SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[x] Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the quarterly period ended March 31, 1995
OR
[ ] Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from ________________ to _______________
Commission file number - 1-7525
THE GOLDFIELD CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 88-0031580
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
100 Rialto Place, Suite 500, Melbourne, Florida 32901
(Address of principal executive offices) (Zip Code)
(407) 724-1700
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days. Yes X No
There were 26,854,748 shares of common stock, par value $.10 per
share, of The Goldfield Corporation outstanding as of April 28,
1995.
<TABLE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
THE GOLDFIELD CORPORATION
and Subsidiaries
CONSOLIDATED BALANCE SHEETS
(Unaudited)
<S> <C> <C>
March 31, December 31,
ASSETS 1995 1994
Current assets
Cash and cash equivalents $ 5,671,003 $ 5,875,538
Accounts receivable and accrued billings 1,063,633 1,484,460
Current portion of notes receivable
(Note 2) 188,001 190,962
Inventories (Note 3) 193,740 216,708
Costs and estimated earnings in excess of
billings on uncompleted contracts 563,899 248,320
Prepaid expenses and other current assets 232,890 259,870
Total current assets 7,913,166 8,275,858
Properties
Land, mines, mining claims, buildings,
machinery and equipment, at cost 20,214,559 20,297,769
Less accumulated depreciation, depletion
and amortization 16,155,866 16,314,120
Net properties 4,058,693 3,983,649
Notes receivable, less current portion
(Note 2) 645,000 690,000
Deferred charges and other assets
Deferred income taxes (Note 4) 916,000 922,000
Repurchased royalties at cost, less
accumulated amortization of $139,081
in 1995 and $132,562 in 1994 180,369 186,888
Cash surrender value of life insurance 404,212 399,511
Total deferred charges and other assets 1,500,581 1,508,399
Total assets $14,117,440 $14,457,906
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable and accrued liabilities $ 744,702 $ 608,059
Billings in excess of costs and estimated
earnings on uncompleted contracts 24,421 108,049
Current portion of deferred gain (Note 2) 48,720 48,720
Total current liabilities 817,843 764,828
Deferred gain on installment sale, less
current portion (Note 2) 174,580 186,760
Total liabilities 992,423 951,588
Stockholders' equity
Preferred stock, $1 par value per share,
5,000,000 shares authorized; issued
and outstanding 339,407 shares of
Series A 7% voting cumulative
convertible stock 339,407 339,407
Common stock, $.10 par value per share,
40,000,000 shares authorized; issued
26,872,106 shares 2,687,211 2,687,211
Capital surplus 18,369,860 18,369,860
Retained earnings (deficit) (8,252,741) (7,871,440)
Total 13,143,737 13,525,038
Less common stock in treasury, 17,358
shares, at cost 18,720 18,720
Total stockholders' equity 13,125,017 13,506,318
Total liabilities and stockholders'
equity $14,117,440 $14,457,906
See accompanying Notes to Consolidated Financial Statements
</TABLE>
<TABLE>
THE GOLDFIELD CORPORATION
and Subsidiaries
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<S> <C> <C>
Three Months Ended
March 31,
1995 1994
Revenue
Electrical construction $1,604,989 $1,648,114
Mining 467,335 553,509
Royalty income 34,067 56,804
Other income, net 116,105 98,356
Total revenue 2,222,496 2,356,783
Costs and expenses
Electrical construction 1,655,017 1,831,743
Mining 463,794 502,484
Depreciation 199,097 195,325
Amortization of repurchased royalties 6,519 6,519
General and administrative 267,431 285,052
Total costs and expenses 2,591,858 2,821,123
Income (loss) from operations before
income taxes (369,362) (464,340)
Income taxes (benefit) (Note 4) 6,000 (38,000)
Net income (loss) (375,362) (426,340)
Preferred stock dividends 5,939 5,939
Earnings (loss) available to common
stockholders $ (381,301) $ (432,279)
Earnings (loss) per share of common
stock (Note 5) $(0.01) $(0.02)
Weighted average number of shares
outstanding 26,854,748 26,854,748
See accompanying Notes to Consolidated Financial Statements
</TABLE>
<TABLE>
THE GOLDFIELD CORPORATION
and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<S> <C> <C>
Three Months Ended
March 31,
1995 1994
Cash flows from operating activities
Net income (loss) $ (375,362) $ (426,340)
Adjustments to reconcile net income to net
cash provided from (used by) operating
activities
Depreciation and amortization 205,616 232,936
Deferred income taxes 6,000 (38,000)
Deferred gain on sale of subsidiary (12,180) (12,180)
Gain on sale of property and equipment (150) (16,664)
Decrease in accounts receivable
and accrued billings 420,827 594,778
Decrease in inventories 22,968 17,199
Increase in costs and estimated
earnings in excess of billings on
uncompleted contracts (315,579) (85,177)
Decrease (increase) in prepaid expenses
and other current assets 26,980 (83,408)
Increase in cash surrender
value of life insurance (4,701) (12,301)
Increase (decrease) in accounts payable
and accrued liabilities 136,643 (579,122)
Increase (decrease) in billings in excess
of costs and estimated earnings
on uncompleted contracts (83,628) 86,390
Total adjustments 402,796 104,451
Net cash provided from (used by)
operating activities 27,434 (321,889)
Cash flows from investing activities
Proceeds from the disposal of fixed assets 150 28,711
Proceeds from notes receivable 47,961 49,500
Purchases of fixed assets (274,141) (329,244)
Net cash used by investing activities (226,030) (251,033)
Cash flows from financing activities
Payments of preferred stock dividends (5,939) (5,939)
Net cash used by financing activities (5,939) (5,939)
Net increase (decrease) in cash and
cash equivalents (204,535) (578,861)
Cash and cash equivalents at beginning of year 5,875,538 6,961,275
Cash and cash equivalents at end of year $5,671,003 $6,382,414
Interest paid $ -- $ --
Taxes paid -- --
See accompanying Notes to Consolidated Financial Statements
</TABLE>
THE GOLDFIELD CORPORATION
and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 1995
Note 1 - Basis of Presentation
In the opinion of management, the accompanying unaudited interim
consolidated financial statements include all adjustments necessary
to present fairly the financial position of the Company, the results
of its operations and changes in cash flows for the interim periods
reported. These adjustments are of a normal recurring nature. All
financial statements presented herein are unaudited. However, the
balance sheet as of December 31, 1994, was derived from the audited
consolidated balance sheet. These statements should be read in
conjunction with the financial statements included in the Company's
annual report on Form 10-K for the year ended December 31, 1994.
The results of operations for the interim periods shown in this
report are not necessarily indicative of results to be expected for
the fiscal year.
Note 2 - Sale of Mining Subsidiary
In April 1993, the capital stock of The San Pedro Mining Corporation
("San Pedro"), a then wholly-owned subsidiary of the Company, was sold
for $1,220,000 of which $50,000 in cash was paid at closing with the
balance of the purchase price represented by a promissory note
payable to the Company in equal monthly principal installments of
$15,000 through October 1999. The note bears interest at the rate
of prime plus 1% (10% at March 31, 1995) payable monthly and is
secured by a first real estate mortgage and personal property
security agreement upon substantially all of the assets of and a
pledge of all of the outstanding capital stock of San Pedro.
Since the purchaser's initial investment in the property amounted to
less than 20% of the sale price, the installment method of profit
recognition was used resulting in a deferred gain of $330,214. In
the three months ended March 31, 1995 and 1994, $12,180 of such
deferred gain was recognized as revenue. The installment method
recognizes proportionate amounts of the gain associated with the
transaction as cash is received.
The primary assets of San Pedro were represented by mining
properties with a net book value of $889,786 at the date of sale.
Note 3 - Inventories
Inventories are summarized as follows:
<TABLE>
<S> <C> <C>
March 31, December 31,
1995 1994
Materials and supplies $ 82,326 $ 93,686
Industrial mineral products 92,059 107,382
Ores in process 19,355 15,640
Total inventories $193,740 $216,708
</TABLE>
Note 4 - Income Taxes
In February 1992, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 109, "Accounting
for Income Taxes" ("SFAS 109"). Under the asset and liability
method of SFAS 109, deferred tax assets and liabilities are
recognized for the future tax consequences attributable to
differences between the financial statement carrying amounts of
existing assets and liabilities and their respective tax bases.
Deferred tax assets and liabilities are measured using enacted tax
rates expected to apply to taxable income in the years in which
those temporary differences are expected to be recovered or
settled. Under SFAS 109, the effect on deferred tax assets and
liabilities of a change in tax rates is recognized in income in
the period that includes the enactment date. Effective January 1,
1993, the Company adopted SFAS 109 and has reported the cumulative
effect of that change in the method of accounting for income taxes
in the consolidated statements of operations for the quarter ended
March 31, 1993.
The income tax provision (benefit) for the three months ended
March 31, 1995 and 1994 consists of the following:
<TABLE>
<S> <C> <C>
1995 1994
Current
Federal $ -- $ --
State -- --
-- --
Deferred
Federal 5,000 (26,000)
State 1,000 (12,000)
Total $6,000 $(38,000)
</TABLE>
The deferred income tax benefit for the three months ended March
31, 1995 and 1994 represents the portion of deferred tax assets
that the Company estimates will ultimately be realized.
Temporary differences and carryforwards which give rise to deferred
tax assets and liabilities as of March 31, 1995 and December 31,
1994 are as follows:
<TABLE>
<S> <C> <C>
March 31, December 31,
1995 1994
Deferred tax assets
Depletion, mineral rights
and deferred development
and exploration cost $ 325,000 $ 325,000
Accrued workers' compensation
costs 66,000 116,000
Accrued vacation 14,000 14,000
Property and equipment,
principally due to differences
in depreciation and valuation
write-downs 445,000 461,000
Net operating loss carryforwards 2,632,000 2,430,000
Investment tax credit
carryforwards 320,000 320,000
Alternative minimum tax
credit carryforwards 256,000 256,000
4,058,000 3,922,000
Valuation allowance (3,142,000) (3,000,000)
Total net deferred tax assets 916,000 922,000
Deferred tax liabilities -- --
Net deferred tax assets $ 916,000 $ 922,000
</TABLE>
The Company has recorded a valuation allowance in accordance with
the provisions of SFAS 109 to reflect the estimated amount of
deferred tax assets which may not be realized. In assessing the
realizability of deferred tax assets, management considers whether
it is more likely than not that some portion or all of the
deferred tax assets will not be realized. The ultimate
realization of deferred tax assets is dependent upon the
generation of future taxable income during the periods in which
those temporary differences become deductible. Management
considers the projected future taxable income and tax planning
strategies in making this assessment. The Company increased the
valuation allowance for net deferred tax assets by approximately
$142,000 for the quarter ended March 31, 1995. There was no
change in the valuation allowance for the quarter ended March 31,
1994.
At March 31, 1995, the Company had tax net operating loss
carryforwards of approximately $6,900,000 available to offset
future regular taxable income, which if unused, will expire from
1999 through 2010.
Although the Tax Reform Act of 1986 eliminated investment tax
credit for non-transitional property placed in service after
December 31, 1985, the Company has investment tax credit
carryforwards of approximately $320,000 available to reduce future
Federal income taxes, which if unused, will expire from 1995
through 2000. In addition, the Company has alternative minimum
tax credit carryforwards of approximately $256,000 which are
available to reduce future Federal income taxes over an indefinite
period.
Note 5 - Earnings (Loss) Per Share of Common Stock
Earnings (loss) per common share, after deducting dividend
requirements on the Company's Preferred Stock of $5,939 in each of
the three month periods ended March 31, 1995 and 1994 were based on
the weighted average number of shares of Common Stock outstanding,
excluding average shares of Treasury stock, of 17,358 for each of
the three month periods ended March 31, 1995 and 1994. The
inclusion of Common Stock issuable upon conversion of Preferred
Stock has not been included in the per share calculations because
such inclusion would not have a material effect on the earnings
(loss) per common share, after deducting dividend requirements.
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.
Results of Operations - Three Months Ended March 31, 1995 Compared
to Three Months Ended March 31, 1994.
Net Income (Loss)
The Company incurred a net loss of $375,362 during the three months
ended March 31, 1995, compared to a net loss of $426,340 for the
three months ended March 31, 1994.
Revenues
Total revenues in the three months ended March 31, 1995 were
$2,222,496, compared to $2,356,783 in the like 1994 period. The 1995
decrease in revenues was attributable to both electrical
construction and mining operations.
Electrical construction revenue in the three months ended March 31,
1995 of $1,604,989 was 3% lower than such revenue in the like 1994
period of $1,648,114.
Revenue from mining operations in the three months March 31, 1995
decreased to $467,335, 16% less than such revenue in the like 1994
period of $553,509. This decrease was primarily attributable to the
Company's Lordsburg mining operations.
Operating Results
Southeast Power Corporation ("Southeast Power"), the Company's
electrical construction subsidiary, had an operating loss of
$169,778 during the three months ended March 31, 1995, compared to
an operating loss of $320,248 for the like period in 1994. The
operating results were improved primarily due to increased gross
margins from contract work. The varying magnitude and duration of
projects undertaken by Southeast Power may result in substantial
fluctuation in its backlog from time to time. At March 31, 1995,
the approximate value of uncompleted contracts was $5,775,000,
compared to $1,700,000 at February 14, 1995 and $5,750,000 at March
31, 1994. Not reported in backlog as of March 31, 1995 and February
14, 1995 is approximately $725,000 and $5,300,000, respectively, of
contract work for various customers of which Southeast Power has
been advised that they are the low bidder.
During the three months ended March 31, 1995, the net operating loss
from mining operations was $35,508, compared to an operating profit
of $51,204 during the three months ended March 31, 1994. Operating
results from mining operations were lower in 1995 primarily due to
lower operating results at the Company's Lordsburg mining
operations. In the three months ended March 31, 1995, revenue from
Lordsburg was $62,028, compared to $132,235 in the like 1994 period.
Royalty income (which is included in the operating profit (loss) for
mining operations) was $34,067 in the first quarter of 1995 compared
to $56,804 in the like 1994 period.
During the three months ended March 31, 1995, mining revenue
exceeded the related cost of mining by $3,541. During the three
months ended March 31, 1994, mining revenue exceeded the related
cost of mining by $51,025.
In the three months ended March 31, 1995, St. Cloud Mining Company,
a wholly-owned subsidiary of the Company ("St. Cloud"), sold 6,272
tons of natural zeolite, compared to 6,533 tons in the like 1994
period. St. Cloud has added drying, warehousing, bagging and
additional screening and related capabilities to the mill. St.
Cloud has completed the construction of an off site rail loading
facility to better serve customers and expand the transportation
network.
Surface and underground mining related to St. Cloud's base and
precious metals mining operation has been halted since the third
quarter of 1991 and the first quarter of 1992, respectively, due to
declining metal prices and mine grades. St. Cloud's viability is
sensitive to the future price of base and precious metals,
particularly silver.
In 1990, The Lordsburg Mining Company (formerly Goldfield-Hidalgo,
Inc.), a wholly-owned subsidiary of the Company ("Lordsburg"),
entered into a venture agreement with Federal Resources Corporation
("Federal") to explore, develop and mine deposits near Lordsburg in
southwestern New Mexico. Underground mining at Lordsburg has been
suspended since February 1993. Although the Company has continued
limited production of construction aggregates and barren, siliceous
flux at Lordsburg, a final decision with respect to the future
operations at Lordsburg has not been reached. In April 1994, the
Company acquired Federal's 50% interest in the Lordsburg properties
for $75,000. Prior to acquisition of Federal's interest, Lordsburg
did not produce sufficient revenue over the related expenses to
permit a net proceeds distribution to Lordsburg and Federal.
Information with respect to mineralized siliceous converter flux
sales of Lordsburg is set forth in the table below:
<TABLE>
<S> <C> <C>
Three Months Ended March 31,
1995 1994
Mineralized siliceous converter flux
Ore sold (tons) -- 2,428
Copper
Quantity sold (pounds) -- 31,222
Ore grade -- 0.91%
Average sales price per pound -- $0.72
% of gross metal sales -- 21%
Silver
Quantity sold (ounces) -- 6,668
Ore grade (ounces per ton) -- 3.26
Average sales price per ounce -- $5.13
% of gross metal sales -- 31%
Gold
Quantity sold (ounces) -- 134
Ore grade (ounces per ton) -- 0.068
Average sales price per ounce -- $385.54
% of gross metal sales -- 48%
</TABLE>
There were no sales of mineralized siliceous converter flux during
the first quarter ended March 31, 1995.
In addition to the above sales of mineralized siliceous converter
flux, during the three months ended March 31, 1995, Lordsburg sold
1,380 tons of barren, siliceous flux to copper smelters, compared
to 1,426 tons sold in the like 1994 period. Lordsburg also sold
4,906 tons of construction aggregate material during the three
months ended March 31, 1995, compared to 160 tons sold in the like
1994 period.
Other Income
Other income for the three months ended March 31, 1995 was
116,105, compared to $98,356 for the three months ended March 31,
1994.
Costs and Expenses
Electrical construction costs were $1,655,017 for the three months
ended March 31, 1995, compared to $1,831,743 in the like 1994
period.
Depreciation and amortization was $205,616 in the three months
ended March 31, 1995, compared to $232,936 in the like period of
1994.
General corporate expenses of the Company were $280,181 in the
three months ended March 31, 1995 compared to $293,652 in the like
1994 period.
Liquidity and Capital Resources
Cash and cash equivalents amounted to $5,671,003 at March 31, 1995,
compared to $5,875,538 at December 31, 1994. Working capital at
March 31, 1995 was $7,095,323, compared to $7,511,030 at December
31, 1994. The Company's ratio of current assets to current
liabilities was 9.7 to 1 at March 31, 1995, compared to 10.8 to 1 at
December 31, 1994.
The Company paid cash dividends on Series A Preferred Stock in the
amount of $5,939 in each of the three months ended March 31, 1995
and 1994. No cash dividends have been paid by the Company on its
Common Stock since 1933, and it is not expected that the Company
will pay any cash dividends on its Common Stock in the immediate
future.
Under an unsecured line of credit arrangement (guaranteed by the
Company), Southeast Power may borrow up to $1,000,000 at the bank's
prime rate of interest. This credit line expires April 30, 1996 at
which time the Company expects to renew it for an additional year.
No borrowings were outstanding under this line of credit during the
three months ended March 31, 1995 and 1994.
The Company's capital expenditures in the three months ended March
31, 1995 were $274,141, compared to $329,244 for the three months
ended March 31, 1994.
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits in accordance with the provisions of Item 601 of
Regulation S-K
10-9 The Goldfield Corporation and Subsidiaries Standardized
Adoption Agreement and Prototype Cash or Deferred Profit-
Sharing Plan and Trust Basic Plan Document #3 effective
January 1, 1995.
(b) Reports on Form 8-K
No Current Report on Form 8-K was filed during the quarter
ended March 31, 1995.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
THE GOLDFIELD CORPORATION
(Registrant)
Date: May 10, 1995 /s/ John H. Sottile
(John H. Sottile)
President and Chief
Executive Officer
Date: May 10, 1995 /s/ Stephen R. Wherry
(Stephen R. Wherry, C.P.A.)
Vice President, Treasurer
and Chief Financial Officer
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended March 31, 1995 Commission File No. 1-7525
THE GOLDFIELD CORPORATION
EXHIBITS
May 10, 1995
Prototype Cash or Deferred
Profit-Sharing Plan #001
STANDARDIZED
ADOPTION AGREEMENT
PROTOTYPE CASH OR DEFERRED
PROFIT-SHARING PLAN AND TRUST
Sponsored by
AMERICAN FUNDS DISTRIBUTORS, INC.
The Employer named below hereby establishes a Cash or Deferred
Profit-Sharing Plan for eligible Employees as provided in this
Adoption Agreement and the accompanying Basic Prototype Plan and
Trust/Basic Plan Document #03 (the "Plan"). If multiple Employers
are adopting the Plan, complete Section 1 based on the lead
Employer. Additional Employers may adopt this Plan by attaching
executed signature pages to the back of the Employer's Adoption
Agreement.
1. EMPLOYER INFORMATION
Employer's Name: The Goldfield Corporation and Subsidiaries
Address: 100 Rialto Place, Suite 500, Melbourne, FL 32901
Principal Address (if different):
Telephone Number: (407) 724-1700
Tax ID Number: 88-0031580
Employer's Fiscal Year: December 31
Form of Business:
[ ] Sole Proprietor [ ] Partnership [ ] "S" Corporation
[X] Corporation [ ] Other
Member of:
[X] Controlled Group [ ] Affiliated Service Group
[ ] Group of trades or businesses under commom control
Date of Incorporation: incorporated in Wyoming in 1906 and
subsequently reincorporated in Delaware in 1968
Name of Plan: The Goldfield Corporation and Subsidiaries Employee
Savings and Retirement Plan
Three Digit Plan Number for Annual Return/Report:001.
2. EFFECTIVE DATE
2. (a) This is a new Plan having an effective date of January 1,
1995.
2. (b) This is an amended Plan.
The effective date of the original plan was / /. The effective
date of the amended Plan is / /.
2. (c) If different from above, the Effective Date for the Plan's
Elective Deferral provisions shall be / /.
3. DEFINITIONS
3. (a) "Allocation Date(s)" Allocations to Participant Accounts
will be done in accordance with Article V of the Plan:
[ ] (i) daily.
[X] (ii) monthly.
