 63
8.7 Certain Distributions 64
8.3 Forfeitures 64
ARTICLE IX - DEATH BENEFITS 64
9.1 Payment to Beneficiary 64
9.2 Method of Payment 65
ARTICLE X - PARTICIPANT CONTRIBUTIONS; ROLLOVERS 65
10.1 Voluntary Contributions 65
10.2 Voluntary Tax-Deductible Contributions 66
10.3 Transfers From Other Trusts 66
ARTICLE XI - INSURANCE POLICIES 67
11.1 Policy Procurement 67
11.2 Rules and Regulations 67
11.3 Transfer of Policies 68
11.4 Payment Upon Death 69
11.5 Plan Provisions Control 69
ARTICLE XII LOANS 69
12.1 Loans to Participants 69
12.2 Transactions Treated as Loans 71
12.3 Provisions to be Applied in a Uniform
and Nondiscriminatory Manner 71
<PAGE>
12.4 Satisfaction of Loan 71
12.5 Loans to Owner-Employees or
Shareholder-Employees 71
ARTICLE XIII - TOP-HEAVY PROVISIONS 72
13.1 Definitions 72
13.2 Vesting Schedules 76
13.3 Minimum Allocation 76
13.4 Adjustment to Defined Benefit Fraction
and Defined Contribution Fraction
under Section 6.4 77
ARTICLE XIV - THE COMMITTEE 77
14.1 Creation of a Committee 77
14.2 Committee Action 78
14.3 Authorized Signatory 78
14.4 Powers and Duties 78
14.5 Non-Discrimination 78
14.6 Records and Reports 78
14.7 Reliance on Professional Advice 78
14.8 Payment of Expenses 79
14.9 Limitation of Liability 79
14.10 Payment Certification to Trustee 79
14.11 Claims Procedure 79
ARTICLE XV - GENERAL PROVISIONS 80
15.1 No Right of Continued Employment 80
15.2 Non-Alienation of Interest 80
15.3 Incompetence of Participants
and Beneficiaries 80
15.4 Unclaimed Benefits 81
15.5 Separate Employer Trusts Maintained 81
15.6 Governing Law 81
15.7 Severability 81
15.8 Gender and Number 82
15.9 Titles and Heading 82
15.10 Failure of Employer's Plan to Qualify 82
15.11 Exclusive Benefit 82
<PAGE>
ARTICLE XVI - AMENDMENT AND TERMINATION 82
16.1 Amendment 82
16.2 Termination and Partial Termination 83
16.3 Plan Merger and Consolidation or
Transfer of Plan Assets 84
16.4 Amended and Restated Plans 84
16.5 Participating Employers 85
ARTICLE XVII - PAIRED PLAN PROVISIONS 85
17.1 Compliance With Section 415(e)
of the Code 86
17.2 Adjustment of Combined Plan Fractions
under Section 415 of the Code for
Top-Heavy Ratio in Excess of Ninety
Percent (90%) 86
17.3 Top-Heavy Minimum Benefits and
Contributions 86
17.4 Integration of Paired Plans 87<PAGE>
<PAGE>
DREYFUS PROTOTYPE DEFINED CONTRIBUTION PLAN
BASIC PLAN DOCUMENT NO. 01
ARTICLE I.
DEFINITIONS
1.1 "Account" shall mean any one of the accounts maintained by
the Committee for each Participant in accordance with
Section 6.5.
1.2 "Act" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
1.3 "Actual Deferral Percentage" shall mean the ratio
(expressed as a percentage) of Elective Deferrals
(including Excess Elective Deferrals), Qualified Matching
Contributions, and Qualified Non-elective Contributions
paid over to the Fund on behalf of an Eligible Participant
for the Plan Year to the Eligible Participant's
Compensation for the Plan Year. The Actual Deferral
Percentage of an Eligible Participant who does not make an
Elective Deferral, and who does not receive an allocation
of a Qualified Matching Contribution or a Qualified Non-
elective Contribution, is zero.
1.4 "Adoption Agreement" shall mean the document executed by
the adopting Employer which contains all the options which
may be selected and which incorporates this Prototype Plan
by reference.
1.5 "Affiliated Employer" shall mean any corporation which is
a member of a controlled group of corporations (as defined
in section 414(b) of the Code) which includes the
Employer; any trade or business (whether or not
incorporated) which is under common control (as defined in
section 414(c) of the Code) with the Employer; any
organization (whether or not incorporated) which is a
member of an affiliated service group (as defined in
section 414(m) of the Code) which includes the Employer;
and any other entity required to be aggregated with the
Employer pursuant to regulations under section 414(o) of
the Code.
<PAGE>
1.6 "Anniversary Date" unless otherwise defined in the
Adoption Agreement, shall mean the first day of the Plan
Year.
1.7 "Annuity Starting Date" shall mean the first day of the
first period for which an amount is paid as an annuity or
any other form.
1.8 "Average Actual Deferral Percentage" shall mean the
average (expressed as a percentage) of the Actual Deferral
Percentages of the Eligible Participants in a group.
1.9 "Average Contribution Percentage" shall mean the average
(expressed as a percentage) of the Contribution
Percentages of the Eligible Participants in a group.
1.10 "Beneficiary" or "Beneficiaries" shall mean one or more
persons designated as such by a Participant to receive his
interest in the Fund in the event of the death of the
Participant.
1.11 "Board of Directors" shall mean the Board of Directors of
the Employer if the Employer is an incorporated business
entity.
1.12 "CODA" shall mean a cash or deferred arrangement qualified
under section 401(k) of the Code.
1.13 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.14 "Committee" shall mean the person or persons appointed by
the Employer to administer the Plan in accordance with
Article XIV. If the Plan is an Easy Retirement Plan or if
no such Committee is appointed by the Employer, the
Employer shall act as the Committee.
1.15 "Compensation", unless otherwise specified in the Adoption
Agreement, shall mean, in the case of an Employee other
than a Self-Employed Individual, his W-2 earnings, which
are actually paid during the applicable period. In the
case of a Self-Employed Individual, Compensation shall
mean his Earned Income. Unless otherwise specified in the
Adoption Agreement, the applicable period shall be the
Plan Year. If elected by the employer in the Adoption
Agreement, Compensation shall also include Employer
<PAGE>contributions made pursuant to a salary reduction
agreement with an Employee which are not currently
includible in the gross income of the Employee by reason
of the application of sections 125, 402(a) (8), 402(h) or
403(b) of the Code. Compensation shall include Excess
Contributions which are recharacterized in accordance with
Section 4.6(d) to the extent that Elective Deferrals are
included in Compensation.
Solely for purposes of determining Actual Deferral
Percentages and Contribution Percentages, Compensation, if
the Plan is a non-standardized plan, shall be determined
without regard to any exclusions which may be elected in
the Adoption Agreement and the applicable period for
determining the amount of an Employee's Compensation shall
be limited to the period during which the Employee was an
Eligible Participant for Plan Years beginning before
January 1, 1992. For Plan Years beginning on or after
January 1, 1992, the applicable period shall be the Plan
Year.
For Plan Years beginning on or after January 1, 1989,
Compensation shall not include amounts in excess of
$200,000, as adjusted by the Secretary of the Treasury at
the same time and in the same manner as under section
415(d) of the Code. In determining Compensation for
purposes of the adjusted $200,000 limitation, the family
member rules of section 414(q)(6) of the Code shall apply
except that in applying such rules, the term "family"
shall include only the Employee's spouse and any lineal
descendants who have not attained age 19 before the close
of the Plan Year. If, as a result of the application of
such family member rule the adjusted $200,000 limitation
is exceeded, then (except for purposes of determining the
portion of Compensation up to the Integration Level if
this Plan is integrated with Social Security), the
adjusted $200,000 limitation shall be prorated among the
affected individuals in proportion to each such
individual's Compensation as determined under this Section
prior to the application of the adjusted $200,000
limitation.
1.16 "Contribution Percentage" shall mean the ratio (expressed
as a percentage) of an Eligible Participant's Contribution
Percentage Amounts to the Eligible Participant's
Compensation for the Plan Year.
<PAGE>
1.17 "Contribution Percentage Amounts" shall mean the sum of
the Thrift Contributions (including amounts
recharacterized in accordance with Section 4.6(d)),
Voluntary Contributions and Matching Contributions under
the Plan on behalf of an Eligible Participant for the Plan
Year. Such Contribution Percentage Amounts shall include
forfeitures of Excess Aggregate Contributions or Matching
Contributions allocated to the Eligible Participant's
Employer Matching Contribution Account, which shall be
taken into account in the year in which such forfeiture is
allocated.
1.18 "Early Retirement Age" shall mean the date a Participant
satisfies the age and service requirements for early
retirement, if any, specified in the Adoption Agreement.
Upon reaching his Early Retirement Age, a Participant's
right to his account balance shall be nonforfeitable,
notwithstanding the Plan's vesting schedule.
If a Participant separates from service before satisfying
the age requirement for early retirement, but has
satisfied the service requirement, the Participant will be
entitled to elect to receive an early retirement benefit
upon satisfaction of such age requirement.
1.19 "Earned Income" shall mean the annual net earnings from
self-employment in the trade or business with respect to
which the Plan is established, provided that personal
services of the individual are a material income-
producing factor. Net earnings will be determined without
regard to items not included in gross income and the
deductions allocable to such items. Net earnings are
reduced by contributions by the Employer to a qualified
plan to the extent deductible under section 404 of the
Code. Net earnings shall be determined with regard to the
deduction allowed to the Employer by section 164(f) of the
Code for taxable years beginning after December 31, 1989.
1.20 "Easy Retirement Plan" shall mean a Plan established under
Dreyfus Easy Standardized/Paired Prototype Money Purchase
Retirement Plan No. 01005 or Dreyfus Easy Standard-
ized/Paired Prototype Profit Sharing Retirement Plan
No. 01006.
<PAGE>
1.21 "Effective Date" shall mean the date specified in the
Adoption Agreement.
1.22 "Elective Deferrals" shall mean any Employer contributions
made to the Plan at the election of the Participant, in
lieu of cash compensation, and shall include contributions
made pursuant to a salary reduction agreement or other
deferral mechanism. With respect to any taxable year, a
Participant's Elective Deferrals are the sum of all
Employer contributions made on behalf of such Participant
pursuant to an election to defer under any CODA, any
simplified employee pension cash or deferred arrangement
as described in section 402(h)(1)(B), any eligible
deferred compensation plan under section 457, any plan as
described under section 501(c)(18), and any Employer
contributions made on behalf of a Participant for the
purchase of an annuity contract under section 403(b)
pursuant to a salary reduction agreement.
1.23 "Eligible Employee" shall mean each Employee who is not
excluded from eligibility to participate in the Plan under
the Adoption Agreement. If the Plan is an Easy Retirement
Plan, Eligible Employee shall mean each Employee who is
not (i) included in a unit of Employees covered by a
collective bargaining agreement between the Employer and
employee representatives, if retirement benefits were the
subject of good faith bargaining, or (ii) a nonresident
alien who received no income from the Employer which
constitutes income from sources within the United States.
For purposes of the preceding sentence, "employee
representatives" does not include any organization more
than half of whose members are Employees who are owners,
officers, or executives of the Employer.
1.24 "Eligibility Year(s) of Service" shall mean the
twelve (12) consecutive month period commencing on an
Employee's Employment Commencement Date and anniversaries
thereof, during which the Employee worked at least one
thousand (1,000) Hours of Service (or such lesser number
of Hours of Service specified in the Adoption Agreement).
In the case of a Participant, who does not have any
nonforfeitable right to the account balance derived from
Employer contributions, Eligibility Year(s) of Service
before a period of consecutive one (1) year Service Breaks
will not be taken into account in computing Eligibility
<PAGE>Years of Service, if the number of consecutive one
(1) year Service Breaks in such period equals or exceeds
the greater of five (5) or the aggregate number of
Eligibility Years of Service before such break. Such
aggregate number of Eligibility Years of Service will not
include any Eligibility Year of Service disregarded under
the preceding sentence by reason of prior Service Breaks.
Notwithstanding the above, if the Adoption Agreement
provides for full and immediate vesting upon completion of
the eligibility requirements and an Employee has incurred
a one (1) year Service Break before satisfying the Plan's
eligibility requirements, all Eligibility Year(s) of
Service before such Service Break will not be taken into
account.
If the elapsed time method of crediting service is
specified in the Adoption Agreement, an Employee shall
receive credit for Service, except for credit which may be
disregarded under this Section or Section 2.3, for the
aggregate of all time periods commencing on his Employment
Commencement Date or Re-Employment Commencement Date and
ending on his Severance from Service Date. An Employee
shall also receive credit for any Period of Severance of
less than twelve (12) months. Fractional periods of a
year shall be expressed in terms of days.
1.25 "Employee" shall mean an Owner-Employee, a Self-Employed
Individual, a Shareholder-Employee or any other person
employed by the Employer or any Affiliated Employer.
A "leased employee" shall also be treated as an Employee.
The term "leased employee" means any person (other than an
employee of the recipient employer) who pursuant to an
agreement between the recipient employer and any other
person ("leasing organization") has performed services for
the recipient employer (or for the recipient employer and
related persons determined in accordance with
section 414(n)(6) of the Code) on a substantially full-
time basis for a period of at least one year, and such
services are of a type historically performed by employees
in the business field of the recipient employer.
Contributions or benefits provided a leased employee by
the leasing organization which are attributable to
services performed for the recipient employer shall be
treated as provided by the recipient employer.
<PAGE> Notwithstanding the preceding paragraph, a leased employee
shall not be considered an employee of the recipient
employer if: (i) such employee is covered by a money
purchase pension plan providing (1) a nonintegrated
employer contribution rate of at least ten percent (10%)
of compensation, as defined in section 415(c)(3) of the
Code, but including amounts contributed pursuant to a
salary reduction agreement which are excludable from the
employee's gross income under section 125,
section 402(a)(8), section 402(h) or section 403(b) of the
Code, (2) immediate participation, and (3) full and
immediate vesting; and (ii) leased employees do not
constitute more than twenty percent (20%) of the recipient
employer's non-highly compensated workforce.
1.26 "Employer" shall mean the corporation, partnership,
proprietorship or other business entity which shall adopt
the Plan or any successor thereof and any Participating
Employer designated in the Adoption Agreement.
1.27 "Employment Commencement Date" shall mean the first date
with respect to which an Employee performs an Hour of
Service.
1.28 "Entry Date", unless otherwise specified in the Adoption
Agreement, shall mean the first day of the Plan Year and
the first day of the seventh month of the Plan Year. The
initial Entry Date shall not precede the original
effective date of the Plan.
1.29 "Excess Aggregate Contributions" shall mean, with respect
to any Plan Year, the excess of the aggregate Contribution
Percentage Amounts taken into account in computing the
numerator of the Contribution Percentage, actually made on
behalf of Highly Compensated Employees for such Plan Year,
over the maximum Contribution Percentage Amounts permitted
by the Average Contribution Percentage tests of
Section 4.7 (determined by reducing contributions made on
behalf of Highly Compensated Employees in order of their
Contribution Percentages, beginning with the highest of
such percentages).
1.30 "Excess Contributions" shall mean, with respect to any
Plan Year, the excess of the aggregate amount of Elective
Deferrals, Qualified Non-elective Contributions, and
Qualified Matching Contributions actually taken into
account in computing the Actual Deferral Percentage of
Highly Compensated Employees for such Plan Year, over the
maximum amount of such contributions permitted under the
Average <PAGE>Actual Deferral Percentage tests of
Section 4.6 (determined by reducing contributions made on
behalf of Highly Compensated Employees in order of their
Actual Deferral Percentages, beginning with the highest of
such percentages).
1.31 "Excess Elective Deferrals" shall mean a Participant's
Elective Deferrals for a taxable year in excess of the
adjusted dollar limitation of section 402(g) of the Code.
1.32 "Family Member" shall, with respect to a five percent (5%)
owner or top ten Highly Compensated Employee described in
section 414(q)(6)(A) of the Code, include the spouse and
lineal ascendants and descendants of an Employee or former
Employee and the spouses of such lineal ascendants and
descendants. The determination of who is a Family Member
will be made in accordance with section 414(q) of the
Code.
1.33 "Fund" shall mean all property received by the Trustee or
Custodian for purposes of the Plan, investments thereof
and earnings thereon, less payments made by the Trustee to
carry out the Plan.
1.34 "Highly Compensated Employee" shall include highly
compensated active employees and highly compensated former
employees.
A highly compensated active employee includes any Employee
who performs services for the Employer or any Affiliated
Employer during Determination Year and who, during the
Look-Back Year: (i) received Compensation from the
Employer or any Affiliated Employer or any Affiliated
Employer in excess of $75,000 (as adjusted pursuant to
section 415(d) of the Code); (ii) received Compensation
from the Employer or any Affiliated Employer in excess of
$50,000 (as adjusted pursuant to section 415(d) of the
Code) and was a member of the top-paid group for such
year; or (iii) was an officer of the Employer or any
Affiliated Employer and received Compensation during such
year that is greater than fifty percent (50%) of the
dollar limitation in effect under section 415(b)(1)(A) of
the Code. The term Highly Compensated Employee also
includes: (i) an Employee who is described in the
preceding sentence if the term "Determination Year" is
substituted for the term "Look-Back Year" and the Employee
is one of the 100 most highly compensated Employees of the
Employer or any Affiliated Employer during the Plan Year;
and (ii) an Employee who is a <PAGE>five percent (5%)
owner of the Employer or any Affiliated Employer at any
time during the Look-Back Year or Determination Year.
If no officer has satisfied the compensation requirement
of (iii) above during either a Determination Year or Look-
Back Year, the highest paid officer for such year shall be
treated as a Highly Compensated Employee.
For this purpose, the Determination Year shall be the Plan
Year, and the Look-Back Year shall be the twelve (12)
month period immediately preceding the Determination Year
unless the Employer has elected to use the calendar year
ending with or within the Determination Year as the Look-
Back Year for purposes of its employee benefit plans. If
the Employer has so elected to use such calendar year as
the Look-Back Year for its employee benefit plans, the
Determination Year shall be the "lag period," if any, by
which the applicable Determination Year extends beyond
such calendar year.
A highly compensated former employee includes any Employee
who terminated employment (or was deemed to have
terminated) prior to the Determination Year, performs no
service for the Employer or any Affiliated Employer during
the Determination Year, and was a highly compensated
active employee for either the separation year or any
Determination Year ending on or after the Employee's 55th
birthday.
If an Employee is, during a Determination Year or Look-
Back Year, a Family Member of either a five percent (5%)
owner who is an active or former Employee or a Highly
Compensated Employee who is one of the 10 most Highly
Compensated Employees of the Employer or any Affiliated
Employer during such year, then the Family Member and the
five percent (5%) owner or top-10 Highly Compensated
Employee shall be aggregated. The Family Member and five
percent (5%) owner or top-10 Highly Compensated Employee
shall be treated as a single Employee receiving
Compensation and Plan contributions equal to the sum of
Compensation and contributions of the Family Member and
five percent (5%) owner or top-10 Highly Compensated
Employee.
The determination of who is a Highly Compensated Employee,
including the determinations of the number and identify of
employees in top-paid group, the top 100 employees, the
number of employees treated as officers and the
compensation <PAGE>that is considered, will be made in
accordance with section 414(q) of the Code and the
regulations thereunder.
1.35 "Hour of Service" shall mean:
(a) Each hour for which an Employee is compensated by
the Employer, or is entitled to be so compensated,
for services rendered by him to the Employer. These
hours will be credited to the Employee for the
computation period in which the duties are
performed; and
(b) Each hour for which an Employee is compensated by
the Employer, or is entitled to be so compensated,
on account of a period of time during which no
services are rendered by him to the Employer
(regardless of whether the Employee shall have
ceased to be an Employee) due to vacation, holiday,
illness, incapacity (including disability), layoff,
jury duty, military duty or leave of absence. No
more than five hundred and one (501) Hours of
Service shall be credited pursuant to this
subparagraph (b) on account of any single continuous
period during which an Employee renders no services
to the Employer (whether or not such period occurs
in a single computation period). Hours under this
paragraph will be calculated and credited pursuant
to section 2530.200b-2 of the Department of Labor
Regulations which are incorporated herein by this
reference; and
(c) Each hour for which back pay, without regard to
mitigation of damages, has been awarded or agreed to
by the Employer. The same Hours of Service shall
not be credited both under subparagraph (a) or
subparagraph (b), whichever shall be applicable, and
also under this subparagraph (c). The hours will be
credited to the Employee for the computation period
or periods to which the award or agreement pertains
rather than the computation period in which the
award, agreement or payment is made.
Hours of Service will be credited for employment
with an Affiliated Employer. Hours of Service will
also be credited for employment with a predecessor
employer if the Employer maintains the plan of such
predecessor or the Employer so elects in the
Adoption Agreement.
<PAGE>Hours of Service will also be credited for any
individual considered an Employee under sections
414(n) or 414(o) of the Code or the regulations
thereunder.
Solely for purposes of determining whether a Service
Break, as defined in Section 1.54, for participation
and vesting purposes has occurred in a computation
period, an individual who is absent from work for
maternity or paternity reasons shall receive credit
for the Hours of Service which would otherwise have
been credited to such individual but for such
absence, or in any case in which such hours cannot
be determined, eight (8) Hours of Service per day of
such absence. For purposes of this paragraph, an
absence from work for maternity or paternity reasons
means an absence (1) by reason of the pregnancy of
the individual, (2) by reason of a birth of a child
of the individual, (3) by reason of the placement of
the child with the individual in connection with the
adoption of such child by such individual, or (4)
for purposes of caring for such child for a period
beginning immediately following such birth or
placement. The Hours of Service credited under this
paragraph shall be credited (1) in the computation
period in which the absence begins if the crediting
is necessary to prevent a Service Break in that
period, (2) in all other cases, in the following
computation period.
Hours of Service shall be credited on the basis of
actual hours worked unless another method has been
specified in the Adoption Agreement. Hours of
Service shall not be counted if the elapsed time
method is specified in the Adoption Agreement,
except to determine an Employee's Employment
Commencement Date or Re-Employment Commencement
Date.
1.36 "Integration Level" shall mean the Taxable Wage Base or
such lesser amount elected by the Employer in the Adoption
Agreement.
1.37 "Matching Contribution" shall mean Employer contributions
made to this Plan or any other defined contribution plan
by reason of Thrift Contributions or Elective Deferrals
under this Plan.
<PAGE>
1.38 "Net Profits" shall mean current and accumulated earnings
of the Employer before Federal and State taxes and
contributions to this and any other qualified plan.
1.39 "Non-highly Compensated Employee" shall mean an Employee
of the Employer who is neither a Highly Compensated
Employee nor a Family Member.
1.40 "Normal Retirement Age" shall mean the age specified in
the Adoption Agreement. Upon reaching his Normal
Retirement Age, the Participant's right to his retirement
benefit shall be nonforfeitable, notwithstanding the
Plan's vesting schedule. In the event the Employer
imposes a mandatory normal retirement age, the Normal
Retirement Age may not exceed such mandatory normal
retirement age.
Notwithstanding any other provision of this Plan, the
Employer, in accordance with the provisions of the Age
Discrimination in Employment Act, shall have no right to
compel a Participant to retire, except as otherwise
provided herein, if in the calendar year or the preceding
calendar year, the Employer has twenty (20) or more
employees for each work day in each of twenty (20) or more
calendar weeks. The Employer may retire a Participant who
for the two (2) year period prior to retirement is
employed in a bona fide executive or high policy-making
position if (1) he has attained age sixty-five (65);
(2) he has attained his Normal Retirement Date; and
(3) his annual retirement benefit from the pension, profit
sharing, savings or deferred compensation plans maintained
by the Employer equals, in the aggregate, at least forty-
four thousand dollars ($44,000). This Section shall be
deemed to be automatically amended to reflect any
subsequent Federal legislation or regulations.
1.41 "Owner-Employee" shall mean a sole proprietor or a partner
who owns more than ten percent (10%) of either the capital
interest or profits interest of a partnership.
1.42 (a) "Active Participant" shall mean a Participant who is
credited with one thousand (1,000) or more Hours of
Service (or such lesser number of Hours of Service
specified in the Adoption Agreement) in the Plan
Year. Unless otherwise specified in the Adoption
Agreement, it is not necessary that the Participant
be employed on the last day of the Plan Year in
order to be deemed an Active Participant and share
<PAGE>in the Employer contribution, if any. If the
elapsed time method of crediting service is
specified in the Adoption Agreement, "Active
Participant" shall include all Participants, unless
otherwise specified in the Adoption Agreement.
Notwithstanding the foregoing paragraph, if the Plan
is a standardized plan, "Active Participant" shall
mean, for each Plan Year beginning on or after
January 1, 1990, each Participant other than a
Participant who is not employed on the last day of
the Plan Year and is credited with less than 501
Hours of Service in the Plan Year. If the elapsed
time method of crediting service is specified in the
Adoption Agreement, "Active Participant" shall mean
all Participants.
(b) "Eligible Participant" shall mean an Employee who is
eligible under the terms of the Plan to make "Thrift
Contributions" or to have Elective Deferrals made on
his behalf.
1.43 "Participating Employer" shall mean any Affiliated
Employer which has adopted the Plan in accordance with
Section 16.5.
1.44 "Period of Severance" shall mean a continuous period of
time during which the Employee is not employed by the
Employer. Such period begins on the Employee's Severance
from Service Date and ends on the Employee's Re-Employment
Commencement Date.
1.45 "Plan" shall mean this Prototype Plan, the Trust Agreement
or Custodian Agreement and the Adoption Agreement of the
adopting Employer, as from time to time amended.
1.46 "Plan Year" shall mean the calendar year, unless another
twelve (12) consecutive month period is specified in the
Adoption Agreement.
1.47 "Prototype Plan" shall mean the basic plan document
described herein.
1.48 "Qualified Matching Contributions" shall mean Employer
contributions to the Plan which are allocated to
Participants' accounts by reason of Elective Deferrals,
<PAGE>which are at all times subject to the distribution
and nonforfeitability requirements of section 401(k) of
the Code.
1.49 "Qualified Non-elective Contributions" shall mean Employer
contributions (other than Matching Contributions or
Qualified Matching Contributions) which are allocated to
Eligible Participants' accounts, which such Participants
may not elect to receive in cash until distributed from
the Plan and, which are at all times subject to the
distribution and nonforfeitability requirements of
section 401(k) of the Code.
1.50 "Re-Employment Commencement Date" shall mean the first day
on which the Employee is credited with an Hour of Service
for the performance of duties after the first eligibility
computation period in which the Employee incurs a one (1)
year Service Break.
In the case of any Participant who has a one (1) year
Service Break, Eligibility Year(s) of Service before such
break will not be taken into account until the Employee
has completed one (1) Eligibility Year of Service after
returning to employment. Such Eligibility Year of Service
shall be measured by the twelve (12) consecutive month
period beginning on the Employee's Re-Employment
Commencement Date and, if necessary, subsequent
twelve (12) consecutive month periods beginning on
anniversaries of the Re-Employment Commencement Date.
If a former Participant completes an Eligibility Year of
Service in accordance with this provision, such
Participant's participation will be reinstated as of the
Re-Employment Commencement Date.
1.51 "S-Corporation" shall mean an Employer who has made an
election for its taxable year of reference under
section 1362(a) of the Code, or any other applicable
section pertaining thereto.