[ ] (iii) quarterly.
[ ] (iv) semi-annually.
[ ] (v) annually.
3. (b) "Compensation" Compensation shall be determined on the
basis of the Plan Year. Compensation [X] shall [ ] shall not
include Employer contributions made pursuant to a Salary Savings
Agreement, for this Plan or any other plan, which are not
includable in the gross income of the Employee for the reasons
indicated in the definition of Compensation at paragraph 1.13 of
the Plan.
Compensation [X] shall [ ] shall not be limited to Compensation
earned while a Participant in the Plan.
Compensation shall be determined on the basis of the following
safe-harbor definition of Compensation in IRS Regulation Section
1.414(s)-1(c):
[X] (i) Code Section 3401(a) - W-2 income subject to income tax
withholding.
[ ] (ii) Code Section 415 - W-2 income, share of profits and other
taxable income.
3. (c) "Entry Date"
[ ] (i) The first day of the Plan Year nearest the date on which
an Employee meets the eligibility requirements.
[X] (ii) The earlier of the first day of the Plan Year or the
first day of the seventh month of the Plan Year coinciding with
or following the date on which an Employee meets the eligibility
requirements.
[ ] (iii) The first day of the Plan Year following the date on
which the Employee meets the eligibility requirements. If this
election is made, the Service requirement at 4(a) may not exceed
1/2 year and the age requirement at
4(b) may not exceed 20-1/2.
[ ] (iv) The first day of the month or if earlier the first day
of the Plan Year coinciding with or following the date on which
an Employee meets the eligibility requirements.
[ ] (v) The first day of the Plan Year, or the first day of the
fourth, seventh or tenth month, of the Plan Year coinciding with
or following the date on which an Employee meets the eligibility
requirements.
3. (d) "Hours of Service" shall be determined on the basis of the
method selected below. Only one method may be selected. The
method selected shall be applied to all Employees covered under
the Plan as follows:
[X] (i) On the basis of actual hours for which an Employee is paid
or entitled to payment.
[ ] (ii) On the basis of days worked. An Employee shall be
credited with ten (10) Hours of Service if under paragraph 1.43
of the Plan such Employee would be credited with at least one (1)
Hour of Service during the day.
[ ] (iii) On the basis of weeks worked. An Employee shall be
credited with forty-five (45) Hours of Service if under paragraph
1.43 of the Plan such Employee would be credited with at least one
(1) Hour of Service during the week.
[ ] (iv) On the basis of semi-monthly payroll periods. An
Employee shall be credited with ninety-five (95) Hours of Service
if under paragraph 1.43 of the Plan such Employee would be
credited with at least one (1) Hour of Service during the
semi-monthly payroll period.
[ ] (v) On the basis of months worked. An Employee shall be
credited with one-hundred-ninety (190) Hours of Service if under
paragraph 1.43 of the Plan such Employee would be credited with
at least one (1) Hour of Service during the month.
[ ] (vi) On the basis of Elapsed Time, as provided in Article XVI
of the Plan.
3. (e) "Limitation Year" The 12-consecutive month period
commencing on January 1 and ending on December 31. If
applicable, the Limitation Year will be a short Limitation Year
commencing on / / and ending on / /. Thereafter, the Limitation
Year shall end on the date last specified above.
3. (f) "Net Profit"
[X] (i) Not applicable. Profits will not be required for any
contributions to the Plan.
[ ] (ii) As defined in paragraph 1.50 of the Plan.
3. (g) "Plan Year" The 12-consecutive month period commencing on
January 1 and ending on December 31 . If applicable, the first
Plan Year will be a short Plan Year commencing on / / and ending
on/ /. Thereafter, the Plan Year shall end on the date last
specified.
3. (h) "Qualified Early Retirement Age" For purposes of making
distributions under the provisions of a Qualified Domestic
Relations Order, the Plan's Qualified Early Retirement Age with
regard to the Participant against whom the Order is entered shall
be the date the Order is determined to be qualified. This will
only allow payout to the alternate payee(s).
3. (i) "Qualified Joint and Survivor Annuity" The safe-harbor
provisions of paragraph 8.7 of the Plan [X] are [ ] are not
applicable. If not applicable, the survivor annuity shall be /
/ % (50%, 66-2/3% 75% or 100%) of the annuity payable during the
lives of the Participant and Spouse. If no answer is specified,
50% will be used.
3. (j) "Taxable Wage Base" [paragraph 1.81]
[X] (i) Not Applicable-Plan is not integrated with Social
Security.
[ ] (ii) The maximum earnings considered wages for such Plan Year
under Code Section 3121(a).
[ ] (iii) / / % (not more than 100%) of the amount considered
wages for such Plan Year under Code Section 3121(a).
[ ] (iv) $/ /, provide such amount is not in excess of the amount
determined under subsection (ii) above.
[ ] (v) For the 1989 Plan Year $10,000. For all subsequent Plan
Years, 20% of the maximum earnings considered wages for such Plan
Year under Code Section 3121(a).
NOTE: Using less than the maximum at subsection (ii) may result
in a change in the allocation formula in Section 7(f) hereof.
4. ELIGIBILITY REQUIREMENTS
Employees meeting the following Service and Age requirements shall
be eligible to participate in the Plan:
4. (a) Service: 1 [not more than one (1)] Year of Service. [A
Year of Service is a 12-consecutive month period during which a
Participant is credited with 1,000 hours.] If the Year of Service
selected is a fractional year, an Employee will not be required
to complete any specified number of Hours of Service to receive
credit for such fractional year.
4. (b) Age: Attainment of age 21 (not more than age 21).
4. (c) Initial Participants: Employees employed on the Plan's
Effective Date [X] do [ ] do not have to satisfy the eligibility
requirements specified above.
NOTE: Employees covered under the terms of a collective
bargaining agreement (the agreement should indicate that
retirement benefits were the subject of good faith bargaining and
the agreement should benefit Employees of whom two percent or less
are professionals, as defined in Section 1.410(b)-9 of the
Regulations) between the Employer and Employee representatives
(does not include any organization more than half of whose members
are owners, officers, or executives of the Employer) and
nonresident aliens [within the meaning of Section 770(b)(1)(B)]
with no U.S. Income [within the meaning of Section 911(d)(2)] from
the Employer which constitutes income from sources within the
United States [within the meaning of Section 86(a)(3)] are
excluded from the Plan participation.
5. RETIREMENT AGES
If the Employer imposes a requirement that Employees retire upon
reaching a specified age, the Normal Retirement Age selected below
may not exceed the Employer imposed mandatory retirement age.
5. (a) Normal Retirement Age shall be 65 (not to exceed age 65).
5. (b) Normal Retirement Age shall be the later of attaining age
/ / (not to exceed age 65) or the / / (not to exceed the 5th)
anniversary of the first day of the first Plan Year in which the
Participant commenced participation in the Plan.
5. (c) Early Retirement Age:
[ ] (i) Not applicable.
[X] (ii) The Plan shall have an Early Retirement Age of 60 (not
less than 55) and completion of 5 Years of Service.
6. EMPLOYEE CONTRIBUTIONS
[X] 6.(a) Participants shall be permitted to make Elective
Deferrals in any amount from 2% up to 15% of their Compensation.
Participants may amend their Salary Savings Agreements to change
the contribution percentage as provided below:
[X] (i) on the first day of each month of the Plan Year.
[ ] (ii) on the first day of the Plan Year and on the first day
of the fourth, seventh, and tenth months of the Plan Year.
[ ] (iii) on the first day of the Plan Year and on the first day
of the seventh month of the Plan Year.
[ ] 6.(b) Participants shall be required to make after-tax
Voluntary Contributions as follows (Thrift Savings Plan):
[ ] (i) in any amount from / / % up to / / % of Compensation.
[ ] (ii) a percentage determined by the Employee on his or her
enrollment form.
NOTE: Elective Deferrals may not be recharacterized as Voluntary
Contributions for purposes of the Average Deferral Percentage
(ADP) Test. The ADP Test will apply to contributions under (a)
above. The Average Contribution Percentage (ACP) Test will apply
to contributions under (b) above, and may apply to (a).
7. EMPLOYER CONTRIBUTIONS AND ALLOCATION
The Employer shall make contributions to the Plan in accordance
with the formula or formulas selected below. The Employer's
contribution shall be subject to the limitations contained in
Articles III and X of the Plan. For this purpose, a contribution
for a Plan Year shall be limited for the Limitation Year which
ends with or within such Plan Year. Also, the allocation formulas
below are for Plan Years beginning in 1989 and later. The
Employer's allocation for earlier years shall be as specified in
its Plan prior to amendment for the Tax Reform Act of 1986.
7. (a) Profits Requirement - Current or Accumulated Net Profits
are not required unless otherwise indicated below:
[ ] (i) Matching Contributions.
[ ] (ii) Qualified Non-Elective Contributions.
[ ] (iii) discretionary contributions.
NOTE: Elective Deferrals and any contribution category not
checked above may always be contributed regardless of profits.
Complete this Item in conjunction with Item 3(f).
7. (b) Salary Savings Agreement:
The Employer shall contribute and allocate to each Participant's
account an amount equal to the amount withheld from the
Compensation of such Participant pursuant to his or her Salary
Savings Agreement. If applicable, the maximum percentage is
specified in Section 6 above. An Employee who has terminated his
or her election under the Salary Savings Agreement other than for
hardship reasons may not make another Elective Deferral:
[ ] (i) until the first day of the next Plan Year.
[X] (ii) for a period of 1 month(s) (not to exceed 12 months).
[X] 7(c) Matching Contribution [See Section (g) and (h)]:
[ ] (i) Percentage Match On Elective Deferrals: the Employer
shall contribute and allocate to each eligible Participant's
account an amount equal to / /% of the amount contributed and
allocated in accordance with Section 7(b) above. The Employer
shall not match Participant Elective Deferrals as provided above
in excess of $/ / or in excess of / /% of the Participant's
Compensation.
[ ] (ii) Percentage Match on Voluntary Contributions: The Employer
shall contribute and allocate to each eligible Participant's
account an amount equal to / / % of the amount of Voluntary
Contributions (if provided for under Section 6(b) above) made in
accordance with paragraph 4.7 of the Plan. The Employer shall not
match Participant Voluntary Contributions as provided above in
excess of $/ / or in excess of / /% of the Participant's
Compensation.
[X] (iii) Discretionary Match: The Employer shall contribute and
allocate to each eligible Participant's account a percentage of
the Participant's Elective Deferral contributed and allocated in
accordance with Section 7(b) above. The Employer shall set such
percentage prior to the end of the Plan Year. The Employer shall
not match the Participant Elective Deferrals in excess of $/ / or
in excess of 6% of the Participant's Compensation.
[X] (iv) Qualified Match: Matching Contributions will be treated
as Qualified Matching Contributions to the extent specified below:
[ ] (A) all Matching Contributions.
[ ] (B) none.
[X] (C) the amount necessary to meet [ ] the ADP test, [ ] the ACP
test, [X] both the ADP and ACP tests.
[X] (v) Eligibility for Matching Contributions: Matching
Contributions, whether or not Qualified, will only be made on
Employee Contributions:
[ ] (A) not withdrawn prior to the end of the valuation period.
[ ] (B) not withdrawn prior to the end of the Plan Year.
[X] (C) without regard to their withdrawal.
[X] (vi) Matching Contribution Computation Period: The time period
upon which Matching Contributions will be based shall be:
[ ] (A) weekly.
[ ] (B) bi-weekly.
[ ] (C) semi-monthly.
[ ] (D) monthly.
[ ] (E) quarterly.
[ ] (F) semi-annually.
[X] (G) annually.
[X] 7.(d) Qualified Non-Elective Contribution - [See Sections (f)
and (g)] These contributions are fully vested when contributed.
The Employer shall have the right to make an additional
discretionary contribution which shall be allocated to each
eligible Employee in proportion to his or her Compensation as a
percentage of the Compensation of all eligible Employees. This
part of the Employer's contribution and the allocation thereof
shall be unrelated to any Employee contributions made hereunder.
The amount of Qualified non-Elective Contributions taken into
account for purposes of meeting the ADP or ACP test requirements
is:
[ ] (i) all Qualified non-Elective Contributions.
[ ] (ii) none.
[X] (iii) the amount necessary to meet [ ] the ADP test, [ ] the
ACP test, [X] both the ADP and ACP tests.
Qualified non-Elective Contributions will be made to:
[ ] (iv) all Employees eligible to participate.
[X] (v) only non-Highly-Compensated Employees eligible to
participate.
[ ] 7.(e) Additional Employer Contribution Other Than Qualified
Non-Elective Contributions - Non-Integrated [See Sections (g) and
(h)]:
The Employer shall have the right to make an additional
discretionary contribution which shall be allocated to each
eligible Employee in proportion to his or her Compensation as a
percentage of the Compensation of all eligible Employees. This
part of the Employer's contributions and the allocation thereof
shall be unrelated to any Employee contributions made hereunder.
[ ] 7.(f) Additional Employer Contribution - Integrated Allocation
Formula [See Sections (g) and (h)]. The Employer shall have the
right to make an additional discretionary contribution. The
Employer's contribution for the Plan Year plus any forfeitures
shall be allocated to the accounts of eligible Participants as
follows:
(i) First, to the extent contributions and forfeitures are
sufficient, all Participants will receive an allocation equal to
3% of their Compensation.
(ii) Next, any remaining Employer Contributions and forfeitures
will be allocated to Participants who have Compensation in excess
of the Taxable Wage Base (excess Compensation). Each such
Participant will receive an allocation in the ratio that his or
her excess Compensation bears to the excess Compensation of all
Participants. Participants may only receive an allocation of 3%
of excess Compensation.
(iii) Next, any remaining Employer contributions and forfeitures
will be allocated to all Participants in the ratio that their
Compensation plus excess Compensation bears to the total
Compensation plus excess Compensation of all Participants.
Participants may only receive an allocation of up to 2.7% of their
Compensation plus excess Compensation, under this allocation
method. If the Taxable Wage Base defined at Section 3(j) is less
than or equal to the greater of $10,000 or 20% of the maximum, the
2.7% need not be reduced. If the amount specified is greater than
the greater of $10,000 or 20% of the maximum Taxable Wage Base,
but not more than 80%, 2.7% must be reduced to 1.3%. If the
amount specified is greater than 80% but less than 100% of the
maximum Taxable Wage Base, the 2.7% must be reduced to 2.4%.
NOTE: If the Plan is not Top-Heavy or if the Top-Heavy minimum
contribution or benefit is provided under another Plan [see
Section 11(c)(ii)] covering the same Employees, subsection (i) and
(ii) above may be disregarded and 5.7%, 4.3% or 5.4% may be
substituted for 2.7%, 1.35% or 2.4% where it appears in (iii)
above.
(iv) Next, any remaining Employer contributions and forfeitures
will be allocated to all Participants (whether or not they
received an allocation under the preceding paragraphs) in the
ratio that each Participants Compensation bears to all
Participants' Compensation.
NOTE: Only one plan maintained by the Employer may be integrated
with Social Security.
7.(g) Allocation of Excess Amounts (Annual Additions):
In the event that the allocation formula above results in an
Excess Amount, such excess shall be distributed to the Participant
to the extent such excess does not exceed the Participant's
Elective Deferrals, non-deductible Required Voluntary
Contributions. To the extent the Excess Amount exceeds the sum
of the aforementioned Employee contributions, such excess shall
be:
[X] (i) placed in a suspense account accruing no gains or losses
for the benefit of the Participant.
[ ] (ii) reallocated as additional Employer contributions to all
other Participants to the extent that they do not have any Excess
Amount.
7. (h) Minimum Employer Contribution Under Top-Heavy Plans:
For any Plan Year during which the Plan is Top-Heavy, the sum of
the contributions and forfeitures as allocated to eligible
Employees under sections 7(e), 7(f) and 9 of this Adoption
Agreement shall not be less than the amount required under
paragraph 14.2 of the Plan. Top-Heavy minimums will be allocated
to:
[X] (i) all eligible Participants.
[ ] (ii) only eligible non-Key Employees who are Participants.
7. (i) Return of Excess Contributions and/or Excess Aggregate
Contributions:
In the event that one or more Highly-Compensated Employees is
subject to both the ADP and ACP tests and the sum of such tests
exceeds the Aggregate Limit, the limit will be satisfied by
reducing the ADP and/or ACP of the affected Highly Compensated
Employees.
8. ALLOCATIONS TO TERMINATED EMPLOYEES
(This option is not applicable if Hours of Service are determined
on the basis of Elapsed Time selected under Section 3(d)(vi)
above.)
8. (a) For Plan Years beginning prior to 1993:
[ ] (i) the Employer will not allocate Employer-related
contributions to any Participant who terminates employment during
the Plan Year.
[ ] (ii) the Employer will allocate Employer-related contributions
to Employees who terminate during the Plan Year as a result of:
[ ] (A) retirement.
[ ] (B) Disability.
[ ] (C) death.
[ ] (D) other termination provided that the Participant has
completed a Year of Service.
[ ] (E) other termination.
8. (b) For Plan Years beginning in 1993 and thereafter, the
Employer will allocate Employer-related contributions, except
Matching Contributions, to any Participant who is (i) credited
with more than 500 Hours of Service, or (ii) employed on the last
day of the Plan Year without regard to the number of Hours of
Service. The Employer will also allocate Employer-related
contributions to any Participant who terminates during the Plan
Year without accruing the necessary Hours of Service if he or she
terminates as a result of:
[X] (i) retirement.
[X] (ii) Disability.
[X] (iii) death.
Matching Contributions will be allocated to each Participant
without regard to whether he or she is employed on the last day
of the Plan Year and without regard to his or her Hours of
Service.
9. ALLOCATION OF FORFEITURES
NOTE: Forfeitures of Excess Aggregate Contributions shall be
applied at the end of the Plan Year in which they occur to reduce
Employer Contributions. Subsections (a), (b) and (c) below apply
to forfeitures of amounts other than Excess Aggregate
Contributions.
9.(a) Allocation Alternatives:
Forfeitures shall be applied to reduce the Employer's contribution
for such Plan Year. If forfeitures were reallocated, pursuant to
a prior document's provisions, they will continue to be
reallocated in the same manner until the end of the Plan year in
which this Adoption Agreement is signed.
9.(b) Date for Reallocation of Forfeitures:
NOTE: If no distribution has been made to a former Participant,
subsection (i) below will automatically apply to such Participant.
[ ] (i) Forfeitures shall be applied to reduce the Employer's
contribution at the end of the Plan year during which the former
Participant incurs his or her fifth consecutive one-year Break In
Service.
[X] (ii) Forfeitures shall be applied to reduce the Employer's
contribution at the end of the next Plan Year during which the
Participant has received distribution of his or her vested
interest.
9. (c) Restoration of Forfeitures:
If amounts are forfeited prior to five consecutive one-year Breaks
in Service, the Funds for restoration of account balances will be
obtained from the following resources in the order indicated
(fill in the appropriate number):
[1] (i) current year's forfeitures.
[2] (ii) additional Employer contributions.
10. LIMITATIONS ON ALLOCATIONS
This Section is not applicable if this is the only Plan you
maintain or ever maintained. Plans include Welfare Benefit Funds
as described in Code Section 419(e) or an individual medical
account as defined under Code Section 415(l)(2) under which
amounts are treated as Annual Additions.
10.(a) If the Participant is covered under another qualified
Defined Contribution Plan maintained by the Employer, other than
a Master or Prototype Plan, the provisions of Article X of the
Plan will apply as if the other plan were a Master or Prototype
Plan.
10.(b) If a Participant is or ever has been a Participant in a
Defined Benefit Plan maintained by the Employer, attach provisions
which will satisfy the 1.0 limitation of Code Section 415(e).
Such language must preclude Employer discretion. The Employer
must also specify the interest and mortality assumptions used in
determining present value in the Defined Benefit Plan.
10.(c) The minimum contribution or benefit required under Code
Section 416 relating to Top-Heavy Plans shall be satisfied by
either:[ ] this Plan or [ ] (Name of other qualified plan of the
Employer). If a Defined Benefit Plan is or was maintained, an
attachment must be provided showing interest and mortality
assumptions used in determining the Top-Heavy Ratio.
11. VESTING
11.(a) Computation Period: (This option is not applicable if Hours
of Service are determined on the basis of Elapsed Time selected
under Section 3(d)(vi) above.) The computation period for purposes
of determining Years of Service and Breaks in Service for purposes
of computing a Participant's nonforfeitable right to his or her
account balance derived from Employer contributions:
[ ] (i) shall not be applicable since Participants are always
fully vested.
[X] (ii) shall commence on the first day of the Plan Year during
which an Employee first performs an Hour of Service for the
Employer and each subsequent 12-consecutive month period shall
commence on the anniversary thereof.
A Participant shall receive credit for a Year of Service if he or
she completes at least 1,000 Hours of Service at any time during
the 12-consecutive month computation period. Consequently, a Year
of Service may be earned prior to the end of the 12-consecutive
month computation period and the Participant need not be employed
at the end of the 12-consecutive month computation period to
receive credit for a Year of Service.
11. (b) Vesting Schedules:
NOTE: Contributions under Sections 6(a), (b), 7(c)(iv) and (d)
are always fully vested. The vesting schedules below only apply
to a Participant who has at least one Hour of Service during or
after the 1989 Plan Year. If applicable, Participants who
separated from Service prior to the 1989 Plan Year will remain
under the vesting schedule as in effect in the Plan prior to
amendment for the Tax Reform Act of 1986.
[ ] (i) Full and Immediate Vesting.
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Years of Service
1 2 3 4 5 6 7
[ ] (ii) / /% 100%
[ ] (iii) / /% / /% 100%
[ ] (iv) / /% 20% 40% 60% 80% 100%
[ ] (v) / /% / /% 20% 40% 60% 80% 100%
[ ] (vi) 10% 20% 30% 40% 60% 80% 100%
[X] (vii) 20% 40% 60% 80% 100%
[ ] (viii) / /% / /% / /% / /% / /% / /% 100%
</TABLE>
NOTE: The percentages selected for schedule (viii) may not be
less for any year than the percentages shown at schedule (v).
[X] (A) All contributions other than those which are fully vested
when contributed will vest under schedule vii above.
[ ] (B) All Matching Contributions will vest under schedule / /
above. All other Employer contributions other than this which are
fully vested when contributed will vest under schedule above.
11.(c) Service disregarded for Vesting:
[X] (i) Not applicable. All Service shall be considered.
[ ] (ii) Service prior to the Effective Date of this Plan or a
predecessor plan shall be disregarded when computing a
Participant's vested and nonforfeitable interest.
[ ] (iii) Service prior to a Participant having attained age 18
shall be disregarded when computing a Participant's vested and
nonforfeitable interest.
11.(d) Top-Heavy Vesting:
Each Participant shall acquire a vested and nonforfeitable
percentage in his or her account balance attributable to Employer
contributions and the earnings thereon under the procedures
selected above except with respect to any Plan Year during which
the Plan is Top-Heavy, in which case the [X] Two-twenty vesting
schedule [Section 11(b)(iv)] or [ ] Three-Year Cliff vesting
schedule [Section 11(b)(iii)] shall automatically apply unless the
Employer has already elected a faster vesting schedule. If the
Plan is switched to Section 11(b)(iii) or 11(b)(iv) because of its
Top-Heavy status, that vesting schedule will remain in effect,
even if the Plan later becomes non-Top-Heavy, until the Employer
executes an amendment of this Adoption Agreement indicating
otherwise.
12. SERVICE WITH PREDECESSOR ORGANIZATION
For purposes of satisfying the Service requirements for
eligibility and vesting, Hours of Service shall include Service
with the following predecessor organization(s). The Black Range
Mining Corporation, The San Pedro Mining Corporation, Goldfield-
Hidalgo, Inc.
13. ROLLOVER/TRANSFER CONTRIBUTIONS
13.(a) Rollover Contributions, as described in paragraph 4.3 of
the Plan, [X] shall [ ] shall not be permitted. If permitted,
Employees [X] may [ ] may not make rollover contributions prior
to meeting the eligibility requirements for participation in the
Plan.
13.(b) Transfer Contributions, as described in paragraph 4.4 of
the Plan, [X] shall [ ] shall not be permitted. If permitted,
Employees [X] may [ ] may not Transfer Contributions prior to
meeting the eligibility requirements for participation in the
Plan.
NOTE: Even if available, the Employer may refuse to accept such
contributions if its Plan meets the safe-harbor rules of paragraph
8.7 of the Plan.
14. HARDSHIP WITHDRAWALS
Hardship withdrawals, as provided for in paragraph 6.9 of the
Plan, [ ] are [X] are not permitted.
15. PARTICIPANT LOANS
Participant loans, provided for in paragraph 13.4 of the Plan, []
are [ X] are not permitted. If permitted, repayments of principal
and interest shall be repaid to the Participant's segregated
account.
16. EMPLOYER INVESTMENT DIRECTION
The Employer investment direction provisions, as set forth in
paragraph 13.5 of the Plan [ ] shall [X] shall not be applicable.
17. EMPLOYEE INVESTMENT DIRECTION
The Employee investment direction provisions, as set forth in
paragraph 13.6 of the Plan, [X] shall [ ] shall not be
applicable.
NOTE: To the extent that Employee investment direction was
previously allowed, the Trustee shall have the right to either
make the assets part of the general Trust, or leave them as
separately invested subject to the provisions of paragraph 13.6
of the Plan.
18. EARLY PAYMENT OPTION
A Participant who separates from Service prior to retirement,
death or Disability may make application to the Employer
requesting an early payment of his or her vested account balance.
Amounts under $3,500 [X] will [ ] will not be cashed out
immediately.
18(a) A Participant who has not separated from Service [ ] may [X]
may not obtain a distribution of his or her vested Employer
contributions. Distribution can only be made if the Participant
has completed five Years of Service.
18(b) A Participant who has attained age 59-1/2 and has not
separated from Service [X] may [ ] may not obtain a distribution
of his or her vested Employer contributions.
18(c) A Participant who has attained the Plan's Normal Retirement
Age and who has not separated from Service [X] may [ ] may not
receive a distribution of his or her vested account balance.
NOTE: If the Participant has had the right to withdraw his or her
account balance in the past, this right may not be taken away.
Notwithstanding the above, to the contrary, required minimum
distributions will be paid. For timing of distributions, see item
19(a) below.
19. DISTRIBUTIONS OPTIONS
19.(a) Timing of Distributions:
In cases of termination including death, Disability or retirement,
benefits shall be paid:
[ ] (i) as soon as administratively feasible following the close
of the Plan Year during which a distribution is requested or is
otherwise payable.
[X] (ii) as soon as administratively feasible, following the date
on which a distribution is requested or is otherwise payable.
[ ] (iii) as soon as administratively feasible, after the close
of the Plan Year during which the Participant incurs a one-year
Break in Service.
19.(b) Optional Forms of Payment:
[X] (i) Lump Sum.
[ ] (ii) Installment Payments.
[ ] (iii) Other form(s) as previously provided (indicate all forms
that apply):/ /
19.(c) Recalculation of Life Expectancy:
In determining required distributions under the Plan, a
Participant and/or Spouse (Surviving Spouse) [ ] shall [X] shall
not have the right to have their life expectancy recalculated
annually. If life expectancy is recalculated, it will follow the
Employer's administrative policy.
20. SPONSOR CONTACT
Employers should direct questions concerning the language
contained in and the qualification of the Prototype to:
Capital Guardian Trust Company
Corporate Employee Benefits Department
(Phone Number) (714) 671-7000
In the event that the Sponsor amends, discontinues or abandons
this Prototype Plan, notification will be provided to the
Employer's address provided on the first page of this Agreement.
21. SIGNATURES
Due to the significant tax ramifications, the Sponsor recommends
that before you execute this Adoption Agreement, you contact your
attorney or tax advisor.
(a) Employer Delegate or Committee Appointment:
The Employer has appointed the following individual(s) to act on
behalf of the Employer regarding all communications and requests
between the Employer and the Recordkeeper, pursuant to the terms
and conditions of the Plan. Unless otherwise directed by the
Employer in written directions to the Recordkeeper, the
Recordkeeper may act upon the instructions of any one of the
persons listed below.
Name(s) (please type or print) Signature(s)
1. John H. Sottile 1./ /
Address 100 Rialto Place, Melbourne, FL 32901
2. Stephen R. Wherry 2./ /
Address 100 Rialto Place, Melbourne, FL 32901
3./ / 3./ /
Address/ /
(b) EMPLOYER:
Name and address of Employer if different than specified in
Section 1 above.
The Goldfield Corporation
The Employer hereby adopts the Plan, appoints Capital Guardian
Trust Company as Trustee and directs that contributions to the
Plan shall be invested in accordance with the instructions
provided by it. The Employer has read the Plan and Trust and
Adoption Agreement, agrees to the Terms and conditions set forth
therein and has consulted with an attorney about the effect of
establishing the Plan.
This agreement and the corresponding provisions of the Plan and
Trust Basic Plan Document #03 were adopted by the Employer the
30th day of Nov., 1994.
Signed for the Employer by: Stephen R. Wherry
Title: Vice President
Signature:/ /
The Employer understands that its failure to properly complete the
Adoption Agreement may result in disqualification of its Plan.
Employer's Reliance: An Employer who maintains or has ever
maintained or who later adopts any Plan [including, after December
31, 1985, a Welfare Benefit Fund, as defined in Section 419(e) of
the Code, which provides post-retirement medical benefits
allocated to separate accounts for Key Employees, as defined in
Section 419A(d)(3) or an individual medical account, as defined
in Code Section 415(l)(2)], in addition to this Plan may not rely
on the opinion letter issued by the National Office of the
Internal Revenue Service as evidence that this Plan is qualified
under Section 401 of the Code. If the Employer who adopts or
maintains multiple Plans wishes to obtain reliance that such
Plan(s) are qualified, application for a determination letter
should be made to the appropriate Key District Director of
Internal Revenue. The employer understands that its failure to
properly complete the Adoption Agreement may result in
disqualification of its plan.
This Adoption Agreement may only be used in conjunction with Basic
Plan Document #03.
[X] (c) TRUSTEE APPOINTMENT AND ACCEPTANCE:
The Employer hereby appoints Capital Guardian Trust Company to
serve as Trustee, and such Trustee hereby confirms acceptance of
the appointment and duties pursuant to the accompanying Plan and
this Adoption Agreement.
Capital Guardian Trust Company hereby accepts appointment as
Trustee the 14th day of Dec., 1994.
Signed for the Trustee by: Herman Martinez
Title: Assistant Vice President
Signature:/ /
NOTE: In accordance with paragraph 13.7 of Basic Plan Document
#03 an additional trustee may be appointed to govern Plan assets
held outside the Fund. If so, the additional trustee shall be
appointed in a separate trust agreement.
19.(b) Optional Forms of Payment:
[X] (i) Lump Sum.
[ ] (ii) Installment Payments.
[ ] (iii) Other form(s) as previously provided (indicate all forms
that apply):/ /
19.(c) Recalculation of Life Expectancy:
In determining required distributions under the Plan, a
Participant and/or Spouse (Surviving Spouse) [ ] shall [X] shall
not have the right to have their life expectancy recalculated
annually. If life expectancy is recalculated, it will follow the
Employer's administrative policy.
20. SPONSOR CONTACT
Employers should direct questions concerning the language
contained in and the qualification of the Prototype to:
Capital Guardian Trust Company
Corporate Employee Benefits Department
(Phone Number) (714) 671-7000
In the event that the Sponsor amends, discontinues or abandons
this Prototype Plan, notification will be provided to the
Employer's address provided on the first page of this Agreement.
21. SIGNATURES
Due to the significant tax ramifications, the Sponsor recommends
that before you execute this Adoption Agreement, you contact your
attorney or tax advisor.
(a) Employer Delegate or Committee Appointment:
The Employer has appointed the following individual(s) to act on
behalf of the Employer regarding all communications and requests
between the Employer and the Recordkeeper, pursuant to the terms
and conditions of the Plan. Unless otherwise directed by the
Employer in written directions to the Recordkeeper, the
Recordkeeper may act upon the instructions of any one of the
persons listed below.
Name(s) (please type or print) Signature(s)
1. John H. Sottile 1./ /
Address 100 Rialto Place, Melbourne, FL 32901
2. Stephen R. Wherry 2./ /
Address 100 Rialto Place, Melbourne, FL 32901
3./ / 3./ /
Address/ /
(b) EMPLOYER:
Name and address of Employer if different than specified in
Section 1 above.
Southeast Power Corporation
The Employer hereby adopts the Plan, appoints Capital Guardian
Trust Company as Trustee and directs that contributions to the
Plan shall be invested in accordance with the instructions
provided by it. The Employer has read the Plan and Trust and
Adoption Agreement, agrees to the Terms and conditions set forth
therein and has consulted with an attorney about the effect of
establishing the Plan.
This agreement and the corresponding provisions of the Plan and
Trust Basic Plan Document #03 were adopted by the Employer the
30th day of Nov., 1994.
Signed for the Employer by: Stephen R. Wherry
Title: Treasurer
Signature:/ /
The Employer understands that its failure to properly complete the
Adoption Agreement may result in disqualification of its Plan.
Employer's Reliance: An Employer who maintains or has ever
maintained or who later adopts any Plan [including, after December
31, 1985, a Welfare Benefit Fund, as defined in Section 419(e) of
the Code, which provides post-retirement medical benefits
allocated to separate accounts for Key Employees, as defined in
Section 419A(d)(3) or an individual medical account, as defined
in Code Section 415(l)(2)], in addition to this Plan may not rely
on the opinion letter issued by the National Office of the
Internal Revenue Service as evidence that this Plan is qualified
under Section 401 of the Code. If the Employer who adopts or
maintains multiple Plans wishes to obtain reliance that such
Plan(s) are qualified, application for a determination letter
should be made to the appropriate Key District Director of
Internal Revenue. The employer understands that its failure to
properly complete the Adoption Agreement may result in
disqualification of its plan.
This Adoption Agreement may only be used in conjunction with Basic
Plan Document #03.
[X] (c) TRUSTEE APPOINTMENT AND ACCEPTANCE:
The Employer hereby appoints Capital Guardian Trust Company to
serve as Trustee, and such Trustee hereby confirms acceptance of
the appointment and duties pursuant to the accompanying Plan and
this Adoption Agreement.
Capital Guardian Trust Company hereby accepts appointment as
Trustee the 14th day of Dec., 1994.
Signed for the Trustee by: Herman Martinez
Title: Assistant Vice President
Signature:/ /
NOTE: In accordance with paragraph 13.7 of Basic Plan Document
#03 an additional trustee may be appointed to govern Plan assets
held outside the Fund. If so, the additional trustee shall be
appointed in a separate trust agreement.
19.(b) Optional Forms of Payment:
[X] (i) Lump Sum.
[ ] (ii) Installment Payments.
[ ] (iii) Other form(s) as previously provided (indicate all forms
that apply):/ /
19.(c) Recalculation of Life Expectancy:
In determining required distributions under the Plan, a
Participant and/or Spouse (Surviving Spouse) [ ] shall [X] shall
not have the right to have their life expectancy recalculated
annually. If life expectancy is recalculated, it will follow the
Employer's administrative policy.
20. SPONSOR CONTACT
Employers should direct questions concerning the language
contained in and the qualification of the Prototype to:
Capital Guardian Trust Company
Corporate Employee Benefits Department
(Phone Number) (714) 671-7000
In the event that the Sponsor amends, discontinues or abandons
this Prototype Plan, notification will be provided to the
Employer's address provided on the first page of this Agreement.
21. SIGNATURES
Due to the significant tax ramifications, the Sponsor recommends
that before you execute this Adoption Agreement, you contact your
attorney or tax advisor.
(a) Employer Delegate or Committee Appointment:
The Employer has appointed the following individual(s) to act on
behalf of the Employer regarding all communications and requests
between the Employer and the Recordkeeper, pursuant to the terms
and conditions of the Plan. Unless otherwise directed by the
Employer in written directions to the Recordkeeper, the
Recordkeeper may act upon the instructions of any one of the
persons listed below.
Name(s) (please type or print) Signature(s)
1. John H. Sottile 1./ /
Address 100 Rialto Place, Melbourne, FL 32901
2. Stephen R. Wherry 2./ /
Address 100 Rialto Place, Melbourne, FL 32901
3./ / 3./ /
Address/ /
(b) EMPLOYER:
Name and address of Employer if different than specified in
Section 1 above.
St. Cloud Mining Company
The Employer hereby adopts the Plan, appoints Capital Guardian
Trust Company as Trustee and directs that contributions to the
Plan shall be invested in accordance with the instructions
provided by it. The Employer has read the Plan and Trust and
Adoption Agreement, agrees to the Terms and conditions set forth
therein and has consulted with an attorney about the effect of
establishing the Plan.
This agreement and the corresponding provisions of the Plan and
Trust Basic Plan Document #03 were adopted by the Employer the
30th day of Nov., 1994.
Signed for the Employer by: Stephen R. Wherry
Title: Treasurer
Signature:/ /
The Employer understands that its failure to properly complete the
Adoption Agreement may result in disqualification of its Plan.
Employer's Reliance: An Employer who maintains or has ever
maintained or who later adopts any Plan [including, after December
31, 1985, a Welfare Benefit Fund, as defined in Section 419(e) of
the Code, which provides post-retirement medical benefits
allocated to separate accounts for Key Employees, as defined in
Section 419A(d)(3) or an individual medical account, as defined
in Code Section 415(l)(2)], in addition to this Plan may not rely
on the opinion letter issued by the National Office of the
Internal Revenue Service as evidence that this Plan is qualified
under Section 401 of the Code. If the Employer who adopts or
maintains multiple Plans wishes to obtain reliance that such
Plan(s) are qualified, application for a determination letter
should be made to the appropriate Key District Director of
Internal Revenue. The employer understands that its failure to
properly complete the Adoption Agreement may result in
disqualification of its plan.
This Adoption Agreement may only be used in conjunction with Basic
Plan Document #03.
[X] (c) TRUSTEE APPOINTMENT AND ACCEPTANCE:
The Employer hereby appoints Capital Guardian Trust Company to
serve as Trustee, and such Trustee hereby confirms acceptance of
the appointment and duties pursuant to the accompanying Plan and
this Adoption Agreement.
Capital Guardian Trust Company hereby accepts appointment as
Trustee the 14th day of Dec., 1994.
Signed for the Trustee by: Herman Martinez
Title: Assistant Vice President
Signature:/ /
NOTE: In accordance with paragraph 13.7 of Basic Plan Document
#03 an additional trustee may be appointed to govern Plan assets
held outside the Fund. If so, the additional trustee shall be
appointed in a separate trust agreement.
19.(b) Optional Forms of Payment:
[X] (i) Lump Sum.
[ ] (ii) Installment Payments.
[ ] (iii) Other form(s) as previously provided (indicate all forms
that apply):/ /
19.(c) Recalculation of Life Expectancy:
In determining required distributions under the Plan, a
Participant and/or Spouse (Surviving Spouse) [ ] shall [X] shall
not have the right to have their life expectancy recalculated
annually. If life expectancy is recalculated, it will follow the
Employer's administrative policy.
20. SPONSOR CONTACT
Employers should direct questions concerning the language
contained in and the qualification of the Prototype to:
Capital Guardian Trust Company
Corporate Employee Benefits Department
(Phone Number) (714) 671-7000
In the event that the Sponsor amends, discontinues or abandons
this Prototype Plan, notification will be provided to the
Employer's address provided on the first page of this Agreement.
21. SIGNATURES
Due to the significant tax ramifications, the Sponsor recommends
that before you execute this Adoption Agreement, you contact your
attorney or tax advisor.
(a) Employer Delegate or Committee Appointment:
The Employer has appointed the following individual(s) to act on
behalf of the Employer regarding all communications and requests
between the Employer and the Recordkeeper, pursuant to the terms
and conditions of the Plan. Unless otherwise directed by the
Employer in written directions to the Recordkeeper, the
Recordkeeper may act upon the instructions of any one of the
persons listed below.
Name(s) (please type or print) Signature(s)
1. John H. Sottile 1./ /
Address 100 Rialto Place, Melbourne, FL 32901
2. Stephen R. Wherry 2./ /
Address 100 Rialto Place, Melbourne, FL 32901
3./ / 3./ /
Address/ /
(b) EMPLOYER:
Name and address of Employer if different than specified in
Section 1 above.
The Lordsburg Mining Company
The Employer hereby adopts the Plan, appoints Capital Guardian
Trust Company as Trustee and directs that contributions to the
Plan shall be invested in accordance with the instructions
provided by it. The Employer has read the Plan and Trust and
Adoption Agreement, agrees to the Terms and conditions set forth
therein and has consulted with an attorney about the effect of
establishing the Plan.
This agreement and the corresponding provisions of the Plan and
Trust Basic Plan Document #03 were adopted by the Employer the
30th day of Nov., 1994.
Signed for the Employer by: Stephen R. Wherry
Title: Treasurer
Signature:/ /
The Employer understands that its failure to properly complete the
Adoption Agreement may result in disqualification of its Plan.
Employer's Reliance: An Employer who maintains or has ever
maintained or who later adopts any Plan [including, after December
31, 1985, a Welfare Benefit Fund, as defined in Section 419(e) of
the Code, which provides post-retirement medical benefits
allocated to separate accounts for Key Employees, as defined in
Section 419A(d)(3) or an individual medical account, as defined
in Code Section 415(l)(2)], in addition to this Plan may not rely
on the opinion letter issued by the National Office of the
Internal Revenue Service as evidence that this Plan is qualified
under Section 401 of the Code. If the Employer who adopts or
maintains multiple Plans wishes to obtain reliance that such
Plan(s) are qualified, application for a determination letter
should be made to the appropriate Key District Director of
Internal Revenue. The employer understands that its failure to
properly complete the Adoption Agreement may result in
disqualification of its plan.
This Adoption Agreement may only be used in conjunction with Basic
Plan Document #03.
[X] (c) TRUSTEE APPOINTMENT AND ACCEPTANCE:
The Employer hereby appoints Capital Guardian Trust Company to
serve as Trustee, and such Trustee hereby confirms acceptance of
the appointment and duties pursuant to the accompanying Plan and
this Adoption Agreement.
Capital Guardian Trust Company hereby accepts appointment as
Trustee the 14th day of Dec., 1994.
Signed for the Trustee by: Herman Martinez
Title: Assistant Vice President
Signature:/ /
NOTE: In accordance with paragraph 13.7 of Basic Plan Document
#03 an additional trustee may be appointed to govern Plan assets
held outside the Fund. If so, the additional trustee shall be
appointed in a separate trust agreement.