1.52 "Self-Employed Individual" shall mean an individual who
has Earned Income for the taxable year from the
unincorporated trade, or business or partnership with
respect to which the Plan is established; also, an
individual who would have had Earned Income but for the
<PAGE>fact such trade, business or partnership had no net
profits for the taxable year.
1.53 "Service" shall mean any twelve (12) consecutive month
period identical to the Plan Year during which the
Employee completes at least one thousand (1,000) or more
Hours of Service (or such lesser number of Hours of
Service specified in the Adoption Agreement). Periods of
time to be excluded, if any, shall be stipulated in the
Adoption Agreement.
Service will be credited in accordance with the rules set
forth above for any employment, for any period of time,
for any Affiliated Employer. Service will also be
credited for any individual required to be considered an
Employee, for purposes of this Plan under section 414(n)
or (o) of the Code, of the Employer or any Affiliated
Employer.
If the elapsed time method of crediting service is
specified in the Adoption Agreement, an Employee shall
receive credit for Service, except for Service which may
be disregarded under Sections 7.2(b) and (c), for the
aggregate of all time periods commencing on his Employment
Commencement Date or Re-Employment Commencement Date and
ending on his Severance from Service Date. An Employee
shall also receive credit, for vesting purposes, for any
Period of Severance of less than twelve (12) consecutive
months. An Employee will receive a year of Service for
vesting purposes for each twelve (12) months of Service.
Fractional periods of a year shall be expressed in terms
of days.
1.54 "Service Break" shall mean:
(a) For purposes of calculating Eligibility Years of
Service, any twelve (12) consecutive month period
commencing on an Employee's Employment Commencement
Date or anniversaries thereof during which the
Employee is credited with five hundred (500) Hours
of Service or less.
(b) For purposes of calculating years of Service, any
Plan Year during which the Employee is credited with
five hundred (500) Hours of Service or less, where
<PAGE>such Service Break shall be measured from the
first day of such Plan Year.
(c) If the elapsed time method of crediting service is
specified in the Adoption Agreement, a Service Break
shall mean a Period of Severance of at least
twelve (12) consecutive months; provided, however,
that in the case of an Employee absent for maternity
or paternity reasons (as defined in Section 1.35),
the Period of Severance shall not commence for this
purpose until the twenty-four (24) month anniversary
of the first date of such absence.
(d) However, a Service Break shall not be deemed to have
occurred as a result of absence due to service in
the armed forces of the United States, provided the
Employee makes application for resumption of work
with the Employer following discharge, within the
time specified by then applicable laws.
1.55 "Severance from Service Date" shall mean the earlier of
(a) the date on which an Employee quits, retires, is
discharged or dies; or
(b) the twelve (12) month anniversary of the date an
Employee is first absent (with or without pay) for
reason other than quit, retirement, discharge or
death (such as vacation, holiday, sickness,
disability, leave of absence or layoff).
1.56 "Shareholder-Employee" shall mean a Participant who owns
(or is considered as owning) more than five percent (5%)
of the outstanding stock of an S-Corporation on any day
during the taxable year of reference of such S-
Corporation. In determining the percent of a
Participant's ownership of the outstanding stock, the
family attribution rules of section 318(a)(1) of the Code,
or any other applicable section of the Code pertaining
thereto shall apply.
1.57 "Sponsor" shall mean the Dreyfus Service Corporation.
1.58 "Taxable Wage Base" shall mean, except for purposes of
Article V, the maximum amount of earnings which may be
<PAGE>considered wages for such year under
section 3121(a)(1) of the Code in effect as of the
beginning of the Plan Year.
1.59 "Thrift Contributions" shall mean contributions made by a
Participant which are included in the Participant's gross
income in the year in which made.
1.60 "Total and Permanent Disability" shall mean the inability
to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment
that can be expected to result in death or which has
lasted or can be expected to last for a continuous period
of not less than twelve (12) months. The permanence and
degree of such impairment shall be supported by medical
evidence satisfactory to the Committee.
1.61 "Trustee" or "Custodian" shall mean the individual or
individuals, or institution appointed in the Adoption
Agreement by the Employer to act in accordance with the
provisions of the Trust Agreement or Custodial Agreement.
If the contributions will be made to a Custodian,
references herein to the "Trustee" shall be deemed to
refer to the "Custodian" and the term "Trust Fund" shall
be deemed to refer to the "Custodial Account."
1.62 "Trust Agreement" or "Custodial Agreement" shall mean
(a) "Trust Agreement" shall mean the agreement between
the Employer and the Trustee if the Plan is
established under Dreyfus Standardized/Paired
Prototype Money Purchase Plan No. 01001, Dreyfus
Nonstandardized Prototype Profit Sharing Plan
No. 01002, Dreyfus Standardized/Paired Prototype
Profit Sharing Plan No. 01003 or Dreyfus
Standardized/Paired Prototype Target Benefit Pension
Plan No. 01004.
(b) "Custodial Agreement" shall mean the agreement
between the Employer and the Custodian under which
the Plan is funded if the Plan is established under
Dreyfus Easy Standardized/Paired Prototype Money
Purchase Retirement Plan No. 01005 or Dreyfus Easy
Standardized/Paired Prototype Profit Sharing
Retirement Plan No. 01006. Such Plans are
hereinafter referred to as "Easy Retirement Plans."
<PAGE>
1.63 "Valuation Date" shall mean the last day of the Plan Year
and such other dates as may be determined by the
Committee.
1.64 "Voluntary Contributions" shall mean contributions
previously made by a Participant which were included in
the Participant's gross income in the year in which made.
ARTICLE II.
PARTICIPATION
2.1 Membership
Each Eligible Employee shall become a Participant on the
Effective Date or the Entry Date coincident with or next
following the completion of the age and service
requirements set forth in the Adoption Agreement.
2.2 Excluded Employees
The Adoption Agreement may exclude Employees from
participation in the Plan based upon minimum age and
service requirements or the inclusion of such Employees in
certain ineligible job classifications.
In the event an Employee who is not a member of the
eligible class of Employees becomes a member of the
eligible class, such Employee will participate immediately
if such Employee has satisfied the minimum age and service
requirements and would otherwise have previously become a
Participant.
In the event a Participant is no longer a member of an
eligible class of Employees and becomes ineligible to
participate, but has not incurred a Service Break, such
Employee will participate immediately upon returning to an
eligible class of Employees. If such Participant incurs a
Service Break, eligibility to participate will be
determined under the rules of Section 1.24 of the Plan.
<PAGE>
2.3 Re-Employment
(a) A former Participant will become a Participant
immediately upon returning to the employ of the
Employer if such former Participant had a
nonforfeitable right to all or a portion of the
account balance derived from Employer contributions
at the time of termination from service.
(b) A former Participant who did not have a
nonforfeitable right to any portion of the account
balance derived from Employer contributions at the
time of termination from service will be considered
a new Employee, for eligibility purposes, if the
number of consecutive one (1) year Service Breaks
equal or exceed the greater of five (5) or the
aggregate number of years of Service before such
Service Breaks. If such former Participant's Years
of Service before termination from service may not
be disregarded pursuant to the preceding sentence,
such former Participant shall participate
immediately upon reemployment.
(c) Any former Employee who was never a Participant and
is reemployed as an Employee will be eligible to
participate subject to the provisions of
Section 2.1.
2.4 Change in Employment Status
In the event that a Participant who was credited with a
year of Service for the preceding Plan Year, at the
request of the Employer, enters directly into the employ
of any other business entity, such Participant shall be
deemed to be an Active Participant. If such Participant
returns to the employ of the Employer or becomes eligible
for benefits pursuant to Articles VIII or IX, without
interruption of employment with the Employer or other
business entity, he shall be deemed not to have had a
Service Break for such period. However, if such
Participant does not immediately return to the employ of
the Employer upon his termination of employment with such
other business entity or upon recall by the Employer, he
shall be deemed to have terminated his employment for all
purposes of the Plan as of the Anniversary Date following
the date of transfer.
<PAGE>
2.5 Limitations on Participation of Owner-Employees
Notwithstanding the above, Plans which allow Owner-
Employees to participate must satisfy the following
additional requirements:
(a) If this Plan provides contributions or benefits for
one or more Owner-Employees who control both the
business for which this Plan is established and one
or more other trades or businesses, this Plan and
the plan established for other trades or businesses
must, when looked at as a single plan, satisfy
sections 401(a) and (d) of the Code for the
Employees of this and all other trades or
businesses.
(b) If the Plan provides contributions or benefits for
one or more Owner-Employees who control one or more
other trades or businesses the employees of the
other trades or businesses must be included in a
plan which satisfies sections 401(a) and (d) of the
Code and which provides contributions and benefits
not less favorable than provided for Owner-Employees
under this Plan.
(c) If an individual is covered as an Owner-Employee
under the plans of two or more trades or businesses
which are not controlled and the individual controls
a trade or business, then the contributions or
benefits of the employees under the plan of the
trades or businesses which are controlled must be as
favorable as those provided for him under the most
favorable plan of the trade or business which is not
controlled.
For purposes of the preceding paragraphs, an Owner-
Employee, or two or more Owner-Employees, will be
considered to control a trade or business if the
Owner-Employee, or two or more Owner-Employees
together:
(1) own the entire interest in an unincorporated
trade or business, or
(2) in the case of a partnership, own more than
fifty percent (50%) of either the capital
<PAGE>interest or the profits interest in the
partnership.
For purposes of the preceding sentence, an Owner-
Employee, or two or more Owner-Employees shall be
treated as owning any interest in a partnership
which is owned, directly or indirectly, by a
partnership which such Owner-Employee, or such two
or more Owner-Employees, are considered to control
within the meaning of the preceding sentence.
ARTICLE III.
CONTRIBUTIONS AND CREDITS TO MONEY PURCHASE PLANS
(The provisions of this Article shall apply
only with respect to Money Purchase Plans)
3.1 Employer Contributions
For each Plan Year the Employer's contribution to the Fund
shall be determined in accordance with the Adoption
Agreement. Such contribution shall not exceed an amount
equal to twenty-five percent (25%) of each Participant's
Compensation.
3.2 Forfeitures
Unless otherwise specified in the Adoption Agreement, any
forfeitures which occur will reduce Employer contributions
for the next Plan Year. If the Adoption Agreement
specifies that forfeitures are to be allocated to the
Accounts of other Participants, the Plan shall continue to
be designed to qualify as a money purchase pension plan
for purposes of sections 401(a), 402, 412 and 417 of the
Code.
3.3 Credit to Participants
(a) If the Plan is not integrated with Social Security,
the Employer's contribution (as specified in the
Adoption Agreement) for any Plan Year (and any
forfeitures, if forfeitures are allocated to Active
Participants in accordance with Section 3.2) shall
be allocated to the Regular Account of each Active
Participant in the ratio in which each Active
<PAGE>Participant's Compensation for the Plan Year
bears to that of all Active Participants for such
Plan Year.
(b) If the Plan is integrated with Social Security, the
Employer Contribution (and any forfeitures, if
forfeitures are allocated to Active Participants in
accordance with Section 3.2) shall be allocated as
follows:
(i) If under Article XIII, the Plan is Top Heavy
for the Plan Year and the minimum Top Heavy
contribution is made under the Plan, then
Employer contributions and forfeitures shall
be allocated to each Participant's Regular
Account in the ratio that each Participant's
aggregate Compensation bears to that of all
Participants for the Plan Year, up to three
percent (3%) of each Participant's aggregate
Compensation for the Plan Year. Any
remaining Employer contributions and
forfeitures shall be allocated to each
Participant in the ratio that each
Participant's Compensation in excess of the
Integration Level bears to the sum of all
Participant's Compensation in excess of the
Integration Level for the Plan Year, up to
three percent (3%) if each Participant's
Compensation for the Plan Year in excess of
the Integration Level.
(ii) If the Plan is not Top Heavy for the Plan
Year, contributions and forfeitures (or if
the Plan is Top Heavy, Employer contributions
and forfeitures remaining after step (i)
above) shall be allocated to each Active
Participant's Regular Account in the ratio
that the sum of each Active Participant's
aggregate Compensation and Compensation in
excess in the Integration Level bears to the
sum of all Active Participant's aggregate
Compensation and Compensation in excess of
the Integration Level for the Plan Year, up
to the product of (a) the Permitted Disparity
Percentage as specified in the Adoption
Agreement (reduced by three percent (3%) if
<PAGE>the Plan is Top Heavy) times (b) each
Active Participant's aggregate Compensation
plus Compensation in excess of the
Integration Level for the Plan Year. Any
remaining Employer contributions (plus any
forfeitures) will be allocated to all Active
Participant's in the ratio that each Active
Participant's aggregate Compensation bears to
all Active Participant's aggregate
Compensation for the Plan Year.
ARTICLE IV.
CONTRIBUTIONS AND CREDITS TO PROFIT SHARING PLANS
(The provisions of this Article shall apply only
with respect to Profit Sharing Plans)
4.1 Limits on Employer Contributions
Employer contributions for each Plan Year (including, if
applicable, Elective Deferrals) shall be determined in
accordance with the Adoption Agreement, but shall not
exceed the maximum amount which shall constitute an
allowable deduction under section 404(a) of the Code.
Unless otherwise specified in the Adoption Agreement,
Employer contributions may only be made out of Net
Profits. If the Adoption Agreement provides that one or
more Employer contributions may be made without regard to
Net Profits, the Plan shall continue to be designed to
qualify as a profit sharing plan for purposes of
sections 401(a), 402, 412 and 417 of the Code.
4.2 Forfeitures
Unless otherwise specified in the Adoption Agreement,
forfeitures, if any, will be allocated to Participants'
Accounts in the following manner: Forfeitures of Employer
Discretionary Contribution will be allocated in the same
manner as are such contributions. Forfeitures of Matching
Contributions will be allocated in the same manner as are
such contributions.
<PAGE>
4.3 Employer Discretionary Contributions
The following provisions shall apply if the Employer has
elected in the Adoption Agreement to make Employer
Discretionary Contributions.
(a) If the Plan is not integrated with Social Security,
the Employer Discretionary Contribution for any Plan
Year (and any forfeitures, if forfeitures are
reallocated to Active Participants in accordance
with Section 4.2) shall be allocated to the Regular
Account established for each Active Participant in
the ratio in which each Active Participant's
Compensation for the Plan Year bears to that of all
Active Participants for such Plan Year.
(b) If the Plan is integrated with Social Security the
Employer Discretionary Contribution (and any
forfeitures, if forfeitures are allocated to Active
Participants in accordance with Section 4.2) shall
be allocated as follows:
(i) If under Article XIII, the Plan is Top Heavy
for the Plan Year and the minimum Top Heavy
contribution is made under the Plan, then
Employer Discretionary Contributions and
forfeitures shall be allocated to each
Participant's Regular Account in the ratio
that each Participant's aggregate
Compensation bears to that of all
Participants for the Plan Year, up to three
percent (3%) of each Participant's aggregate
Compensation for the Plan Year. Any
remaining Employer Discretionary
Contributions and forfeitures shall be
allocated to each Participant in the ratio
that each Participant's Compensation in
excess of the Integration Level bears to the
sum of all Participant's Compensation in
excess of the Integration Level for the Plan
Year, up to three percent (3%) of each
Participant's Compensation for the Plan Year
in excess of the Integration Level.
(ii) If the Plan is not Top Heavy for the Plan
Year, contributions and forfeitures (or if
the Plan is Top Heavy, Employer Discretionary
<PAGE>Contributions and forfeitures remaining
after step (i) above) shall be allocated to
each Active Participant's Regular Account in
the ratio that the sum of each Active
Participant's aggregate Compensation and
Compensation in excess of the Integration
Level bears to the sum of all Active
Participants' aggregate Compensation and
Compensation in excess of the Integration
Level for the Plan Year, up to the product of
(a) the Permitted Disparity Percentage as
specified in the Adoption Agreement (reduced
by three percent (3%) if the Plan is Top
Heavy) times (b) each Active Participant's
aggregate Compensation plus Compensation in
excess of the Integration Level for the Plan
Year. Any remaining Employer Discretionary
Contributions (plus any forfeitures) will be
allocated to all Active Participants in the
ratio that each Active Participant's
aggregate Compensation bears to all Active
Participants' aggregate Compensation for the
Plan Year.
4.4 401(k) Cash or Deferred Arrangements
(1) Elective Deferrals
If elected in the Adoption Agreement, the Employer
may make contributions under a CODA.
(a) Allocation of Deferrals. The Employer shall
contribute and allocate to each Participant's
Elective Deferral Account an amount equal to
the amount of a Participant's Elective
Deferrals.
(1) Elective Deferrals Pursuant to a
Salary Reduction Agreement. To the
extent provided in the Adoption
Agreement, a Participant may elect to
have Elective Deferrals made under
this Plan. Elective Deferrals shall
include both single-sum and continuing
contributions made pursuant to a
salary reduction agreement.
<PAGE>
(i) Commencement of Elective
Deferrals. A Participant shall
be afforded a reasonable period
at least once each calendar year,
as specified in the Adoption
Agreement, to elect to commence
Elective Deferrals. Such
election shall become effective
as soon as administratively
feasible, but not before the time
specified in the Adoption
Agreement.
(ii) Modification and Termination of
Elective Deferrals. A
Participant's election to
commence Elective Deferrals shall
remain in effect until modified
or terminated. A Participant
shall be afforded a reasonable
period at least once each
calendar year, as specified in
the Adoption Agreement, to modify
the amount or frequency of his or
her Elective Deferrals. A
Participant may terminate his or
her election to make Elective
Deferrals at any time.
(2) Cash bonuses. If permitted in the
Adoption Agreement, a Participant may
also base Elective Deferrals on cash
bonuses that, at the Participant's
election, may be contributed to the
CODA or received by the Participant in
cash. A Participant shall be afforded
a reasonable period at least once a
year to elect to defer such amounts to
the CODA. Such election shall become
effective as soon as administratively
feasible, but not before the time
specified in the Adoption Agreement.
(3) Elective Deferrals shall be
contributed and allocated to the Fund
as soon as practicable (but in no
event later than 90 days) following
<PAGE>the close of the applicable pay
period.
(2) Thrift Contributions
If permitted under the Adoption Agreement,
Participants may make Thrift Contributions which
shall be allocated to a Thrift Account for each such
Participant.
(a) A Participant shall always be one hundred
percent (100%) vested in his Thrift Account.
(b) Thrift Contributions shall take effect on the
Anniversary Date coincident with or next
following the Participant's election to make
Thrift Contributions. Elections to change
the amount of the Thrift Contribution shall
take effect on the Change Date specified in
the Adoption Agreement which is coincident
with or next following the date the
Participant's election is received by the
Committee. Notwithstanding this provision, a
Participant's revocation of an election to
make Thrift Contributions shall take effect
as soon as administratively feasible.
(c) Thrift Contributions shall be made to the
Fund as soon as practicable (but in no event
later than 90 days) following the close of
the applicable pay period.
(d) Notwithstanding any other provisions of this
Section 4.4(2), distributions or withdrawals
from a Participant's Thrift Account shall be
made in accordance with the rules applicable
to Voluntary Contributions under
Section 10.1. However, if the Employer has
elected to make Matching Contributions with
respect to Thrift Contributions, any
Participant who withdraws any amount from his
Thrift Account, shall be precluded from
making Thrift Contributions until the next
permitted Change Date specified in the
Adoption Agreement which is at least six (6)
months after the date of withdrawal.
<PAGE>
(e) Thrift Contributions shall be subject to the
Contribution Percentage tests and the rules
applicable to Excess Aggregate Contributions
set forth in Section 4.7.
(3) Matching Contributions
(a) If elected by the Employer in the Adoption
Agreement, the Employer will make Matching
Contributions to the Plan. The amount of
such Matching Contributions shall be
calculated by reference to each eligible
Participant's Elective Deferrals or Thrift
Contributions, as specified by the Employer
in the Adoption Agreement.
(b) Separate Account. Matching Contributions
shall be allocated to each eligible
Participant's Employer Matching Contribution
Account.
(c) Vesting. Matching Contributions will be
vested in accordance with the Employer's
election in the Adoption Agreement and the
terms of this plan.
(d) Forfeitures. Forfeitures of Matching
Contributions other than Excess Aggregate
Contributions shall be made in accordance
with the forfeiture provisions pursuant to
Section 4.2 of the Plan.
(e) Matching Contributions shall be subject to
the Contribution Percentage tests and the
rules applicable to Excess Aggregate
Contributions set forth in Section 4.7.
(4) Qualified Matching Contributions
(a) If elected by the Employer in the Adoption
Agreement, the Employer will make Qualified
Matching Contributions to the CODA. The
amount of such Qualified Matching
Contributions shall be calculated by
reference to each eligible Participant's
<PAGE>Elective Deferrals as specified in the
Adoption Agreement.
(b) Separate Account. Qualified Matching
Contributions shall be allocated to each
Participant's Qualified Non-elective
Contribution Account.
(c) Vesting. Qualified Matching Contributions
shall be fully vested and nonforfeitable at
all times.
(d) Distributions. Qualified Matching
Contributions and income allocable thereto
shall be distributable only in accordance
with Section 4.10.
(5) Qualified Non-elective Contributions
(a) The Employer may elect to make Qualified Non-
elective Contributions under the Plan on
behalf of Employees as provided in the
Adoption Agreement.
The Non-elective Contributions will be
allocated to each eligible Participant's
Qualified Non-elective Contribution Account
in the ratio in which each eligible
Participant's Compensation for the Plan Year
bears to the total Compensation of all
eligible Participants for such Plan Year.
(b) Separate Account. Qualified Non-elective
Contributions shall be allocated to each
Eligible Participant's Qualified Non-elective
Contribution Account.
(c) Vesting. Qualified Non-elective
Contributions shall be fully vested and
nonforfeitable at all times.
(d) Distributions. Qualified Non-elective
Contributions and income allocable thereto
shall be distributable only in accordance
with Section 4.10.
<PAGE>
4.5 Maximum Amount of Elective Deferrals
(a) General Rule. A Participant's Elective Deferrals
are subject to any limitations imposed in the
Adoption Agreement and any further limitations under
the Plan. No Participant shall be permitted to have
Elective Deferrals made under this Plan or any other
CODA maintained by the Employer or an Affiliated
Employer, during any calendar year beginning after
1986, in excess of the adjusted dollar limitation of
section 402(g) of the Code. Other dollar
limitations may apply under section 402(g) of the
Code to the extent that a Participant makes Elective
Deferrals to arrangements other than CODAs (see also
sections 402(h)(1)(B), 403(b), 457, and 501(c)(18)
of the Code).
(b) Distribution of Excess Elective Deferrals. A
Participant may allocate to the Plan any Excess
Deferrals made during a calendar year by notifying
the Committee on or before the date specified in the
Adoption Agreement of the amount of the Excess
Elective Deferrals to be assigned to the Plan.
Notwithstanding any other provision of the Plan,
Excess Elective Deferrals, plus any income and minus
any loss allocable thereto, shall be distributed no
later than April 15 to Participants to whose
accounts Excess Elective Deferrals were allocated
for the preceding year and who claim Excess Elective
Deferrals for such taxable year no later than the
date specified in the Adoption Agreement.
(c) Determination of Income or Loss. Excess Elective
Deferrals shall be adjusted for income or loss up to
the date of distribution. The income or loss
allocable to Excess Elective Deferrals is the sum
of: (1) income or loss allocable to the
Participant's Elective Deferral Account for the
taxable year multiplied by a fraction, the numerator
of which is such Participant's Excess Elective
Deferrals for the year and the denominator is the
Participant's account balance attributable to
Elective Deferrals without regard to any income or
loss occurring during such taxable year; and (2) ten
percent (10%) of the amount determined under (1)
multiplied by the number of whole calendar months
<PAGE>between the end of the Participant's taxable
year and the date of distribution, counting the
month of distribution if distribution occurs after
the 15th of such month.
4.6 Average Actual Deferral Percentage Tests
(a) General Rule. The Average Actual Deferral
Percentage for Eligible Participants who are Highly
Compensated Employees for each Plan Year beginning
on or after January 1, 1987 and the Average Actual
Deferral Percentage for Eligible Participants who
are Non-highly Compensated Employees for the same
Plan Year must satisfy one of the following tests:
(1) The Average Actual Deferral Percentage for
Eligible Participants who are Highly
Compensated Employees for the Plan Year shall
not exceed the Average Actual Deferral
Percentage for Eligible Participants who are
Non-highly Compensated Employees for the Plan
Year multiplied by 1.25;
or
(2) The Average Actual Deferral Percentage for
Eligible Participants who are Highly
Compensated Employees for the Plan Year shall
not exceed the Average Actual Deferral
Percentage for Eligible Participants who are
Non-highly Compensated Employees for the Plan
Year multiplied by 2.0, provided that the
Average Actual Deferral Percentage for
Eligible Participants who are Highly
Compensated Employees does not exceed the
Average Actual Deferral Percentage for
Eligible Participants who are Non-highly
Compensated Employees by more than two (2)
percentage points.
(b) Special Rules.
(1) The Actual Deferral Percentage for any
Participant who is a Highly Compensated
Employee for the Plan Year and who is
eligible to have Elective Deferrals (and, if
<PAGE>applicable, Qualified Non-elective
Contributions or Qualified Matching
Contributions, or both) allocated for his
account under two or more CODAS, that are
maintained by the Employer, shall be
determined as if such Elective Deferrals
(and, if applicable, such Qualified Non-
elective Contributions and Qualified Matching
Contributions, or both) were made under a
single arrangement. If a Highly Compensated
Employee participates in two or more CODAs
that have different Plan Years, all CODAs
ending with or within the same calendar year
shall be treated as a single arrangement.
(2) In the event that this Plan satisfies the
requirements of sections 401(a)(4), 401(k) or
410(b) of the Code only if aggregated with
one or more other plans, or if one or more
other plans satisfy the requirements of such
sections of the Code only if aggregated with
this Plan, then this Section shall be applied
by determining the ADP of Eligible
Participants as if all such plans were a
single plan. For Plan Years beginning after
December 31, 1989, plans may be aggregated in
order to satisfy section 401(k) of the Code
only if they have the same Plan Year.
(3) For purposes of the Average Actual Deferral
Percentage of an Eligible Participant who is
a 5-percent owner or one of the 10 most
highly- paid Highly Compensated Employees,
the Elective Deferrals (and, if applicable,
Qualified Non-elective Contributions or
Qualified Matching Contributions, or both)
and Compensation of such Participant shall
include the Elective Deferrals (and, if
applicable, Qualified Non-elective
Contributions and Qualified Matching
Contributions or both), and Compensation for
the Plan Year of Family Members. Family
Members, with respect to Highly Compensated
Employees, shall be disregarded as separate
employees in determining the Actual Deferral
Percentage both for Eligible Participants who
<PAGE>are Non-highly Compensated Employees
and for Eligible Participants who are Highly
Compensated Employees.
(4) Notwithstanding anything in this Plan to the
contrary, Qualified Non-elective
Contributions and Qualified Matching
Contributions used to meet the Average Actual
Deferral Percentage tests may be made at any
time before the last day of the twelve (12)
month period immediately following the Plan
Year to which the contributions relate.