THE AMERICAN FUNDS GROUP
PROTOTYPE CASH OR DEFERRED
PROFIT-SHARING PLAN AND TRUST
Sponsored By
American Funds Distributors, Inc.
Basic Plan Document #03
November 1993
Copy right 1993 The McKay Hochman Company, Inc.
<PAGE>
This document is copyrighted under the laws of the United States.
Its use, duplication or reproduction, including the use of
electronic means, is prohibited by law without the express consent
of the author.
TABLE OF CONTENTS
<TABLE>
<C> <S> <C>
Paragraph Page
Article I
Definitions
1.1 Actual Deferral Percentage 4
1.2 Adoption Agreement 4
1.3 Aggregate Limit 4
1.4 Allocation Date(s) 4
1.5 Annual Additions 4
1.6 Annuity Starting Date 4
1.7 Applicable Calendar Year 4
1.8 Applicable Life Expectancy 4
1.9 Average Contribution Percentage (ACP) 4
1.10 Average Deferral Percentage (ADP) 4
1.11 Break In Service 4
1.12 Code 4
1.13 Compensation 4
1.14 Contribution Percentage 5
1.15 Custodian 5
1.16 Defined Benefit Plan 5
1.17 Defined Benefit (Plan) Fraction 5
1.18 Defined Contribution Dollar Limitation 5
1.19 Defined Contribution Plan 5
1.20 Defined Contribution (Plan) Fraction 5
1.21 Designated Beneficiary 5
1.22 Disability 5
1.23 Distribution Calendar Year 6
1.24 Early Retirement Age 6
1.25 Earned Income 6
1.26 Effective Date 6
1.27 Election Period 6
1.28 Elective Deferral 6
1.29 Eligible Participant 6
1.30 Employee 6
1.31 Employer 6
1.32 Entry Date 6
1.33 Excess Aggregate Contributions 6
1.34 Excess Amount 6
1.35 Excess Contribution 6
1.36 Excess Elective Deferrals 6
1.37 Family Member 6
1.38 First Distribution Calendar Year 6
1.39 Fund 6
1.40 Hardship 6
1.41 Highest Average Compensation 6
1.42 Highly Compensated Employee 6
1.43 Hour Of Service 6
1.44 Key Employee 7
1.45 Leased Employee 7
1.46 Limitation Year 7
1.47 Master Or Prototype Plan 7
1.48 Matching Contribution 7
1.49 Maximum Permissible Amount 7
1.50 Net Profit 7
1.51 Normal Retirement Age 7
1.52 Owner-Employee 7
1.53 Paired Plan 7
1.54 Participant 7
1.55 Participant's Benefit 7
1.56 Permissive Aggregation Group 7
1.57 Plan 7
1.58 Plan Administrator 7
1.59 Plan Year 7
1.60 Present Value 7
1.61 Projected Annual Benefit 7
1.62 Qualified Deferred Compensation Plan 7
1.63 Qualified Domestic Relations Order 7
1.64 Qualified Early Retirement Age 8
1.65 Qualified Joint And Survivor Annuity 8
1.66 Qualified Matching Contribution 8
1.67 Qualified Non-Elective Contributions 8
1.68 Qualified Voluntary Contribution 8
1.69 Recordkeeper 8
1.70 Required Aggregation Group 8
1.71 Required Beginning Date 8
1.72 Rollover Contribution 8
1.73 Salary Savings Agreement 8
1.74 Self-Employed Individual 8
1.75 Service 8
1.76 Shareholder Employee 8
1.77 Simplified Employee Pension Plan 8
1.78 Sponsor 8
1.79 Spouse (Surviving Spouse) 8
1.80 Super Top-Heavy Plan 8
1.81 Taxable Wage Base 8
1.82 Top-Heavy Determination Date 8
1.83 Top-Heavy Plan 8
1.84 Top-Heavy Ratio 8
1.85 Top-Paid Group 9
1.86 Transfer Contribution 9
1.87 Trustee 9
1.88 Valuation Date 9
1.89 Vested Account Balance 9
1.90 Voluntary Contribution 9
1.91 Welfare Benefit Fund 9
1.92 Year Of Service 9
Article II
Eligibility Requirements
2.1 Participation 9
2.2 Change in Classification Of Employment 9
2.3 Computation Period 9
2.4 Employment Rights 9
2.5 Service With Controlled Groups 9
2.6 Owner-Employees 9
2.7 Leased Employees 9
2.8 Thrift Plans 10
Article III
Employer Contributions
3.1 Amount 10
3.2 Expenses and Fees 10
3.3 Responsibility For Contributions 10
3.4 Return Of Contributions 10
Article IV
Employee Contributions
4.1 Voluntary Contributions 10
4.2 Qualified Voluntary Contributions 10
4.3 Rollover Contribution 10
4.4 Transfer Contribution 10
4.5 Employer Approval Of Transfer
Contributions 10
4.6 Elective Deferrals 10
4.7 Required Voluntary Contributions 11
4.8 Direct Rollover Of Benefits 11
Article V
Participant Accounts
5.1 Separate Accounts 11
5.2 Adjustments To Participant Accounts 11
5.3 Allocating Employer Contributions 11
5.4 Allocating Investment Earnings
And Losses 11
5.5 Participant Statements 11
Article VI
Retirement Benefits and Distributions
6.1 Normal Retirement Benefits 11
6.2 Early Retirement Benefits 12
6.3 Benefits On Termination Of Employment 12
6.4 Restrictions On Immediate Distributions 12
6.5 Normal Form Of Payment 12
6.6 Commencement Of Benefits 12
6.7 Claims Procedures 12
6.8 In-Service Withdrawals 13
6.9 Hardship Withdrawal 13
Article VII
Distribution Requirements
7.1 Joint And Survivor Annuity Requirements 14
7.2 Minimum Distribution Requirements 14
7.3 Limits On Distribution Periods 14
7.4 Required Distributions On Or After The
Required Beginning Date 14
7.5 Required Beginning Date 14
7.6 Transitional Rule 14
7.7 Designation Of Beneficiary For Death Benefit 15
7.8 Nonexistence Of Beneficiary 15
7.9 Distribution Beginning Before Death 15
7.10 Distribution Beginning After Death 15
7.11 Distribution Of Excess Elective Deferrals 15
7.12 Distributions Of Excess Contributions 15
7.13 Distribution Of Excess Aggregate Contributions 15
Article VIII
Joint and Survivor Annuity Requirements
8.1 Applicability Of Provisions 16
8.2 Payment Of Qualified Joint And Survivor
Annuity 16
8.3 Payment Of Qualified Pre-Retirement Survivor
Annuity 16
8.4 Qualified Election 16
8.5 Notice Requirements For Qualified Joint
Joint and Survivor Annuity 16
8.6 Notice Requirements For Qualified Pre-
Retirement Survivor Annuity 16
8.7 Special Safe-Harbor Exception For
Certain Profit-Sharing Plans 16
8.8 Transitional Joint And Survivor Annuity
Rules 16
8.9 Automatic Joint And Survivor Annuity And
Early Survivor Annuity 17
8.10 Annuity Contracts 17
Article IX
Vesting
9.1 Employee Contributions 17
9.2 Employer Contributions 17
9.3 Computation Period 17
9.4 Requalification Prior To Five Consecutive
One-Year Breaks In Service 17
9.5 Requalification After Five Consecutive One-
Year Breaks In Service 17
9.6 Calculating Vested Interest 17
9.7 Forfeitures 17
9.8 Amendment Of Vesting Schedule 17
9.9 Service With Controlled Groups 17
Article X
Limitations On Allocations and Antidiscrimination Testing
10.1 Participation In This Plan Only 17
10.2 Disposition Of Excess Annual Additions 18
10.3 Participation In This Plan And Another
Qualified Master And Prototype Defined
Contribution Plan, Welfare Benefit Fund,
Individual Medical Account Or Simplified
Employee Pension Plan Maintained By The
Employer 18
10.4 Disposition Of Excess Annual Additions
Under Two Plans 18
10.5 Participation In This Plan And Another
Defined Contribution Plan Which Is Not A
Master Or Prototype Plan 18
10.6 Participation In This Plan And A Defined
Benefit Plan 18
10.7 Average Deferral Percentage (ADP) Test 18
10.8 Special Rules Relating To Application
Of ADP Test 18
10.9 Average Contribution Percentage (ACP) Test 19
10.10 Special Rules Relating To Application
Of ACP Test 19
Article XI
Administration
11.1 Plan Administrator 19
11.2 Trustee 20
11.3 Recordkeeper 20
11.4 Administrative Fees and Expenses 20
11.5 Division Of Duties And Indemnification 20
Article XII
Trust Fund
12.1 The Fund 20
12.2 Control Of Plan Assets 20
12.3 Exclusive Benefit Rules 20
12.4 Assignment And Alienation Of Benefits 20
12.5 Determination Of Qualified Domestic
Relations Order (QDRO) 20
Article XIII
Investments
13.1 Fiduciary Standards 21
13.2 Funding Arrangement 21
13.3 Investment Alternatives Of The Trustee 21
13.4 Participant Loans 21
13.5 Employer Investment Direction 22
13.6 Employee Investment Direction 22
13.7 Appointment Of Additional Trustee And
Allocation Of Responsibilities Thereto 22
Article XIV
Top-Heavy Provisions
14.1 Applicability Of Rules 22
14.2 Minimum Contribution 22
14.3 Minimum Vesting 23
14.4 Limitations On Allocations 23
Article XV
Amendment And Termination
15.1 Amendment By Sponsor 23
15.2 Amendment By Employer 23
15.3 Termination 23
15.4 Qualification Of Employer's Plan 23
15.5 Mergers And Consolidations 23
15.6 Resignation And Removal 23
15.7 Qualification Of Prototype 23
Article XVI
Elapsed Time Rules And Definitions
16.1 Application 23
16.2 Hour Of Service 23
16.3 Service Or Period Of Service 23
16.4 Year Of Service 23
16.5 Period Of Severance 23
16.6 Break in Service 23
16.7 Parental Leave 23
16.8 Computation Period 24
16.9 Allocating Employer Contributions 24
Article XVII
Governing Law 24
</TABLE>
PROTOTYPE CASH OR DEFERRED PROFIT-SHARING PLAN AND TRUST
SPONSORED BY
AMERICAN FUNDS DISTRIBUTORS, INC.
The Sponsor hereby establishes the following Prototype Plan and
Trust for use by those of its customers who qualify and wish to
adopt a qualified retirement program. Any Plan and Trust
established hereunder shall be administered for the exclusive
benefit of Participants and their beneficiaries under the
following terms and conditions:
ARTICLE I
DEFINITIONS
1.1 Actual Deferral Percentage The ratio (expressed as a percentage
and calculated separately for each Participant) of:
(a) the amount of Employer contributions [as defined at (c) and (d)]
actually paid over to the Fund on behalf of such Participant for the
Plan Year to
(b) the Participant's Compensation for such Plan Year. Unless
otherwise specified in the Adoption Agreement, Compensation will
only include amounts for the period during which the Employee was
eligible to participate.
Employer contributions on behalf of any Participant shall include:
(c) any Elective Deferrals made pursuant to the Participant's
deferral election, including Excess Elective Deferrals, but
excluding Elective Deferrals that are either taken into account in
the Contribution Percentage test (provided the ADP test is satisfied
both with and without exclusion of these Elective Deferrals) or are
returned as excess Annual Additions, and
(d) at the election of the Employer, Qualified Non-Elective
Contributions and Qualified Matching Contributions.
For purposes of computing Actual Deferral Percentages, an Employee
who would be a Participant but for the failure to make Elective
Deferrals shall be treated as a Participant on whose behalf no
Elective Deferrals are made.
1.2 Adoption Agreement The document included with this Plan by
which an Employer elects to establish a qualified retirement plan
and trust under the terms of this Prototype Plan and Trust.
1.3 Aggregate Limit The sum of:
(a) 125 percent of the greater of the ADP of the non-Highly
Compensated Employees for the Plan Year or the ACP of non-Highly
Compensated Employees under the Plan subject to Code Section 401(m)
for the Plan Year beginning with or within the Plan Year of the cash
or deferred arrangement as described in Code Section 401(k) or Code
Section 402(h)(1)(B), and
(b) the lesser of 200% or two percent plus the lesser of such ADP or
ACP.
Alternatively, the aggregate limit can be determined by substituting
"the lesser of 200% or two percent plus" for "125% of in (a) above,
and substituting "125% of" for "the lesser of 200% or two percent
plus" in (b) above.
1.4 Allocation Date(s) The date or dates on which Participant's
accounts are adjusted in accordance with Article V.
1.5 Annual Additions The sum of the following amounts credited to
a Participant's account for the Limitation Year:
(a) Employer contributions,
(b) Employee contributions (under Article IV),
(c) forfeitures,
(d) allocations under a Simplified Employee Pension Plan,
(e) amounts allocated after March 31, 1984 to an individual medical
account as defined in Code Section 415(1)(2), which is part of a
pension or annuity plan maintained by the Employer (these amounts
are treated as Annual Additions to a Defined Contribution Plan
though they arise under a Defined Benefit Plan), and
(f) amounts derived from contributions paid or accrued after 1985,
in taxable years ending after 1985, which are either attributable to
post-retirement medical benefits allocated to the account of a Key
Employee or to a Welfare Benefit Fund maintained by the Employer,
are also treated as Annual Additions to a Defined Contribution Plan.
For purposes of this paragraph, an Employee is a Key Employee if he
or she meets the requirements of paragraph 1.44 at any time during
the Plan Year or any preceding Plan Year. Welfare Benefit Fund is
defined at paragraph 1.91.
Excess amounts applied in a Limitation Year to reduce Employer
contributions will be considered Annual Additions for such
Limitation Year, pursuant to the provisions of Article X.
1.6 Annuity Starting Date The first day of the first period for
which an amount is paid as an annuity or in any other form.
1.7 Applicable Calendar Year The First Distribution Calendar year,
and in the event of the recalculation of life expectancy, such
succeeding calendar year. If payments commence in accordance with
paragraph 7.4(e) before the Required Beginning Date, the Applicable
Calendar Year is the year such payments commence. If distribution
is in the form of an immediate annuity purchased after the
Participant's death with the Participant's remaining interest, the
Applicable Calendar Year is the year or purchase.
1.8 Applicable Life Expectancy Used in determining the required
minimum distribution. The life expectancy (or joint and last
survivor expectancy) calculated using the attained age of the
Participant (or Designated Beneficiary) as of the Participant's (or
Designated Beneficiary's) birthday in the Applicable Calendar Year,
reduced by one for each calendar year which has elapsed since the
date life expectancy was first calculated. If life expectancy is
being recalculated, the Applicable Life Expectancy shall be the life
expectancy as so recalculated. The life expectancy of a non-Spouse
Beneficiary may not be recalculated.
1.9 Average Contribution Percentage (ACP) The average of the
Contribution Percentages for each Highly Compensated Employee and
for each non-Highly Compensated Employee.
1.10 Average Deferral Percentage (ADP) The average of the Actual
Deferral Percentages for each Highly Compensated Employee and for
each non-Highly Compensated Employee.
1.11 Break In Service A 12-consecutive-month period during which an
Employee fails to complete more than 500 Hours of Service.
1.12 Code The Internal Revenue Code of 1986, including any
amendments.
1.13 Compensation The Employer may select one of the following two
safe-harbor definitions of Compensation in the Adoption Agreement.
Unless otherwise specified in the Adoption Agreement, Compensation
shall only include amounts earned while a Participant if Plan Year
is chosen as the determination period.
(a) Code Section 3401(a) Wages. Compensation is defined as wages
within the meaning of Code Section 3401(a) for the purposes of
Federal income tax withholding at the source but determined without
regard to any rules that limit the remuneration included in wages
based on the nature or location of the employment or the services
performed [such as the exception for agricultural labor in Code
Section 3401(a)(2)].
(b) Code Section 415 Compensation. Compensation is defined as Code
Section 415 Compensation which is: a Participant's Earned Income,
wages, salaries, and fees for professional services and other
amounts received (without regard to whether or not an amount is paid
in cash) for personal services actually rendered in the course of
employment with the Employer maintaining the Plan to the extent that
the amounts are includible in gross income [including, but not
limited to, commissions paid salesmen, Compensation for services on
the basis of a percentage of profits, commissions on insurance
premiums, tips, bonuses, fringe benefits and reimbursements or other
expense allowances under a nonaccountable plan (as described in
Regulation 1.62-2(c)], and excluding the following:
1. Employer contributions to a plan of deferred compensation which
are not includible in the Employee's gross income for the taxable
year in which contributed, or Employer contributions under a
Simplified Employee Pension Plan or any distributions from a plan of
deferred compensation,
2. amounts realized from the exercise of non-qualified stock option,
or when restricted stock (or property) held by the Employee either
becomes freely transferable or is no longer subject to a substantial
risk of forfeiture,
3. amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option, and
4. other amounts which received special tax benefits, or
contributions made by the Employer (whether or not under a salary
reduction agreement) towards the purchase of an annuity contract
described in Code Section 403(b) (whether or not the contributions
are actually excludible from the gross income of the Employee).
For purposes of applying the limitations of Article X and Top-Heavy
Minimums, the definition of Compensation shall be Code Section 415
Compensation described in this paragraph 1.13(b). Also, for
purposes of applying the limitations of Article X, Compensation for
a Limitation Year is the Compensation actually paid or made
available during such Limitation Year. Notwithstanding the
preceding sentence, Compensation for a Participant in a defined
contribution plan who is permanently and totally disabled [as
defined in Code Section 22(e)(3)] is the Compensation such
Participant would have received for the Limitation Year if the
Participant had been paid at the rate of Compensation paid
immediately before becoming permanently and totally disabled. Such
imputed Compensation for the disabled Participant may be taken into
account only if the participant is not a Highly Compensated Employee
[as defined in Code Section 414(q)] and contributions made on behalf
of such Participant are nonforfeitable when made.
If the Employer fails to pick the determination period in
Nonstandardized Adoption Agreement #002, the Plan Year shall be
used. Unless otherwise specified by the Employer in the Adoption
Agreement, Compensation shall be determined as provided in Code
Section 3401(a) [as defined in this paragraph 1.13(a)]. In
Nonstandardized Adoption Agreement #002, the Employer may choose to
eliminate or exclude categories of Compensation which do not violate
the provisions of Code Sections 401(a)(4), 414(s) the regulations
thereunder and Revenue Procedure 89-65.
Beginning with 1989 Plan Years, the annual Compensation of each
Participant which may be taken into account for determining all
benefits provided under the Plan (including benefits under Article
XIV) for any year shall not exceed the limitation as imposed by Code
Section 401(a)(17) and as adjusted under Code Section 415(d). In
determining the Compensation of a Participant for purposes of this
limitation, the rules of Code Section 414(q)(6) shall apply, except
in applying such rules, the term "family" shall include only the
Spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the end of the Plan
Year. If, as a result of the application of such rules the adjusted
annual Compensation limitation, as imposed by Code Section
401(a)(17), is exceeded, then (except for purposes of determining
the portion of Compensation up to the integration level if this Plan
provides for permitted disparity), the limitation shall be prorated
among the affected individuals in proportion to each such
individual's Compensation as determined under this section prior to
the application of this limitation.
If a Plan has a Plan Year that contains fewer than 12 calendar
months, then the annual Compensation limit for that period is an
amount equal to the limitation as imposed by Code Section 401(a)(17)
as adjusted for the calendar year in which the Compensation period
beings, multiplied by a fraction, the numerator of which is the
number of full months in the short Plan Year and the denominator of
which is 12. If Compensation for any prior Plan Year is taken into
account in determining an Employee's contributions or benefits for
the current year, the Compensation for such prior year is subject
to the applicable annual Compensation limit in effect for that prior
year. For this purpose, for years beginning before January 1, 1990,
the applicable annual Compensation limit is $200,000. For Plan
Years beginning on or after January 1, 1994, the annual Compensation
of each Participant taken into account for determining all benefits
provided under the Plan for any Plan Year shall not exceed $150,000,
as adjusted for increases in the cost-of-living in accordance with
Code Section 401(a)(17). The cost-of-living adjustment in effect
for a calendar year applies to any determination period beginning in
such calendar year.
Compensation shall not include deferred Compensation other than
contributions through a salary reduction agreement to a cash or
deferred plan under Code Section 401(k), a Simplified Employee
Pension Plan under Code Section 402(h)(1)(B), a cafeteria plan under
Code Section 125 or a tax-deferred annuity under Code Section
403(b). Unless elected otherwise by the Employer in the Adoption
Agreement, these deferred amounts will be considered as Compensation
for Plan purposes. These deferred amounts are not counted as
Compensation for purposes of Articles X and XIV. When applicable to
a Self-Employed Individual, Compensation shall mean Earned Income.
1.14 Contribution Percentage The ratio (expressed as a percentage
and calculated separately for each Participant) of:
(a) the Participant's Contribution Percentage Amounts [as defined at
(c)-(f)] for the Plan Year, to
(b) the Participant's Compensation for the Plan Year. Unless
otherwise specified in the Adoption Agreement, Compensation will
only include amounts for the period during which the Employee was
eligible to participate.
Contribution Percentage Amounts on behalf of any Participant shall
include:
(c) the amount of Employee Voluntary Contributions, Matching
Contributions, and Qualified Matching Contributions (to the extent
not taken into account for purposes of the ADP test) made under the
Plan on behalf of the Participant for the Plan Year,
(d) forfeitures of Excess Aggregate Contributions or Matching
Contributions allocated to the Participant's account which shall be
taken into account in the year in which such forfeiture is
allocated.