(5) The determination and treatment of the
Elective Deferrals, Qualified Non-elective
Contributions, Qualified Matching
Contributions and the Actual Deferral
Percentage of any Eligible Participant shall
satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(6) The Employer shall maintain adequate records
to demonstrate compliance with the Average
Actual Deferral Percentage tests, including
the extent to which Qualified Non-elective
and Qualified Matching Contributions are
taken into account.
(c) Distribution of Excess Contributions.
Notwithstanding any other provision of the Plan
except Section 4.6(d) below, Excess Contributions,
plus any income and minus any loss allocable
thereto, shall be distributed no later than the last
day of each Plan Year to Participants to whose
accounts Excess Contributions were allocated for the
preceding Plan Year. The amount of Excess
Contributions to be distributed shall be reduced by
the amount of any Excess Contributions
recharacterized in accordance with Section 4.6(d)
below. Distributions of Excess Contributions shall
be made to Highly Compensated Employees on the basis
of the respective portions of the Excess
Contributions attributable to each Highly
Compensated Employee. Excess Contributions shall be
allocated to Participants who are subject to the
family member aggregation rules of section 414(q)(6)
<PAGE>of the Code in the manner prescribed by the
regulations. [If such excess amounts are not
distributed or recharacterized (in accordance with
Section 4.6(d) below) within 2-1/2 months after the
last day of the Plan Year in which such excess
amounts arose, then section 4979 of the Code imposes
a ten percent (10%) excise tax on the Employer
maintaining the Plan with respect to such amounts.]
(1) Determination of Income or Loss. Excess
Contributions shall be adjusted for income or
loss up to the date of distribution. The
income or loss allocable to Excess
Contributions is the sum of: (1) income or
loss allocable to the Participant's Elective
Deferrals (and, if applicable, Qualified Non-
elective Contributions or Qualified Matching
Contributions or both) for the Plan Year
multiplied by a fraction, the numerator of
which is such Participant's Excess
Contributions for the year and the
denominator is the Participant's account
balance attributable to Elective Deferrals
(and, if applicable, Qualified Non-Elective
Contributions or Qualified Matching
Contributions or both) without regard to any
income or loss occurring during such Plan
Year; and (2) ten percent (10%) of the amount
determined under (1) multiplied by the number
of whole calendar months between the end of
the Plan Year and the date of distribution,
counting the month of distribution if
distribution occurs after the 15th of such
month.
(2) Accounting for Excess Contributions. Excess
Contributions shall be distributed first from
the Participant's account balance
attributable to Elective Deferrals and (to
the extent used in the Average Actual
Deferral Percentage tests) Qualified Matching
Contributions in proportion to the
Participant's Elective Deferrals and
Qualified Matching Contributions for the Plan
Year. Excess Contributions shall be
distributed from the Participant's Qualified
<PAGE>Non-elective Contribution Account only
to the extent that such Excess Contributions
exceed the Participant's account balance
attributable to Elective Deferrals and
Qualified Matching Contributions.
(d) Recharacterization of Excess Contributions. If the
Plan provides for Thrift Contributions by
Participants and if permitted in the Adoption
Agreement, each Participant to whom Excess
Contributions are allocable may elect, in lieu of
distribution under Section 4.6(c) above, that all or
a portion of such Excess Contributions be
recharacterized as Thrift Contributions no later
than the later of (i) 2-1/2 months after the last
day of the Plan Year in which such excess amounts
arose or (ii) October 24, 1988. Recharacterization
is deemed to occur no earlier than the date the last
Highly Compensated Employee is informed in writing
of the amount recharacterized and the consequences
thereof.
In no event may the amount of Excess Contributions
recharacterized for any Plan Year exceed the amount
of Elective Deferrals for such Plan Year. Excess
Contributions may not be recharacterized as Thrift
Contributions to the extent that, in combination
with the Thrift Contributions actually made for the
Plan Year, they exceed the maximum amount of Thrift
Contributions permitted under the Plan (prior to the
application of the Contribution Percentage tests of
Section 4.7).
Recharacterized Excess Contributions shall be
treated as Thrift Contributions for purposes of the
Contribution Percentage tests of Section 4.7.
However, no matching Employer contribution shall be
made with respect to Recharacterized Contributions.
In addition, recharacterized Excess Contributions
shall be reported to the Internal Revenue Service
and the Participant as employee contributions in
accordance with such rules as the Internal Revenue
Service may prescribe and shall be accounted for as
Voluntary Contributions for purposes of sections 72
and 6047 of the Code. Recharacterized Excess
<PAGE>Contributions will be taxable to the
Participant for the Participant's taxable year in
which the Participant would have received them in
cash. Recharacterized Excess Contributions will be
taxable to the Participant for the Participant's
taxable year in which the Participant would have
received them in cash. Recharacterized Excess
Contributions shall remain non-forfeitable and shall
continue to be treated for all other purposes,
including the limitations on distributions of
section 401(k), the deduction limitations of section
404 of the Code, the contribution limitations of
section 415 of the Code and the top heavy rules of
section 416 of the Code, as Elective Deferrals,
except that Recharacterized Excess Contributions
which relate to Plan Years beginning before January
1, 1989 shall be treated as employee contributions
for purposes of section 401(k)(2) of the Code.
Recharacterized Excess Contributions shall be
allocated to the Participant's Elective Deferral
Account.
4.7 Average Contribution Percentage Tests
(a) General Rule. The Average Contribution Percentage
for Eligible Participants who are Highly Compensated
Employees for each Plan Year beginning on or after
January 1, 1987 and the Average Contribution
Percentage for Eligible Participants who are Non-
highly Compensated Employees for the same Plan Year
must satisfy one of the following tests:
(1) The Average Contribution Percentage for
Eligible Participants who are Highly
Compensated Employees for the Plan Year shall
not exceed the Average Contribution
Percentage for Eligible Participants who are
Non-highly Compensated Employees for the Plan
Year multiplied by 1.25; or
(2) The Average Contribution Percentage for
Eligible Participants who are Highly
Compensated Employees for the Plan Year shall
not exceed the Average Contribution
Percentage for Eligible Participants who are
Non-highly Compensated Employees for the Plan
Year multiplied by two (2), provided that the
<PAGE>Average Contribution Percentage for
Eligible Participants who are Highly
Compensated Employees does not exceed the
Average Contribution Percentage for Eligible
Participants who are Non-highly Compensated
Employees by more than two (2) percentage
points
(b) Multiple Use Test.
(1) Effective for Plan Years beginning on or
after January 1, 1989, if one or more Highly
Compensated Employees participate in both a
CODA and a plan subject to the Average
Contribution Percentage tests maintained by
the Employer and the sum of the Average
Actual Deferral Percentage and Average
Contribution Percentage of those Highly
Compensated Employees subject to either or
both tests exceeds the "Aggregate Limit" (as
defined in (2) below), then the Average
Contribution Percentage of those Highly
Compensated Employees who also participate in
a CODA will be reduced (beginning with such
Highly Compensated Employee whose
Contribution Percentage is the highest) so
that the limit is not exceeded. The amount
by which each Highly Compensated Employee's
Contribution Percentage Amounts is reduced
shall be treated as an Excess Aggregate
Contribution. The Average Actual Deferral
Percentage and Average Contribution
Percentage of the Highly Compensated
Employees are determined after any
corrections required to meet the Average
Actual Deferral Percentage and Average
Contribution Percentage tests.
Notwithstanding the foregoing, the Multiple
Use limitations of Section 4.7(b) do not
apply if the Average Actual Deferral
Percentage of Eligible Participants who are
Highly Compensated Employees does not exceed
1.25 multiplied by the Average Actual
Deferral Percentage of all other Eligible
Participants and the Average Contribution
Percentage of Eligible Participants who are
<PAGE>Highly Compensated Employees does not
exceed 1.25 multiplied by the Average
Contribution Percentage of all other Eligible
Participants.
(2) For this purpose, "Aggregate Limit" shall
mean the greater of the limit produced by (A)
or (B) below:
(A) the sum of (i) one hundred twenty-five
percent (125%) of the greater of the
Average Actual Deferral Percentage of
the Non-highly Compensated Employees
eligible to participate in the CODA
for the Plan Year or the Average
Contribution Percentage of the Non-
highly Compensated Employees eligible
to participate under the Plan subject
to section 401(m) of the Code for the
Plan Year beginning with or within the
Plan Year of the CODA, and
(ii) two (2) plus the lesser of such
Average Actual Deferral Percentage or
Average Contribution Percentage
(however, this amount shall not exceed
two hundred percent (200%) of the
lesser such Average Actual Deferral
Percentage or Average Contribution
Percentage).
(B) the sum of (i) one hundred twenty-five
percent (125%) of the lesser of the
Average Actual Deferral Percentage of
the Non-Highly Compensated Employees
eligible to participate in the CODA
for the Plan Year or the Average
Contribution Percentage of the Non-
highly Compensated Employees eligible
to participate under the Plan subject
section 401(m) of the Code for the
Plan Year beginning with or within the
Plan Year of the CODA, and
(ii) two (2) plus the greater of such
Average Actual Deferral Percentage or
Average Contribution Percentage
(however, this amount shall not exceed
<PAGE>two hundred percent (200%) of
the greater of such Average Actual
Deferral Percentage or Average
Contribution Percentage).
(c) Special Rules.
(1) For purposes of this Section 4.7, the
Contribution Percentage for any Participant
who is a Highly Compensated Employee and who
is eligible to have Contribution Percentage
Amounts allocated to his account under two or
more Plans described in section 401(a) of the
Code, or CODAs, that are maintained by the
Employer or an Affiliated Employer, shall be
determined as if the total of such
Contribution Percentage Amounts was made
under each Plan. If a Highly Compensated
Employee participates in two or more CODAs
that have different Plan Years, all CODAs
ending with or within the same calendar year
shall be treated as a single arrangement.
(2) In the event that this Plan satisfies the
requirements of sections 401(a)(4), 401(m) or
410(b) of the Code only if aggregated with
one or more other plans, or if one or more
other plans satisfy the requirements of such
sections of the Code only if aggregated with
this Plan, then this Section shall be applied
by determining the Contribution Percentages
of Participants as if all such plans were a
single plan. For Plan Years beginning after
December 31, 1989, plans may be aggregated in
order to satisfy section 401(m) of the Code
only if they have the same Plan Year.
(3) For purposes of determining the Contribution
Percentage of an Eligible Participant who is
a 5-percent owner or one of the 10 most
highly-paid Highly Compensated Employees, the
Contribution Percentage Amounts and
Compensation of such Participant shall
include the Contribution Percentage Amounts
and Compensation for the Plan Year of Family
Members. Family Members, with respect to
<PAGE>Highly Compensated Employees, shall be
disregarded as separate employees in
determining the Average Contribution
Percentage both for Eligible Participants who
are Non-highly Compensated Employees and for
Eligible Participants who are Highly
Compensated Employees.
(4) For purposes of the Contribution Percentage
tests, Voluntary Contributions and Thrift
Contributions are considered to have been
made in the Plan Year in which contributed to
the Fund. Notwithstanding anything in this
Plan to the contrary, Matching Contributions
will be considered made for a Plan Year if
allocated to such year and made no later than
the end of the twelve (12) month period
beginning on the day after the close of the
Plan Year.
(5) The determination and treatment of the
Contribution Percentage of any Participant
shall satisfy such other requirements as may
be prescribed by the Secretary of the
Treasury.
(6) The Employer shall maintain adequate records
to demonstrate compliance with the Average
Contribution Percentage tests.
(d) Distribution of Excess Aggregate Contributions.
Notwithstanding any other provision of this Plan,
Excess Aggregate Contributions, plus any income and
minus any loss allocable thereto, shall be
forfeited, if forfeitable, or if not forfeitable,
distributed no later than the last day of each Plan
Year to Participants to whose accounts such Excess
Aggregate Contributions were allocated for the
preceding Plan Year. [If such excess amounts are
distributed more than 2-1/2 months after the last
day of the Plan Year in which such excess amounts
arose, then section 4979 of the Code imposes a ten
percent (10%) excise tax on the Employer maintaining
the Plan with respect to such amounts].
<PAGE>
(1) Determination of Income or Loss. The Excess
Aggregate Contributions shall be adjusted for
income or loss up to the date of
distribution. The income or loss allocable
to Excess Aggregate Contributions is the sum
of: (1) income or loss allocable to the
Participant's Voluntary Contribution Account,
Thrift Account and Employer Matching
Contribution Account for the Plan Year
multiplied by a fraction, the numerator of
which is such Participant's Excess Aggregate
Contributions for the year and the
denominator is the Participant's account
balance(s) attributable to Contribution
Percentage Amounts without regard to any
income or loss occurring during such Plan
Year; and (2) ten percent (10%) of the amount
determined under (1) multiplied by the number
of whole calendar months between the end of
the Plan Year and the date of distribution,
counting the month of distribution if
distribution occurs after the 15th of such
month.
(2) Treatment of Forfeitures. Forfeitures of
Excess Aggregate Contributions shall be
allocated to Participants' Accounts or
applied to reduce Employer contributions, as
elected by the Employer in the Adoption
Agreement, under Section 4.2. If forfeitures
are reallocated to the accounts of
Participants under Section 4.2, forfeitures
of Excess Aggregate Contributions shall be
allocated in the same manner as Matching
Contributions, except that no such
forfeitures shall be allocated to any Highly
Compensated Employee.
(3) Accounting for Excess Aggregate
Contributions. Excess Aggregate
Contributions shall be forfeited, if
forfeitable, or distributed on a pro rata
basis from the Participant's Thrift Account,
Voluntary Contribution Account, and Employer
Matching Contribution Account.
<PAGE>
(4) The determination of the Excess Aggregate
Contributions shall be made after first
determining the Excess Elective Deferrals
pursuant to Section 4.5, and then determining
the Excess Contributions pursuant to
Section 4.6.
4.8 Non-Hardship Withdrawals
(a) If Employer Discretionary Contributions are not
integrated with Social Security and a Participant's
Regular and Matching Contribution accounts are 100%
vested at time of distribution, and if permitted by
the Adoption Agreement, a Participant may make
withdrawals from his Regular and Matching
Contribution Accounts, for any reason, after
attainment of age fifty-nine and one-half (59-1/2).
(b) If permitted by the Adoption Agreement, a
Participant may make withdrawals from his Elective
Deferral Account or Qualified Non-elective
Contribution Account, for any reason, after
attainment of age fifty-nine and one-half (59-1/2).
(c) A withdrawal under (a) or (b) above may be made at
such time as the Committee shall designate, but not
more than quarterly during a Plan Year provided that
no single withdrawal shall be less than five hundred
dollars ($500) and a withdrawal by a Participant
prior to his separation from service may never
exceed the smaller of the actual amount contributed
to the account or the adjusted value of the account.
(d) The written consent of the Participant's spouse
(consistent with the requirements for a Qualified
Election under Section 8.2) must be obtained with
respect to any withdrawal.
4.9 Distribution on Account of Financial Hardship
(a) If elected by the Employer in the Adoption
Agreement, distributions made from a Participant's
Elective Deferral or Qualified Non-elective
Contribution Account on account of financial
hardship if the distribution is necessary in light
<PAGE>of the immediate and heavy financial needs of
the Participant. Effective for Plan Years beginning
on or after January 1, 1989, distributions on
account of financial hardship shall be limited to
the amount of the Participant's Elective Deferrals
and income allocable to such contributions credited
to the Participant's Elective Deferral Account as of
December 31, 1988; neither the income allocable to
Elective Deferrals credited to a Participant's
Elective Deferral Account after December 31,1988 nor
a Participant's Qualified Non-elective Contribution
Account shall be available for such distributions.
(b) A distribution on account of financial hardship
shall not exceed the amount required to meet the
immediate financial need created by the hardship.
The determination of the existence of financial
hardship, and the amount required to meet the
immediate financial need created by the hardship
shall be made by the Committee, in accordance with
the criteria specified in (c) below. The written
consent of the Participant's spouse (consistent with
the requirements for a Qualified Election under
Section 8.2) must be obtained with respect to any
withdrawal on account of financial hardship. The
Committee shall establish written procedures
specifying the requirements for distributions on
account of hardship, including the forms to be
submitted. Distributions of amounts under this
Section shall be made as soon as administratively
feasible.
(c) (1) Immediate and Heavy Financial Need. Hardship
distributions will be allowed only on account
of:
(i) Medical expenses (described in
section 213(d) of the Code) incurred
by the Employee, the Employee's
spouse, or any dependents of the
Employee (as defined in section 152 of
the Code);
(ii) Purchase (excluding mortgage payments)
of a principal residence for the
Employee;
<PAGE>
(iii) Payment of tuition for the next
semester or quarter of post-secondary
education for the Employee, the
Employee's spouse, children or
dependents;
(iv) The need to prevent the eviction of
the Employee from his principal
residence or foreclosure on the
mortgage of the Employee's principal
residence; or
(v) Such other financial need which the
Commissioner of Internal Revenue,
through the publication of revenue
rulings, notices and other documents
of general applicability, deems to be
immediate and heavy.
(2) Distribution Necessary to Satisfy Financial
Need. A distribution shall not be made on
account of a financial need unless all of the
following requirements are satisfied:
(i) The distribution is not in excess of
the amount of the immediate and heavy
financial need of the Employee;
(ii) The Employee has obtained all
distributions, other than hardship
distributions, and all nontaxable
loans currently available under all
plans maintained by the Employer;
(iii) Elective contributions and employee
contributions under this Plan and all
other qualified and nonqualified
deferred compensation plans maintained
by the Employer (other than mandatory
contributions to a defined benefit
plan) shall be suspended for at least
twelve (12) months after receipt of
the hardship distribution. For this
purpose, the phrase "qualified and
nonqualified deferred compensation
plans" includes stock option, stock
<PAGE>purchase and similar plans, and
cash or deferred arrangements under a
cafeteria plan, within the meaning of
section 125 of the Code. It does not
include health or welfare benefit
plans; and
(iv) The Plan, and all other plans
maintained by the Employer, provide
that the Employee may not make
elective contributions for the
Employee's taxable year immediately
following the taxable year of the
hardship distribution in excess of the
applicable limit under section 402(g)
of the Code for such next taxable year
less the amount of such Employee's
elective contributions for the taxable
year of the hardship distribution.
An Employee shall not fail to be
treated as an Eligible Participant for
purposes of the Actual Deferral
Percentage tests of Section 4.6 merely
because his Elective Deferrals are
suspended in accordance with this
provision.
4.10 Special Distribution Rules
Except as provided in the Adoption Agreement, Elective
Deferrals, Qualified Non-elective Contributions, Qualified
Matching Contributions and income allocable thereto are
not distributable to the Participant, or the Participant's
Beneficiary, in accordance with the Participant's or
Beneficiary's election, earlier than upon separation from
service, death, or Total and Permanent Disability.
Distribution (if elected in the Adoption Agreement) upon
termination of the Plan without the establishment or
maintenance of a successor plan, the Employer's sale of
substantially all of the assets of a trade or business or
the sale of the Employer's interest in a subsidiary may
only be made, after March 31, 1988, in a lump sum
distribution within the meaning of section 401(k)(10)(B)
of the Code.
<PAGE>
Unless the Plan is a Profit Sharing Plan exempt from the
Automatic Annuity rules of Section 8.2 pursuant to Section
8.3, all distributions that may be made pursuant to one or
more of the foregoing distributable events are subject to
the spousal and Participant consent requirements contained
in sections 401(a)(11) and 417 of the Code.
ARTICLE V.
CONTRIBUTIONS AND CREDITS TO TARGET BENEFIT PLANS
(The provisions of this Article shall apply only
with respect to Target Benefit Plans)
[All provisions regarding target benefit plan
contributions are in the Adoption Agreement
for Dreyfus Standardized Prototype Target
Benefit Plan No. 01004].
ARTICLE VI.
CONTRIBUTION AND ALLOCATION LIMITS
6.1 Timing of Contributions
Contributions under Sections 3.1, 4.1, 4.4(3), 4.4(4),
4.4(5) and 5.1 shall be made no later than the time
prescribed by law (including any extensions thereof) for
filing the Employer's federal income tax return for the
Plan Year for which they are made.
6.2 Deductibility of Contributions
All contributions made by an Employer shall be conditioned
upon their deductibility by the Employer for income tax
purposes; provided, however, that no contributions shall
be returned to an Employer except as provided in Section
6.3.
6.3 Return of Employer Contributions
Notwithstanding any other provision of this Plan,
contributions made by an Employer may be returned to such
Employer if:
<PAGE>
(a) the contribution was made by reason of a mistake of
fact and is returned to the Employer within one year
of the mistaken contribution, or
(b) the contribution was conditioned upon its
deductibility by the Employer for income tax
purposes, the deduction was disallowed and the
contribution is returned to the Employer within one
year after the disallowance of the deduction, or
(c) the contribution was conditioned upon initial
qualification of the Plan, the Plan was submitted to
the Internal Revenue Service for a determination as
to its initial qualification within the time
prescribed by law for filing the Employer's return
for the taxable year in which the Plan was adopted
or such later date as the Secretary of the Treasury
may prescribe, the Plan received an adverse
determination, and the contribution is returned to
the Employer within one year after the date of the
adverse determination.
Employer contributions may be returned even if such
contributions have been allocated to a Participant's
Account which is fully or partially nonforfeitable and it
is necessary to adjust said Account to reflect the return
of the Employer contributions. The amount which may be
returned to the Employer is the excess of the amount
contributed over the amount that would have been
contributed had there not occurred the circumstances
causing the excess. Earnings attributable to the excess
contribution may not be returned to the Employer, but
losses thereto shall reduce the amount to be so returned.
Furthermore, if the withdrawal of the amount attributable
to the excess contribution would cause the balance of the
individual Account of any Participant to be reduced to
less than the balance which would have been in the Account
had the excess amount not been contributed, then the
amount to be returned to the Employer shall be limited to
avoid such reduction.
6.4 Limitation on Allocations:
(a) If the Participant does not participate in, and has
never participated in another qualified plan or a
welfare benefit fund, as defined in section 419(e)
<PAGE>of the Code, maintained by the Employer, or an
individual medical account, as defined in
section 415(l)(2) of the Code, maintained by the
Employer, which provides an Annual Addition, the
amount of Annual Additions which may be credited to
the Participant's Accounts for any Limitation Year
will not exceed the lesser of the Maximum
Permissible Amount or any other limitation contained
in this Plan. If the Employer contribution that
would otherwise be contributed or allocated to the
Participant's Accounts would cause the Annual
Additions for the Limitation Year to exceed the
Maximum Permissible Amount, the amount contributed
or allocated will be reduced so that the Annual
Additions for the Limitation Year will equal the
Maximum Permissible Amount.
(b) Prior to the determination of the Participant's
actual Compensation for a Limitation Year, the
Maximum Permissible Amount may be determined on the
basis of the Participant's estimated annual
compensation for such Limitation Year. Such
estimated annual compensation shall be determined on
a reasonable basis and shall be uniformly determined
for all Participants similarly situated.
As soon as administratively feasible after the end
of the Limitation Year, the Maximum Permissible
Amount for such Limitation Year shall be determined
on the basis of the Participant's actual
Compensation for such Limitation Year.
(d) If, pursuant to Subsection (c) above or as a result
of the allocation of forfeitures, there is an Excess
Amount with respect to a Participant for a
Limitation Year, such Excess Amount shall be
disposed of as follows:
(1) First, any voluntary Employee contributions,
to the extent that the return would reduce
the Excess Amount, shall be returned to the
Participant.
(2) If after the application of paragraph (1) an
Excess Amount still exists, and the
Participant is covered by the Plan at the end
<PAGE>of the Limitation Year, the Excess
Amount in the Participant's Accounts will be
used to reduce Employer contributions
(including any allocation of forfeitures) for
such Participant in the next Limitation Year,
and each succeeding Limitation Year if
necessary.
(3) If after the application of paragraph (1) an
Excess Amount still exists, and the
Participant is not covered by the Plan at the
end of the Limitation Year, the Excess Amount
will be held unallocated in a suspense
account. The suspense account will be
applied to reduce future Employer
contributions (including allocation of any
forfeitures) for all remaining Participants
in the next Limitation Year, and each
succeeding Limitation Year if necessary;
(4) If a suspense account is in existence at any
time during the Limitation Year pursuant to
this Section, it will not participate in the
allocation of the Trust's investment gains
and losses. If a suspense account is in
existence at any time during a particular
Limitation Year, all amounts in the suspense
account must be allocated and reallocated to
Participants' Accounts before any Employer or
any employee contributions may be made to the
Plan for that Limitation Year. Excess
Amounts may not be distributed to
Participants or former Participants.
(e) Subsections (e), (f), (g), (h), (i) and (j) apply
if, in addition to this Plan, the Participant is
covered under another qualified Master or Prototype
defined contribution plan maintained by the Employer
or a welfare benefit fund, as defined in section
419(e) of the Code, maintained by the Employer or an
individual medical account, as defined in
section 415(l)(2) of the Code, maintained by the
Employer, which provides an Annual Addition, during
any Limitation Year. The Annual Additions which may
be credited to a Participant's Accounts under this
Plan for any such Limitation Year will not exceed
the Maximum Permissible Amount reduced by the Annual
<PAGE>Additions credited to a Participant's account
under the other plans and welfare benefit funds for
the same Limitation Year. If the Annual Additions
with respect to the Participant under other defined
contribution plans and welfare benefit funds
maintained by the Employer are less than the Maximum
Permissible Amount and the Employer contribution
that would otherwise be contributed or allocated to
the Participant's Accounts under this Plan would
cause the Annual Additions for the Limitation Year
to exceed this limitation, the amount contributed or
allocated will be reduced so that the Annual
Additions under such plans and welfare benefit funds
for the Limitation Year will equal the Maximum
Permissible Amount. If the Annual Additions with
respect to the Participant under such other defined
contribution plans and welfare benefit funds in the
aggregate are equal to or greater than the Maximum
permissible Amount, no amount will be contributed or
allocated to the Participant's Accounts under this
Plan for the Limitation Year.
(f) Prior to determining the Participant's actual
Compensation for the Limitation Year, the Employer
may determine the Maximum Permissible Amount based
on the Participant's estimated annual compensation
in the manner described in Subsection (b).
(g) As soon as administratively feasible after the end
of the Limitation Year, the Maximum Permissible
Amount for such Limitation Year shall be determined
on the basis of the Participant's actual
Compensation for such Limitation Year.
(h) If pursuant to Subsection (g) above or as a result
of the allocation of forfeitures, a Participant's
Annual Additions under this Plan and all such other
plans result in an Excess Amount for a Limitation
Year, the Excess Amount will be deemed to consist of
the Annual Additions last allocated, except that
Annual Additions attributable to a welfare benefit
fund or individual medical account will be deemed to
have been allocated first regardless of the actual
allocation date.
<PAGE>
(i) If an Excess Amount was allocated to a Participant
on an allocation date of this Plan which coincides
with an allocation date of another plan, the Excess
Amount attributed to this Plan will be the product
of:
(1) the total Excess Amount allocated as of such
date, times,
(2) the ratio of (A) the Annual Additions
allocated to the Participant for the
Limitation Year as of such date under this
Plan, to (B) the total Annual Additions
allocated to the Participant for the
Limitation Year as of such date under this
Plan and all other qualified Master and
Prototype defined contribution plans.
(j) Any Excess Amounts attributed to this Plan shall be
disposed of as provided in Subsection (d).
(k) If the Participant is covered under another
qualified defined contribution plan maintained by
the Employer which is not a Master or Prototype
plan, Annual Additions which may be credited to the
Participant's Accounts under this Plan for any
Limitation Year will be limited in accordance with
Subsections (e), (f), (g), (h), (i) and (j) as
though the other plan were a Master or Prototype
plan unless the Employer provides other limitations
in the Adoption Agreement.
(l) If the Employer maintains, or at any time
maintained, a qualified defined benefit plan (other
than the Sponsor's paired plan number 02001,
covering any Participant in this Plan, the sum of
the Participant's Defined Benefit Fraction and
Defined Contribution Fraction will not exceed
one (1.0) in any Limitation Year. Unless the
Employer elects otherwise in the Adoption Agreement,
this limitation will be met by freezing or reducing
the rate of benefit accrual under the qualified
defined benefit plan.
(m) For purposes of this Section 6.4, the following
definitions shall apply:
<PAGE>
(1) "Annual Additions" shall mean the sum of the
following credited to a Participant's account
for the Limitation Year:
(A) all Employer contributions,
(B) all forfeitures, and
(C) all Employee contributions.
All excess deferrals as described in
section 402(g) of the Code, all excess
contributions as defined in
section 401(k)(8)(B) of the Code, (including
amounts recharacterized), and all excess
aggregate contributions as defined in
section 401(m)(6)(B) of the Code, regardless
of whether such amount are distributed or
forfeited, shall continue to be treated as
Annual Additions.
For purposes of the above, amounts reapplied
to reduce Employer contributions under
Subsections (d) and (j) shall also be
included as Annual Additions.
Amounts allocated, after March 31, 1984, to
an individual medical account, as defined in
section 415(l)(2) of the Code, which is part
of a pension or annuity plan maintained by
the Employer, are treated as Annual Additions
to a defined contribution plan. Also,
amounts derived from contributions paid or
accrued after December 31, 1985, in taxable
years ending after such date, which are
attributable to post retirement medical
benefits allocated to the separate account of
a Key Employee, as defined in
section 419A(d)(3) of the Code, under a
welfare benefit fund, as defined in
section 419(e) of the Code, maintained by the
Employer, are treated as Annual Additions to
a defined contribution plan.
(2) "Compensation" shall mean a Participant's
earned income, wages, salaries, and fees for
<PAGE>professional services and other amounts
received for personal services actually
rendered in the course of employment with the
Employer maintaining the Plan (including, but
not limited to, commissions paid salesmen,
compensation for services on the basis of a
percentage of profits, commissions on
insurance premiums, tips and bonuses), and
excluding the following:
(A) Employer contributions to a plan of
deferred compensation which are not
includible in the Employee's gross
income for the taxable year in which
contributed, or Employer contributions
under a Simplified Employee Pension
Plan to the extent such contributions
are deductible by the Employee, or any
distributions from a plan of deferred
compensation;
(B) Amounts realized from the exercise of
a nonqualified stock option, or when
restricted stock (or property) held by
the Employee either becomes freely
transferable or is no longer subject
to a substantial risk of forfeiture;
(C) Amounts realized from the sale,
exchange or other disposition of stock
acquired under a qualified stock
option; and
(D) other amounts which received special
tax benefits, or contributions made by
the Employer (whether or not under a
salary reduction agreement) towards
the purchase of an annuity described
in section 403(b) of the Code (whether
or not the amounts are actually
excludable from the gross income of
the Employee).
For purposes of applying the
limitations of this Section,
Compensation for a Limitation Year is
<PAGE>the Compensation actually paid
or includible in gross income during
such year. Notwithstanding the
preceding sentence, Compensation for a
Participant in a defined contribution
plan who is permanently and totally
disabled (as defined in
section 22(e)(3) of the Code) is the
Compensation such Participant would
have received for the Limitation Year
if the Participant had been paid at
the rate of Compensation paid
immediately before becoming
permanently and totally disabled; such
imputed Compensation for the disabled
Participant may be taken into account
only if the Participant is not a
Highly Compensated Employee, and
contributions made on behalf of such
Participant are nonforfeitable when
made.
(3) "Defined Benefit Fraction" shall mean a
fraction, the numerator of which is the sum
of the Participant's Projected Annual
Benefits under all the defined benefit plans
(whether or not terminated) maintained by the
Employer, and the denominator of which is the
lesser of one hundred twenty-five percent
(125%) of the dollar limitation determined
for the Limitation Year under sections 415(b)
and (d) of the Code or one hundred forty
percent (140%) of the Highest Average
Compensation (which shall mean the average
compensation for the three consecutive years
of Service with the Employer that produces
the highest average), including any
adjustments under section 415(b) of the Code.
A year of Service with the Employer is the
twelve (12) consecutive month period defined
in section twelve (12) 1.53 of the Plan.
Notwithstanding the above, if the Participant
was a Participant as of the first day of the
first Limitation Year beginning after
December 31, 1986, in one or more defined
<PAGE>benefit plans maintained by the
Employer which were in existence on May 6,
1986, the denominator of this fraction will
not be less than one hundred twenty five
percent (125%) of the sum of the annual
benefits under such plans which the
Participant had accrued as of the close of
the last Limitation Year beginning before
January 1, 1987, disregarding any changes in
the terms and conditions of the Plan after
May 5, 1986. The preceding sentence applies
only if the defined benefit plans
individually and in the aggregate satisfied
the requirements of section 415 of the Code
for all Limitation Years beginning before
January 1, 1987.
(4) "Defined Contribution Fraction" shall mean a
fraction, the numerator of which is the sum
of the Annual Additions to the Participant's
Account under all the defined contribution
plans (whether or not terminated) maintained
by the Employer for the current and all prior
Limitation Years (including the Annual
Additions attributable to the Participant's
nondeductible Voluntary Contributions to all
defined benefit plans, whether or not
terminated, maintained by the Employer and
the Annual Additions attributable to all
welfare benefit funds, as defined in
section 419(e) of the Code, and individual
medical accounts as defined in
section 415(l)(2) of the Code, maintained by
the Employer) and the denominator of which is
the sum of the Maximum Aggregate Amounts for
the current and all prior Limitation Years of
Service with the Employer (regardless of
whether a defined contribution plan was
maintained by the Employer). The Maximum
Aggregate Amount in any Limitation Year is
the lesser of one hundred twenty-five percent
(125%) of the dollar limitation in effect
under section 415(c)(1)(A) of the Code or
thirty-five percent (35%) of the
Participant's Compensation for such year.
<PAGE>
If the Employee was a Participant as of the
end of the first day of the first Limitation
Year beginning after December 31, 1986, in
one or more defined contribution plans
maintained by the Employer which were in
existence on May 6, 1986, the numerator of
this fraction will be adjusted if the sum of
this fraction and the Defined Benefit
Fraction would otherwise exceed one (1.0)
under the terms of this Plan. Under the
adjustment, an amount equal to the product of
(A) the excess of the sum of the fractions
over one (1.0) times (B) the denominator of
this fraction, will be permanently subtracted
from the numerator of this fraction. The
adjustment is calculated as of the end of the
last Limitation Year beginning before
January 1, 1987, and disregarding any changes
in the terms and conditions of the Plan made
after May 5, 1986, but using the section 415
limitation applicable to the first Limitation
Year beginning on or after January 1, 1987.
The Annual Additions for any Limitation Year
beginning before January 1, 1987 shall not be
recomputed to treat all Employee
contributions as Annual Additions.
(5) "Employer" shall mean the Employer that
adopts this Plan and all members of a
controlled group of corporations (as defined
in section 414(b) of the Code and as modified
by section 415(h) of the Code) which includes
the Employer; any trade or business (whether
or not incorporated) which is under common
control (as defined in section 414(c) and as
modified by section 415(h) of the Code) with
the Employer; any organization (whether or
not incorporated) which is a member of an
affiliated service group (as defined in
section 414(m)); and any other entity
required to be aggregated with the Employer
under section 414(o) of the Code.
(6) "Excess Amount" shall mean the excess of the
Participant's Annual Additions for the
<PAGE>Limitation Year over the Maximum
Permissible Amount.
(7) "Limitation Year" shall mean the calendar
year, unless another twelve (12) consecutive
month period is elected in the Adoption
Agreement. All qualified plans maintained by
the Employer must use the same Limitation
Year. If the Limitation Year is changed by
amendment, the new Limitation Year must begin
on a date within the Limitation Year in which
the amendment is made.
(8) "Master or Prototype Plan" shall mean a plan
the form of which is the subject of a
favorable opinion letter from the Internal
Revenue Service.
(9) "Maximum Permissible Amount" shall mean the
lesser of:
(A) thirty-thousand dollars ($30,000) (or,
if greater, one-fourth (1/4th) of the
defined benefit dollar limitation set
forth in section 415(b)(1) of the Code
as in effect for the Limitation Year),
or
(B) twenty-five percent (25%) of the
Participant's Compensation for the
Limitation Year.
The compensation limitation referred to in
paragraph (B) above shall not apply to any
contribution for medical benefits (within the
meaning of section 401(h) or
section 419A(f)(2) of the Code) which is
otherwise treated as an Annual Addition under
section 415(1)(1) or 419A(d)(2) of the Code.
If a short Limitation Year is created because
of an amendment changing the Limitation Year
to a different twelve (12) consecutive month
period, the Maximum Permissible Amount will
not exceed the defined contribution dollar
<PAGE>limitation set forth in paragraph (A)
above multiplied by the following fraction:
Number of Months in the Short Limitation Year
12
(10) "Projected Annual Benefit" shall mean the
annual retirement benefit (adjusted to an
actuarially equivalent straight life annuity
if such benefit is expressed in a form other
than a straight life annuity or Qualified
Joint and Survivor Annuity) to which the
Participant would be entitled under the terms
of the Plan assuming:
(A) The Participant will continue
employment until the Normal Retirement
Date under the Plan (or current date,
if later) and
(B) the Participant's Compensation for the
current Limitation Year and all other
relevant factors used to determine
benefits under the Plan will remain
constant for all future Limitation
Years.
6.5 Separate Accounts
The Committee shall maintain the following separate
Accounts, as are applicable, with respect to each
Participant:
(a) a Regular Account (as described in Articles III, IV,
or V),
(b) an Elective Deferral Account (as described in
Article IV),
(c) a Qualified Non-elective Contribution Account (as
described in Article IV),
(d) a Thrift Account (as described in Article IV),
(e) a Matching Contribution Account (as described in
Article IV),
<PAGE>
(f) a Voluntary Account (as described in Article X),
(g) a Voluntary Tax-Deductible Account (as described in
Article X), and
(h) a Rollover Account (as described in Article X).
Each such Account shall be credited with the
applicable contributions, forfeitures, earnings
losses, expenses, and distributions. The
maintenance of separate Accounts is only for
accounting purposes and a segregation of the Trust
Fund to each Account shall not be required.
6.6 Valuation
(a) Except as otherwise provided in subsection (b)
below, or as directed by the Committee subject to
approval by the Trustee, the assets of the Trust
Fund shall be valued at their current fair market
value as of each Valuation Date, and the earnings
and losses of the Trust Fund since the immediately
preceding Valuation Date shall be allocated to the
separate Accounts of all Participants and former
Participants under the Plan in the ratio that the
fair market value of each such Account as of the
immediately preceding Valuation Date, reduced by any
distributions or withdrawals therefrom since such
preceding Valuation Date, bears to the total fair
market value of all separate Accounts as of the
immediately preceding Valuation Date, reduced by any
distributions or withdrawals therefrom since such
preceding Valuation Date; provided, however, that if
Participant-directed investments have been elected
in the Adoption Agreement, the earnings and losses
of each separate Account shall be allocated solely
to such Account.
Notwithstanding any other provision of the Plan, the
Committee may, in its sole discretion, on any date
other than the last day of the Plan Year, determine
the value of an Account. If such a determination is
made, the date of such determination shall be
considered to be a Valuation Date.
<PAGE>
(b) If the plan is an Easy Retirement Plan, the
dividends, capital gain distributions, and other
earnings or losses received on any share or unit of
a regulated investment company or collective
investment fund, or on any other investment, that is
specifically credited to a Participant's separate
Accounts under the Plan and/or held under the
Custodial Agreement shall be allocated to such
separate Accounts and, in the absence of investment
directions to the contrary, immediately reinvested,
to the extent practicable, in additional shares or
units of such regulated investment company or
collective investment fund, or in such other
investments.
6.7 Segregation of Former Participant's Account
The Committee may segregate any portion of a former
Participant's account balance which is retained in the
Fund after his death or separation from service in an
interest-bearing account and debited or credited only with
income and charges attributable directly.
ARTICLE VII.
VESTING
7.1 Vested Interest
Each Participant shall at all times have a fully vested
interest in his Elective Deferral Account, Qualified Non-
elective Account, Voluntary Account, Voluntary Tax-
Deductible Account and Thrift Account. Each Participant's
Regular Account and Employer Matching Contribution Account
shall vest in accordance with the vesting schedule elected
in the Adoption Agreement.
If a Participant is not already fully vested in his
Regular Account and Employer Matching Contributions
Account, he shall become so upon reaching Normal
Retirement Age or Early Retirement Age, or upon his death
or Total and Permanent Disability.
7.2 Vesting of a Participant
<PAGE>
Except in the case of Plans subject to full and immediate
vesting, a Participant's vested amount shall be calculated
by multiplying his Regular Account balance and Employer
Matching Contribution Account balance, if any, as
determined on the Valuation Date following his termination
of employment by his vested interest as determined under
Section 7.1.
In order to determine the vested interest of a Participant
after a Service Break, the following rules shall apply:
(a) Subject to (b) below, a former Participant who had a
nonforfeitable right to all or a portion of the
account balance derived from Employer contributions
at the time of the Participant's termination will
receive credit for all Years of Service prior to a
Service Break if the Participant completes a Year of
Service after returning to the employ of the
Employer.
(b) In the case of a Participant who have five (5) or
more consecutive one (1) year Service Breaks, all
Service after such Service Breaks will be
disregarded for the purpose of vesting the Employer-
derived account balance that accrued before such
Service Breaks. Such Participants' pre-Service
Break Service will count in vesting the post-Service
Break Employer-derived account balance only if
(1) such Participant has any nonforfeitable interest
in the account balance attributable to Employer
contributions at the time of separation from
service, or (2) upon returning to service the number
of consecutive one (1) year Service Breaks is less
than the number of Years of Service. Separate
accounts will be maintained for the Participant's
pre-Service Break and post-Service Break Employer-
derived account balance. Both accounts will share
in the earnings and losses of the Fund.
For purposes of computing an Employee's nonforfeitable
rights to the account balance derived from Employer
contributions, Years of Service and Service Breaks will be
measured by the Plan Year.
7.3 Amendment of Vesting Provisions
<PAGE>
No amendment to the vesting provisions pursuant to
Section 7.1 shall deprive a Participant of his
nonforfeitable rights to benefits accrued to the date of
the amendment. Further, if the vesting provisions of the
Plan are amended, or the Plan is amended in any way that
directly or indirectly affects computation of a
Participant's nonforfeitable percentage or if the Plan is
deemed amended by an automatic change to or from a top-
heavy vesting schedule, each Participant with at least
three (3) years of Service may elect, within a reasonable
period after the adoption of the amendment, to have his
nonforfeitable percentage computed under the Plan without
regard to such amendment. For Participants who do not
have at least one Hour of Service in any Plan Year
beginning on or after January 1, 1989, the preceding
sentence shall be applied by substituting "five (5) years
of Service" for "three (3) years of Service." The period
during which the election may be made shall commence with
the date the amendment is adopted and shall end on the
later of (1) sixty (60) days after the amendment is
adopted; (2) sixty (60) days after the amendment becomes
effective; or (3) sixty (60) days after the Participant is
issued written notice of the amendment by the Employer or
Committee.
7.4 Forfeitures
(a) If a Participant terminates employment with the
Employer and the value of the Participant's vested
account balance derived from Employer and Employee
contributions (other than accumulated deductible
employee contributions) is not greater than $3,500,
the Employee shall receive a distribution of the
value of the entire vested portion of such account
balance, and the nonvested portion will be treated
as a forfeiture. For purposes of this Section 7.4,
if the value of a Participant's vested account
balance is zero, the Participant shall be deemed to
have received a distribution of such vested account
balance. A Participant's vested account balance
shall not include Voluntary Tax-Deductible
Contributions for Plan Years beginning before
January 1, 1989.
(b) If a Participant terminates employment with the
Employer, and elects (with his or her spouse's
<PAGE>consent) in accordance with Article VIII to
receive the value of his or her vested account
balance, the nonvested portion will be treated as a
forfeiture. If the Participant elects to have
distributed less than the entire vested portion of
the account balance derived from Employer
contributions, the part of the nonvested portion
that will be treated as a forfeiture is the total
nonvested portion multiplied by a fraction, the
numerator of which is the amount of the distribution
attributable to Employer contributions and the
denominator of which is the total value of the
vested Employer derived account balance.
(c) If a Participant terminates employment with the
Employer but does not receive a distribution
described in (a) or (b) above, the non-vested
portion of his account balance will be treated as a
forfeiture upon the occurrence of a Service Break of
five (5) consecutive years.
(d) If a Participant who receives a distribution
pursuant to this Section 7.4 resumes employment, the
Participant's Employer-derived account balance will
be restored to the amount on the date of
distribution if the Participant repays to the Plan
the full amount of the distribution attributable to
Employer contributions before the earlier of
(i) five (5) years after the Participant's Re-
Employment Commencement Date or (ii) the date the
Participant incurs five (5) consecutive one (1) year
Service Breaks following the date of distribution.
If a Participant is deemed to receive a distribution
pursuant to this Section, and the Participant
resumes employment covered under this Plan before
the date the Participant incurs five (5) consecutive
one year Service Breaks, upon the reemployment of
such Participant, the Employer-derived account
balance of the Participant will be restored to the
amount on the date of such deemed distribution.
ARTICLE VIII.
BENEFITS ON RETIREMENT AND SEPARATION FROM SERVICE
8.1 Commencement of Benefits
<PAGE>
(a) Any Participant who terminates employment with the
Employer for any reason shall be entitled to receive
the value of the vested portion of his Accounts
(determined as of the Valuation Date coincident with
or immediately subsequent to his termination with
employment) as soon as administratively feasible
after the date of his termination of employment. If
the value of the Employee's vested account balance
derived from Employer and Employee contributions
(excluding, for Plan Years beginning before
January 1, 1989, accumulated Voluntary Tax-
Deductible Contributions) is greater than (or at the
time of any prior distribution was greater than)
$3,500, then no such amount shall be distributed
prior to Normal Retirement Age (or age sixty-two
(62), if later) unless the Participant consents to
the distribution. If the Plan is subject to the
Automatic Annuity rules of Section 8.2, then the
consent of the Participant's spouse shall also be
required to a distribution in any form ether than a
Qualified Joint and Survivor Annuity (as defined in
Section 8.2).
The Committee shall provide the Participant with a
written explanation of the material features and
relative values of the optional forms of benefit
available under the Plan. Such notice shall also
notify the Participant of the right to defer
distribution until Normal Retirement Age (or age
sixty-two (62), if later), and if the Plan is
subject to the Automatic Annuity Rules of Section
8.2 shall be provided during the period beginning
ninety (90) days before and ending thirty (30) days
before the Annuity Starting Date.
(b) If the value of the Participant's vested account
balance derived from Employer and Employee
contributions (excluding, for Plan Years beginning
before January 1, 1989, accumulated Voluntary Tax-
Deductible Contributions) is not greater than
$3,500, the Employee shall receive a distribution of
the value of the entire vested portion of such
account balance. However, no such distribution
shall be made after the Annuity Starting Date unless
the Participant and his or her spouse (or the
<PAGE>Participant's surviving spouse) consent in
writing to such distribution.
(c) Unless the Participant elects otherwise,
distribution of benefits shall commence no later
than the sixtieth (60th) day after the close of the
Plan Year in which the latest of the following
events occurs:
(i) the Participant reaches his Normal Retirement
Age (or age sixty-five (65), if earlier),
(ii) the tenth (10th) anniversary of the year in
which the Participant commenced participation
in the Plan, or
(iii) the Participant terminates employment with
the Employer.
The failure of a Participant or surviving spouse to
consent to a distribution shall be deemed to be an
election to defer commencement of benefit
distributions sufficient to satisfy this Section.
(d) Neither the consent of the Participant nor the
Participant's spouse shall be required to the extent
a distribution is necessary to satisfy
section 401(a)(9) or section 415 of the Code.
8.2 Automatic Annuity Requirements
The provisions of Section 8.2 through 8.4 shall take
precedence over any conflicting provisions in this Plan.
(a) Applicability of Automatic Annuity Requirements.
Except as provided in Section 8.3 with respect to
certain Profit Sharing Plans, the provisions of this
Section shall apply to any Participant who is
credited with at least one (1) Hour of Service with
the Employer on or after August 23, 1984, and such
other Participants as provided in Section 8.4.
Qualified Joint and Survivor Annuity. Unless an
optional form of benefit is selected pursuant to a
Qualified Election within the ninety (90) day period
<PAGE>ending on the Annuity Starting Date, a married
Participant's Vested Account Balance shall be paid
in the form of a Qualified Joint and Survivor
Annuity and an unmarried Participant's Vested
Account Balance will be paid in the form of a life
annuity. The Participant may elect to have such
annuity distributed upon attainment of the Earliest
Retirement Age.
Qualified Pre-retirement Survivor Annuity. Unless
an optional form of benefit has been selected within
the Election Period pursuant to a Qualified
Election, if a Participant dies before the Annuity
Starting Date then the Participant's Vested Account
Balance shall be paid in the form of a Qualified
Pre-retirement Survivor Annuity. The Surviving
Spouse may elect to elect to have such annuity
distributed within a reasonable period after the
Participant's death.
Definitions. For purposes of this Section 8.2, the
following words shall have the following meanings:
(i) "Earliest Retirement Age" shall mean the
earliest date on which, under the Plan, the
Participant could elect to receive retirement
benefits.
(ii) "Election Period" shall mean the period which
begins on the first day of the Plan Year in
which the Participant attains age thirty-
five (35) and ends on the date of the
Participant's death. If a Participant
separates from service prior to the first day
of the Plan Year in which age thirty-
five (35) is attained, with respect to
benefits accrued prior to separation, the
Election Period shall begin on the date of
separation.
A Participant who will not yet attain age
thirty-five (35) as of the end of any current
Plan Year may make a special Qualified
Election to waive the Qualified Pre-
retirement Survivor Annuity for the period
<PAGE>beginning on the date of such election
and ending on the first day of the plan year
in which the Participant will attain age
thirty-five (35). Such election shall not be
valid unless the Participant receives a
written explanation of the Qualified Pre-
retirement Survivor Annuity in such terms as
are comparable to the explanation required
under Section 8.2(b). Qualified Pre-
retirement Survivor Annuity coverage will be
automatically reinstated as of the first day
of the Plan Year in which the Participant
attains age thirty-five (35). Any new waiver
on or after such date shall be subject to the
full requirements of this Section 8.2.
(iii) "Qualified Election" shall mean a
Participant's waiver of a Qualified Joint and
Survivor Annuity or a Qualified Pre-
retirement Survivor Annuity. Any such waiver
must be consented to in writing by the
Participant's Spouse. The Spouse's consent
must: designate a specific Beneficiary
(including any class of Beneficiaries or any
contingent Beneficiaries, which may not be
changed without spousal consent) or expressly
permits designations by the Participant
without any further spousal consent;
acknowledge the effect of the election; and
be witnessed by a member of the Committee or
a Notary Public. Additionally, a
Participant's waiver of the Qualified Joint
and Survivor Annuity shall not be effective
unless the election designates a form of
benefit payment which may not be changed
without spousal consent (or the Spouse
expressly permits designations by the
Participant without any further spousal
consent). Notwithstanding this consent
requirement, if the Participant establishes
to the satisfaction of a member of the
Committee that there is no Spouse or the
Spouse cannot be located, a waiver will be
deemed a Qualified Election. Any spousal
consent (or deemed spousal consent) obtained
under this provision will be valid only with
<PAGE>respect to such Spouse. A consent that
permits designations by the Participant
without further consent by such Spouse must
acknowledge that the Spouse has the right to
limit consent to a specific Beneficiary and,
where applicable, a specific form of benefit,
and that the Spouse voluntarily elects to
relinquish either or both of such rights. A
revocation of a prior waiver may be made by a
Participant without the consent of the Spouse
at any time before the commencement of
benefits. The number of revocations shall
not be limited. No consent obtained under
this provision shall be valid unless the
Participant has received notice as provided
in paragraph (b) below.
(iv) "Qualified Joint and Survivor Annuity" shall
mean an immediate annuity for the life of the
Participant with a survivor annuity for the
life of the Spouse which is fifty
percent (50%) of the amount of the annuity
which is payable during the joint lives of
the Participant and the Spouse and which is
the amount of benefit which can be purchased
with the Participant's Vested Account
Balance.
(v) "Qualified Pre-retirement Survivor Annuity"
shall mean an annuity for the life of the
Participant's surviving spouse purchased with
the Participant's Vested Account Balance.
(vi) "Spouse (Surviving Spouse)" shall mean the
Spouse or Surviving Spouse of the
Participant, provided that former spouse will
be treated as the Spouse or Surviving Spouse
to the extent provided under a qualified
domestic relations order as described in
section 414(p) of the Code.
(vii) "Vested Account Balance" shall mean the
aggregate value of the Participant's vested
account balance derived from employer and
employee contributions (including rollovers),
whether vested before or upon death,
<PAGE>including the proceeds of insurance
contracts, if any, on the Participant's life.
The provisions of this Section 8.2 shall
apply to a Participant who is vested in
amounts attributable to employer
contributions, employee contributions (or
both) at the time of death or distribution.
(b) Notice Requirements
Qualified Joint and Survivor Annuity. In the case
of a Qualified Joint and Survivor Annuity as
described above, the Committee shall provide each
Participant within the period beginning ninety (90)
days before and ending thirty (30) days before the
Annuity Starting Date a written explanation of:
(i) the terms and conditions of a Qualified Joint
and Survivor Annuity; (ii) the Participant's right
to make and the effect of an election to waive the
Qualified Joint and Survivor Annuity form of
benefit; (iii) the rights of a Participant's Spouse;
(iv) the right to make, and the effect of, a
revocation of a previous election to waive the
Qualified Joint and Survivor Annuity; and (v) the
right, if any, to defer the commencement of
benefits.
Qualified Pre-retirement Survivor Annuity. In the
case of a Qualified Pre-retirement Survivor Annuity
as described above, the Committee shall provide each
Participant with a written explanation of the
Qualified Pre-retirement Survivor Annuity in such
terms and in such manner as would be comparable to
the explanation provided for meeting the
requirements applicable to explaining a Qualified
Joint and Survivor Annuity within whichever of the
following periods ends last:
(i) The period beginning on the first day of the
Plan Year in which the Participant attains
age thirty-two (32) and ending with the close
of the Plan Year preceding the Plan Year in
which the Participant attains age thirty-
five (35).
<PAGE> (ii) A reasonable period ending after a
Participant enters the Plan.
(iii) A reasonable period ending after Section 8.3
ceases to apply to a Profit Sharing Plan.
(iv) A reasonable period after Section 8.2 first
applies to a Participant.
Notwithstanding the foregoing, notice must be provided
within a reasonable period ending after termination of
employment in the case of a Participant who terminates
employment before attaining age 35.