(e) at the election of the Employer, Qualified Non-Elective
Contributions, and
(f) the Employer also may elect to use Elective Deferrals in the
Contribution Percentage Amounts so long as the ADP test is met
before the Elective Deferrals are used in the ACP test and continues
to be met following the exclusion of those Elective Deferrals that
are used to meet the ACP test.
Contribution Percentage Amounts shall not include Matching
Contributions, whether or not Qualified, that are forfeited either
to correct Excess Aggregate Contributions, or because the
contributions to which they relate are Excess Deferrals, Excess
Contributions, or Excess Aggregate Contributions.
1.15 Custodian The Trustee shall serve as Custodian.
1.16 Defined Benefit Plan A plan under which a Participant's
benefit is determined by a formula contained in the plan and no
individual accounts are maintained for Participants.
1.17 Defined Benefit (Plan) Fraction A fraction, the numerator of
which is the sum of the Participant's Projected Annual Benefits
under all the Defined Benefit Plans (whether or not terminated)
maintained by the Employer, and the denominator of which is the
lesser of 125 percent of the dollar limitation determined for the
Limitation Year under Code Sections 415(b) and (d) or 140 percent of
the Highest Average Compensation, including any adjustments under
Code Section 415(b).
Notwithstanding the above, if the Participant was a Participant as
of the first day of the first Limitation Year beginning after 1986,
in one or more Defined Benefit Plans maintained by the Employer
which were in existence on May 6, 1986, the denominator of this
fraction will not be less than 125 percent of the sum of the annual
benefits under such plans which the Participant had accrued as of
the close of the last Limitation Year beginning before 1987,
disregarding any changes in the terms and conditions of the plan
after May 5, 1986. The preceding sentence applies only if the
Defined Benefit Plans individually and in the aggregate satisfied
the requirements of Section 415 for all Limitation Years beginning
before 1987.
1.18 Defined Contribution Dollar Limitation Thirty thousand dollars
($30,000) or if greater, one-fourth of the defined benefit dollar
limitation set forth in Code Section 415(b)(1) as in effect for the
Limitation Year.
1.19 Defined Contribution Plan A plan under which individual
accounts are maintained for each Participant to which all
contributions, forfeitures, investment income and gains or losses,
and expenses are credited or deducted. A Participant's benefit
under such plan is based solely on the fair market value of his or
her account balance.
1.20 Defined Contribution (Plan) Fraction A fraction, the numerator
of which is the sum of the Annual Additions to the Participant's
account under all the Defined Contribution Plans (whether or not
terminated) maintained by the Employer for the current and all prior
Limitation Years (including the Annual Additions attributable to the
Participant's nondeductible Employee contributions to all Defined
Benefit Plans, whether or not terminated, maintained by the
Employer, and the Annual Additions attributable to all Welfare
Benefit Funds as defined in paragraph 1.91, individual medical
accounts as defined in Code Section 415(1)(2) and Simplified
Employee Pension Plans as defined in paragraph 1.77, maintained by
the Employer), and the denominator of which is the sum of the
maximum aggregate amounts for the current and all prior Limitation
Years of service with the Employer (regardless of whether a Defined
Contribution Plan was maintained by the Employer). The maximum
aggregate amount in the Limitation Year is the lesser of 125 percent
of the dollar limitation determined under Code Sections 415(b) and
(d) in effect under Code Section 415(c)(1)(A) or 35 percent of the
Participant's Compensation for such year.
If the Employee was a Participant as of the end of the first day of
the first Limitation Year beginning after 1986, in one or more
Defined Contribution Plans maintained by the Employer which were in
existence on May 6, 1986, the numerator of this fraction will be
adjusted if the sum of this fraction and the Defined Benefit
Fraction would otherwise exceed 1.0 under the terms of this Plan.
Under the adjustment, an amount equal to the product of the excess
of the sum of the fractions over 1.0 multiplied by the denominator
of this fraction, will permanently subtracted from the numerator of
this fraction. The adjustment is calculated using the fractions as
they would be computed as of the end of the last Limitation Year
beginning before 1987, and disregarding any changes in the terms and
conditions of the Plan made after May 6, 1986, but using the Section
415 limitation applicable to the first Limitation Year beginning on
or after January 1, 1987. The Annual Addition for any Limitation
Year beginning before 1987, shall not be re-computed to treat all
Employee Contributions as Annual Additions.
1.21 Designated Beneficiary The individual who is designated as the
beneficiary of a Participant's account under the Plan in accordance
with Code Section 401(a)(9) and the regulations thereunder.
1.22 Disability An illness or injury of a potentially permanent
nature, expected to last for a continuous period of not less than 12
months, certified by a physician selected by or satisfactory to the
Employer, which prevents the Employee from engaging in any
occupation for wage or profit for which the Employee is reasonably
fitted by training, education or experience.
1.23 Distribution Calendar Year A calendar year for which a minimum
distribution is required.
1.24 Early Retirement Age The age set by the Employer in the
Adoption Agreement (but not less than 55), which is the earliest age
at which a Participant may retire and receive his or her benefits
under the Plan.
1.25 Earned Income Net earnings from self-employment in the trade
or business with respect to which the Plan is established,
determined without regard to items not included in gross income and
the deductions allocable to such items, provided that personal
services of the individual are a material income-producing factor.
Earned Income shall be reduced by contributions made by an employer
to a qualified plan to the extent deductible under Code Section 404.
For tax years beginning after 1989, net earnings shall be determined
taking into account the deduction for one-half of self-employment
taxes allowed to the Employer under Code Section 164(f), to the
extent deductible.
1.26 Effective Date The date on which the Employer's Plan or
amendment to such Plan becomes effective. For amendments reflecting
statutory and regulatory changes post Tax Reform Act of 1986, the
Effective Date will be the earlier of the date upon which such
amendment is first administratively applied or the first day of the
Plan Year following the date of adoption of such amendment.
1.27 Election Period The period which begins on the first day of
the Plan Year in which the Participant attains age 35 and ends on
the date of the Participant's death. If a Participant separates
from service prior to the first day of the Plan Year in which age 35
is attained, the Election Period shall begin on the date of
separation, with respect to the account balance as of the date of
separation.
1.28 Elective Deferral Employer contributions made to the Plan at
the election of the Participant, in lieu of cash Compensation.
Elective Deferrals shall also include contributions made pursuant to
a Salary Savings Agreement or other deferral mechanism, such as a
cash option contribution. With respect to any taxable year, a
Participant's Elective Deferral is the sum of all Employer
contributions made on behalf of such Participant pursuant to an
election to defer under any qualified cash or deferred arrangement
as described in Code Section 401(k), any simplified employee pension
cash or deferred arrangement as described in Code Section
402(h)(1)(B), an eligible deferred compensation plan under Code
Section 457, any plan as described under Code Section 501(c)(18),
and any Employer contributions made on the behalf of a Participant
for the purchase of an annuity contract under Code Section 403(b)
pursuant to a Salary Savings Agreement. Elective Deferrals shall
not include any deferrals properly distributed as excess Annual
Additions.
1.29 Eligible Participant Any Employee who is eligible to make a
Voluntary Contribution or an Elective Deferral (if the Employer
takes such contributions into account in the calculation of the
Contribution Percentage), or to receive a Matching Contribution
(including forfeitures) or a Qualified Matching Contribution. If a
Voluntary Contribution or Elective Deferral is required as a
condition of participation in the Plan, any Employee who would be a
Participant in the Plan if such Employee made such a contribution
shall be treated as an Eligible Participant even though no Voluntary
Contributions or Elective Deferrals are made.
1.30 Employee Any person employed by the Employer (including Self-
Employed Individuals and partners), all Employees of a member of an
affiliated service group [as defined in Code Section 414(m)], all
Employees of a controlled group of corporations [as defined in Code
Section 414(b)], all Employees of any incorporated or unincorporated
trade of business which is under common control [as defined in Code
Section 414(c)], leased Employees [as defined in Code Section
414(n)] and any Employee required to be aggregated by Code Section
414(o). All such Employees shall be treated as employed by a single
Employer.
1.31 Employer The Self-Employed Individual, partnership, corporation
or other organization which adopts this Plan including any firm that
succeeds the Employer and adopts this Plan. For purposes of Article
X, Limitations on Allocations, Employer shall mean the Employer that
adopts this Plan, and all members of a controlled group of
corporations [as defined in Code Section 414(b) as modified by Code
Section 415(h)], all commonly controlled trades or businesses [as
defined in Code Section 414(c) as modified by Code Section 415(h)]
or affiliated service groups [as defined in Code Section 414(m)] of
which the adopting Employer is a part, and any other entity required
to be aggregated with the Employer pursuant to regulations under
Code Section 414(o).
1.32 Entry Date The date on which an Employee commences
participation in the Plan as determined by the Employer in the
Adoption Agreement.
1.33 Excess Aggregate Contributions The excess, with respect to any
Plan Year, of:
(a) the aggregate Contribution Percentage Amounts taken into account
in computing the numerator of the Contribution Percentage actually
made on behalf of Highly Compensated Employees for such Plan Year,
over
(b) the maximum Contribution Percentage Amounts permitted by the ACP
test (determined by reducing contributions made on behalf of Highly
Compensated Employees in order of their Contribution Percentages
beginning with the highest of such percentages).
Such determination shall be made after first determining Excess
Elective Deferrals pursuant to paragraph 1.36 and then determining
Excess Contributions pursuant to paragraph 1.35.
1.34 Excess Amount The excess of the Participant's Annual Additions
for the Limitation Year over the Maximum Permissible Amount.
1.35 Excess Contribution With respect to any Plan Year, the excess
of:
(a) the aggregate amount of Employer contributions actually taken
into account in computing the ADP of Highly Compensated Employees
for such Plan Year, over
(b) the maximum amount of such contributions permitted by the ADP
test (determined by reducing contributions made on behalf of Highly
Compensated Employees in order of the ADPs, beginning with the
highest of such percentages).
1.36 Excess Elective Deferrals Those Elective Deferrals that are
includible in a Participant's gross income under Code Section 402(g)
to the extent such Participant's Elective Deferrals for a taxable
year exceed the dollar limitation under such Code Section. Excess
Elective Deferrals shall be treated as Annual Additions under the
Plan, unless such amounts are distributed no later than the first
April 15th following the close of the Participant's taxable year.
1.37 Family Member The Employee's Spouse, any lineal descendants
and ascendants and the Spouse of such lineal descendants and
ascendants. In the event of repeal of the family aggregation rules
under Code Section 414(q)(6), all applications of such rules under
this Plan will cease as of the effective date of such repeal.
1.38 First Distribution Calendar Year For distributions beginning
before the Participant's death, the First Distribution Calendar Year
is the calendar year immediately preceding the calendar year which
contains the Participant's Required Beginning Date. For
distributions beginning after the Participant's death, the First
Distribution Calendar Year is the calendar year in which
distributions are required to begin pursuant to paragraph 7.10.
1.39 Fund All contributions received by the Trustee under this plan
and Trust, investments thereof and earnings and appreciation
thereon.
1.40 Hardship An immediate and heavy financial need of the Employee
where such Employee lacks other available resources.
1.41 Highest Average Compensation The average Compensation for the
three consecutive Years of Service with the Employer that produces
the highest average. A Year of Service with the Employer is the 12-
consecutive-month period defined in the Adoption Agreement, or, if
not indicated in the Adoption Agreement, as defined in paragraph
1.92.
1.42 Highly Compensated Employee Any Employee who performs service
for the Employer during the determination year and who, during the
immediate prior year:
(a) received Compensation from the Employer in excess of $75,000 [as
adjusted pursuant to Code Section 415(d)], or
(b) received Compensation from the Employer in excess of $50,000 [as
adjusted pursuant to Code Section 415(d)] and was a member of the
Top-Paid Group for such year, or
(c) was an officer of the Employer and received Compensation during
such year that is greater than 50 percent of the dollar limitation
in effect under Code Section 415(b)(1)(A).
Notwithstanding (a), (b) and (c), an Employee who was not Highly
Compensated during the preceding Plan Year shall not be treated as
a Highly Compensated Employee with respect to the current Plan Year
unless such Employee is a member of the 100 Employees paid the
greatest Compensation during the year for which such determination
is being made.
(d) Employees who are five percent (5%) Owners at any time during
the immediate prior year or determination year.
Highly Compensated Employee includes Highly Compensated active
Employees and Highly Compensated former Employees. At the election
of the Employer, the calendar year, ending with or within the
current determination year, may be treated as the immediate prior
year. Such an election is made with respect to all plans of the
Employer.
1.43 Hour of Service
(a) Each hour for which an Employee is paid, or entitled to payment,
for the performance of duties for the Employer. These hours shall
be credited to the Employee for the computation period in which the
duties are performed, and
(b) each hour for which an Employee is paid, or entitled to payment,
by the Employer on account of a period of time during which no
duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness,
incapacity (including disability), layoff, jury duty, military duty
or leave of absence. No more than 501 Hours of Service shall be
credited under this paragraph for any single continuous period
(whether or not such period occurs in a single computation period).
Hours under this paragraph shall be calculated and credited pursuant
to Section 2530.200b-2 of the Department of Labor Regulations which
are incorporated herein by this reference, and
(c) each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same
Hours of Service shall not be credited both under paragraph (a) or
paragraph (b), as the case may be, and under this paragraph (c).
These hours shall be credited to the Employee for the computation
period or periods to which the award or agreement pertains rather
than the computation period in which the award, agreement or payment
is made.
(d) Hours of Service shall be credited for employment with the
Employer and with other members of an affiliated service group [as
defined in Code Section 414(m)], a controlled group of corporations
[as defined in Code Section 414(b)], or a group of trades or
businesses under common control [as defined in Code Section 414(c)]
of which the adopting Employer is a member, and any other entity
required to be aggregated with the Employer pursuant to Code Section
414(o) and the regulations thereunder. Hours of Service shall also
be credited for any individual considered an Employee for purposes
of this Plan under Code Section 414(n) or Code Section 414(o) and
the regulations thereunder.
(e) Solely for purposes of determining whether a Break in Service,
as defined in paragraph 1.11, for participation and vesting purposes
has occurred in a computation period, an individual who is absent
from work for maternity or paternity reasons shall receive credit
for the Hours of Service which would otherwise have been credited to
such individual but for such absence, or in any case in which such
hours cannot be determined, 8 Hours of Service per day of such
absence. For purposes of this paragraph, an absence from work for
maternity or paternity reasons means an absence by reason of the
pregnancy of the individual, by reason of a birth of a child of the
individual, by reason of the placement of a child with the
individual in connection with the adoption of such child by such
individual, or for purposes of caring for such child for a period
beginning immediately following such birth or placement. The Hours
of Service credited under this paragraph shall be credited in the
computation period in which the absence begins if the crediting is
necessary to prevent a Break in Service in that period, or in all
other cases, in the following computation period. No more than 501
hours will be credited under this paragraph.
(f) Hours of Service shall be determined on the basis of the method
indicated in the Adoption Agreement.
1.44 Key Employee Any Employee or former Employee (and the
beneficiaries of such Employee) who at any time during the
determination period was an officer of the Employer if such
individual's annual compensation exceeds 50% of the dollar
limitation under Code Section 415(b)(1)(A) (the defined benefit
maximum annual benefit), an owner (or considered an owner under Code
Section 318) of one of the ten largest interests in the employer if
such individual's compensation exceeds 100% of the dollar limitation
under Code Section 415(c)(1)(A), a five-percent owner of the
Employer, or a one-percent owner of the Employer who has an annual
compensation of more than $150,000. For purposes of determining who
is a Key Employee, annual compensation shall mean Compensation as
defined in paragraph 1.12(b), but including amounts deferred through
a salary reduction agreement to a cash or deferred plan under Code
Section 401(k), a Simplified Employee Pension Plan under Code
Section 408(k), a cafeteria plan under Code Section 125 or a tax-
deferred annuity under Code Section 403(b). The determination
period is the Plan Year containing the Determination Date and the
four preceding Plan Years. The determination of who is a Key
Employee will be made in accordance with Code Section 416(i)(1) and
the regulations thereunder.
1.45 Leased Employee Any person (other than an Employee of the
recipient) who, pursuant to an agreement between the recipient and
any other person ("leasing organization"), has performed services
for the recipient [or for the recipient and related persons
determined in accordance with Code Section 414(n)(6)] on a
substantially full-time basis for a period of at least one year, and
such services are of a type historically performed by Employees in
the business field of the recipient Employer.
1.46 Limitation Year The calendar year or such other 12-
consecutive-month period designated by the Employer in the Adoption
Agreement for purposes of determining the maximum Annual Addition to
a Participant's account. All qualified plans maintained by the
Employer must use the same Limitation Year. If the Limitation Year
is amended to a different 12-consecutive-month period, the new
Limitation Year must begin on a date within the Limitation Year in
which the amendment is made.
1.47 Master Or Prototype Plan A plan, the form of which is the
subject of a favorable opinion letter from the Internal Revenue
Service.
1.48 Matching Contribution An Employer contribution made to this or
any other defined contribution plan on behalf of a Participant on
account of an Employee Voluntary Contribution made by such
Participant, or on account of a Participant's Elective Deferral
under a plan maintained by the Employer.
1.49 Maximum Permissible Amount The maximum Annual Addition that
may be contributed or allocated to a Participant's account under the
Plan for any Limitation Year shall not exceed the lesser of:
(a) the Defined Contribution Dollar Limitation, or
(b) 25% of the Participant's Compensation for the Limitation Year.
The compensation limitation referred to in (b) shall not apply to
any contribution for medical benefits [within the meaning of Code
Section 401(h) or Code Section 419A(f)(2)] which is otherwise
treated as an Annual Addition under Code Section 415(l)(1) or
419(d)(2). If a short Limitation Year is created because of an
amendment changing the Limitation Year to a different 12-
consecutive-month period, the Maximum Permissible Amount will not
exceed the Defined Contribution Dollar Limitation multiplied by the
following fraction: number of months in the short Limitation Year
divided by 12.
1.50 Net Profit the current and accumulated operation earnings of
the Employer before Federal and State income taxes, excluding
nonrecurring or unusual items of income, and before contributions to
this and any other qualified plan of the Employer.
1.51 Normal Retirement Age The age, set by the Employer in the
Adoption Agreement, at which a Participant may retire and receive
his or her benefits under the Plan.
1.52 Owner-Employee A sole proprietor, or a partner owning more than
10% of either the capital or profits interest of the partnership.
1.53 Paired Plans Two or more plans maintained by the Sponsor
designed so that a single or any combination of plans adopted by an
Employer will meet the antidiscrimination rules, the contribution
and benefit limitations, and the Top-Heavy provisions of the Code.
1.54 Participant Any Employee who has met the eligibility
requirements and is participating in the Plan.
1.55 Participant's Benefit The account balance as of the last
Valuation Date in the calendar year immediately preceding the
Distribution Calendar Year (valuation calendar year) increased by
the amount of any contributions or forfeitures allocated to the
account balance as of the dates in the valuation calendar year after
the Valuation Date and decreased by distributions made in the
valuation calendar year after the Valuation Date. A special
exception exists for the second distribution Calendar Year. For
purposes of this paragraph, if any portion of the minimum
distribution for the First Distribution Calendar Year is made in the
second Distribution Calendar Year on or before the Required
Beginning Date, the amount of the minimum distribution made in the
second distribution calendar year shall be treated as if it had been
made in the immediately preceding Distribution Calendar Year.
1.56 Permissive Aggregation Group Used for Top-Heavy testing
purposes, it is the Required Aggregation Group of plans plus any
other plan or plans of the Employer which, when considered as a
group with the Required Aggregation Group, would continue to satisfy
the requirements of Code Sections 401(a)(4) and 410.
1.57 Plan The Employer's retirement plan as embodied herein and in
the Adoption Agreement.
1.58 Plan Administrator The Employer.
1.59 Plan Year The 12-consecutive-month period designated by the
Employer in the Adoption Agreement.
1.60 Present Value Used for Top-Heavy test and determination
purposes. When determining the Present Value of accrued benefits
with respect to any Defined Benefit Plan maintained by the Employer,
interest and mortality rates shall be determined in accordance with
the provisions of the respective plan. If applicable, interest and
mortality assumptions will be specified in the Adoption Agreement.
1.61 Projected Annual Benefit Used to test the maximum benefit
which may be obtained from a combination of retirement plans, it is
the annual retirement benefit (adjusted to an actuarial equivalent
straight life annuity if such benefit is expressed in a form other
than a straight life annuity or Qualified Joint and Survivor
Annuity) to which the Participant would be entitled under the terms
of a Defined Benefit Plan or plans, assuming:
(a) the Participant will continue employment until Normal Retirement
Age under the plan (or current age, if later), and
(b) the Participant's Compensation for the current Limitation Year
and all other relevant factors used to determine benefits under the
plan will remain constant for all future Limitation Years.
1.62 Qualified Deferred Compensation Plan Any pension, profit-
sharing, stock bonus, or other plan which meets the requirements of
Code Section 401 and includes a trust exempt from tax under Code
Section 501(a) or any annuity plan described in Code Section 403(a).