For purposes of applying the preceding paragraph, a
reasonable period ending after the enumerated events
described in (ii), (iii), and (iv) is the end of the two-
year period beginning one year prior to the date the
applicable event occurs, and ending one year after that
date. In the case of a Participant who terminates
employment before the Plan Year in which age thirty-
five (35) is attained, notice shall be provided within the
two-year period beginning one year prior to termination
and ending one year after termination. If such a
Participant thereafter returns to employment with the
Employer, the applicable period for such Participant shall
be redetermined.
8.3 Profit Sharing Plans: Exception from Automatic Annuity
Requirements
Unless otherwise specified in the Adoption Agreement, the
provisions of Sections 8.2 and 8.4 shall be inoperative in
the case of a Profit Sharing Plan if the following two (2)
conditions are met: (1) the Participant cannot or does not
elect payments in the form of a life annuity, and (2) on
the death of the Participant, the Participant's Vested
Account Balance (as defined in Section 8.2) will be paid
to the Participant's Surviving Spouse (as defined in
Section 8.2), but if there is no Surviving Spouse, or, if
the Surviving Spouse has already consented in a manner
conforming to a Qualified Election to a waiver of a
Qualified Pre-retirement Survivor Annuity (under
Section 8.2), then to the Participant's Beneficiary.
<PAGE> However, the foregoing shall not be operative with respect
to the Participant if it is determined that this Profit
Sharing Plan is a direct or indirect transferee of a
defined benefit plan, money purchase pension plan
(including a target benefit plan), stock bonus, or profit-
sharing plan which is subject to the survivor annuity
requirements of sections 401(a)(11) and 417 of the Code.
In addition, this Section shall not apply unless the
Participant's Spouse is the Beneficiary of any insurance
on the Participant's life purchased by Employer
contributions or forfeitures allocated to the
Participant's account.
8.4 Transitional Rules Applicable to Joint and Survivor
Annuities
(a) Any living Participant not receiving benefits on
August 23, 1984, who would otherwise not receive the
benefits prescribed by Section 8.2 must be give the
opportunity to elect to have Section 8.2 apply if
such Participant is credited with at least one (1)
Hour of Service under this Plan or a predecessor
plan in a Plan Year beginning on or after January 1,
1976, and such Participant had at least ten (10)
Years of Service when he or she terminated
employment.
(b) Any living Participant not receiving benefits on
August 23, 1984, who was credited with at least
one (1) Hour of Service under this Plan or a
predecessor Plan on or after September 2, 1974, and
who is not otherwise credited with any Service in a
Plan Year beginning on or after January 1, 1976,
must be given the opportunity to have his or her
benefits paid in the manner set forth in
paragraph (d) below.
(c) The respective opportunities to elect (as described
in paragraphs (a) and (b) above) must be afforded to
the appropriate Participants during the period
commencing on August 23, 1984, and ending on the
date benefits would otherwise commence to said
Participants.
(d) Any Participant who has elected pursuant to
paragraph (b) above and any Participant who does not
<PAGE>elect under paragraph (a) above or who meets
the requirements of paragraph (a) except that such
Participant does not have at least ten (10) Years of
Service when be or she terminates employment, shall
have his or her benefits distributed in accordance
with all of the following requirements if benefits
would have been payable in the form of a life
annuity:
(1) Qualified Joint and Survivor Annuity. If
benefits in the form of a life annuity become
payable to a married Participant who:
(i) Begins to receive payments under the
Plan on or after his Normal Retirement
Age; or
(ii) Dies on or after his Normal Retirement
Age while still working for the
Employer; or
(iii) Begins to receive payments on or after
the Qualified Early Retirement Age; or
(iv) Separates from service on or after
attaining his Normal Retirement Age
(or the Qualified Early Retirement
Age) and after satisfying the
eligibility requirements for the
payment of benefits under the Plan and
thereafter dies before beginning to
receive such benefits;
then such benefits shall be received under
this Plan in the form of a Qualified Joint
and Survivor Annuity, unless the Participant,
with the consent of his or her Spouse, has
elected otherwise during the election period
which shall begin at least six (6) months
before the Participant attains the Qualified
Early Retirement Age (or the date the
Participant begins participation in the Plan,
if later) and end not more than ninety (90)
days before the commencement of benefits.
Any election hereunder shall be in writing
and may be changed by the Participant, with
<PAGE>the consent of his or her Spouse, at
any time during the election period.
(2) Election of Early Survivor Annuity. A Participant
who is employed after attaining the Qualified Early
Retirement Age will be given the opportunity to
elect, during the election period, to have a
survivor annuity payable on death. If the
Participant elects the survivor annuity, payments
under such annuity must not be less than the
payments which would have been made to the Spouse
under the Qualified Joint and Survivor Annuity if
the Participant had retired on the day before his or
her death. Any election under this provision will
be in writing and may be changed by the Participant
with the consent of his or her Spouse at any time.
The election period begins on the later of (1) the
ninetieth (90) day before the Participant attains
the Qualified Early Retirement Age, or (2) the date
on which participation begins, and ends on the date
the Participant terminates employment.
Notwithstanding the availability of the elections
set forth above, in the event a Participant dies
after attaining the Qualified Early Retirement Age
while still employed by the Employer, but before
reaching the Normal Retirement Date, the
Participant's account balance as of the date of
death shall be paid to the Participant's Spouse. If
the Participant is not married, such benefit shall
be paid to the Participant's designated Beneficiary
or, if none, to the Participant's estate.
(3) Definitions. For purpose of this Section 8.4, the
following words shall have the following meanings:
(i) "Qualified Joint and Survivor Annuity" shall
mean an annuity for the life of the
Participant with a survivor annuity for the
life of his Spouse as described in
Section 8.2.
(ii) "Qualified Early Retirement Age" shall mean
the latest of:
<PAGE> (A) the earliest date, under the Plan, on
which the Participant may elect to
receive retirement benefits;
(B) the first day of the one hundred
twentieth (120th) month beginning
before the Participant reaches his
Normal Retirement Age; or
(C) the date on which the Participant
begins participation.
8.5 Required Payment of Benefits
(a) General Rule. Except as otherwise provided in
Section 8.2, the requirements of this Section shall
apply to any distribution of a Participant's account
balance and will take precedence over any
inconsistent provisions of the Plan.
Unless otherwise specified, the provisions of this
Section shall apply to calendar years beginning
after December 31, 1984.
All distributions required under this Section 8.5
shall be determined and made in accordance with the
Income Tax Regulations under section 401(a)(9) of
the Code, including the minimum distribution
incidental benefit requirement of
Section 1.401(a)(9)-2 of the regulations.
(b) Limits On Distribution Periods. Distributions, if
not made in a single-sum, may only be made over one
of the following periods (or a combination thereof):
(1) the life of the Participant; (2) the life of the
Participant and a Designated Beneficiary; (3) a
period certain not extending beyond the life
expectancy of the Participant; or (4) a period
certain not extending beyond the joint and last
survivor expectancy of the Participant and a
Designated Beneficiary.
Any annuity contract purchased and distributed to a
Participant or his Beneficiary shall comply with the
requirements of this Plan, and shall be made and
endorsed as nontransferable.
<PAGE> (c) Minimum Amounts to be Distributed. If the
Participant's entire interest is to be distributed
in other than a single sum, the following minimum
distribution rules shall apply on or after the
Required Beginning Date:
(i) If a Participant's benefit is to be
distributed over (1) a period not extending
beyond the life expectancy of the Participant
or the joint life and last survivor
expectancy of the Participant and the
Participant's Designated Beneficiary or (2) a
period not extending beyond the life
expectancy of the Designated Beneficiary, the
amount required to be distributed for each
calendar year, beginning with distributions
for the first distribution calendar year,
must at least equal the quotient obtained by
dividing the Participant's benefit by the
applicable life expectancy.
(ii) For calendar years beginning before
January 1, 1989, if the Participant's spouse
is not the designated Beneficiary, the method
of distribution selected must assure that at
least fifty percent (50%) of the present
value of the amount available for
distribution is paid within the life
expectancy of the Participant.
(iii) For calendar years beginning after
December 31, 1988, the amount to be
distributed each year, beginning with
distributions for the first distribution
calendar year shall not be less than the
quotient obtained by dividing the
Participant's benefit by the lesser of
(1) the applicable life expectancy or (2) if
the Participant's spouse is not the
Designated Beneficiary, the applicable
divisor determined from the table set forth
in Q&A-4 of section 1.401 (a)(9)-2 of the
Income Tax Regulations. Distributions after
the death of the Participant shall be
distributed using the applicable life
expectancy in paragraph (c)(i) above as the
<PAGE>relevant divisor without regard to
section 1.401 (a)(9)-2 of the regulations.
(iv) The minimum distribution required for the
Participant's first distribution calendar
year must be made on or before the
Participant's Required Beginning Date. The
minimum distribution for other calendar
years, including the minimum distribution for
the distribution calendar year in which the
Employee's Required Beginning Date occurs,
must be made on or before December 31 of that
distribution calendar year.
(d) Commencement of Death Benefits. Upon the death of
the Participant, the following distribution
provisions shall take effect:
(i) If the Participant dies after distribution of
his or her interest has commenced, the
remaining portion of such interest will
continue to be distributed at least as
rapidly as under the method of distribution
being used prior to the Participant's death.
Upon the death of the Participant's
Beneficiary, any undistributed interest shall
be paid to the legal representatives of such
Beneficiary's estate.
(ii) If the Participant dies before distribution
of his or her interest commences, the
Participant's entire interest will be
distributed by December 31 of the calendar
year in which falls the fifth anniversary of
the Participant's death except to the extent
that an election is made to receive
distributions in accordance with (1) or (2)
below:
(1) If any portion of the Participant's
interest is payable to a Designated
Beneficiary, distributions may be made
in substantially equal installments
over the life or over a period certain
not greater than the life expectancy
of the Designated Beneficiary
<PAGE>commencing on or before
December 31 of the calendar year
immediately following the calendar
year in which the Participant died.
(2) If the Designated Beneficiary is the
Participant's surviving spouse, the
date distributions are required to
begin in accordance with (1) above
shall not be earlier than the later of
(A) December 31 of the calendar year
immediately following the calendar
year in which the Participant died and
(B) December 31 of the calendar year
in which the Participant would have
attained age seventy and one-half (70-
1/2).
If the Participant has not made an election pursuant
to this Section 8.5(d)(ii) by the time of his or her
death, the Participant's Designated Beneficiary must
elect the method of distribution no later than the
earlier of (1) December 31 of the calendar year in
which distributions would be required to begin under
this Section, or (2) December 31 of the calendar
year which contains the fifth anniversary of the
date of death of the Participant. If the
Participant has no Designated Beneficiary, or if the
Designated Beneficiary does not elect a method of
distribution, distribution of the Participant's
entire interest must be completed by December 31 of
the calendar year containing the fifth anniversary
of the Participant's death.
(iii) For purposes of Section 8.5(d)(ii) above, if
the surviving spouse dies after the
Participant, but before payments to such
spouse begin, the provisions of
Section 8.5(d)(ii), with the exception of
subparagraph (2) thereof, shall be applied as
if the surviving spouse were the Participant.
(iv) For purposes of this Section 8.5(d), any
amount paid to a child of the Participant
will be treated as if it had been paid to the
Surviving Spouse if the amount becomes
<PAGE>payable to the Surviving Spouse when
the child reaches the age of majority.
(v) For purposes of this Section 8.5(d),
distribution of a Participant's interest is
considered to begin on the Participant's
Required Beginning Date (or, if
Section 8.5(d)(iii) above is applicable, the
date distribution is required to begin to the
surviving spouse pursuant to
Section 8.5(d)(ii) above). If distribution
in the form of an annuity irrevocably
commences to the Participant before the
Required Beginning Date, the date
distribution is considered to begin is the
date distribution actually commences.
(e) Definitions. For purposes of this Section 8.5, the
following terms shall have the following meanings:
(i) Designated Beneficiary. The individual who
is designated as the Beneficiary under the
Plan in accordance with section 401(a)(9) of
the Code and the regulations thereunder.
(ii) Distribution calendar year. A calendar year
for which a minimum distribution is required.
For distributions beginning before the
Participant's death, the first distribution
calendar year is the calendar year
immediately preceding the calendar year which
contains the Participant's Required Beginning
Date. For distributions beginning after the
Participant's death, the first distribution
calendar year is the calendar year in which
distributions are required to begin pursuant
to Section 8.5(d) above.
(iii) Life expectancy. The life expectancy (or
joint and last survivor expectancy)
calculated using the attained age of the
Participant (or Designated Beneficiary) as of
the Participant's (or Designated
Beneficiary's) birthday in the applicable
calendar year. The applicable calendar year
shall be the first distribution calendar
<PAGE>year. If annuity payments commerce
before the required beginning date, the
applicable calendar year is the year such
payments commence. Life expectancy and joint
and last survivor expectancy are computed by
use of the expected return multiples in
Tables V and VI of section 1.72-9 of the
Income Tax Regulations.
Unless otherwise elected by the Participant
(or spouse, in the case of distributions
described in Section 8.5(d)(ii)(2) above) by
the time distributions are required to begin,
life expectancies shall be recalculated
annually. Such election shall be irrevocable
as to the Participant (or spouse) and shall
apply to all subsequent years. The life
expectancy of a nonspouse Beneficiary may not
be recalculated.
(iv) Participant's benefit.
(A) The account balance as of the last
valuation date in the calendar year
immediately preceding the distribution
calendar year (valuation calendar
year) increased by the amount of any
contributions or forfeitures allocated
to the account balance as of dates in
the valuation calendar year after the
valuation date and decreased by
distributions made in the valuation
calendar year after the valuation
date.
(B) Exception for second distribution
calendar year. For purposes of
paragraph (A) above, if any portion of
the minimum distribution for the first
distribution calendar year is made in
the second distribution calendar year
on or before the Required Beginning
Date, the amount of the minimum
distribution made in the second
distribution calendar year shall be
treated as if it had been made in the
<PAGE>immediately preceding
distribution calendar year.
(v) Required Beginning Date.
(A) General rule. The Required Beginning
Date of a Participant is the first day
of April of the calendar year
following the calendar year in which
the Participant attains age seventy
and one-half (70-1/2).
(B) Transitional rules. The Required
Beginning Date of a Participant who
attains age seventy and one-half (70-
1/2) before January 1, 1988, shall be
determined in accordance with (1) or
(2) below:
(1) Non-Five percent owners. The
Required Beginning Date of a
Participant who is not a five
percent (5%) owner is the first
day of April of the calendar year
following the calendar year in
which the later of retirement or
attainment of age of seventy and
one-half (70-1/2) occurs.
(2) Five percent owners. The
required beginning date of a
Participant who is a five
percent (5%) owner during any
year beginning after December 31,
1979, is the first day of April
following the later of:
(i) the calendar year in which
the Participant attains
age seventy and one-half
(70-1/2), or
(ii) the earlier of the
calendar year with or
within which ends the plan
year in which the
<PAGE>Participant becomes
a five percent (5%) owner,
or the calendar year in
which the Participant
retires.
The Required Beginning Date of a
Participant who is not a five
percent (5%) owner who attains
age seventy and one-half (70-1/2)
during 1988 and who has not
retired as of January 1, 1989, is
April 1, 1990.
(C) Five percent owner. A Participant is
treated as a five percent (5%) owner
for purposes of this Section if such
Participant is a five percent (5%)
owner as defined in section 416(i) of
the Code but without regard to whether
the Plan is top-heavy) at any time
during the Plan Year ending with or
within the calendar year in which such
owner attains age sixty-six and one-
half (66-1/2) or any subsequent Plan
Year.
(D) Once distributions have begun to a
five percent (5%) owner under this
Section, they must continue to be
distributed, even if the Participant
ceases to be a five percent (5%) owner
in a subsequent year.
(f) Transitional Rule. Notwithstanding the other
requirements of this Section and subject to the
requirements of Section 8.2, distribution on behalf
of any Employee, including a five percent (5%)
owner, may be made in accordance with all of the
following requirements (regardless of when such
distribution commences):
(i) The distribution by the trust is one which
would not have disqualified such trust under
section 401(a)(9) of the Code as in effect
prior to amendment by the Deficit Reduction
Act of 1984.
<PAGE>
(ii) The distribution is in accordance with a
method of distribution designated by the
Employee whose interest in the trust is being
distributed or, if the Employee is deceased,
by a Beneficiary of such Employee.
(iii) Such designation was in writing, was signed
by the Employee or the Beneficiary, and was
made before January 1, 1984.
(iv) The Employee had accrued a benefit under the
Plan as of December 31, 1983.
(v) The method of distribution designated by the
Employee or the Beneficiary specifies the
time at which distribution will commence, the
period over which distributions will be made,
and in the case of any distribution upon the
Employee's death, the Beneficiaries of the
Employee listed in order of priority.
A distribution upon death will not be covered by this
transitional rule unless the information in the
designation contains the required information described
above with respect to the distributions to be made upon
the death of the Employee.
For any distribution which commences before January 1,
1984, but continues after December 31, 1983, the Employee,
or the Beneficiary, to who such distribution is being
made, will be presumed to have designated the method of
distribution under which the distribution is being made if
the method of distribution was specified in writing and
the distribution satisfies the requirements in
Subsections (i) through (v) above.
If a designation is revoked, any subsequent distribution
must satisfy the requirements of section 401(a)(9) of the
Code and the regulations thereunder. If a designation is
revoked subsequent to the date distributions are required
to begin, the trust must distribute by the end of the
calendar year following the calendar year in which the
revocation occurs the total amount not yet distributed
which would have been required to have been distributed to
satisfy section 401(a)(9) of the Code and the regulations
thereunder, but for the election under section 242(b)(2)
<PAGE>of Pub. L No. 97-248. For calendar years beginning
after December 31, 1988, such distributions must meet the
minimum distribution incidental benefit requirements in
section 1.401(a)(9)-2 of the Income Tax Regulations. Any
changes in the designation will be considered to be a
revocation of the designation. However, the mere
substitution or addition of another Beneficiary (one not
named in the designation) under the designation will not
be considered to be a revocation of the designation, so
long as such substitution or addition does not alter the
period over which distributions are to be made under the
designation, directly or indirectly (for example, by
altering the relevant measuring life). The rules of
Q&A J-2 and J-3 of Income Tax Regulations section 1.401(a)
(9)-1 shall apply to rollovers and transfers from one plan
to another.
8.6 Available Forms of Distribution
(a) If pursuant to Section 8.3, the Plan is a Profit
Sharing Plan exempt from the Automatic Annuity Rules
of Section 8.2, the normal form of distribution
shall be a lump sum distribution. In lieu of the
lump sum distribution, a Participant or Beneficiary
may elect to receive installment payments payable
monthly, quarterly, semi-annually or annually.
(b) If the Plan is subject to the Automatic Annuity
Rules of Section 8.2, the normal form of
distribution shall be the applicable form of
Automatic Annuity under Section 8.2. In lieu of the
Automatic Annuity, a Participant or Beneficiary may
elect a lump sum distribution or such other
available forms of distribution as are set forth
below or as are specified in the Adoption Agreement.
Any such election by a Participant must be
accompanied by the written consent of his spouse
(consistent with the requirements for a Qualified
Election under Section 8.2).
The available forms of distribution shall be:
(i) a joint and 100% survivor annuity contract
purchased from an insurance company selected
by the Committee.
<PAGE>
(ii) a single life annuity contract purchased from
an insurance company selected by the
Committee.
(iii) a single life annuity contract, with 10 years
guaranteed, purchased from an insurance
company selected by the Committee.
(iv) installments payable monthly, quarterly,
semi-annually or annually.
8.7 Certain Distributions
In the event a distribution of an account balance made to
or on behalf of a Participant prior to the attainment of
age fifty-nine and one-half (59-1/2) would be subject to
the ten percent (10%) penalty tax set forth in
section 72(t) or 72(m)(5) of the Code, the Participant
may, within sixty (60) days of the distribution date,
request that the distribution be transferred to another
qualified retirement plan or an Individual Retirement
Account as a rollover contribution if the distribution
satisfies the requirements of section 402(a)(5) of the
Code.
8.8 Forfeitures
Any balance in the Regular Account or in the Employer
Matching Contribution Account, if any, of a Participant
who is separated from service, to which he is not entitled
under the foregoing provisions, shall be forfeited and
applied as provided in Sections 3.2, 4.2, and 5.2.
ARTICLE IX.
DEATH BENEFITS
9.1 Payment to Beneficiary
(a) Subject to the provisions of Article VIII, upon the
death of a Participant, such Participant's account
balance shall be paid to his designated Beneficiary
or if no such Beneficiary is designated or survives
the Participant, to the legal representative of such
Participant's estate. Such payment shall commence
as soon as practicable after the Participant's death
<PAGE>and after the Trustee is given such
documentation as may be required under the
provisions of the Trust Agreement or Custodial
Agreement.
(b) Subject to the provisions of the Custodial Agreement
if the Plan is an Easy Retirement Plan, the
Committee may prescribe the manner in which a
Beneficiary is to be designated in writing and the
Custodial Agreement, may prescribe the manner in
which such designations shall be filed.
Notwithstanding the foregoing, any designation (or
change of designation) of a Beneficiary must be
consented to by the Participant's Spouse pursuant to
a Qualified Election under Section 8.2, if such
Beneficiary is not the Participant's Spouse.
9.2 Method of Payment
Subject to the provisions of Article VIII, death benefits
may be paid in any mode of benefit payment provided for in
this Plan as elected by the Participant or, except in the
event of the death of the Participant after payments have
commenced under an annuity contract, by the Beneficiary.
ARTICLE X.
PARTICIPANT CONTRIBUTIONS; ROLLOVERS
10.1 Voluntary Contributions
(a) Effective for Plan Years beginning after the Plan
Year in which this Plan is adopted by the Employer,
non-deductible Voluntary Contributions shall not be
permitted under this Plan. A separate Account shall
be maintained for Voluntary Contributions made prior
to such time. Such Account shall be nonforfeitable
at all times.
(b) A Participant may make withdrawals from the
Voluntary Account at such time as the Committee
shall designate, but not more than quarterly during
a Plan Year provided that no single withdrawal shall
be less than the total amount available for
withdrawal under the other limitations of this
Section 10.1 or five hundred dollars ($500),
whichever is less, and the aggregate withdrawals by
<PAGE>a Participant prior to his separation from
service may never exceed the smaller of the actual
amount he has contributed or the adjusted value of
the Voluntary Account resulting from his own
contributions. Notwithstanding the preceding
sentence, if the Plan is an Easy Retirement Plan, a
Participant may make such a withdrawal at any time.
(c) The written consent of the Participant's spouse
(consistent with the requirements for a Qualified
Election under Section 8.2) must be obtained with
respect to any withdrawal.
(d) No forfeitures of amounts allocated to Participants
from Employer contributions and earnings thereon,
shall occur solely as a result of a Participant's
withdrawal of voluntary contributions.
(e) Voluntary Contributions for Plan years beginning
after December 31, 1986 shall be subject to the
Contribution Percentage tests and the rules
applicable to Excess Aggregate Contributions set
forth in Section 4.7.
10.2 Voluntary Tax-Deductible Contributions
(a) Voluntary Tax-Deductible Contributions (within the
meaning of section 72(o)(5)(A) of the Code) shall
not be permitted under this Plan for taxable years
beginning after December 31, 1986. A separate
Voluntary Tax-Deductible Account shall be
established for such contributions made for taxable
years beginning on or before December 31, 1986.
Such Account shall be nonforfeitable at all times.
However, no part of the Voluntary Tax-Deductible
Account will be used to purchase life insurance or
available for loans under Article XII.
(b) The Participant may withdraw any part of the
Voluntary Tax-Deductible Account by making written
application to the Committee. The written consent
of the Participant's Spouse (consistent with the
requirements of a Qualified Election under
Section 8.2) must be obtained to any withdrawal made
after the first day of the first Plan Year beginning
on or after January 1, 1989.
<PAGE>
10.3 Transfers From Other Trusts
The Committee may, in its discretion, direct the Trustee
to accept a rollover contribution described in
sections 402(a)(5), 403(a)(4) or 408(d)(3)(A)(ii) of the
Code or a direct transfer of funds from a qualified
retirement plan, provided that, in the opinion of counsel
for the Employer, the transfer will not jeopardize the tax
exempt status of the Plan or create adverse tax
consequences to the Employer. The Committee shall
exercise such discretion in a uniform and non-
discriminatory manner. A transfer or rollover
contribution may be made on behalf of an Employee eligible
to participate in the Plan who has not met the age and
service requirements, if any, for participation. Such an
Employee shall become a Participant on the date the
Trustee accepts the rollover contribution or transfer for
all purposes, except that no employer or employee
contributions shall be made by or on behalf of such
Employee and such Employee shall not share in Plan
forfeitures until he has completed the age and service
requirements for participation and become a Participant.
A rollover contribution or transfer shall be maintained in
a Participant's Rollover Account, provided that the
Committee shall maintain a separate accounting for the
amount transferred and its share of the income.
Notwithstanding the preceding sentence, amounts
attributable to voluntary deductible employee
contributions shall be maintained in a Participant's
Voluntary Tax-Deductible Account.
A Participant may take withdrawals from the Rollover
Account as such time as the Committee shall designate, but
not more than quarterly during a Plan Year provided that
no single withdrawal shall be less than the total amount
available for withdrawal or five hundred dollars ($500).
Notwithstanding the preceding sentence, if the Plan is an
Easy Retirement Plan, a Participant may make such a
withdrawal at any time.
The written consent of the Participant's spouse
(consistent with the requirements for a Qualified Election
under Section 8.2) must be obtained with respect to any
withdrawal.
<PAGE>
ARTICLE XI.
INSURANCE POLICIES
11.1 Policy Procurement
The Employer may elect in the Adoption Agreement to have
the provisions of this Article XI apply. If so
authorized, the Committee may elect to provide all Active
Participants with the option of having life insurance or
annuity contracts (hereinafter referred to as "policy")
purchased on their behalf from a legal reserve life
insurance company.
11.2 Rules and Regulations
The following rules shall be applicable to the
acquisition, handling and disposition of any policy:
(a) The basic options, cash surrender values and other
material features of all policies shall be as nearly
uniform as possible. No endowment policies shall be
purchased.
(b) The Trustee shall be designated as the sole owner of
any policy purchased hereunder. However, all
benefits, rights, privileges and options under such
policy and any dividends or credits earned in
insurance contracts will be allocated to the
Participant's account balance derived from Employer
contributions for whose benefit the contract is
held. Notwithstanding any other provision of the
Plan, in computing the amount of the vested interest
of any Participant, the cash surrender value of any
policy shall be included in the Participant's
account balance. The applicable vested interest
percentage shall be applied to this sum. The
product of this computation shall then constitute
the Participant's vested interest.
(c) Payments made to any insurance company with respect
to any such policy shall constitute an investment of
the funds credited to the account balance of the
Participant on whose behalf it was purchased and his
account balance derived from Employer contributions
shall accordingly be reduced by any such payments.
<PAGE>
(d) If the policy or policies purchased are ordinary
life insurance, the aggregate premiums payable with
respect to such policy or policies may not equal or
exceed fifty percent (50%) of the aggregate Employer
contributions and forfeitures credited to such
Participant's account balance, exclusive of
investment earnings. A Participant may upon
consultation with the Committee and with its consent
modify or terminate this election at any time. If
the policy purchased is term or universal life
insurance, the phrase "twenty-five percent (25%)"
shall be substituted for the phrase "fifty
percent (50%)." If the policy or policies purchased
are ordinary life insurance and term insurance, the
sum of one-half (1/2) the ordinary life premiums and
the term premiums may not exceed twenty-five
percent (25%) of the aggregate Employer
contributions and forfeitures credited to such
Participant's account balance, exclusive of
investment earnings. For purposes of these
incidental insurance provisions, ordinary life
insurance contracts are contracts with both
nondecreasing death benefits and nonincreasing
premiums.
(e) If a Participant is not insurable as a standard risk
but may nevertheless be eligible for insurance
coverage at an extra rating because of excess
mortality hazards, the Committee, in its discretion,
may agree or not agree to obtain insurance. The
insurance to be purchased for a substandard life
shall not exceed the face amount that could have
been purchased by the premium that would have been
available for the purchase of insurance had the
Participant not been rated a substandard life. In
determining whether or not to purchase insurance,
the Committee shall not discriminate and shall
accord uniform treatment to all of its Participants
in a similar situation.
11.3 Transfer of Policies
(a) Upon the Participant's Retirement, the Trustee
shall, upon instructions from the Committee, either
transfer and deliver to the Participant any policy
held on his behalf (with such endorsements as the
<PAGE>Committee may direct), convert such policy to
an annuity, or surrender such policy, in which case
the cash proceeds thereof shall be included as part
of the account balance of such Participant and
distributed accordingly.
(b) The Committee shall offer to a vested Participant
any policy held in his behalf at a price equal to
the total cash surrender value of such policy. If
the Participant elects to purchase such policy, the
Trustee shall, upon instructions from the Committee,
transfer ownership of the policy to such
Participant, endorsed so as to vest in the
transferee all right, title and interest thereto,
free and clear of the Trust. If the Participant
declines to purchase such policy, the Trustee shall,
upon instructions from the Committee, liquidate the
policy for its cash surrender value; transfer the
policy to the Participant as a distribution of
benefits; or if the Participant has terminated
employment with the Employer other than by reason of
retirement, death or disability, place the policy on
a paid-up basis. The Committee may direct the
Trustee to designate itself, if not so designated,
as Beneficiary under such policy for the period
prior to the date on which it is liquidated.
(c) Subject to the Qualified Joint and Survivor Annuity
Rules of Section 8.2, the contracts on a
Participant's life will be converted to cash or an
annuity or distributed to the Participant upon
commencement of benefits.
11.4 Payment Upon Death
Subject to the Qualified Pre-retirement Survivor Annuity
Rules of Section 8.2, all death benefits payable under any
policy held on behalf of a deceased Participant shall be
paid to his Beneficiary. Such benefits may, as the
Committee shall determine, be paid either to the Trust
Fund, in which case the cash proceeds thereof shall be
included as part of vested account balance of such
Participant and distributed accordingly, or directly by
the insurance company to the Beneficiary pursuant to the
settlement option in effect at the time of the
Participant's death. In the absence of such election, the
<PAGE>benefits may be paid in a lump sum or under any
other settlement option contained in such policy, as
determined by the Committee.
11.5 Plan Provisions Control
In the event of any conflict between the terms of this
Plan and the terms of any policy issued hereunder, the
Plan provisions shall control.
ARTICLE XII.
LOANS
12.1 Loans to Participants
If permitted under the Adoption Agreement, the Committee,
in its discretion, may authorize and direct the Trustee to
grant loans to Participants and Beneficiaries in
accordance with written rules established by the
Committee. Such loans:
(a) Shall not exceed the lesser of:
(1) fifty thousand dollars ($50,000) reduced by
the excess, if any, of (i) the highest
outstanding balance of loans from the Plan
during the one (1) year period ending on the
day before the date on which such loan was
made, over (ii) the outstanding balance of
loans from the Plan on the date such loan was
made, or
(2) the greater of (i) ten thousand dollars
($10,000), or (ii) one-half (1/2) of the
Participant's or Beneficiary's vested
interest under the Plan.
For this purpose, all plans of the Employer
and Affiliated Employers shall be treated as
a single plan:
(b) Shall be evidenced by a promissory note, secured by
an assignment of a portion of the participant's or
Beneficiary's vested interest in the Plan, other
than a Voluntary Tax-Deductible Account (effective
<PAGE>for loans granted or renewed after October 18,
1989, the portion of a Participant's or
Beneficiary's vested interest which may be used as
security for a loan hereunder shall not exceed fifty
percent (50%));
(c) Shall bear a reasonable rate of interest as
determined by the Committee to be a rate of interest
commensurate with the interest rates charged by
persons in the business of lending money for loans
which would be made under similar circumstances; and
(d) Shall require substantially level repayments of
principal and interest (with repayments made not
less frequently than quarterly) over a period not to
exceed five (5) years. Any such loan shall be
nonrenewable except that if the loan was originally
granted for a period of less than five (5) years,
then the same may be renewed, in the discretion of
the Committee, for a period of time equal to the
difference between five (5) years and the duration
of the original loan. The five (5) years repayment
period shall not apply to any loan used to acquire
any dwelling unit which within a reasonable period
of time is to be used (to be determined at the time
the loan is made) as the principal residence of the
Participant.
The written consent of the Participant's spouse
(consistent with the requirements for a Qualified Election
under Section 8.2) must be obtained within the ninety (90)
day period ending on the date the account balance is used
as security for the loan. Such consent shall thereafter
be binding with respect to the consenting spouse or any
subsequent spouse. However, a new consent shall be
required if the account balance is used for renegotiation,
extension, renewal or other revision of the loan.
If Participant-directed investments have been elected in
the Adoption Agreement, loans shall be treated as an
investment of one or more of the borrower's separate
Accounts, in accordance with rules established by the
Committee. Repayments of principal and interest shall be
allocated solely to the Account(s) of the borrower from
which such loan was made, and any loss caused by non-
payment or default shall be charged solely to such
<PAGE>Account(s). Otherwise, all loans hereunder shall be
treated as an investment of the Fund.
12.2 Transactions Treated as Loans
The following transactions shall be treated as loans
hereunder:
(a) if a Participant or Beneficiary assigns or pledges
(or agrees to assign or pledge) any portion of his
interest in the Plan, such portion shall be treated
as a loan from the Plan to the Participant or
Beneficiary.
(b) Any amount received as a loan from an insurance
contract purchased under the provisions of this
Plan, if applicable (or any assignment or pledge
with respect to such contract), shall be treated as
a loan under the Plan.
12.3 Provisions to be Applied in a Uniform and
Nondiscriminatory Manner
In deciding whether or not to grant any request for a loan
hereunder, the Committee shall be guided by procedures and
criteria designed to assure that the loans shall be made
available to all Participants and Beneficiaries on a
reasonably equivalent basis and shall not be available to
Highly Compensated Employees in an amount greater than the
amount made available to other Employees.
12.4 Satisfaction of Loan
In the event of default, foreclosure on the note and
attachment of the security will not occur until a
distributable event occurs under the terms of the Plan.
If spousal consent (consistent with the requirements for a
Qualified Election under Section 8.2) has been obtained,
then, notwithstanding any other provision of the Plan, the
portion of the Participant's vested account balance used
as security for a loan shall be taken into account for
purposes of determining the amount of the account balance
payable at the time of death or distribution, but only if
the reduction is used as repayment of the loan. If less
than one hundred percent (100%) of the Participant's
<PAGE>vested account balance (determined without regard to
the preceding sentence) is payable to the surviving
spouse, then the account balance shall be adjusted by
first reducing the vested account balance by the amount of
the security used as repayment of the loan, and then
determining the benefit payable to the surviving spouse.
12.5 Loans to Owner-Employees or Shareholder-Employees
No loan shall be granted to an Owner-Employee or
Shareholder-Employee unless an exemption has been obtained
for such loan from the Secretary of Labor under
Section 408 of the Act (and such loan is exempt from the
excise tax imposed under section 4975 of the Code).
ARTICLE XIII.
TOP-HEAVY PROVISIONS
As specified in the Adoption Agreement, the provisions of this
Article XIII will either (1) always supersede any conflicting
provisions in the Plan or (2) only supersede such conflicting
provisions in any Plan Year beginning after 1983, during which
the Plan is or becomes Top-Heavy.
13.1 Definitions
For purposes of this Article and Article XVII, the
following words shall have the following meanings:
(a) "Compensation" shall mean Compensation as defined in
Article I. For any Plan Year beginning before
January 1, 1989, only the first two hundred thousand
dollars ($200,000) of a Participant's Compensation
shall be taken into account for purposes of
determining the Top-Heavy minimum allocation.
(b) "Determination Date" shall mean (1) the last day of
the preceding Plan Year, or (2) in the case of the
first Plan Year of any Plan, the last day of such
Plan Year.
(c) "Employer" shall mean the Employer and all
Affiliated Employers.
(d) "Key Employee" shall mean any Employee or former
Employee (and the Beneficiaries of such Employee)
<PAGE>who at any time during the Plan Year
containing the Determination Date and the four (4)
preceding Plan Years was:
(1) An officer of the Employer if such
individual's annual compensation exceeds
fifty percent (50%) of the dollar limitation
under section 415(b)(1)(A) of the Code
(provided that the number of employees
treated as officers shall be no more than
fifty (50) or, if fewer, the greater of
three (3) employees or ten percent (10%) of
all employees);
(2) An owner (or considered an owner under
section 318 of the Code) of at least a one-
half of one percent (.5%) interest and one of
the ten (10) largest interests in the
Employer if such individual's annual
compensation exceeds one hundred
percent (100%) of the dollar limitation under
section 415(c)(1)(A) of the Code;
(3) A five percent (5%) owner of the Employer; or
(4) A one percent (1%) owner of the Employer who
has an annual compensation of more than one
hundred fifty thousand dollars ($150,000).
For this purpose, annual compensation means
compensation as defined in section 415(c)(3) of the
Code, but including amounts excludible from the
Employee's gross income by reason of sections 125,
402(a)(8), 402(h) or 403(b) of the Code. The
determination of who is a Key Employee will be made
in accordance with section 416(i)(1) of the Code and
the regulations thereunder.
(d) "Non-Key Employee" shall mean any Employee who is
not a Key Employee.
(e) "Permissive Aggregation Group" shall mean the
Required Aggregation Group of plans plus any other
plan or plans of the Employer which, when considered
as a group with the Required Aggregation Group,
<PAGE>would continue to satisfy the requirements of
sections 401(a)(4) and 410 of the Code.
(f) "Present Value" shall be based on the interest and
mortality table specified in the Employer's
qualified defined benefit plan for Top-Heavy
purposes, or if such assumptions are not specified
in the Employer's qualified defined benefit plan,
Present Value shall be based on the assumptions
specified in the Adoption Agreement.
(g) "Required Aggregation Group" shall mean (1) each
qualified plan of the Employer in which at least one
Key Employee participates or participated at any
time during the determination period (regardless of
whether the Plan has terminated), and (2) any other
qualified plan of the Employer which enables a plan
described in (1) to meet the requirements of
sections 401(a)(4) or 410 of the Code.
(h) "Super Top-Heavy Plan": For any Plan Year after
1983, this Plan is Super Top-Heavy if the Top-Heavy
Ratio for the Plan, the Required Aggregation Group
or the Permissive Aggregation Group, as applicable,
exceeds ninety percent (90%).
(i) "Top-Heavy": For any Plan Year beginning after 1983,
this Plan is Top-Heavy if any of the following
conditions exist:
(1) If the Top-Heavy Ratio for this Plan exceeds
sixty percent (60%) and this Plan is not part
of any Required Aggregation Group or
Permissive Aggregation Group of plans.
(2) If this Plan is a part of a Required
Aggregation Group of plans, but not part of a
Permissive Aggregation Group and the Top-
Heavy Ratio for the group of plans exceeds
sixty percent (60%).
(3) If this Plan is a part of a Required
Aggregation Group and part of a Permissive
Aggregation Group of plans and the Top-Heavy
Ratio for the Permissive Aggregation Group
exceeds sixty percent (60%).
<PAGE>
(j) "Top-Heavy Ratio":
(1) If the Employer maintains one or more defined
contribution plans (including any Simplified
Employee Pension Plan) and the Employer has
not maintained any defined benefit plan which
during the five (5) year period ending on the
Determination Date has or has had accrued
benefits, the Top-Heavy Ratio for this Plan
alone or for the Required or Permissive
Aggregation Group as appropriate is a
fraction, the numerator of which is the sum
of the account balances of all Key Employees
as of the Determination Date (including any
part of any account balance distributed in
the five (5) year period ending on the
Determination Date, and the denominator of
which is the sum of all account balances
(including any part of any account balance
distributed in the five (5) year period
ending on the Determination Date, both
computed in accordance with section 416 of
the Code and the regulations thereunder.
Both the numerator and denominator of the
Top-Heavy Ratio are increased to reflect any
contribution not actually made as of the
Determination Date, but which is required to
be taken into account on that date under
section 416 of the Code and the regulations
thereunder.
(2) If the Employer maintains one or more defined
contribution plans (including any Simplified
Employee Pension Plan) and the Employer
maintains or has maintained one or more
defined benefit plans which during the
five (5) year period ending on the
Determination Date has or has had any accrued
benefit, the Top-Heavy Ratio for any Required
or Permissive Aggregation Group as
appropriate is a fraction, the numerator of
which is the sum of account balances under
the aggregated defined contribution plan or
plans for all Key Employees determined in
accordance with (i) above, and the Present
Value of accrued benefits under the
<PAGE>aggregated defined benefit plan or
plans for all employees as of the
Determination Date, and the denominator of
which is the sum of the account balances
under the aggregated defined contribution
plan or plans for all participants,
determined in accordance with (a) above, and
the Present Value of accrued benefits under
the defined benefit plan or plans for all
Participants as of the Determination Date,
all determined in accordance with section 416
of the Code and the regulations thereunder.
The accrued benefits under a defined benefit
plan in both the numerator and denominator of
the Top-Heavy Ratio are increased for any
distribution of an accrued benefit made in
the five (5) year period ending on the
Determination Date.
(3) For purposes of (1) and (2) above, the value
of account balances and the Present Value of
accrued benefits will be determined as of the
most recent Valuation Date that falls within
or ends with the twelve (12) month period
ending on the Determination Date, except as
provided in section 416 of the Code and the
regulations thereunder for the first and
second Plan years of a defined benefit plan.
The account balances and accrued benefits of
a participant who is not a Key Employee but
who was a Key Employee in a prior year, or
has not been credited with at least one Hour
of Service for any Employer maintaining the
Plan at any time during the five (5) year
period ending on the Determination Date will
be disregarded. The calculation of the Top-
Heavy Ratio, and the extent to which
distributions, rollovers, and transfers are
taken into account will be made in accordance
with section 416 of the Code and the
regulations thereunder. Deductible Employee
contributions will not be taken into account
for purposes of computing the Top-Heavy
Ratio. When aggregating plans the value of
account balances and accrued benefits will be
calculated with references to the
<PAGE>Determination Date that falls within
the same calendar year.
(4) Solely for the purpose of determining if the
Plan, or any other plan included in a
Required Aggregation Group of which this Plan
is a part, is Top-Heavy (within the meaning
of section 416(g) of the Code) the accrued
benefit of a Non-Key Employee shall be
determined under (a) the method, if any, that
uniformly applies for accrual purposes under
all plans maintained by the Employer, or
(b) if there is no such method, as if such
benefit accrued not more rapidly than the
slowest accrual rate permitted under the
fractional accrual rate of
section 411(b)(1)(C) of the Code.
(k) "Valuation Date" shall mean the last day of the Plan
Year and is the day on which account balances and
accrued benefits are valued for purposes of
calculating the Top-Heavy Ratio.
13.2 Vesting Schedules
For any Plan Year in which this Plan is Top-Heavy, one of
the Top Heavy minimum vesting schedules as elected by the
Employer in the Adoption Agreement will automatically
apply to the Plan. The Top Heavy Minimum vesting schedule
applies to all benefits within the meaning of
section 411(a)(7) of the Code except those attributable to
Employee contributions, including benefits accrued before
the effective date of section 416 of the Code and benefits
accrued before the Plan became Top-Heavy. Further, no
reduction in a vested benefit may occur in the event the
Plan's status as Top-Heavy changes for any Plan Year.
However, this Section does not apply to the account
balance of any Employee who does not have an Hour of
Service after the Plan has initially become Top-Heavy and
such Employee's account balance attributable to Employer
contributions and forfeitures will be determined without
regard to this Section.
<PAGE>
13.3 Minimum Allocation
(a) Except as otherwise provided in (b), (c) and (d)
below, when the Plan is Top-Heavy the Employer
contributions and forfeitures allocated on behalf of
any Participant who is a Non-Key Employee shall not
be less than the lesser of three percent (3%) of
such Participant's Compensation or, if neither the
Employer nor an Affiliated Employer maintains a
defined benefit plan which designates this Plan to
satisfy sections 401(a)(4) or 410 of the Code, the
largest percentage of Employer contributions and
forfeitures, as a percentage of the first two
hundred thousand dollars ($200,000) of the Key
Employee's Compensation, allocated on behalf of any
Key Employee for that year. For purposes of
determining whether a Plan is Top-Heavy, Elective
Deferrals are considered Employer contributions.
However, neither Elective Deferrals nor Matching
Contributions may be taken into account for purposes
of satisfying the three percent (3%) minimum Top-
Heavy contributions requirements for Plan Years
beginning on or after January 1, 1989.
The Minimum Allocation is determined without regard
to a Social Security contribution. This Minimum
Allocation shall be made even though, under other
Plan provisions, the Participant would not otherwise
be entitled to receive an allocation, or would have
received a lesser allocation for the year because of
(1) the Participant's failure to complete one
thousand (1,000) Hours of Service (or any equivalent
provided in the Plan), (2) the Participant's failure
to make mandatory employee contributions, or (3) the
Participant's Compensation is less than a stated
amount.
(b) The provision in (a) above shall not apply to any
Participant who was not employed by the Employer on
the last day of the Plan Year.
(c) If the Employer maintains a qualified defined
benefit plan and this Plan is Top-Heavy, but is not
Super Top-Heavy, each Participant who is a Non-Key
Employee and is not covered by the defined benefit
plan shall receive the Minimum Allocation under (a)
<PAGE>above, except that "four percent (4%)" shall
be substituted for "three percent (3%)".
(d) The provision in (a) above shall not apply with
respect to any Participant covered under any other
qualified plan or plans of the Employer other than a
paired plan of the Sponsor and the adopting Employer
has elected in the Adoption Agreement that the
minimum Top Heavy allocation or benefit will be met
in the other plan or plans.
If the Employer maintains a qualified defined
benefit plan, other than Sponsor's paired defined
benefit plan 02001, and the adopting Employer has
elected in the Adoption Agreement to provide the Top
Heavy minimum allocation or benefit under this Plan,
then with respect to participants covered under both
plans, "five percent (5%)" shall be substituted for
"three percent (3%)" in (a) above if the Plan is
Super Top Heavy and "seven and one-half percent (7-
1/2%)" shall be substituted for "three percent (3%)"
in (a) above if the Plan is Top Heavy, but not Super
Top Heavy.
(e) The Minimum Allocation required (to the extent
nonforfeitable under section 416(b) of the Code) may
not be forfeited under section 411(a)(3)(B) or
411(a)(3)(D) of the Code.
13.4 Adjustment to Defined Benefit Fraction and Defined
Contribution Fraction under Section 6.4.
If the Plan is Super Top-Heavy, then "one-hundred percent
(100%)" shall be substituted for "one hundred twenty-five
percent (125%)" in the denominator of the Defined Benefit
Fraction and the Defined Contribution Fraction under
Section 6.4.
<PAGE>
ARTICLE XIV.
THE COMMITTEE
14.1 Creation of a Committee
The Employer may appoint a person or persons to act as the
Committee and serve at its pleasure. If no such Committee
is appointed, the Employer shall act as the Committee.
The Employer shall notify the Trustee of the appointment
of the original members of the Committee and of each
change in the membership of the Committee. Vacancies in
the Committee shall be filled by the Employer.
14.2 Committee Action
In the event that the Employer appoints such person or
persons to act as the Committee, such Committee shall act
by a majority of its members at a meeting or in writing
without a meeting. A member of the Committee who is also
a Participant of the Plan shall not vote or act as a
member of the Committee upon any matter relating solely to
his rights or benefits under the Plan.
14.3 Authorized Signatory
Except as otherwise provided in Section 14.10, the
Committee may designate a person or persons who shall be
authorized to sign any document in the name of the
Committee. The Trustee shall be fully protected in
relying upon any notice, instruction or certification from
the Committee or executed pursuant to the provisions of
this Section.
14.4 Powers and Duties
The Committee shall have such powers and duties as are
necessary for the proper administration of the Plan,
including but not limited to the power to make decisions
with respect to the application and interpretation of the
Plan. The Committee shall be empowered to establish rules
and regulations for the transactions of its business and
for the administration of the Plan. The determinations of
the Committee with respect to the interpretation,
application, or administration of the Plan shall be final,
binding, and conclusive upon each person or party
interested or concerned.
<PAGE>
14.5 Non-Discrimination
Where provisions of this Plan are at the discretion of the
Committee, all Participants shall be treated in a uniform
and non-discriminatory manner.
14.6 Records and Reports
The Committee shall maintain such records as may be
necessary for proper administration of the Plan and shall
be responsible for supplying all information and reports
to the Internal Revenue Service, Department of Labor,
Participants, Beneficiaries and others as required by law.
Employees may examine records pertaining directly to them.
14.7 Reliance on Professional Advice
The Committee shall be entitled to rely conclusively on
the advice or opinion of any consultant, accountant, or
attorney and such persons may also act in their respective
professional capacities as advisors to the Employer.
14.8 Payment of Expenses
All expenses of administration may be paid out of the
Trust Fund unless paid by the Employer. Such expenses
shall include any expenses incident to the duties of the
Committee, including, but not limited to, fees of
consultants, accountants, and attorneys, and other costs
of administering the Plan. Until paid, the expenses shall
constitute a liability of the Trust Fund. However, the
Employer may reimburse the Trust Fund for any
administration expense incurred. Any administration
expense paid to the Trust Fund as a reimbursement shall
not be considered an Employer contribution.
14.9 Limitation of Liability
The Committee must discharge its duties solely in the
interest of the Participants and their Beneficiaries. The
Committee must carry out its duties with the care, skill,
prudence and diligence under circumstances then prevailing
that a prudent man acting in a like capacity and familiar
with such matters would use in the conduct of an
enterprise of like character and with like aims. The
Committee, however, shall not be liable for any acts or
<PAGE>decisions based on the advice or opinion of any
consultant, accountant or attorney employed by the
Committee in their respective professional capacities as
advisors to the Employer, provided, however, that the
Committee did not violate its general fiduciary duty in
selecting or retaining such advisor.
14.10 Payment Certification to Trustee
The Committee shall provide written instruction to the
Trustee with respect to all payments which become due
under the terms of the Plan and shall direct the Trustee
to make such payments from the Trust Fund. All orders,
requests and instructions by the Committee to the Trustee
shall be in writing and signed by an authorized member of
the Committee.
The Trustee shall act and shall be fully protected in
acting in accordance with such orders, requests and
instructions.
14.11 Claims Procedure
A Participant or Beneficiary ("Claimant") may file a
written claim for benefits with the Committee. If the
Committee decides that a Claimant is not entitled to all
or any part of the benefits claimed, it shall within
ninety (90) days of receipt of such claim, inform the
Claimant in writing of its determination; the reasons for
its determination, including specific references to the
pertinent Plan provisions; and the Plan's review
procedures. The Claimant or his authorized personal
representative shall be permitted to review pertinent
documents and within sixty (60) days after receipt of the
notice of denial of claim to request to appear personally
before it or to submit such further information or
comments to the Committee as will, in the Claimant's
opinion establish his right to such benefits. The
Committee will render its final decision with the specific
reason therefore in writing and will transmit it to the
claimant by certified mail within sixty (60) days (or one
hundred twenty (120) days, if special circumstances
require an extension of time and the claimant is given
written notice within the initial sixty (60) day period)
of any such appearance. If the final decision is not made
within such period, it will be considered denied. If,
<PAGE>upon review of a request for benefits hereunder, the
Committee finds the Participant ineligible for such
benefits, it shall inform the Participant in writing the
reason or reasons for such denial. In the event any
Participant or Beneficiary disagrees with the conclusions
of the Committee, the Committee must reconsider their
decision based on the facts and evidence presented to them
by the Participant or Beneficiary. Further, the Committee
must substantiate in writing to any Participant or
Beneficiary who disagrees with the amount of his benefit
the method under which the benefit computations were made.
ARTICLE XV.
GENERAL PROVISIONS
15.1 No Right of Continued Employment
No Employee or Participant shall have any right or claim
to any benefit under the Plan except in accordance with
the provisions of the Plan. The adoption of the Plan
shall not be construed as creating any contract of
employment between the Employer and any Employee or
otherwise conferring upon any Employee or other person any
legal right to continuation of employment, nor as limiting
or qualifying the right of the Employer to discharge any
Employee without regard to the effect that such discharge
might have upon his rights under the Plan.
15.2 Non-Alienation of Interest
No benefit or interest available hereunder will be subject
to assignment or alienation, either voluntarily or
involuntarily. The preceding sentence shall not apply to
loans made to the Participant under the Plan, or domestic
relations orders which are determined by the Committee to
be a qualified domestic relations orders, as defined in
section 414(p) of the Code and section 206(d)(3) of the
Act, or were entered before January 1, 1985.
15.3 Incompetence of Participants and Beneficiaries
If the Committee deems any person incapable of receiving
benefits to which he is entitled by reason of minority,
illness, infirmity, or other incapacity, it may direct the
Trustee to make payment directly for the benefit of such
<PAGE>person to a legal representative of such person.
Such payment shall, to the extent thereof, discharge all
liability of the Employer, the Committee, the Trustee and
the Fund.
15.4 Unclaimed Benefits
If any benefit hereunder has been payable and unclaimed
for four (4) years since the whereabouts or continued
existence of the person entitled thereto was last known to
the Committee, such benefit shall be placed in a
segregated, interest-bearing suspense account with no
further attempts to uncover the whereabouts of the person
entitled thereto. The Committee shall rely upon
notification from the Department of Health, Education and
Welfare as to the whereabouts of such person when he
applies for benefits under the Social Security Act. The
four (4) year period may be extended by the Committee
whenever, in its discretion, special circumstances justify
such action. The Committee shall make a reasonable and
diligent search for the Participant before any benefit is
segregated. If a benefit is forfeited because the
Participant or Beneficiary cannot be found, such benefit
will be reinstated if a claim is made by the Participant
or Beneficiary.
15.5 Separate Employer Trusts Maintained
Except as provided in Section 16.5, the Plan of each
Employer which adopts this Prototype Plan and
corresponding Trust Agreement as part of its Plan shall be
administered separately from those of any other Employer.
15.6 Governing Law
The Plan shall be administered, construed and enforced to
the state wherein the Trustee maintains its principal
place of business, except to the extent preempted by the
Act.