An Eligible Retirement Plan is an individual retirement account
(IRA) as described in section 408(a) of the Code, an individual
retirement annuity (IRA) as described in section 408(b) of the Code,
an annuity plan as described in section 403(a) of the Code, or a
qualified trust as described in section 401(a) of the Code, which
accepts Eligible Rollover Distributions. However in the case of an
Eligible Rollover Distribution to a surviving Spouse, an Eligible
Retirement Plan is an individual retirement account or individual
retirement annuity.
1.63 Qualified Domestic Relations Order A Qualified Domestic
Relations Order (QDRO) is a signed domestic relations order issued
by a State Court which creates, recognizes or assigns to an
alternate payee(s) the right to receive all or part of a
Participant's Plan benefit and which meets the requirements of Code
Section 414(p). An alternate payee is a Spouse, former Spouse,
child, or other dependent who is treated as a beneficiary under the
Plan as a result of the QDRO.
1.64 Qualified Early Retirement Age For purposes of paragraph 8.9,
Qualified Early Retirement Age is the latest of:
(a) the earliest date under the Plan on which the Participant may
elect to receive retirement benefits, or
(b) the first day of the 120th month beginning before the
Participant reaches Normal Retirement Age, or
(c) the date the Participant begins participation.
1.65 Qualified Joint And Survivor Annuity An immediate annuity for
the life of the Participant with a survivor annuity for the life of
the Participant's Spouse which is at least one-half of but not more
than the amount of the annuity payable during the joint lives of the
Participant and the Participant's Spouse. The exact amount of the
Survivor Annuity is to be specified by the Employer in the Adoption
Agreement. If not designated by the Employer, the Survivor Annuity
will be one-half of the amount paid to the Participant during his or
her lifetime. The Qualified Joint and Survivor Annuity will be the
amount of benefit which can be provided by the Participant's Vested
Account Balance.
1.66 Qualified Matching Contribution Matching Contributions which,
when made are subject to the distribution and nonforfeitability
requirements under Code Section 401(k).
1.67 Qualified Non-Elective Contributions Contributions (other than
Matching Contributions or Qualified Matching Contributions) made by
the Employer and allocated to Participants' accounts that the
Participants may not elect to receive in cash until distributed from
the Plan, that are nonforfeitable when made, and that are
distributable only in accordance with the distribution provisions
that are applicable to Elective Deferrals and Qualified Matching
Contributions.
1.68 Qualified Voluntary Contribution A tax-deductible voluntary
Employee contribution. These contributions may no longer be made to
the Plan.
1.69 Recordkeeper The person or entity retained by the Plan
Administrator on behalf of the Plan to provide specified
administrative services to the Plan.
1.70 Required Aggregation Group Used for Top-Heavy testing purposes,
it consists of:
(a) each qualified plan of the Employer in which at least one Key
Employee participates or participated at any time during the
determination period (regardless of whether the plan has
terminated), and
(b) any other qualified plan of the Employer which enables a plan
described in (a) to meet the requirements of Code Sections 401(a)(4)
or 410.
1.71 Required Beginning Date The date on which a Participant is
required to take his or her first minimum distribution under the
Plan. The rules are set forth at paragraph 7.5.
1.72 Rollover Contribution A contribution made by a Participant of
an amount distributed to such Participant from another Qualified
Deferred Compensation Plan in accordance with Code Sections
402(a)(5), (6), and (7).
An Eligible Rollover Distribution is any distribution of all or any
portion of the balance to the credit of the Participant except that
an Eligible Rollover Distribution does not include:
(a) any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the
life (or life expectancy) of the Participant or the joint lives (or
joint life expectancies) of the Participant and the Participant's
Designated Beneficiary, or for a specified period of ten years or
more,
(b) any distribution to the extent such distribution is required
under section 401(a)(9) of the Code, and
(c) the portion of any distribution that is not includible in gross
income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
A Direct Rollover is a payment by the plan to the Eligible
Retirement Plan specified by the Participant.
1.73 Salary Savings Agreement An agreement between the Employer and
a participating Employee where the Employee authorizes the Employer
to withhold a specified percentage of his or her Compensation for
deposit to the Plan on behalf of such Employee.
1.74 Self-Employed Individual An individual who has Earned Income
for the taxable year from the trade or business for which the Plan
is established including an individual who would have had Earned
Income but for the fact that the trade or business had no Net Profit
for the taxable year.
1.75 Service The period of current or prior employment with the
Employer. If the Employer maintains a plan of a predecessor
employer, Service for such predecessor shall be treated as Service
for the Employer.
1.76 Shareholder Employee An Employee or officer who owns [or is
considered as owning within the meaning of Code Section 318(a)(1)],
on any day during the taxable year of an electing small business
corporation (S Corporation), more than five-percent of such
corporation's outstanding stock.
1.77 Simplified Employee Pension Plan An individual retirement
account which meets the requirements of Code Section 408(k), and to
which the Employer makes contributions pursuant to a written
formula. These plans are considered for contribution limitation and
Top-Heavy testing purposes.
1.78 Sponsor AMERICAN FUNDS DISTRIBUTORS, INC. or any successor(s)
or assign(s).
1.79 Spouse (Surviving Spouse) The Spouse or Surviving Spouse of the
Participant, provided that a former Spouse will be treated as the
Spouse or Surviving Spouse and a current Spouse will not be treated
as the Spouse or Surviving Spouse to the extent provided under a
Qualified Domestic Relations Order as described in Code Section
414(p).
1.80 Super Top-Heavy Plan A Plan described at paragraph 1.83 under
which the Top-Heavy Ratio [as defined at paragraph 1.84] exceeds
90%.
1.81 Taxable Wage Base For plans with an allocation formula which
takes into account the Employer's contribution under the Federal
Insurance Contributions Act (FICA), the contribution and benefit
base in effect under the Social Security Act [Code Section 203] at
the beginning of the Plan Year, or the amount elected by the
Employer in the Adoption Agreement.
1.82 Top-Heavy Determination Date For any Plan Year subsequent to
the first Plan Year, the last day of the preceding Plan Year. For
the first Plan Year of the Plan, the last day of that year.
1.83 Top-Heavy Plan For any Plan Year beginning after 1983, the
Employer's Plan is top-heavy if any of the following conditions
exist:
(a) if the Top-Heavy Ratio for the Employer's Plan exceeds 60% and
this Plan is not part of any required Aggregation Group or
Permissive Aggregation Group of Plans.
(b) if the Employer's plan is a part of a Required Aggregation Group
of plans but not part of a Permissive Aggregation Group and the
Top-Heavy Ratio for the group of plans exceeds 60%.
(c) if the Employer's plan is a part of a Required Aggregation Group
and part of a Permissive Aggregation Group of plans and the
Top-Heavy Ratio for the Permissive Aggregation Group exceeds 60%.
1.84 Top-Heavy Ratio
(a) If the Employer maintains one or more Defined Contribution plans
(including any Simplified Employee Pension Plan) and the Employer
has not maintained any Defined Benefit Plan which during the
five-year period ending on the Determination Date(s) has or has had
accrued benefits, the Top-Heavy Ratio for this Plan alone, or for
the Required or Permissive Aggregation Group as appropriate, is a
fraction,
(1) the numerator of which is the sum of the account balances of all
Key Employees as of the Determination Date(s) [including any part of
any account balance distributed in the 5-year period ending on the
Determination Date(s)], and
(2) the denominator of which is the sum of all account balances
[including any part of any account balance distributed in the
five-year period ending on the Determination Date(s)], both computed
in accordance with Code Section 416 and the regulations thereunder.
Both the numerator and denominator of the Top-Heavy Ratio are
increased to reflect any contribution not actually made as of the
Determination Date but which is required to be taken into account on
that date under Code Section 416 and the regulations thereunder.
(b) If the Employer maintains one or more Defined Contribution Plans
(including any Simplified Employee Pension Plan) and the Employer
maintains or has maintained one or more Defined Benefit Plans which
during the five-year period ending on the Determination Date(s) has
or has had any accrued benefits, the Top-Heavy Ratio for any
Required or Permissive Aggregation Group, as appropriate, is a
fraction, the numerator of which is the sum of account balances
under the aggregated Defined Contribution Plan or Plans for all Key
Employees, determined in accordance with (a) above, and the Present
Value of accrued benefits under the aggregated Defined Benefit Plan
or Plans for all Key Employees as of the Determination Date(s), and
the denominator of which is the sum of the account balances under
the aggregated Defined Contribution Plan or Plans for all
Participants, determined in accordance with (a) above, and the
Present Value of accrued benefits under the Defined Benefit Plan or
Plans for all Participants as of the Determination Date(s), all
determined in accordance with Code Section 416 and the regulations
thereunder. The accrued benefits under a Defined Benefit Plan in
both the numerator and denominator of the Top-Heavy Ratio are
increased for any distribution of an accrued benefit made in the
five-year period ending on the Determination Date.
(c) For purposes of (a) and (b) above, the value of account balances
and the Present Value of accrued benefits will be determined as of
the most recent Valuation Date that falls within or ends with the
12-month period ending on the Determination Date, except as provided
in Code Section 416 and the regulations thereunder for the first and
second plan years of a Defined Benefit Plan. The account balances
and accrued benefits of a participant who is not a Key Employee but
who was a Key Employee in a prior year, or who has not been credited
with at least one hour of service with any Employer maintaining the
Plan at any time during the five-year period ending on the
Determination Date, will be disregarded. The calculation of the
Top-Heavy Ratio, and the extent to which distributions, rollovers,
and transfers are taken into account will be made in accordance with
Code Section 416 and the regulations thereunder. Qualified Voluntary
Employee Contributions will not be taken into account for purposes
of computing the Top-Heavy Ratio. When aggregating plans, the value
of account balances and accrued benefits will be calculated with
reference to the Determination Dates that fall within the same
calendar year. The accrued benefit of a Participant other than a Key
Employee shall be determined under the method, if any, that
uniformly applies for accrual purposes under all Defined Benefit
Plans maintained by the Employer, or if there is no such method, as
if such benefit accrued not more rapidly than the slowest accrual
rate permitted under the fractional rule of Code Section
411(b)(1)(C).
1.85 Top-Paid Group The group consisting of the top 20% of Employees
when ranked on the basis of Compensation paid during such year. For
purposes of determining the number of Employees in the group (but
not who is in it), the following Employees shall be excluded:
(a) Employees who have not completed 6 months of Service.
(b) Employees who normally work less than 17-1/2 hours per week.
(c) Employees who normally work during not more than 6 months during
any year.
(d) Employees who have not attained age 21.
(e) Employees included in a collective bargaining unit, covered by
an agreement between employee representatives and the Employer,
where retirement benefits were the subject of good faith bargaining
and provided that 90% or more of the Employer's Employees are
covered by the agreement.
(f) Employees who are nonresident aliens and who receive no earned
income which constitutes income from sources within the United
States.
1.86 Transfer Contribution A non-taxable transfer of a Participant's
benefit directly from a Qualified Deferred Compensation Plan to this
Plan.
1.87 Trustee CAPITAL GUARDIAN TRUST COMPANY shall serve as Trustee.
1.88 Valuation Date The last day of the Plan Year or such other date
as determined by the Employer on which Participant accounts are
revalued in accordance with Article V hereof. For Top-Heavy
purposes, the date selected by the Employer as of which the
Top-Heavy Ratio is calculated.
1.89 Vested Account Balance The aggregate value of the Participant's
Vested Account Balances derived from Employer and Employee
contributions (including Rollovers), whether vested before or upon
death, including the proceeds of insurance contracts, if any, on the
Participant's life. The provisions of Article VIII shall apply to a
Participant who is vested in amounts attributable to Employer
contributions, Employee contributions (or both) at the time of death
or distribution.
1.90 Voluntary Contribution An Employee contribution made to the
Plan by or on behalf of a Participant that is included in the
Participant's gross income in the year in which made and that is
maintained under a separate account to which earnings and losses are
allocated.
1.91 Welfare Benefit Fund Any fund that is part of a plan of the
Employer, or has the effect of a plan, through which the Employer
provides welfare benefits to Employees or their beneficiaries. For
these purposes, Welfare Benefit means any benefit other than those
with respect to which Code Section 83(h) (relating to transfers of
property in connection with the performance of services), Code
Section 404 (relating to deductions for contributions to an
Employees' trust or annuity and Compensation under a deferred
payment plan), Code Section 404A (relating to certain foreign
deferred compensation plans) apply. A "Fund" is any social club,
voluntary employee benefit association, supplemental unemployment
benefit trust or qualified group legal service organization
described in Code Section 501(c)(7), (9), (17) or (20); any trust,
corporation, or other organization not exempt from income tax, or to
the extent provided in regulations, any account held for an Employer
by any person.
1.92 Year Of Service Unless otherwise elected in Nonstandardized
Adoption Agreement #002, or unless Elapsed Time is elected in either
Adoption Agreement #001 or #002, a 12-consecutive-month period
during which an Employee is credited with not less than 1,000 Hours
of Service.
ARTICLE II
ELIGIBILITY REQUIREMENTS
2.1 Participation Employees who meet the eligibility requirements in
the Adoption Agreement on the Effective Date of the Plan shall
become Participants as of the Effective Date of the Plan. If so
elected in the Adoption Agreement, all Employees employed on the
Effective Date of the Plan may participate, even if they have not
satisfied the Plan's specified eligibility requirements. Other
Employees, upon meeting the eligibility requirements, shall become
Participants on the Entry Date selected in the Adoption Agreement.
The Employee must satisfy the eligibility requirements specified in
the Adoption Agreement and be employed on the Entry Date to become
a Participant in the Plan. In the event an Employee who is not a
member of the eligible class of Employees becomes a member of the
eligible class, such Employee shall participate immediately if such
Employee has satisfied the minimum age and service requirements and
would have previously become a Participant had he or she been in the
eligible class. A former Participant shall again become a
Participant upon returning to the employ of the Employer as of the
next Entry Date. For this purpose, Participant's Compensation and
Service shall be considered from date of rehire.
2.2 Change In Classification Of Employment In the event a
Participant becomes ineligible to participate because he or she is
no longer a member of an eligible class of Employees, such Employee
shall participate upon his or her return to an eligible class of
Employees.
2.3 Computation Period To determine Years of Service and Breaks in
Service for purposes of eligibility, the 12-consecutive-month period
shall commence on the date on which an Employee first performs an
Hour of Service for the Employer and each anniversary thereof, such
that the succeeding 12-consecutive-month period commences with the
Employee's first anniversary of employment and so on. If, however,
the period so specified is one year or less, the succeeding
12-consecutive-month period shall commence on the first day of the
Plan Year prior to the anniversary of the date he or she first
performed an Hour of Service regardless of whether the Employee is
entitled to be credited with 1,000 (or such lesser number as
specified by the Employer in the Adoption Agreement) Hours of
Service during his or her first employment year.
2.4 Employment Rights Participation in the Plan shall not confer
upon a Participant any employment rights, nor shall it interfere
with the Employer's right to terminate the employment of any
Employee at any time.
2.5 Service With Controlled Groups All Years of Service with other
members of a controlled group of corporations [as defined in Code
Section 414(b)], trades or businesses under common control [as
defined in Code Section 414(c)], or members of an affiliated service
group [as defined in Code Section 414(m)] shall be credited for
purposes of determining an Employee's eligibility to participate.
2.6 Owner-Employees If this Plan provides contributions or benefits
for one or more Owner-Employees who control both the business for
which this Plan is established and one or more other trades or
businesses, this Plan and the plan established for other trades or
businesses must, when looked at as a single plan, satisfy Code
Sections 401(a) and (d) for the Employees of this and all other
trades or businesses.
If the Plan provides contributions or benefits for one or more
Owner-Employees who control one or more other trades or businesses,
the Employees of the other trades or businesses must be included in
a plan which satisfies Code Sections 401(a) and (d) and which
provides contributions and benefits not less favorable than provided
for Owner-Employees under this Plan.
If an individual is covered as an Owner-Employee under the plans of
two or more trades or businesses which are not controlled, and the
individual controls a trade or business, then the contributions or
benefits of the Employees under the plan of the trades or businesses
which are controlled must be as favorable as those provided for him
or her under the most favorable plan of the trade or business which
is not controlled.
For purposes of the preceding sentences, an Owner-Employee, or two
or more Owner-Employees, will be considered to control a trade or
business if the Owner-Employee, or two or more Owner-Employees
together:
(a) own the entire interest in an unincorporated trade or business,
or
(b) in the case of a partnership, own more than 50% of either the
capital interest or the profits interest in the partnership.
For purposes of the preceding sentence, an Owner-Employee, or two or
more Owner-Employees shall be treated as owning any interest in a
partnership which is owned, directly or indirectly, by a partnership
which such Owner-Employee, or such two or more Owner-Employees, are
considered to control within the meaning of the preceding sentence.
2.7 Leased Employees Any leased Employee shall be treated as an
Employee of the recipient Employer; however, contributions or
benefits provided by the leasing organization which are attributable
to services performed for the recipient Employer shall be treated as
provided by the recipient Employer. A leased Employee shall not be
considered an Employee of the recipient if such Employee is covered
by a money purchase pension plan providing:
(a) a non-integrated Employer contribution rate of at least 10% of
Compensation, [as defined in Code Section 415(c)(3) but including
amounts contributed by the Employer pursuant to a salary reduction
agreement, which are excludable from the Employee's gross income
under a cafeteria plan covered by Code Section 125, a cash or
deferred profit-sharing plan under Section 401(k) of the Code, a
Simplified Employee Pension Plan under Code Section 402(h)(1)(B) and
a tax-sheltered annuity under Code Section 403(b)],
(b) immediate participation, and
(c) full and immediate vesting.
This exclusion is only available if Leased Employees do not
constitute more than twenty percent (20%) of the recipient's
non-highly compensated work force.
2.8 Thrift Plans If the Employer makes an election in the Adoption
Agreement to require Voluntary Contributions to participate in this
Plan, the Employer shall notify each eligible Employee in writing of
his or her eligibility for participation at least 30 days prior to
the appropriate Entry Date. The Employee shall indicate his or her
intention to join the Plan by authorizing the Employee to withhold
a percentage of his or her Compensation as provided in the Plan.
Such authorization shall be returned to the Employer at least 10
days prior to the Employee's Entry Date. The Employee may decline
participation by so indicating on the enrollment form or by failure
to return the enrollment form to the Employer prior to the
Employee's Entry Date. If the Employee declines to participate, such
Employee shall be given the opportunity to join the Plan on the next
Entry Date. The taking of a Hardship Withdrawal under the provisions
of paragraph 6.9 will impact the Participant's ability to make these
contributions.
ARTICLE III
EMPLOYER CONTRIBUTIONS
3.1 Amount The Employer intends to make periodic contributions to
the Plan in accordance with the formula or formulas selected in the
Adoption Agreement. However, the Employer's contribution for any
Plan Year shall be subject to the limitations on allocations
contained in Article X.
3.2 Expenses And Fees The Employer shall also be authorized to
reimburse the Fund for all expenses and fees incurred in the
administration of the Plan or Trust and paid out of the assets of
the Fund. Such expenses shall include, but shall not be limited to,
fees for professional services, recordkeeping services, printing and
postage. Brokerage commissions may not be reimbursed.
3.3 Responsibility For Contributions Neither the Trustee nor the
Sponsor shall be required to determine if the Employer has made a
contribution or if the amount contributed is in accordance with the
Adoption Agreement or the Code. The Employer shall have sole
responsibility in this regard. The Trustee shall be accountable
solely for contributions actually received by it, within the limits
of Article XI.
3.4 Return Of Contributions Contributions made to the Fund by the
Employer shall be irrevocable except as provided below:
(a) any contribution forwarded to the Trustee because of a mistake
of fact, provided that the contribution is returned to the Employer
within one year of the contribution.
(b) in the event that the Commissioner of Internal Revenue
determines that the Plan is not initially qualified under the
Internal Revenue Code any contribution made incident to that initial
qualification by the Employer must be returned to the Employer
within one year after the date the initial qualification is denied,
but only if the application for the qualification is made by the
time prescribed by law for filing the Employer's return for the
taxable year in which the Plan is adopted, or such later date as the
Secretary of the Treasury may prescribe.
(c) contributions forwarded to the Trustee are presumed to be
deductible and are conditioned on their deductibility. Contributions
which are determined by the Internal Revenue Service to not be
deductible will be returned to the Employer.
ARTICLE IV
EMPLOYEE CONTRIBUTIONS
4.1 Voluntary Contributions An Employee may make Voluntary
Contributions to the Plan established hereunder if so authorized by
the Employer in a uniform and nondiscriminatory manner. Such
contributions are subject to the limitations on Annual Additions and
are subject to antidiscrimination testing.
4.2 Qualified Voluntary Contributions A Participant may no longer
make Qualified Voluntary Contributions to the Plan. Amounts already
contributed may remain in the Trust Fund until distributed to the
Participant. Such amounts will be maintained in a separate account
which will be nonforfeitable at all times. The account will share in
the gains and losses of the Trust in the same manner as described at
paragraph 5.4 of the Plan. No part of the Qualified Voluntary
Contribution account will be used to purchase life insurance.
Subject to Article VIII, Joint and Survivor Annuity Requirements (if
applicable), the Participant may withdraw any part of the Qualified
Voluntary Contribution account by making a written application to
the Plan Administrator.