15.7 Severability
Should any provision of the Plan or rules and regulations
adopted thereunder be deemed or held to be unlawful or
invalid for any reason, such fact shall not adversely
affect the other provisions unless such invalidity shall
<PAGE>render impossible or impractical the functioning of
the Plan. In such case, the appropriate parties shall
immediately adopt a new provision to take the place of the
illegal or invalid provision.
15.8 Gender and Number
The masculine pronoun wherever used shall include the
feminine pronoun and the singular shall include the plural
and the plural shall include the singular, wherever
appropriate to the context.
15.9 Titles and Headings
The titles or headings of the respective Articles and
Sections are inserted merely for convenience and shall be
given no legal effect.
15.10 Failure of Employer's Plan to Qualify
The use of this Prototype Plan and corresponding Trust
Agreement shall be available only to the Plans of
Employers which meet the requirements of section 401(a) of
the Code. If the Employer's Plan fails to attain or
retain qualification, such Plan will no longer participate
in this Prototype Plan and will be considered an
individually designed plan.
15.11 Exclusive Benefit
Except as provided in Section 6.3, at no time shall any
part of the corpus or income of the Fund be used for or
diverted to purposes other than for the exclusive benefit
of the Participants and their Beneficiaries and defraying
reasonable expenses of the Plan.
ARTICLE XVI.
AMENDMENT AND TERMINATION
16.1 Amendment
(a) The Employer expressly recognizes the authority of
the Sponsor to amend the Plan and the Trust
Agreement or Custodial Agreement from time to time,
and the Employer shall be deemed to have consented
<PAGE>to any such amendment. The Employer shall
receive a written instrument indicating the
amendment of the Plan and Trust Agreement and such
amendment shall become effective as of the effective
date of such instrument.
(b) The Employer reserves the right to amend the Plan at
any time. Except for (1) changes to the choice of
options in the Adoption Agreement, (2) amendments
stated in the Adoption Agreement which allow the
Plan to satisfy section 415 of the Code or to avoid
duplication of minimums under section 416 of the
Code because of the required aggregation of multiple
plans, or (3) amendments published by the Internal
Revenue Service which specifically provide that
their adoption will not cause the Plan to be treated
as individually designed, an Employer will no longer
participate in the Prototype Plan and will be
considered to have an individually designed plan if
it amends the Plan or obtains a waiver of the
minimum funding requirement under section 412(d) of
the Code.
(c) Notwithstanding anything in this Plan to the
contrary, no amendment shall:
(1) Increase the responsibility of the Trustee
without the Trustee's written consent;
(2) Have the effect of decreasing a Participant's
account balance or eliminating an optional
form of benefit with respect to accrued
benefits, except to the extent permitted by
section 412(c)(8) of the Code;
(3) In the case of an Employee who is a
Participant as of the later of the date such
amendment is adopted or the date it becomes
effective, decrease the nonforfeitable
percentage (determined as of such date) of
such Employee's right to his Employer-derived
account balance below his non-forfeitable
percentage computed under the Plan without
regard to such amendment;
<PAGE>
(4) Violate the exclusive benefit rule of
Section 15.11.
16.2 Termination and Partial Termination
The adopting Employer may, at any time, by written notice
to the Trustee in such form as is acceptable to the
Trustee, terminate the Plan and discontinue all further
contributions hereunder. Upon termination or partial
termination of the Plan or upon complete discontinuance of
contributions to a Profit Sharing Plan, each affected
Employee shall have a one hundred percent (100%) vested
and nonforfeitable interest in his account balance. If
the adopting Employer is legally adjudicated as bankrupt
or insolvent or makes a general assignment for the benefit
of creditors, the Plan shall automatically be terminated.
The effective date of termination shall be a "Valuation
Date" for purposes of valuing the Participants' account
balance. Upon a termination or partial termination of the
Plan (and subject to the limitations of Section 4.10 in
the case of a cash or deferred arrangement qualified under
section 401(k) of the Code), each affected Participant's
account balance may be distributed in accordance with the
provisions of Article VIII or, at the option of the
Employer and with the Trustee's consent, shall continue to
be held by the Trustee for distribution as authorized by
Articles VIII and IX. Notwithstanding the preceding
sentence, a Profit Sharing Plan which does not offer an
annuity form of benefit (purchase from a commercial
provider) may distribute each affected Participant's
account balance immediately in a single sum without
Participant consent, provided that neither the Employer
nor any Affiliated Employer maintains another defined
contribution plan, other than an employee stock ownership
plan (as defined in section 4975(e)(7) of the Code). If
either the Employer or any Affiliated Employer maintains
another such defined contribution plan, then a
Participant's account balance may be transferred to such
plan without his consent if the Participant does not
consent to the single sum distribution from this Plan.
16.3 Plan Merger and Consolidation or Transfer of Plan Assets
In the event of any merger or consolidation with, or
transfer of assets or liabilities to, any other plan, each
Participant of this Plan would (if the Plan then
<PAGE>terminated) receive an amount immediately after such
merger, consolidation or transfer which is equal to or
greater than the amount he would have been entitled to
receive immediately before the merger, consolidation, or
transfer (if the Plan had then terminated).
16.4 Amended and Restated Plans
If this Plan is an amendment and restatement of an
existing plan ("Existing Plan"), the following provisions
shall apply:
(a) Each Employee who was a participant in the Existing
Plan immediately prior to the Effective Date shall
become a Participant in this Plan on the Effective
Date.
(b) The balance of such Employee's accounts under the
Existing Plan attributable to employer or employee
contributions shall be allocated to the
corresponding Accounts under this Plan or accounted
for separately.
(c) All years of service credited for vesting service
under the Existing Plan shall be credited as years
of Service under this Plan. The amendment and
restatement shall not reduce the vested interest of
a participant in the Existing Plan, and any change
in the vesting schedule shall be subject to the
provisions of Section 7.3.
(d) The amendment and restatement shall not reduce a
Participant's account balance and shall not
eliminate any optional form of benefit.
(e) Any beneficiary designation in effect under the
Existing Plan immediately before the amendment and
restatement shall be deemed to be a valid
Beneficiary designation under this Plan, to the
extent consistent with Article VIII.
16.5 Participating Employers
(a) With the consent of the Employer and Trustee, and by
duly authorized action, any Affiliated Employer may
adopt this Plan and become a Participating Employer.
<PAGE>Unless the context clearly indicates
otherwise, the word "Employer" shall be deemed to
include each Participating Employer as related to
its adoption of the Plan.
(b) Each such Participating Employer shall be required
to select the same Adoption Agreement provisions as
those selected by the Employer, and to use the same
Trustee as the Employer.
(c) The Trustee may, but shall not be required to
commingle, hold and invest as one Trust Fund all
contributions made by Participating Employers, as
well as all increments thereof.
(d) With respect to its relations with the Trustee and
Committee for the purposes of this Plan, each
Participating Employer shall be deemed to have
irrevocably designated the adopting Employer as its
agent. Amendment of this Plan by the adopting
Employer at any time when there shall be a
Participating Employer hereunder shall only be by
the written action of the adopting Employer, with
the consent of the Trustee where such consent is
necessary in accordance with the terms of this Plan.
(e) A Participating Employer may, at any time, by
written notice to the Trustee in such form as is
acceptable to the Trustee, discontinue its
participation in the plan and discontinue all
further contributions hereunder. The Trustee shall
thereafter transfer, deliver and assign Fund assets
attributable to the Participants of such
Participating Employer to such successor trustee as
shall have been designated by such Participating
Employer, in the event that it has established a
separate plan for its Employees. If no successor
trustee is designated, the Trustee shall retain such
assets for the Employees of said Participating
Employer pursuant to the provisions of Articles VIII
and IX hereof.
<PAGE>
ARTICLE XVII.
PAIRED PLAN PROVISIONS
The provisions of this Article are applicable only if the
Employer adopts a set of Dreyfus paired plans. Paired plans are
a combination of standardized form plans offered by the Sponsor,
so designed that if any single plan or combination of plans is
adopted by an Employer each plan by itself, or the plans
together, will meet the anti-discrimination rules set forth in
section 401(a)(4) of the Code, the contribution and benefit
limits set forth in Section 415 of the Code and the Top-Heavy
provisions set forth in section 416 of the Code.
17.1 Compliance With Section 415(e) of the Code
If the Employer adopts one or two of Sponsor's paired
defined contribution plans and Sponsor's paired defined
benefit plan, the "1.0" aggregate limitation of
section 415(e) of the Code on contributions and benefits
will be met by freezing or reducing the rate of benefit
accruals under the paired defined benefit plan.
17.2 Adjustment of Combined Plan Fractions Under Section 415 of
the Code for Top-Heavy Ratio in Excess of Ninety Percent
(90%)
In any Plan Year in which the Plan becomes Super Top-
Heavy, the denominators of the Defined Benefit Fraction
(as defined in Section 6.4 of the Plan) and the Defined
Contribution Fraction (as defined in Section 6.4 of the
Plan) shall be computed using one hundred percent (100%)
of the dollar limitation instead of one hundred twenty-
five percent (125%).
17.3 Top-Heavy Minimum Benefits and Contributions
(a) When the paired plans maintained by the Employer are
Top-Heavy, but are not Super Top-Heavy, each Non-Key
Employee who participates in paired defined
contribution plan number 01001, 01003, 01004, 01005
or 01006, but does not participate in paired defined
benefit plan number 02001, will receive the Minimum
Allocation provided for in Section 13.3. Each Non-
Key Employee who participates in two of the paired
defined contribution plans, but not the paired
<PAGE>defined benefit plan, shall receive the
minimum Top-Heavy allocation under the paired
defined contribution plan specified in the Adoption
Agreement. Each Non-Key Employee who is a
participant in this Plan and the paired defined
benefit plan shall receive the minimum top-heavy
benefit accrual under such plan and shall not
receive any top-heavy minimum contribution under the
paired defined contribution plan or plans.
(b) When the paired plans maintained by the Employer are
Super Top-Heavy, each Non-Key Employee who
participates in paired defined contribution plan
number 01001, 01003, 01004, 01005 or 01006 but who
does not participate in paired defined benefit plan
number 02001, will receive the Minimum Allocation
provided for in Section 13.3. Each Non-Key Employee
who participates in two of the paired defined
contribution plans, but not the defined benefit
plan, shall receive the minimum top-heavy allocation
under the paired defined contribution plan specified
in the Adoption Agreement Each Non-Key Employee who
is a Participant in this Plan and the paired defined
benefit plan shall receive the minimum top heavy
benefit accrual under such plan and shall not
receive any top heavy minimum contribution under the
paired defined contribution plan or plans.
17.4 Integration of Paired Plans
If the Employer adopts paired plans, only one plan may
allocate contributions or determine benefits on an
integrated basis.
<PAGE>
DREYFUS TRUST AGREEMENT
THIS TRUST AGREEMENT is made by and between the Employer
whose name is set forth on the attached adoption agreement
(the "Adoption Agreement") and the person designated as Trustee
in the Adoption Agreement (the "Trustee").
WITNESSETH:
WHEREAS, the Employer has adopted the qualified employee
retirement plan described in the Adoption Agreement (the "Plan")
for the exclusive benefit of its employees who are participants
in such Plan (collectively the "Participants" and individually a
"Participant") and their beneficiaries; and
WHEREAS, the Employer desires to appoint the Trustee as a
"nondiscretionary trustee" (within the meaning of Section VI(g)
of Prohibited Transaction Class Exemption 77-9 under
Section 408(a) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) for the limited purposes hereinafter
set forth; and
WHEREAS, the Trustee desires to act as such a nondiscretionary
trustee of the Plan for the limited purposes hereinafter set
forth;
NOW, THEREFORE, the Employer hereby establishes a fund with the
Trustee that shall be held, managed and controlled by the Trustee
without distinction between principal and income (the "Trust
Fund") upon the terms and conditions hereinafter set forth:
ARTICLE 1
CONCERNING THE TRUST FUND
Section 1.1. The Plan, this Trust Agreement and the Trust Fund
created hereunder are intended to meet all the applicable
requirements of Sections 401(a) and 501(a) of the Internal
Revenue Code of 1986, as amended (the "Code") and ERISA.
The Employer assumes full responsibility to establish and
maintain the Plan as a plan meeting the qualification
requirements of Section 401(a) of the Code and hereby agrees to
notify the Trustee promptly in the event of any change in such
qualified status. Copies of all documents related to the Plan
including, without limitation, the Plan, amendments to the Plan
<PAGE>and the most recent determination letter received from the
Internal Revenue Service with respect to the Plan, upon request
will be provided to the Trustee by the Employer.
Section 1.2. The Employer certifies and represents to the
Trustee that there are no duties imposed on the Trustee under the
terms of the Plan that are not consistent with the provisions of
this Trust Agreement.
Section 1.3. The Trustee agrees to accept contributions that are
paid to it by the Employer (as well as rollover contributions and
transfers from other qualified retirement plans) in accordance
with the terms of the Plan. The Trustee shall be entitled to
rely upon the determination of the fiduciary named in the Plan as
having the authority to control and manage the administration of
the Plan (the "Committee") that all assets received by the
Trustee are properly contributed or transferred in accordance
with the terms of the Plan. Such contributions shall be in cash
or in such other form that may be acceptable to the Trustee.
All contributions received by the Trustee and all other receipts
of the Trustee, whether by way of dividends, interest or
otherwise, for the account of the Trust Fund shall be held,
managed and controlled by the Trustee pursuant to the terms of
this Trust Agreement without distinction between principal and
income and may be commingled, and held and invested and, with all
disbursements therefrom, accounted for by the Trustee, as a
single fund. The Employer hereby agrees that the Employer and the
Committee shall have the exclusive responsibility, and the
Trustee shall not have any responsibility or duty under this
Trust Agreement, to determine whether the amount, timing and type
of any contribution by the Employer or any Participant is in
accordance with the terms of the Plan or applicable law, or for
the collection of any contributions under the Plan.
Section 1.4. The Trustee, solely from assets held in the Trust
Fund, shall make payments in such amounts and for such proper
purposes as may be specified in the Committee's Directions
(as defined in Section 2.1 herein). The Employer hereby agrees
that the Committee shall have the exclusive responsibility, and
the Trustee shall not have any responsibility or duty, under this
Trust Agreement for determining that the Committee's Directions
are in accordance with the terms of the Plan and applicable law,
including without limitation, determining the amount, timing or
method of payment or the identity of each person to whom such
payments shall be made. The Trustee shall have no responsibility
or duty to determine the tax effect of any payment or to see to
the application of any payment.
<PAGE>Section 1.5. The Trustee shall have no duties or
obligations with respect to the Trust Fund unless such duties or
obligations have been specifically undertaken by the Trustee by
the express terms of the Trust Agreement.
ARTICLE II
INVESTMENT AND ADMINISTRATION OF THE FUND
Section 2.1.1. In accordance with the provisions of ERlSA, the
Trustee shall have exclusive authority and discretion to manage
and control the Trust Fund; provided, however, that the Trustee's
authority and discretion with respect to the Trust Fund shall at
all times be subject to the proper, written directions of the
Committee which are made in accordance with the terms of the Plan
and which are not contrary to ERISA (the "Committee's
Directions"). The Trustee shall be entitled to rely entirely on
the Committee's Directions, shall be under no duty to determine
or make inquiry whether the Committee's Directions received by it
are in accordance with the provisions of the Plan or applicable
law, and shall have no liability and shall be fully indemnified
by the Employer for any action taken in accordance with, or any
failure to act in the absence of, the Committee's Directions.
Section 2.1.2. If the Committee advises the Trustee that the
Plan provides for individual accounts and permits each
Participant to direct the investment of the assets in the
Participant's account, then, pursuant to the Committee's
Directions, the Trustee shall invest the assets in such account
among the investment options established pursuant to Section 2.3
as directed by each such Participant in accordance with such
procedures as are acceptable to the Trustee. If such procedures
include the effecting of exchanges among the investment options
established pursuant to Section 2.3 or otherwise directing the
investment of the assets allocated to a Participant's account by
use of the telephone system maintained for such purpose by the
trustee or its agent, the Trustee shall be entitled to rely on
any telephonic direction from any person representing himself or
herself to be a Participant directing the investment of assets in
his or her account. The Trustee shall be entitled to rely
entirely on Participants' directions, shall be under no duty to
determine or make inquiry whether Participants' directions are in
accordance with the provisions of the Plan or applicable law, and
shall have no liability and shall be fully indemnified by the
Employer for any action taken in accordance with, or any failure
to act in the absence of, Participants' directions.
Section 2.2 The Committee shall have authority and discretion
to select the nature and amount of the investments to be made
<PAGE>under the Plan. The Trustee shall invest, reinvest and
dispose of the assets comprising the Trust Fund in accordance
with the Committee's Directions. The Committee shall exercise
such authority and discretion solely in the interest of the
Participants and their beneficiaries and (1) for the exclusive
purpose of (a) providing benefits to the Participants and
their beneficiaries and (b) defraying reasonable expenses of
administering the Plan, (2) with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
person acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character
and with like aims, (3) by diversifying the investments of the
Plan so as to minimize the risk of large losses, unless under
the circumstances it is clearly prudent not to do so and
(4) in accordance with the terms of the Plan and with applicable
law. The Trustee shall have no duty hereunder to review the
investments held in the Trust Fund. The Trustee shall not make
suggestions or otherwise render investment advice to the
Committee or any Participant with respect to investment,
reinvestment, or disposition of assets held in the Trust Fund.
Section 2.3. Except to the extent required under applicable law,
the authority and discretion of the Trustee with respect to the
Trust Fund shall be limited to the following nondiscretionary
powers which shall be exercised solely in accordance with
the Committee's Directions or, to the extent provided in
Section 2.1.2, the directions of Participants:
(a) To open and maintain accounts for the Plan, and to the
extent that the Plan is a "defined contribution plan"
(within the meaning of Section 3(34) of ERISA),
individual accounts for each of the Participants.
(b) To receive contributions from the Employer and to
credit contributions made by the Employer to the
individual accounts of Participants established
pursuant to paragraph (a) above.
(c) To invest contributions made by the Employer and other
assets of the Plan in shares of any investment company
sponsored, managed, advised, administered or
distributed by The Dreyfus Corporation or any of its
affiliates (the "Dreyfus Funds") in equity securities
issued by the Employer or an affiliate which are
publicly traded and which are "qualifying employer
securities" within the meaning of Section 407(d)(5) of
ERISA ("Employer Stock"), in any collective investment
fund maintained by a bank or trust company as a "group
trust" for the collective investment of employee
<PAGE>benefit plans qualified under Section 401(a) of
the Code, and such other investments as may be
acceptable to the Trustee and as agreed to in writing
by Dreyfus Service Corporation ("Sponsor") and the
Committee (the Dreyfus Funds and such other
investments shall be collectively referred to as the
"Investments"); and to reinvest dividends and other
distributions in the Dreyfus Funds or other
Investments provided, however, that if the Plan is
established pursuant to one of the Sponsor's prototype
plan documents, investments shall be subject to such
investment limitations or minimum requirements for
investments in Dreyfus Funds as may be imposed by the
Sponsor. The Employer hereby agrees that the Trustee
shall not be restricted in making such investments to
investments that are authorized by governing state
laws (as determined under Section 9.5) for the
investment of trust funds. If Plan assets are invested
in any group trust, the terms of the group trust
agreement or other governing document are hereby
incorporated by reference and made a part of the Trust
Agreement as long as the group trust remains exempt
from taxation under Section 501(a) of the Code. The
Trustee shall not be responsible in any way respecting
the form, terms, payment provisions or issuer of any
insurance contract which it is directed to purchase
and/or hold to provide for the payment of benefits, or
for performing any functions under any such insurance
contract which it may be directed to purchase and/or
hold as contract holder thereunder (other than the
execution of any documents incidental thereto and
transfer or receipt of funds thereunder in accordance
with the Committee's Directions).
(d) To redeem, transfer or exchange shares of the Dreyfus
Funds, to sell, exchange, convey, transfer or
otherwise dispose of any other Investments; and to
make, execute and deliver to the purchasers thereof
good and sufficient legal documents of conveyance
therefore, and all assignments, transfers and other
legal instruments, either necessary or convenient for
passing the title and ownership of the Investments,
and no person dealing with the Trustee shall be bound
to see to the application of the purchase money or to
inquire into the validity, expediency or propriety of
any such sale or disposition.
(e) To make distributions from the Trust Fund to
Participants and their beneficiaries.
<PAGE>
(f) To deliver notices, prospectuses and proxy statements
to Participants or to the Employer, and to vote in
person or by proxy with respect to any securities held
by the Trust Fund in accordance with the written
directions of the Committee or of the Participants, as
the case may be; and in accordance with such power, to
exercise subscription, conversion and other rights
and options and to take action or refrain from taking
any action with respect to any reorganization,
consolidation, merger, dissolution or other
recapitalization or refinancing to the extent that the
exercise of such rights and options or the taking or
refraining from such actions may be deemed by the
Trustee to be necessary or proper to protect the best
interests of the Trust Fund.
(g) To maintain records of contributions, investments,
distributions and other transactions, and to report
such transactions to the Employer or such other
persons as may be designated by the Employer.
(h) To make necessary filings with the Internal Revenue
Service, the Department of Labor and other
governmental agencies.
(i) To hold any part of the Trust Fund in cash or cash
balances.
(j) To hold custody of the assets of the Plan; and with
respect to any such assets held in custody by the
Trustee, to cause any investment of the Trust Fund to
be registered in the name of the Trustee or the name
of its nominee or nominees or to retain such
investment unregistered or in a form permitting
transfer by delivery, provided that the books and
records of the Trustee shall at all times show that
all such investments are part of the Trust Fund.
(k) To apply for, purchase, hold or transfer any life
insurance, retirement income, endowment or annuity
contract.
(l) To consult and employ any suitable agent(s) to act on
behalf of the Trustee and to contract for legal,
accounting, clerical and other services deemed
necessary by the Trustee to administer the Trust Fund
according to the terms of this Trust Agreement and the
instructions of the Committee.
<PAGE>
(m) To make loans from the Trust Fund to Participants in
amounts and on terms approved by the Committee; and
Employer hereby agrees that the Committee shall have
the sole responsibility, and the Trustee shall not
have any duty or responsibility, for computing and
collecting any loan repayments required to be made
under the Plan.
(n) To pay from the Trust Fund all taxes imposed or levied
with respect to the Trust Fund or any part thereof
under existing or future laws, and to contest the
validity or amount of any tax, assessment, claim or
demand respecting the Trust Fund or any part thereof.
(o) To pay out of the Fund (i) all brokerage fees and
transfer tax expenses and other expenses incurred in
connection with the sale or purchase of investments,
(ii) the Trustee's compensation and (iii) all other
expenses of administering the Plan and the Trust Fund
including, without limitation, any payments authorized
by Section 1.4 of this Agreement, unless promptly paid
to the Trustee, or otherwise, by the Employer.
(p) To do all such acts, and to exercise all such rights
and privileges, although not specifically mentioned
herein, as the Trustee may deem necessary or proper to
carry out any of the nondiscretionary powers set forth
herein or otherwise in the best interests of the Trust
Fund and required by applicable law.
Section 2.4. Investments in Employer Stock shall be subject to
the following notwithstanding any other provision in this Trust
Agreement:
(a) In accordance with the Committee's Directions, the
Trust Fund may be invested in Employer Stock without
regard to the ten percent (10%) limitation with
respect to the acquisition and holding of employer
securities set forth in Section 407(a)(2) of ERISA if
the Plan qualifies as an "eligible individual account
plan" under Section 407(d)(3) of ERISA.
(b) The Committee shall be responsible for determining the
appropriateness under the fiduciary responsibility and
other applicable provisions of ERISA of acquiring and
holding Employer Stock. The Trustee shall not be
liable for any loss, or by reason of any breach, which
arises from following directions with respect to the
acquisition and holding of Employer Stock.
<PAGE>
(c) Subject to the provisions of Section 2.4(d), the
Trustee shall purchase and sell Employer Stock in
accordance with such procedures and guidelines as
annexed hereto as Schedule A.
(d) At the Committee's Directions, the Trustee shall
purchase or sell Employer Stock on the open market or
from or to the Employer. In addition, the Employer may
contribute Employer Stock in lieu of cash to the Trust
Fund. In the event the Trustee uses one of its
affiliates to effect the purchase or sale of Employer
Stock, the Trustee and such affiliate shall comply
with the provisions of Prohibited Transaction Class
Exemption 86-128. In the event that the Committee
directs the Trustee to use a particular broker or
dealer to effect the purchase or sale of Employer
Stock, the Committee shall represent to the Trustee
that such direction (i) is for the exclusive benefit
of Participants and Beneficiaries of the Plan, and
(ii) shall not constitute, or cause the Trust Fund to
be engaged in, a "prohibited transaction as defined in
Section 406 of ERISA. In the event the Trustee
purchases or sells Employer Stock from or to the
Employer, such purchase or sale shall be for "adequate
consideration" as defined in Section 3(18) of ERISA
and no commission shall be charged. In the event that
the Employer contributes Employer Stock in lieu of
cash to the Trust Fund, such transfer shall be for
"adequate consideration" as defined in Section 3(18)
of ERISA and no commission shall be charged.
(e) The Employer represents and warrants that it has filed
and will file with the Securities and Exchange
Commission and with all applicable state agencies or
authorities all required registration statements
relating to shares of Employer Stock and other
interests which may be issued under the Plan. The
Employer acknowledges that it is and shall be
responsible for, and that the Trustee shall not be
responsible for, preparing or filing such registration
statements or for the accuracy of statements contained
therein, or for preparing or filing any other reports,
statements or filings required under federal or state
securities laws with respect to the Trust Fund's
investment in Employer Stock.
(f) The Employer shall provide the Trustee with a copy of
all proxy solicitation materials proposed to be sent
to stockholders at least (7) days before the materials
<PAGE>are sent to stockholders or if the issuer of
Employer Stock held in the Trust Fund files
preliminary proxy solicitation materials with the
Securities and Exchange Commission, the Employer shall
cause a copy of all materials to be simultaneously
sent the Trustee. The Trustee, in its discretion, may
prepare or amend any proxy voting form sent to
Participants. The Trustee shall determine which of the
procedures set forth in subparagraph (f)(i) or
subparagraph (f)(ii) are to be followed in sending
proxy solicitation materials, including any amended or
supplemental materials, to Participants.
(i) The Trustee shall provide the Employer or its
designee with mailing labels and proxy labels
for each Participant to whose account shares of
Employer Stock (both vested and non-vested) are
credited. Proxy labels so provided shall
indicate the number of shares (including
fractional interests in shares) of Employer
Stock credited to each Participant's account
(both vested and non-vested). At the time of
mailing of notice of each annual or special
stockholders' meeting of the issuer of Employer
Stock, the Employer or its designee shall cause
a copy of the notice, all proxy solicitation
materials, and all other materials to be sent
to stockholders to be sent to each affected
Participant. The Employer shall provide the
Trustee with a copy of all materials provided
to Participants and shall certify to the
Trustee that the materials have been mailed or
otherwise sent to each affected Participant.
(ii) The Employer shall provide the Trustee with
such quantities of the notice of meeting, all
proxy solicitation materials and all other
materials to be sent to stockholders as may be
requested by the Trustee. At the time of
mailing of notice of each annual or special
stockholders' meeting of the issuer of the
Employer Stock, the Trustee or its designee
shall send a copy of such materials and a
voting instruction form prepared by the Trustee
to each affected Participant.
The proxy voting form shall be returnable to the Trustee or its
designee. Each Participant shall be entitled to direct the
Trustee by means of the proxy voting form as to the voting of
<PAGE>shares (including fractional interests in shares) of
Employer Stock credited to such Participant's account (both
vested and non-vested). Upon timely receipt of the proxy voting
form, the Trustee shall vote the shares of Employer Stock as
instructed. Instructions received by the Trustee from
Participants shall be held by the Trustee in strict confidence
and shall not, except as may be required by law, be divulged or
released to any person including officers or employees of the
Employer or members of the Committee; provided, however, that the
Trustee may advise the Employer, upon request, of the total
number of votes that have been cast with respect to a particular
issue. The Trustee shall not make recommendations to Participants
on whether to vote or how to vote shares of Employer Stock. The
Trustee shall not vote shares of Employer Stock credited to a
Participant's account for which it has not received instructions
from the Participant. The Trustee shall not be obligated to
solicit a response from Participants from whom it has not
received instructions. The Trustee shall vote shares of Employer
Stock not credited to Participants' accounts in the same
proportion on each issue as it votes those shares credited to
Participants' accounts for which it received voting instructions
from Participants.
(g) In the event of a tender or exchange offer for any
Employer Stock held in the Trust Fund, the Trustee
shall use its best efforts to distribute or cause to
be distributed to each affected Participant in a
timely manner all information and materials that are
distributed to the stockholders of the issuer of the
Employer Stock in connection with the offer and
directions as to how the Participant may instruct the
Trustee whether or not to tender or exchange the
Employer Stock credited to the Participant's account
(both vested and non-vested). Alternatively, the
Trustee may agree that the notification of
Participants and distribution of the information,
materials and directions described above are to be
effected by the Employer or its designee. In such
event, the Employer shall provide the Trustee with a
copy of all information, materials and directions
provided to Participants and shall certify to the
Trustee that the information, materials and directions
have been mailed or otherwise sent to each affected
Participant. The Trustee, in its discretion, may
prepare or amend any instruction form sent to
Participants. Instructions shall be returnable to the
Trustee or its designee. Each Participant shall be
entitled to direct the Trustee to tender or exchange
shares (including fractional interest in shares) of
Employer Stock credited to such Participant's account
<PAGE>(both vested and non-vested). Upon timely
receipt of instructions, the Trustee shall act with
respect to Employer Stock as instructed. Instructions
received by the Trustee from Participants shall be
held by the Trustee in strict confidence and shall
not, except as may be required by law, be divulged or
released to any person including officers or employees
of the Employer or members of the Committee; provided,
however, that the Trustee may advise the Employer,
upon request, of the total number of shares of
Employer Stock that have been tendered or exchanged.
The Trustee shall not make recommendations to
Participants on whether to tender or exchange. The
Trustee shall not tender or exchange shares of
Employer Stock credited to a Participant's account for
which it has not received instructions from the
Participant. The Trustee shall not be obligated to
solicit a response from Participants from whom it has
not received instructions. The Trustee shall tender
or exchange that number of shares of Employer Stock
not credited to Participants' accounts which is
determined (after giving effect to the withdrawal of
any shares of Employer Stock before the expiration of
the offer or any earlier date set by the Trustee) by
multiplying the total number of shares of Employer
Stock not credited to Participants' accounts by a
fraction of which the numerator is the number of
shares of Employer Stock credited to Participants'
accounts for which the Trustee has received
instructions from Participants to tender or exchange
and of which the denominator is the total number of
shares of Employer Stock credited to Participants'
accounts. A Participant who has instructed the Trustee
to tender or exchange shares of Employer Stock
credited to such Participant's account may, at any
time prior to the expiration of the offer or any
earlier date set by the Trustee, instruct the Trustee
to withdraw a specified number of shares from the
offer. A Participant shall not be limited as to the
number of instructions that the Participant may give
to the Trustee. If a Participant instructs the Trustee
to tender or exchange shares of Employer Stock
credited to the Participant's account, the Trustee
shall credit to each account of such Participant from
which the shares were taken the consideration received
by the Trustee for the shares of Employer Stock
tendered or exchanged from that account. Pending
receipt of Committee Directions or, to the extent
provided in Section 2.1.2 of the Trust Agreement,
instructions from the Participant as to the investment
<PAGE>of such proceeds, the Trustee shall invest any
cash consideration in such money market mutual fund as
is designated in writing by the Committee.
(h) For purposes of this Section 2.4, the number of shares
of Employer Stock deemed "credited" to a Participant's
account shall be determined as of the last preceding
valuation date for which an allocation has been
completed and Employer Stock has actually been
credited to Participants' accounts. The Trustee may,
in its discretion, require a special valuation of
Participant accounts and crediting of Employer Stock.
(i) In the event that the Trustee, in its discretion,
determines that time constraints make it unlikely that
Participant voting or tender or exchange instructions
can be received in a timely fashion, the Trustee shall
notify the Committee and the Committee or its designee
shall be responsible for such matter, and the Trustee
shall vote proxies or respond to a tender or exchange
offer in accordance with the Committee's Directions.
(j) All costs incurred by the Trustee in handling proxy
and tender or exchange offer matters, including
without limitation all costs associated with the
printing and mailing of Participant instruction forms
and other materials and attorneys' fees, shall be
expenses of the Trust Fund within the meaning of
Section 6.1 of the Trust Agreement.
ARTICLE III
DUTIES AND RESPONSIBILITIES
Section 3.1.1. The Trustee shall discharge its duties and
responsibilities under this Trust Agreement solely in the
interest of Participants and their beneficiaries, and
(a) for the exclusive purpose of providing benefits to the
Participants and their beneficiaries and defraying the
reasonable expenses of administering the Plan;
(b) with the care, skill, prudence, and diligence under
the circumstances then prevailing that a prudent
person acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise
of a like character and with like aims.
<PAGE>
Section 3.1.2. In the event that the Employer designates The
Dreyfus Trust Company ("The Trust Company") as the Trustee in the
Adoption Agreement hereto, and the Trustee has been designated as
an additional Trustee for the Plan, The Trust Company as Trustee
shall have no responsibilities other than as set forth herein,
and this Trust Agreement shall constitute a supplemental trust
agreement. The duties of The Trust Company shall be limited to
assets held in the Trust Fund, and The Trust Company shall have
no duties with respect to assets held by any other person
including, without limitation, any other trustee for the Plan.
The Employer hereby agrees that The Trust Company shall not serve
as, and shall not be deemed to be, a co-trustee under any
circumstances.
Section 3.1.3. Subject to the limitations set forth in Section
3.1.2 herein, in the event that more than one individual Trustee
has been designated in the Adoption Agreement, the action of such
individual Trustees shall be determined by vote of the majority
of such individual Trustees; provided, however, that any one of
such individual Trustees may execute any applications for
insurance or annuity contracts provided for herein and documents
necessary for the exercise of ownership rights thereunder and may
perform other such ministerial acts; and further provided, that
the Trustees may enter into an agreement allocating among
themselves specific responsibilities, obligations band duties.
Section 3.1.4. The Trustee shall be solely responsible for its
own acts and omissions. The Trustee shall have no duty to
question, or otherwise inquire into, the performance of another
fiduciary with respect to duties allocated to such other
fiduciary under the Plan. The Trustee shall not be responsible
for the breach of any other such fiduciary unless the Trustee
(i) participates knowingly in, or knowingly undertakes to
conceal, an act or omission of such other fiduciary, knowing such
act or omission is a breach, (ii) has actual knowledge of a
breach by such other fiduciary and fails to make reasonable
effort under the circumstances to remedy the breach or (iii) has
failed to perform its own specific fiduciary duties and thereby
has enabled another fiduciary to commit a breach.
Section 3.2. The Trustee shall keep full and accurate records of
all receipts, investments, disbursements and other transactions
hereunder, including such specific records as may be agreed upon
in writing between the Company, the Committee and the Trustee.
All such records shall be open to inspection during the Trustee's
normal business hours by any authorized representative of the
Employer or the Committee upon reasonable prior notice to the
Trustee.
<PAGE>
Section 3.3. Within 90 days after the end of each Plan Year, as
that term is defined in the Plan, or within 90 days after its
removal or resignation, or the termination of the Plan or this
Trust Agreement, the Trustee shall file with the Committee a
written account of the administration of the Trust Fund showing
all transactions effected by the Trustee subsequent to the period
covered by the last such accounting, if any, to the end of such
Plan Year or date of such removal or resignation, or the
termination of the Plan or this Trust Agreement, and all property
held at its fair market value at the end of the accounting
period. Upon approval of such accounting by the Committee,
neither the Employer nor the Committee shall be entitled to any
further accounting by the Trustee. The Committee shall approve
such accounting by written notice of approval delivered to the
Trustee or by failure to express objection to such accounting in
writing delivered to the Trustee within 60 days from the date on
which the accounting is mailed to the Committee and, in either
case, the Trustee shall be forever released and discharged from
all liability and accountability with respect to the propriety of
its acts and transactions as to which the Committee shall within
such 60 day period file with the Trustee no such written
objections.
Section 3.4. The Trustee may from time to time consult with
counsel and shall be entitled to rely entirely upon the advice of
counsel with respect to any act or omission.
Section 3.5. In the event of any disagreement resulting in
conflicting instructions to, or adverse claims or demands upon,
the Trustee with respect to payments or instructions, the Trustee
shall be entitled, at its option, to refuse to comply with any
such instruction, claim or demand so long as such disagreement
shall continue, and in the exercise of such refusal, the Trustee
may elect not to make any payment or other disposition of assets
held pursuant to this Trust Agreement. The Trustee shall not be
or become liable in any way for its failure or refusal to comply
with any such conflicting instructions or adverse claims or
demands, and it shall be entitled to continue to refrain from
acting until such conflicting or adverse instructions, claims or
demands (a) shall have been adjusted by agreement and it shall
have been notified in writing therefor or (b) shall have been
finally determined in a court of competent jurisdiction.
Section 3.6. The Trustee shall not, by act, delay, omission or
otherwise, be deemed to have waived any right or remedy it may
have either under this Trust Agreement or generally, and no
waiver shall be valid unless it is contained in a written
instrument signed by the Trustee and only to the extent expressly
set forth therein. A waiver by the Trustee under the terms of
<PAGE>this Trust Agreement shall not be construed as a bar to, or
waiver of, the same or any other such right or remedy that it
would otherwise have on any other occasion.
Section 3.7. The Trustee will not be compelled to do any act
under this Trust Agreement or to take any action toward the
execution or enforcement of the Trust Fund created hereunder or
to prosecute or defend any suit in respect thereof, unless
indemnified by the Employer to its satisfaction against any loss,
costs, liability and expense; and the Trustee will be fully
indemnified by the Employer for any liability or obligation to
any person that results from any failure on the part of the
Employer or the Committee to perform any of their respective
obligations under the Plan or under the terms of this Trust
Agreement, or for any error or omission whatsoever on the part of
the Committee or the Employer.
Section 3.8. Unless resulting from the Trustee's own gross
negligence or willful misconduct, the Employer shall indemnify
the Trustee and save it harmless from, against, for and in
respect of any and all damages, losses, obligations, liabilities,
liens, deficiencies, costs and expenses (including, without
limitation, attorney's fees and other costs and expenses incident
to any suit, action, investigation, claim or proceedings)
suffered, sustained, incurred or required to be paid by the
Trustee in connection with the Plan or this Trust Agreement. The
provisions of this Section 3.8 shall survive termination of this
Trust Agreement.
ARTICLE IV
PROHIBITION OF DIVERSION
Section 4.1. Except as provided in Section 4.2 herein, at no
time prior to the satisfaction of all liabilities with respect to
Participants and their beneficiaries under the Plan shall any
part of the corpus or income of the Fund be used for, or diverted
to, purposes other than for the exclusive benefit of Participants
or their beneficiaries, or for defraying reasonable expenses of
administering the Plan.
Section 4.2.1. Notwithstanding the provisions of Section 4.1,
but subject to the provisions of Section 4.2.2 herein,
contributions made by the Employer under the Plan shall be
returned to the Employer under the following conditions and only
as the Trustee is instructed in writing by the Committee:
<PAGE>
(a) If a contribution is made by mistake of fact, such
contribution shall be returned to the Employer within
one year of the payment of such contributions;
(b) To the extent that contributions to the Plan are
specifically conditioned upon their deductibility
under the Code, and a deduction is disallowed for any
such contribution, it shall be returned to the
Employer within one year after the disallowance of the
deduction; and
(c) To the extent that contributions to the Plan are
specifically conditioned on initial qualification of
the Plan under the Code, and the Plan is determined to
be disqualified, contributions made in respect of any
period subsequent to the effective date of such
disqualification shall be returned to the Employer
within one year after the date of denial of
qualification, provided that the Employer makes timely
application to the Internal Revenue Service for a
determination of the qualified status of the Plan.
Section 4.2.2. Notwithstanding the provisions of Section 4.2.1.
herein, no contribution shall be returned to the Employer unless
and until the Employer has delivered to the Trustee an opinion of
counsel satisfactory to the Trustee, stating that the return of
any such contribution is permitted under the terms of the Plan
and applicable law. Earnings attributable to any contributions
returned to the Employer under Section 4.2.1 and this Section
shall not be returned to the Employer, but losses attributable to
such contributions shall reduce the amount to be so returned.
<PAGE>
ARTICLE V
COMMUNICATION WITH COMMITTEE AND THE EMPLOYER
Section 5.1. Except as otherwise specifically provided herein,
any action by an Employer that is a corporation pursuant to any
of the provisions of this Trust Agreement shall be evidenced by
(1) a resolution of its board of directors (the "Board")
certified to the Trustee over the signature of its Secretary or
Assistant Secretary or other duly authorized agent under the
corporate seal, if any, or (2) by appropriate written
authorization of any person or committee to which the Board has
delegated the authority to take such action. Any action by an
Employer that is a partnership or a sole proprietorship shall
be evidenced by a written certification of a general partner
of the partnership or the sole proprietor, as the case may be.
The Trustee shall be entitled to rely entirely on, and shall be
fully indemnified by the Employer for acting in accordance with,
any such resolution, certification or other authorization.
Section 5.2. The Employer shall provide to the Trustee a
certificate, signed by an authorized officer of the Employer,
that contains (a) the name, (b) specimen signature and (c) a
description of the specific powers and duties, of each member of
the Committee. The Employer shall give prompt written notice of
any change in the identity, powers or duties of any member of the
Committee, and the Trustee shall be entitled to rely entirely on
its failure to receive such notice as a certification of the
Employer that a designated member of the Committee and such
member's duties and powers have not been changed. The Trustee
shall have no duty to inquire into the qualifications of any
member of the Committee.
Section 5.3. The Committee's Directions shall be communicated
to the Trustee in a certificate that sets forth the action of
the Committee, signed by the person then acting as Chairman or
Secretary of the Committee, or in a written statement signed by
any two or more members of the Committee or any person or agent
designated to act on behalf of the Committee. Such person or
agent shall be so designated either under the provisions of
the Plan or in a certificate by the Committee that contains
(a) the name, (b) specimen signature and (c) a description of
the specific powers and duties of each such person or agent.
The Committee shall give prompt written notice of any change in
the identity, powers and duties of any such person or agent, and
the Trustee shall be entitled to rely entirely on its failure to
receive such notice as a certification of the Committee that the
identity, powers and duties of such person or agent have not been
changed.
<PAGE>Section 5.4. The Trustee shall have no liability hereunder
for any action taken in good faith in reliance upon any
instructions, directions, certifications and communications
believed by the Trustee to be genuine and to have been signed or
communicated by the proper person.
ARTICLE VI
TRUSTEE'S COMPENSATION; EXPENSES
Section 6.1. The Trustee shall receive reasonable compensation
for its services in accordance with its schedule of compensation
in effect when such services are rendered. The Trustee may amend
the schedule from time to time, which amendment shall become
effective no earlier than 30 days after written notice is sent to
the Employer. The Trustee shall also be entitled to reimbursement
for all reasonable expenses incurred by it in the performance of
its duties hereunder including, without limitation, any expenses
incurred in the consultation or employment of any agent pursuant
to Section 2.3(l). Any such compensation or expenses and any
income or other taxes which may be levied against the Trust Fund
shall be paid out of the Trust Fund, unless paid directly by the
Employer.
ARTICLE VII
RESIGNATION AND REMOVAL OF TRUSTEE
Section 7.1. The Trustee may resign at any time by written
notice to the Employer which shall be effective 30 days after
delivery to the Employer of such notice, provided that a
successor Trustee shall have been appointed by the Employer;
provided, however, that such notice may be waived by the
Employer.
Section 7.2. The Trustee may be removed by the Employer at any
time upon 60 days' prior written notice to the Trustee, provided
that a successor Trustee shall have been appointed by the
Employer; provided, however, that such notice may be waived by
the Trustee.
Section 7.3. The appointment of a successor Trustee hereunder
shall be accomplished by and shall take effect upon the delivery
to the resigning or removed Trustee, as the case may be, of
written notice from the Employer appointing such successor
Trustee, and an acceptance in writing of the successor Trustee.
Any successor Trustee may be either a corporation authorized and
empowered to exercise trust powers or one or more individuals.
All of the provisions set forth herein with respect to the
<PAGE>Trustee shall relate to each successor Trustee so appointed
with the same force and effect as if such successor Trustee had
been originally named herein as the Trustee hereunder. If a
successor Trustee shall not have been appointed within 30 days
after delivery to the Employer of notice of the Trustee's
resignation pursuant to Section 7.1, the resigning Trustee may
apply to a court of competent jurisdiction for the appointment of
a successor Trustee.
Section 7.4. Upon the appointment of a successor Trustee, the
resigning or removed Trustee shall transfer and deliver the Trust
Fund to such successor Trustee, after reserving such reasonable
amounts as it shall deem necessary to provide for its reasonable
expenses in the settlement of its account, the amount of any
compensation due to it and any sums chargeable against the Trust
Fund for which it may be liable. If the sums so reserved are not
sufficient for such purposes, the resigning or removed Trustee
shall be entitled to reimbursement for any deficiency from the
successor Trustee and the Employer, who shall be jointly and
severally liable therefor.
Section 7.5. At the time the Trust Fund shall have been
transferred and delivered to a successor trustee and the accounts
of the Trustee have been approved pursuant to Section 3.3 herein,
the Trustee shall be released and discharged from all further
accountability or liability for the Trust Fund and shall not be
responsible in any way for the further disposition of the Trust
Fund or any part thereof
ARTICLE VIII
AMENDMENT AND TERMINATION OF THE TRUST AND PLAN
Section 8.1. The Employer may terminate this Agreement at any time
upon 60 days' prior written notice delivered to the Trustee;
provided that such termination by the Employer is subject to the
condition that a new trustee assumes the responsibilities and
functions of the Trustee as set forth herein; and provided,
further, that the trusteeship shall, if terminated by the Employer,
continue thereafter for such period as may be necessary for the
complete divestiture to a newly appointed trustee of all assets
held in the Trust Fund.
Section 8.2. If the Plan is terminated in whole or in part, or if
the Employer permanently discontinues its contributions to the
Plan, the Trustee shall distribute the Fund or any part thereof in
accordance with the Committee's Directions. Upon the Employer's
termination of the Plan in whole or in part or the revocation or
termination of this Trust Agreement, the Trustee shall have the
right to have its accounts approved. When the Trust Fund shall have
<PAGE>been so applied or distributed, and the accounts of the
Trustee shall have been approved pursuant to Section 3.3 herein,
the Trustee shall not be responsible in any way for the further
disposition of the Trust Fund (or that part thereof so applied or
distributed, if the Plan is terminated only in part). The Trustee
shall have the right to withhold distribution or application of any
part of the Trust Fund unless and until written approval of any
such termination has been granted by the Internal Revenue Service
and, if the Plan is subject to the jurisdiction of the Pension
Benefit Guaranty Corporation (the "PBGC"),(a) the period of time
set forth in Section 4041(b)(2)(C) of ERlSA has elapsed and the
PBGC has not issued any notice of noncompliance or (b) the PBGC has
notified the Plan Administrator that the requirements or a distress
termination have been met pursuant to Section 4041(c)(3)(A) of
ERlSA. Assets of the Trust Fund shall not be returned to the
Employer unless and until the Employer has delivered to the Trustee
(a) a certification of an enrolled actuary stating that there is an
amount remaining in the Trust Fund that is not required for the
payment of the benefits provided under the Plan for participants or
their beneficiaries and (b) an opinion of counsel satisfactory to
the Trustee, stating that such return of assets is permitted under
the terms of the Plan and applicable law.
Section 8.3. This Trust Agreement may be amended or modified by a
written agreement signed by the parties hereto or by the Trustee
upon 60 days' prior written notice to the Employer.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 9.1. This Trust Agreement shall be adopted by execution of
the Adoption Agreement.
Section 9.2. In the event that any provision of this Trust
Agreement is deemed or held to be unlawful or invalid for any
reason, such event shall not adversely affect any other provision
contained herein unless such illegality shall make impossible or
impracticable the functioning of this Trust Agreement, and in such
case, the appropriate parties shall immediately amend this Trust
Agreement.
Section 9.3. The titles and headings of the Sections in this
instrument are placed herein for convenience of reference only.
In the event of any conflict, the text of this instrument, rather
than such titles or headings, shall control the interpretation of
any of the terms and provisions contained herein.
<PAGE>Section 9.4. Except as otherwise specifically provided
herein, all notices or other communications required or permitted
to be given pursuant to this Agreement shall be given in writing
and delivered by personal delivery or sent by U.S. first class
mail, postage prepaid, addressed to their last respective address
of record.
Section 9.5. The construction, validity and administration of this
Trust Agreement shall be governed by the laws of the state where
the Trustee has its principal place of business, except to the
extent that such laws are preempted by ERISA.
<PAGE>
<PAGE>
SCHEDULE A
GENOVESE DRUGS, INC.
RETIREMENT AND SAVINGS PLAN
EMPLOYER STOCK FUND
ACCOUNTING METHODOLOGY AND
PURCHASE AND SALE PROCEDURES
ACCOUNTING METHODOLOGY
For informational purposes, the following is a description of the
accounting methodology employed in valuing Participants' Employer
Stock fund balances under the Plan.
The Plan's Employer Stock fund will be valued in shares. Under this
method each Participant's interest in the Employer Stock fund will
be maintained in shares and cash in lieu of fractional shares.
All dollars coming into the fund i.e., contributions, dividends
(if applicable) and transfers from other investment options will
purchase shares based upon average purchase price.
Contributions made to the Employer Stock fund will be invested
in such money market fund as may be designated by the Committee
pending the purchase of Employer Stock. Earnings derived from such
Employer Stock money market holding account will be allocated
based upon the ratio of contributions made on behalf of each
Participant to the total of all contributions made on behalf of all
Participants.
The value of each Participant's Employer Stock account is
determined by multiplying the shares held by the bid price at the
close of the last business day of the calendar quarter.
Dividends and stock splits (when applicable) will be allocated to
all Plan Participants of record based on Employer Stock fund
Participant account balances prior to or coincident with the record
date. Dividends will be reinvested in shares of Employer Stock.
The Committee will establish at least annually an approximate
dollar reserve to be held as cash in the Employer Stock fund to
cover routine exchanges out of or other dispositions of interests
in the Employer Stock Fund.
The actual price at which transactions were executed shall be the
price used to determine Participant account balances in the
Employer Stock fund for Plan distributions and interfund transfers.
<PAGE>
<PAGE>
STOCK PURCHASES AND SALES
Subsequent Contributions and Exchanges
In the case of new contributions to he invested in Employer
Stock, such Employer Stock shall be purchased on the open market
on the Friday immediately following the date on which the Trustee
is in receipt of: (i) good funds to effect such purchase, and
(ii) all information and documentation, including proper
Committee Directions, to accurately effect such purchase.
The Trustee shall be deemed to be in receipt of good funds in the
case of contributions made by corporate check upon check
clearance.
In the case of exchanges out of or into the Employer Stock fund,
such transactions shall, on the Wednesday immediately following
the date on which the Trustee is in receipt of all information
and documentation, including proper Committee Directions, to
accurately effect such transactions, first be netted against each
other and, to the extent necessary after such netting, the
Trustee shall then purchase Employer Stock on the open market or
sell Employer Stock on the open market or to the Employer.
Sales of Employer Stock to the Employer shall be made at a price
equal to the closing price for the Employer Stock on the American
Stock Exchange for ten (10) consecutive trading days immediately
preceding the date on which the sale is made.
In Witness whereof, the Employer and the Trustee executed this
Schedule A this 11 day of November, 1992.
GENOVESE DRUGS, INC.
Attest Name of Employer
/S/ Donald W. Gross By: /S/ Robert McCarthy
Secretary (Corporation) Signature
The Dreyfus Trust Company
Name of Trustee
By: /S/ Martin Lebowitz
Signature
Martin Lebowitz, VP
Name and Title
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Genovese Drug Stores, Inc. on Form S-8 of our report
dated March 3, 1994 appearing in the Annual Report on Form 10-K
of Genovese Drug Stores, Inc. for the fiscal year ended January
28, 1994 and our report dated February 4, 1994 appearing in the
Annual Report on Form 11-K of the Genovese Retirement and Savings
Plan for the year ended December 31, 1992.
/S/ Deloitte & Touche
Jericho, New York
May 5, 1994
<PAGE>
DIRECTORS AND OFFICERS OF
GENOVESE DRUG STORES, INC.
REGISTRATION STATEMENT ON FORM S-8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the
undersigned directors and officers of Genovese Drug Stores, Inc.,
a Delaware corporation (the "Company"), hereby (1) constitutes
and appoints Leonard Genovese, Donald W. Gross, Jerome Stengel
and Gene L. Wexler, collectively and individually, as his agent
and attorney-in-fact with full power of substitution and
resubstitution to (a) sign and file on his behalf and in his
name, place and stead in any and all capacities (i) a
Registration Statement on Form S-8 (the "Registration Statement")
with respect to the registration under the Securities Act of
1933, as amended, of participation interests issuable under The
Genovese Retirement and Savings Plan (the "Plan") and up to
200,000 shares of the Company's Class A Common Stock, par value
$1.00 per share, for issuance under the Plan, (ii) any and all
amendments, including post-effective amendments, and exhibits to
the Registration Statement and (iii) any and all applications or
other documents to be filed with the Securities and Exchange
Commission or any state securities commission or other regulatory
authority with respect to the securities covered by the
Registration Statement and (b) do and perform any and all other
acts and deeds whatsoever that may be necessary or required in
the premises and (2) ratifies and approves any and all actions
that may be taken pursuant hereto by any of the above-named
agents and attorneys-in-fact or their substitutes.
IN WITNESS WHEREOF, the undersigned directors and
officers of the Company have hereunto set their hands as of the
8th day of March 1994.
/S/ Leonard Genovese /S/ Frances Genovese Wangberg
Leonard Genovese Frances Genovese Wangberg
/S/ Herbert J. Kett /S/ William J. McKenna
Herbert J. Kett William J. McKenna
/S/ Allan Patrick /S/ Charles Hayward
Allan Patrick Charles Hayward
/S/ Jerome Stengel /S/ Abraham Allen
Jerome Stengel Abraham Allen
/S/ Thomas M. Cooney
Thomas M. Cooney