4.3 Rollover Contribution Unless provided otherwise in the Adoption
Agreement, a Participant may make a Rollover Contribution to any
Defined Contribution Plan established hereunder of all or any part
of an amount distributed or distributable to him or her from a
Qualified Deferred Compensation Plan provided:
(a) the amount distributed to the Participant is deposited to the
Plan no later than the sixtieth day after such distribution was
received by the Participant,
(b) the amount distributed is not one of a series of substantially
equal periodic payments made for the life (or life expectancy) of
the Participant or the joint lives (or joint life expectancies) of
the Participant and the Participant's Designated Beneficiary, or for
a specified period of ten years or more,
(c) the amount distributed is not required under section 401(a)(9)
of the Code,
(d) if the amount distributed included property such property is
rolled over, or if sold the proceeds of such property may be rolled
over,
(e) the amount distributed is not includible in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
In addition, if the Adoption Agreement allows Rollover
Contributions, the Plan will also accept any Eligible Rollover
Distribution (as defined at paragraph 1.72) directly to the Plan.
Rollover Contributions, which relate to distributions prior to
January 1, 1993, must be made in accordance with paragraphs (a)
through (e) and additionally meet the requirements of paragraph (f):
(f) The distribution from the Qualified Deferred Compensation plan
constituted the Participant's entire interest in such Plan and was
distributed within one taxable year to the Participant:
(1) on account of separation from Service, a plan termination, or in
the case of a profit-sharing or stock bonus plan, a complete
discontinuance of contributions under such plan within the meaning
of Section 402(a)(6)(A) of the Code, or
(2) in one or more distributions which constitute a qualified lump
sum distribution within the meaning of Code Section 402(e)(4)(A),
determined without reference to subparagraphs (B) and (H).
Such Rollover Contribution may also be made through an Individual
Retirement Account qualified under Code Section 408 where the IRA
was used as a conduit from the Qualified Deferred Compensation Plan,
the Rollover Contribution is made in accordance with the rules
provided under paragraphs (a) through (e) and the Rollover
Contribution does not include any regular IRA contributions, or
earnings thereon, which the Participant may have made to the IRA.
Rollover Contributions which relate to distributions prior to
January 1, 1993, may be made through an IRA in accordance with
paragraphs (a) through (f) and additional requirements as provided
in the previous sentence. The Trustee shall not be held responsible
for determining the tax-free status of any Rollover Contribution
made under this Plan.
4.4 Transfer Contribution Unless provided otherwise in the Adoption
Agreement a Participant may, subject to the provisions of paragraph
4.5, also arrange for the direct transfer of his or her benefit from
a Qualified Deferred Compensation Plan to this Plan. For accounting
and record keeping purposes, Transfer Contributions shall be treated
in the same manner as Rollover Contributions.
Notwithstanding the above, the Employer may refuse to accept such
Transfer Contributions.
4.5 Employer Approval Of Transfer Contributions The Employer,
maintaining a Safe-Harbor Profit-Sharing Plan in accordance with the
provisions of paragraph 8.7, acting in a nondiscriminatory manner,
may in its sole discretion refuse to allow Transfer Contributions to
its profit-sharing plan, if such contributions are directly or
indirectly being transferred from a defined benefit plan, a money
purchase pension plan (including a target benefit plan), a stock
bonus plan, or another profit-sharing plan which would otherwise
provide for a life annuity form of payment to the Participant.
4.6 Elective Deferrals A Participant may enter into a Salary Savings
Agreement with the Employer authorizing the Employer to withhold a
portion of such Participant's Compensation not to exceed $7,000 per
calendar year as adjusted under Code Section 415(d) or, if lesser,
the percentage of Compensation specified in the Adoption Agreement,
and to deposit such amount to the Plan. No Participant shall be
permitted to have Elective Deferrals made under this Plan or any
other qualified plan maintained by the Employer, during any taxable
year, in excess of the dollar limitation contained in Code Section
402(g) in effect at the beginning of such taxable year. Thus, the
$7,000 limit may be reduced if a Participant contributes pre-tax
contributions to qualified plans of this or other Employers. Any
such contribution shall be credited to the Employee's Salary
Savings Account. Unless otherwise specified in the Adoption
Agreement, a Participant may amend his or her Salary Savings
Agreement to increase, decrease or terminate the percentage on the
first day of any month after providing written notice to the
Employer. The Employer may also amend or terminate said agreement
on written notice to the Participant. If a Participant has not
authorized the Employer to withhold at the maximum rate and
desires to increase the total withheld for a Plan Year, such
Participant may authorize the Employer upon 30 days notice to
withhold a supplemental amount up to 100% of his or her
Compensation for one or more pay periods. In no event may the sum
of the amounts withheld under the Salary Savings Agreement plus
the supplemental withholding exceed 25% of a Participant's
Compensation for a Plan Year. Elective Deferrals shall be
deposited in the Trust within 30 days after being withheld from
the Participant's pay.
4.7 Required Voluntary Contributions If the Employer makes a
thrift election in the Adoption Agreement, each eligible
Participant shall be required to make Voluntary Contributions to
the Plan for credit to his or her account as provided in the
Adoption Agreement. Such Voluntary Contributions shall be withheld
from the Employee's Compensation and shall be transmitted by the
Employer to the Trustee as agreed between the Employer and
Recordkeeper. A Participant may discontinue participation or
change his or her Voluntary Contribution percentage by so advising
the Employer at least 30 days prior to the date on which such
discontinuance or change is to be effective. If a Participant
discontinues his or her Voluntary Contributions, such Participant
may not again authorize Voluntary Contributions for a period of
one year from the date of discontinuance. A Participant may
voluntarily change his or her Voluntary Contribution percentage
once during any Plan Year and may also agree to have a reduction
in his or her contribution, if required to satisfy the
requirements of the ACP test.
4.8 Direct Rollover Of Benefits Notwithstanding any provision of
the Plan to the contrary that would otherwise limit a
Participant's election under this paragraph, for distributions
made on or after January 1, 1993, a Participant may elect, at the
time and in the manner prescribed by the Plan Administrator, to
have any portion of an Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan specified by the
Participant in a Direct Rollover. Any portion of a distribution
which is not paid directly to an Eligible Retirement Plan shall be
distributed to the Participant. For purposes of this Paragraph, a
Surviving Spouse or a spouse or former spouse who is an alternate
payee under a Qualified Domestic Relations Order as defined in
section 414(p) of the Code, will be permitted to elect to have any
Eligible Rollover Distribution paid directly to an individual
retirement account (IRA) or an individual retirement annuity
(IRA).
The plan provisions otherwise applicable to distributions continue
to apply to Rollover and Transfer Contributions.
ARTICLE V
PARTICIPANT ACCOUNTS
5.1 Separate Accounts The Employer shall establish a separate
bookkeeping account for each Participant showing the total value
of his or her interest in the Fund. Each Participant's account
shall be separated for bookkeeping purposes into the following
sub-accounts:
(a) Employer contributions.
(1) Matching Contributions.
(2) Qualified Matching Contributions.
(3) Qualified Non-Elective Contributions.
(4) Discretionary Contributions.
(5) Elective Deferrals.
(b) Voluntary Contributions (and additional amounts including
required contributions and, if applicable, either repayments of
loans previously defaulted on and treated as "deemed
distributions" on which a tax report has been issued, and amounts
paid out upon a separation from service which have been included
in income and which are repaid after being re-hired by the
Employer).
(c) Qualified Voluntary, Contributions (if the Plan previously
accepted these).
(d) Rollover Contributions and Transfer Contributions.
5.2 Adjustments To Participant Accounts As of each Allocation Date
of the Plan, the Employer shall add to each account:
(a) the Participant's share of the Employer's contribution and
forfeitures as determined in the Adoption Agreement,
(b) any Elective Deferrals, Voluntary, Rollover or Transfer
Contributions made by the Participant,
(c) any repayment of amounts previously paid out to a Participant
upon a separation from Service and repaid by the Participant since
the last Allocation Date, and
(d) the Participant's proportionate share of any investment
earnings and increase in the fair market value of the Fund since
the last Allocation Date, as determined at paragraph 5.4.
The Employer shall deduct from each account:
(e) any withdrawals or payments made from the Participant's
account since the last Allocation Date, and
(f) the Participant's proportionate share of any decrease in the
fair market value of the Fund since the last Allocation Date, as
determined at paragraph 5.4.
5.3 Allocating Employer Contributions The Employer's contribution
shall be allocated to Participants in accordance with the
allocation formula selected by the Employer in the Adoption
Agreement, and the minimum contribution and allocation
requirements for Top-Heavy Plans. Beginning with the 1993 Plan
Year and thereafter, for plans on Standardized Adoption Agreement
#001, Participants who are credited with more than 500 Hours of
Service or are employed on the last day of the Plan Year must
receive a full allocation of Employer contributions. In
Nonstandardized Adoption Agreement #002, Employer contributions
shall be allocated to the accounts of Participants employed by the
Employer on the last day of the Plan Year unless indicated
otherwise in the Adoption Agreement. In the case of a
non-Top-Heavy, Nonstandardized Plan, Participants must also have
completed a Year of Service unless otherwise specified in the
Adoption Agreement. For Nonstandardized Adoption Agreement #002,
the Employer may only apply the last day of the Plan Year and Year
of Service requirements if the Plan satisfies the requirements of
Code Sections 401(a)(26) and 410(b) and the regulations thereunder
including the exception for 401(k) plans. If, when applying the
last day and Year of Service requirements, the Plan fails to
satisfy the aforementioned requirements, additional Participants
will be eligible to receive an allocation of Employer
contributions until the requirements are satisfied. Participants
who are credited with a Year of Service, but not employed at Plan
Year end, are the first category of additional Participants
eligible to receive an allocation. If the requirements are still
not satisfied, Participants credited with more than 500 Hours of
Service and employed at Plan Year end are the next category of
Participants eligible to receive an allocation. Finally, if
necessary to satisfy the said requirements, any Participant
credited with more than 500 Hours of Service will be eligible for
an allocation of Employer contributions. The Service requirement
is not applicable with respect to any Plan Year during which the
Employer's Plan is Top-Heavy.
5.4 Allocating Investment Earnings And Losses All Employer
contributions will be credited with an allocation of the actual
investment earnings and gains and losses from the actual date of
deposit of each such contribution until the end of the period. The
actual investment earnings shall be credited to Participants'
accounts as of the Allocation Date following date of deposit.
Participants will share in the earnings of the investment find(s)
in which they have monies as of the date such earnings are either
credited or accrued. Accounts with segregated investments shall
receive only the income or loss on such segregated investments. In
no event shall the selection of a method of allocating gains and
losses be used to discriminate in favor of the Highly Compensated
Employees.
Alternatively, a Participant's share of the actual investment
earnings shall be based on the proportionate value of all active
accounts (other than accounts with segregated investments) as of
the last Allocation Date less withdrawals since the last
Allocation Date. If Employer contributions are made monthly,
quarterly, or on some other systematic basis, the adjusted value
of such accounts for allocation of investment income and gains or
losses shall include one-half the Employer contributions for such
period. If Employer contributions are not made on a systematic
basis, it is assumed that they are made at the end of the
Allocation period and therefore will not receive an allocation of
investment earnings and gains or losses for such period. Account
balances not yet forfeited shall receive an allocation of earnings
and/or losses. Accounts with segregated investments shall receive
only the income or loss on such segregated investments.
5.5 Participant Statements Upon completing the allocations
described above for the Allocation Date coinciding with the end of
the Plan Year, the Employer shall prepare a statement for each
Participant showing the additions to and subtractions from his or
her account since the last such statement and the fair market
value of his or her account as of the current Allocation Date.
Employers so choosing may prepare Participant statements for each
quarterly Allocation Date.
ARTICLE VI
RETIREMENT BENEFITS AND DISTRIBUTIONS
6.1 Normal Retirement Benefits A Participant shall be entitled to
receive the balance held in his or her account from Employer
contributions upon attaining Normal Retirement Age or at such
earlier dates as the provisions of this Article VI may allow. If
the Participant elects to continue working past his or her Normal
Retirement Age, he or she will continue as an active Participant
and no distribution shall be made to such Participant until his or
her actual retirement date unless the Employer elects otherwise in
the Adoption Agreement, or a minimum distribution is required by
law. Settlement shall be made in the normal form, or if elected,
in one of the optional forms of payment provided below.
6.2 Early Retirement Benefits If the Employer so provides in the
Adoption Agreement, an Early Retirement benefit will be available
to individuals who meet the age and Service requirements. An
individual who meets the Early Retirement Age requirements and
separates from Service will become fully vested, regardless of any
vesting schedule which otherwise might apply. If a Participant
separates from Service before satisfying the age requirements, but
after having satisfied the Service requirement, the Participant
will be entitled to elect an Early Retirement benefit upon
satisfaction of the age requirement.
6.3 Benefits On Termination Of Employment
(a) If a Participant terminates employment prior to Normal
Retirement Age, such Participant shall be entitled to receive the
vested balance held in his or her account payable at Normal
Retirement Age in the normal form, or if elected, in one of the
optional forms of payment provided hereunder. If applicable, the
Early Retirement benefit provisions may be elected.
Notwithstanding the preceding sentence, a former Participant may,
if allowed in the Adoption Agreement, make application to the
Employer requesting early payment of any deferred vested and
nonforfeitable benefit due.
(b) If a Participant terminates employment, and the value of that
Participant's Vested Account Balance derived from Employer and
Employee contributions is not greater than $3,500, in accordance
with a consistent policy followed for all Participants the
Employer may or may not require the Participant to receive a lump
sum distribution of the value of the entire vested portion of such
account balance and the non-vested portion will be treated as a
forfeiture. The Employer shall continue to follow its consistent
policy, as may be established, regarding immediate cash-outs of
Vested Account Balances of $3,500 or less. For purposes of this
Article, if the value of a Participant's Vested Account Balance is
zero, the Participant shall be deemed to have received a
distribution of such Vested Account Balance immediately following
termination. Likewise, if the Participant is reemployed prior to
incurring five consecutive one-year Breaks in Service he or she
will be deemed to have immediately repaid such distribution. For
Plan Years beginning prior to 1989, a Participant's Vested Account
Balance shall not include Qualified Voluntary Contributions.
Notwithstanding the above, if the Employer maintains or has
maintained a policy of not distributing any amounts until the
Participant's Normal Retirement Age, the Employer can continue to
uniformly apply such policy.
(c) If a Participant terminates employment with a Vested Account
Balance derived from Employer and Employee contributions in excess
of $3,500, and elects (with his or her Spouse's consent, if
required) to receive 100% of the value of his or her Vested
Account Balance in a lump sum, the non-vested portion will be
treated as a forfeiture. The Participant (and his or her Spouse,
if required) must consent to any distribution, when the Vested
Account Balance described above exceeds $3,500 or if at the time
of any prior distribution it exceeded $3,500. For purposes of this
paragraph, for Plan Years beginning prior to 1989, a Participant's
Vested Account Balance shall not include Qualified Voluntary
Contributions.
(d) Distribution of less than 100% of the Participant's Vested
Account Balance shall only be permitted if the Participant is
fully vested upon termination of employment.
(e) If a Participant who is not 100% vested receives or is deemed
to receive a distribution pursuant to this paragraph and resumes
employment covered under this Plan, the Participant shall have the
right to repay to the Plan the full amount of the distribution
attributable to Employer contributions on or before the earlier of
the date that the Participant incurs five consecutive one-year
Breaks in Service following the date of distribution or five years
after the first date on which the Participant is subsequently
reemployed. In such event, the Participant's account shall be
restored to the value thereof at the time the distribution was
made and may further be increased by the Plan's income and
investment gains and/or losses on the undistributed amount from
the date of distribution to the date of repayment.
(f) A Participant shall also have the option to postpone payment
of his or her Plan benefits until the first day of April following
the calendar year in which he or she attains age 70 1/2. Any
balance of a Participant's account resulting from his or her
Employee contributions not previously withdrawn, if any, may be
withdrawn by the Participant immediately following separation from
Service.
(g) If a Participant ceases to be an active Employee as a result
of a Disability as defined at paragraph 1.22, such Participant
shall be able to make an application for a disability retirement
benefit payment. The Participant's account balance will be deemed
"immediately distributable" as set forth in paragraph 6.4, and
will be fully vested pursuant to paragraph 9.2.
6.4 Restrictions On Immediate Distributions
(a) An account balance is immediately distributable if any part of
the account balance could be distributed to the Participant (or
Surviving Spouse) before the Participant attains (or would have
attained if not deceased) the later of the Normal Retirement Age
or age 62.
(b) If the value of a Participant's Vested Account Balance derived
from Employer and Employee contributions exceeds (or at the time
of any prior distribution exceeded) $3,500, and the account
balance is immediately distributable, the Participant and his or
her Spouse (or where either the Participant or the Spouse has
died, the survivor) must consent to any distribution of such
account balance. The consent of the Participant and the Spouse
shall be obtained in writing within the 90-day period ending on
the annuity starting date, which is the first day of the first
period for which an amount is paid as an annuity or any other
form. The Plan Administrator shall notify the Participant and the
Participant's Spouse of the right to defer any distribution until
the Participant's account balance is no longer immediately
distributable. Such notification shall include a general
description of the material features and an explanation of the
relative values of, the optional forms of benefit available under
the Plan in a manner that would satisfy the notice requirements of
Code Section 417(a)(3), and shall be provided no less than 30 days
and no more than 90 days prior to the annuity starting date.
(c) Notwithstanding the foregoing, only the Participant need
consent to the commencement of a distribution in the form of a
Qualified Joint and Survivor Annuity while the account balance is
immediately distributable. Furthermore, if payment in the form of
a Qualified Joint and Survivor Annuity is not required with
respect to the Participant pursuant to paragraph 8.7 of the Plan,
only the Participant need consent to the distribution of an
account balance that is immediately distributable. Neither the
consent of the Participant nor the Participant's Spouse shall be
required to the extent that a distribution is required to satisfy
Code Section 401(a)(9) or Code Section 415. In addition, upon
termination of this Plan if the Plan does not offer an annuity
option (purchased from a commercial provider), the Participant's
account balance may, without the Participant's consent, be
distributed to the Participant or transferred to another Defined
Contribution Plan [other than an employee stock ownership plan as
defined in Code Section 4975(e)(7)] within the same controlled
group.
(d) For purposes of determining the applicability of the foregoing
consent requirements to distributions made before the first day of
the first Plan Year beginning after 1988, the Participant's Vested
Account Balance shall not include amounts attributable to
Qualified Voluntary Contributions.
(e) If a distribution is one to which Code Sections 401(a)(11) and
417 do not apply, such distribution may commence less than 30 days
after the notice required under Regulations Section 1.411(a)-ll(c)
is given, provided that:
(1) the Participant is clearly informed of his or her right to a
period of at least 30 days after receiving the notice to consider
the decision of whether or not to elect a distribution (and, if
applicable, a particular distribution option), and
(2) the Participant, after receiving the notice, affirmatively
elects to receive a distribution.
6.5 Normal Form Of Payment The normal form of payment for a
profit-sharing plan satisfying the requirements of paragraph 8.7
hereof shall be a lump sum with no option for annuity payments.
For all other plans, the normal form of payment hereunder shall be
a Qualified Joint and Survivor Annuity as provided under Article
VIII. A Participant whose Vested Account Balance derived from
Employer and Employee contributions exceeds $3,500, or if at the
time of any prior distribution it exceeded $3,500, shall (with the
consent of his or her Spouse) have the right to receive his or her
benefit in a lump sum or in monthly, quarterly, semi-annual or
annual payments from the Fund over any period not extending beyond
the life expectancy of the Participant and his or her Beneficiary.
For purposes of this paragraph, for Plan Years prior to 1989, a
Participant's Vested Account Balance shall not include Qualified
Voluntary Contributions. The normal form of payment shall be
automatic, unless the Participant files a written request with the
Employer prior to the date on which the benefit is automatically
payable, electing a lump sum or installment payment option. No
amendment to the Plan may eliminate one of the optional
distribution forms listed above.
6.6 Commencement Of Benefits
(a) Unless the Participant elects otherwise, distribution of
benefits will begin no later than the 60th day after the close of
the Plan Year in which the latest of the following events occurs:
(1) the Participant attains age 65 (or normal retirement age if
earlier),
(2) the 10th anniversary of the year in which the Participant
commenced participation in the Plan, or
(3) the Participant terminates Service with the Employer.
(b) Notwithstanding the foregoing, the failure of a Participant
and Spouse (if necessary) to consent to a distribution while a
benefit is immediately distributable within the meaning of
paragraph 6.4 hereof, shall be deemed an election to defer
commencement of payment of any benefit sufficient to satisfy this
paragraph.
6.7 Claims Procedures Upon retirement, death, or other severance
of employment, the Participant or his or her representative may
make application to the Employer requesting payment of benefits
due and the manner of payment. If no application for benefits is
made, the Employer shall automatically pay any vested benefit due
hereunder in the normal form at the time prescribed at paragraph
6.6. If an application for benefits is made, the Employer shall
accept, reject, or modify such request and shall notify the
Participant in writing setting forth the response of the Employer
and in the case of a denial or modification the Employer shall:
(a) state the specific reason or reasons for the denial,
(b) provide specific reference to pertinent Plan provisions on
which the denial is based,
(c) provide a description of any additional material or
information necessary for the Participant or his representative to
perfect the claim and an explanation of why such material or
information is necessary, and
(d) explain the Plan's claim review procedure as contained in this
Plan.
In the event the request is rejected or modified, the Participant
or his or her representative may within 60 days following receipt
by the Participant or representative of such rejection or
modification, submit a written request for review by the Employer
of its initial decision. Within 60 days following such request for
review, the Employer shall render its final decision in writing to
the Participant or representative stating specific reasons for
such decision. If the Participant or representative is not
satisfied with the Employer's final decision, the Participant or
representative can institute an action in a federal court of
competent jurisdiction; for this purpose, process would be served
on the Employer.
6.8 In-Service Withdrawals An Employee may withdraw all or any
part of the fair market value of his or her Thrift Contributions,
Voluntary Contributions, Qualified Voluntary Contributions or
Rollover Contributions, upon written request to the Employer.
Transfer Contributions which originate from a plan meeting the
safe-harbor provisions of paragraph 8.7, may also be withdrawn by
an Employee upon written request to the Employer. Transfer
Contributions not meeting the safe-harbor provisions may only be
withdrawn upon retirement, death, Disability, termination or
termination of the Plan, and will be subject to Spousal consent
requirements contained in Code Sections 411(a)(11) and 417. A
request for an In-Service Withdrawal shall include the Employee's
address, social security number, birthdate, and amount of the
withdrawal. If, at the time a distribution of Qualified Voluntary
Contributions is received, the Participant has not attained age
59-1/2 and is not disabled as defined at Code Section 22(e)(3),
the Participant will be subject to a federal income tax penalty,
unless the distribution is rolled over to a qualified plan or
individual retirement plan within 60 days of the date of
distribution. A Participant may withdraw all or any part of the
fair market value of his or her pre-1987 Voluntary Contributions
with or without withdrawing the earnings attributable thereto.
Post-1986 Voluntary Contributions may only be withdrawn along with
a portion of the earnings thereon. The amount of the earnings to
be withdrawn is determined by using the formula: DA [1-(V divided
by V+E)], where DA is the distribution amount, V is the amount of
Voluntary Contributions and V+E is the amount of Voluntary
Contributions plus the earnings attributable thereto. A
Participant withdrawing his or her other contributions prior to
attaining age 59-1/2 will be subject to a federal tax penalty to
the extent that the withdrawn amounts are includible in income.
The Employer may provide in the Adoption Agreement, that certain
actively employed Participants in a profit-sharing plan be
eligible to withdraw all or any part of the fair market value of
any of his or her vested Employer contributions plus the
investment earnings thereon. Such distributions shall not be
eligible for redeposit to the Fund. A withdrawal under this
paragraph shall not prohibit such Participant from sharing in any
future Employer Contribution he or she would otherwise be eligible
to share in. A request to withdraw amounts pursuant to this
paragraph must if applicable, be consented to by the Participant's
Spouse. The consent shall comply with the requirements of
paragraph 6.4 relating to immediate distributions. Elective
Deferrals, Qualified Non-Elective Contributions, and Qualified
Matching Contributions, and income allocable to each, are not
distributable to a Participant or his or her Beneficiary or
Beneficiaries, in accordance with such Participant's or
Beneficiary's or Beneficiaries' election, earlier than upon
separation from Service, death, or Disability. Such amounts may
also be distributed upon:
(a) termination of the Plan without the establishment of another
Defined Contribution Plan other than an employee stock ownership
plan [as defined in Code Sections 4975(e) or 409] or a Simplified
Employee Pension Plan [as defined in Code Section 408(k)].
(b) the disposition by a corporation to an unrelated corporation
of substantially all of the assets [within the meaning of Code
Section 409(d)(2)] used in a trade or business of such corporation
if such corporation continues to maintain this Plan after the
disposition, but only with respect to Employees who continue
employment with the corporation acquiring such assets.
(c) the disposition by a corporation to an unrelated entity of
such corporation's interest in a subsidiary [within the meaning of
Code Section 409(d)(3)] if such corporation continues to maintain
this Plan, but only with respect to Employees who continue
employment with such subsidiary.
(d) the attainment of age 59-1/2.
(e) on account of the Hardship withdrawal of the Participant as
described in paragraph 6.9.
All distributions that may be made pursuant to one or more of the
foregoing distributable events are subject to the Participant and
Spousal consent requirements, if applicable, contained in Code
Sections 401(a)(11) and 417. In addition, distributions after
March 31, 1988 that are triggered by any of the first three events
enumerated above must be made in a lump sum.
6.9 Hardship Withdrawal If elected by the Employer in the Adoption
Agreement, a Participant may request a Hardship withdrawal, as
provided m this section. If the Participant has not attained age
59-1/2, the Participant may be subject to a federal income tax
penalty. Such request shall be in writing to the Employer who
shall have sole authority to authorize a Hardship withdrawal
pursuant to the rules below. Hardship withdrawals may include
Elective Deferrals regardless of when contributed and any earnings
accrued and credited thereon as of the last day of the Plan Year
ending before July 1, 1989, and Employer related contributions,
including but not limited to Matching Contributions plus the
investment earnings thereon, to the extent vested. Qualified
Matching Contributions, Qualified Non-Elective Contributions and
Elective Deferrals reclassified as Voluntary Contributions plus
the investment earnings thereon are only available for Hardship
withdrawal prior to age 59-1/2 to the extent that they were
credited to the Participant's Account as of the last day of the
Plan Year ending prior to July 1, 1989. The Plan Administrator may
limit withdrawals to Elective Deferrals and the earnings thereon
as stipulated above. Hardship withdrawals are subject to the
Spousal consent requirements contained in Code Sections 401(a)(11)
and 417. Only the following reasons are valid to obtain Hardship
withdrawal:
(a) expenses incurred or necessary for medical care, [described in
Code Section 213(d)] of the Participant, his or her Spouse,
children and other dependents,
(b) the purchase (excluding mortgage payments) of the principal
residence for the Participant,
(c) payment of tuition and related educational expenses for the
next twelve (12) months of post-secondary education for the
Participant, his or her Spouse, children or other dependents, or
(d) the need to prevent eviction of the Participant from or a
foreclosure on the mortgage of, the Participant's principal
residence.
Furthermore, the following conditions must be met in order for a
withdrawal to be authorized:
(e) the Participant has obtained all distributions, other than
hardship distributions, and all nontaxable loans under all plans
maintained by the Employer,
(f) the Participant's Elective Deferrals and Voluntary
Contributions will be suspended for all plans maintained by the
Employer (other than nondeferred benefits under Code Section 125
plans) for twelve months after the receipt of the Hardship
distribution,
(g) the distribution is not in excess of the amount of the
immediate and heavy financial need [(a) through (d)] above,
including amounts necessary to pay any federal, state or local
income taxes or penalties reasonably anticipated to result from
the distribution, and
(h) all plans maintained by the Employer provide that a
Participant may not make Elective Deferrals for the Participant's
taxable year immediately following the taxable year of the
Hardship distribution in excess of the applicable limit under Code
Section 402(g) for such taxable year, less the amount of such
Participant's pre-tax contributions for the taxable year of the
Hardship distribution.
If a distribution is made at a time when a Participant has a
nonforfeitable right to less than 100% of the account balance
derived from Employer contributions and the Participant may
increase the nonforfeitable percentage in the account:
(a) A separate account will be established for the Participant's
interest in the Plan as of the time of the distribution, and
(b) At any relevant time the Participant's nonforfeitable portion
of the separate account will be equal to an amount ("X")
determined by the formula: X=P [AB+(RXD)]-(RXD)
For purposes of applying the formula: "P" is the nonforfeitable
percentage at the relevant time, "AB" is the account balance at
the relevant time, "D" is the amount of the distribution and "R"
is the ratio of the account balance at the relevant time to the
account balance after distribution.
ARTICLE VII
DISTRIBUTION REQUIREMENTS
7.1 Joint And Survivor Annuity Requirements All distributions made
under the terms of this Plan must comply with the provisions of
Article VIII including, if applicable, the safe harbor provisions
thereunder.
7.2 Minimum Distribution Requirements All distributions required
under this Article shall be determined and made in accordance with
the minimum distribution requirements of Code Section 401(a)(9)
and the regulations thereunder, including the minimum distribution
incidental benefit rules found at Regulations Section
1.401(a)(9)-2. The entire interest of a Participant must be
distributed or begin to be distributed no later than the
Participant's Required Beginning Date. Life expectancy and joint
and last survivor life expectancies are computed by using the
expected return multiples found in Tables V and VI of Regulations
Section 1.72-9.
7.3 Limits On Distribution Periods As of the First Distribution
Calendar Year, distributions if not made in a single-sum, may only
be made over one of the following periods (or a combination
thereof):
(a) the life of the Participant,
(b) the life of the Participant and a Designated Beneficiary,
(c) a period certain not extending beyond the life expectancy of
the Participant, or
(d) a period certain not extending beyond the joint and last
survivor expectancy of the Participant and a Designated
Beneficiary.
7.4 Required Distributions On Or After The Required Beginning Date
(a) If a Participant's benefit is to be distributed over (1) a
period not extending beyond the life expectancy of the Participant
or the joint life and last survivor expectancy of the Participant
and the Participant's Designated Beneficiary or (2) a period not
extending beyond the life expectancy of the Designated
Beneficiary, the amount required to be distributed for each
calendar year, beginning with distributions for the First
Distribution Calendar Year, must at least equal the quotient
obtained by dividing the Participant's benefit by the Applicable
Life Expectancy.
(b) For calendar years beginning before 1989, if the Participant's
Spouse is not the Designated Beneficiary, the method of
distribution selected must have assured that at least 50% of the
Present Value of the amount available for distribution was to be
paid within the life expectancy of the Participant.
(c) For calendar years beginning after 1988, the amount to be
distributed each year beginning with distributions for the First
Distribution Calendar Year, shall not be less than the quotient
obtained by dividing the Participant's benefit by the lesser of
(1) the Applicable Life Expectancy or (2) if the Participant's
Spouse is not the Designated Beneficiary, the applicable divisor
determined from the table set forth in Q&A-4 of Regulations
Section 1.401(a)(9)-2. Distributions after the death of the
Participant shall be distributed using the Applicable Life
Expectancy as the relevant divisor without regard to Regulations
Section 1.401(a)(9)-2.
(d) The minimum distribution required for the Participant's First
Distribution Calendar Year must be made on or before the
Participant's Required Beginning Date. The minimum distribution
for other calendar years, including the minimum distribution for
the Distribution Calendar Year in which the Participant's Required
Beginning Date occurs, must be made on or before December 31 of
that Distribution Calendar Year.
(e) If the Participant's benefit is distributed in the form of an
annuity purchased from an insurance company, distributions
thereunder shall be made in accordance with the requirements of
Code Section 401(a)(9) and the Regulations thereunder.
(f) For purposes of determining the amount of the required
distribution for each Distribution Calendar Year, the account
balance to be used is the account balance determined as of the
last valuation preceding the Distribution Calendar Year. This
balance will be increased by the amount of any contributions or
forfeitures allocated to the account balance after the valuation
date in such preceding calendar year. Such balance will also be
decreased by distributions made after the Valuation Date in such
preceding Calendar Year.
(g) For purposes of subparagraph 7.4(f), if any portion of the
minimum distribution for the First Distribution Calendar Year is
made in the second Distribution Calendar Year on or before the
Required Beginning Date, the amount of the minimum distribution
made in the second Distribution Calendar Year shall be treated as
if it had been made in the immediately preceding Distribution
Calendar Year.
7.5 Required Beginning Date
(a) General Rule. The Required Beginning Date of a Participant is
the first day of April of the calendar year following the calendar
year in which the Participant attains age 70-1/2.
(b) Transitional Rules. The Required Beginning Date of a
Participant who attains age 70-1/2 before 1988, shall be
determined in accordance with (1) or (2) below:
(1) non-five-percent owners. The Required Beginning Date of a
Participant who is not a five-percent owner is the first day of
April of the calendar year following the calendar year in which
the later of retirement or attainment of age 70-1/2 occurs. In the
case of a Participant who is not a five-percent owner who attains
age 70-1/2 during 1988 and who has not retired as of January 1,
1989, the Required Beginning Date is April 1, 1990.
(2) five-percent owners. The Required Beginning Date of a
Participant who is a five-percent owner during any year beginning
after 1979, is the first day of April following the later of:
(i) the calendar year in which the Participant attains age 70-1/2,
or
(ii) the earlier of the calendar year with or within which ends
the plan year in which the Participant becomes a five-percent
owner, or the calendar year in which the Participant retires.
(c) A Participant is treated as a five-percent owner for purposes
of this paragraph if such Participant is a five-percent owner as
defined in Code Section 416(i) (determined in accordance with Code
Section 416 but without regard to whether the Plan is Top-Heavy)
at any time during the Plan Year ending with or within the
calendar year in which such owner attains age 66-1/2 or any
subsequent Plan Year.
(d) Once distributions have begun to a five-percent owner under
this paragraph, they must continue to be distributed even if the
Participant ceases to be a five-percent owner in a subsequent
year.
7.6 Transitional Rule
(a) Notwithstanding the other requirements of this Article and
subject to the requirements of Article VIII, Joint and Survivor
Annuity Requirements, distribution on behalf of any Employee,
including a five-percent owner, may be made in accordance with all
of the following requirements (regardless of when such
distribution commences):
(1) the distribution by the Trust is one which would not have
disqualified such Trust under Code Section 401(a)(9) as in effect
prior to amendment by the Deficit Reduction Act of 1984,
(2) the distribution is in accordance with a method of
distribution designated by the Employee whose interest in the
Trust is being distributed or, if the Employee is deceased, by a
beneficiary of such Employee,
(3) such designation was in writing, was signed by the Employee or
the beneficiary, and was made before 1984,
(4) the Employee had accrued a benefit under the Plan as of
December 31, 1983,
(5) the method of distribution designated by the Employee or the
beneficiary specifies the time at which distribution will
commence, the period over which distributions will be made, and in
the case of any distribution upon the Employee's death, the
beneficiaries of the Employee listed in order of priority.
(b) A distribution upon death will not be covered by this
transitional rule unless the information in the designation
contains the required information described above with respect to
the distributions to be made upon the death of the Employee.
(c) For any distribution which commences before 1984, but
continues after 1983, the Employee or the beneficiary to whom such
distribution is being made, will be presumed to have designated
the method of distribution under which the distribution is being
made, if the method of distribution was specified in writing and
the distribution satisfies the requirements in subparagraphs
(a)(1) and (5) above.
(d) If a designation is revoked, any subsequent distribution must
satisfy the requirements of Code Section 401(a)(9) and the
regulations thereunder. If a designation is revoked subsequent to
the date distributions are required to begin, the Trust must
distribute by the end of the calendar year following the calendar
year in which the revocation occurs the total amount not yet
distributed which would have been required to have been
distributed to satisfy Code Section 401(a)(9) and the regulations
thereunder, but for the section 242(b)(2) election of the Tax
Equity and Fiscal Responsibility Act of 1982. For calendar years
beginning after 1988, such distributions must meet the minimum
distribution incidental benefit requirements in section
1.401(a)(9)-2 of the Income Tax Regulations. Any changes in the
designation will be considered to be a revocation of the
designation. However, the mere substitution or addition of another
beneficiary (one not named in the designation) under the
designation will not be considered to be a revocation of the
designation, so long as such substitution or addition does not
alter the period over which distributions are to be made under
the designation, directly or indirectly (for example, by altering
the relevant measuring life). In the case in which an amount is
transferred or rolled over from one plan to another plan, the
rules in Q&A J-2 and Q&A J-3 of the regulations shall apply.
7.7 Designation Of Beneficiary For Death Benefit Each Participant
shall file a written designation of beneficiary with the Employer
upon qualifying for participation in this Plan. Such designation
shall remain in force until revoked by the Participant by filing a
new beneficiary form with the Employer. Under a profit-sharing
plan satisfying the requirements of paragraph 8.7, the Designated
Beneficiary shall be the Participant's Surviving Spouse, if any,
unless such Spouse properly consents otherwise.
7.8 Nonexistence Of Beneficiary Any portion of the amount payable
hereunder which is not disposed of because of the Participant's or
former Participant's failure to designate a beneficiary, or
because all of the Designated Beneficiaries predeceased the
Participant, shall be paid to his or her Spouse. If the
Participant had no Spouse at the time of death, payment shall be
made to the personal representative of his or her estate in a lump
sum.
7.9 Distribution Beginning Before Death If the Participant dies
after distribution of his or her interest has begun, the remaining
portion of such interest will continue to be distributed at least
as rapidly as under the method of distribution being used prior to
the Participant's death.
7.10 Distribution Beginning After Death If the Participant dies
before distribution of his or her interest begins, distribution of
the Participant's entire interest shall be completed by December
31 of the calendar year containing the fifth anniversary of the
Participant's death, except to the extent that an election is made
to receive distributions in accordance with (a) or (b) below:
(a) if any portion of the Participant's interest is payable to a
Designated Beneficiary, distributions may be made over the life or
over a period certain not greater than the life expectancy of the
Designated Beneficiary commencing on or before December 31 of the
calendar year immediately following the calendar year in which the
Participant died;
(b) if the Designated Beneficiary is the Participant's Surviving
Spouse, the date distributions are required to begin in accordance
with (a) above shall not be earlier than the later of (1) December
31 of the calendar year immediately following the calendar year in
which the participant died or (2) December 31 of the calendar year
in which the Participant would have attained age 70-1/2.
If the Participant has not made an election pursuant to this
paragraph 7.10 by the time of his or her death, the Participant's
Designated Beneficiary must elect the method of distribution no
later than the earlier of (1) December 31 of the calendar year in
which distributions would be required to begin under this section,
or (2) December 31 of the calendar year which contains the fifth
anniversary of the date of death of the participant. If the
Participant has no Designated Beneficiary, or if the Designated
Beneficiary does not elect a method of distribution, then
distribution of the Participant's entire interest must be
completed by December 31 of the calendar year containing the fifth
anniversary of the Participant's death.
For purposes of this paragraph, if the Surviving Spouse dies after
the Participant but before payments to such Spouse begin, the
provisions of this paragraph with the exception of subparagraph
(b) therein, shall be applied as if the Surviving Spouse were the
Participant. For the purposes of this paragraph and paragraph 7.9,
distribution of a Participant's interest is considered to begin on
the Participant's Required Beginning Date (or, if the preceding
sentence is applicable, the date distribution is required to begin
to the Surviving Spouse). If distribution in the form of an
annuity described in paragraph 7.4(e) irrevocably commences to the
Participant before the Required Beginning Date, the date
distribution is considered to begin is the date distribution
actually commences.
For purposes of paragraph 7.9 and this paragraph, if an amount is
payable to either a minor or an individual who has been declared
incompetent, the benefits shall be paid to the legally appointed
guardian for the benefit of said minor or incompetent individual,
unless the court which appointed the guardian has ordered
otherwise.
7.11 Distribution Of Excess Elective Deferrals
(a) Notwithstanding any other provision of the Plan, Excess
Elective Deferrals plus any income and minus any loss allocable
thereto, shall be distributed no later than April 15,1988, and
each April 15 thereafter, to Participants to whose accounts Excess
Elective Deferrals were allocated for the preceding taxable year,
and who claim Excess Elective Deferrals for such taxable year.
Excess Elective Deferrals shall be treated as Annual Additions
under the Plan unless such amounts are distributed no later than
the first April 15th following the close of the Participant's
taxable year. A Participant is deemed to notify the Plan
Administrator of any Excess Elective Deferrals that arise by
taking into account only those Elective Deferrals made to this
Plan and any other plans of this Employer.
(b) Furthermore, a Participant who participates in another plan
allowing Elective Deferrals may assign to this Plan any Excess
Elective Deferrals made during a taxable year of the Participant,
by notifying the Plan Administrator of the amount of the Excess
Elective Deferrals to be assigned. The Participant's claim shall
be in writing, shall be submitted to the Plan Administrator not
later than March 1 of each year, shall specify
the amount of the Participant's Excess Elective Deferrals for the
preceding taxable year, and shall be accompanied by the
Participant's written statement that if such amounts are not
distributed, such Excess Elective Deferrals, when added to amounts
deferred under other plans or arrangements described in Code
Sections 401(k), 408(k) [Simplified Employee Pensions], or 403(b)
[annuity programs for public schools and charitable organizations]
will exceed the $7,000 limit as adjusted under Code Section 415(d)
imposed on the Participant by Code Section 402(g) for the year in
which the deferral occurred.
(c) Excess Elective Deferrals shall be adjusted for any income or
loss up to the end of the taxable year during which such excess
was deferred. Income or loss will be calculated under the method
used to calculate investment earnings and losses elsewhere in the
Plan
(d) If the Participant receives a return of his or her Elective
Deferrals, the amount of such contributions which are returned
must be brought into the Participant's taxable income.
7.12 Distributions of Excess Contributions
(a) Notwithstanding any other provision of this Plan, Excess
Contributions plus any income and minus any loss allocable
thereto, shall be distributed no later than the last day of each
Plan Year to Participants to whose accounts such Excess
Contributions were allocated for the preceding Plan Year. If such
excess amounts are distributed more than 2-1/2 months after the
last day of the Plan Year in which such excess amounts arose, a
ten (10) percent excise tax will be imposed on the Employer
maintaining the Plan with respect to such amounts. Such
distributions shall be made to Highly Compensated Employees on the
basis of the respective portions of the Excess Contributions
attributable to each of such Employees. Excess Contributions of
Participants who are subject to the Family Member aggregation
rules shall be allocated among the Family Members in proportion to
the Elective Deferrals (and amounts treated as Elective Deferrals)
of each Family Member that is combined to determine the ADP.
(b) Excess Contributions (including the amounts recharacterized)
shall be treated as Annual Additions under the Plan.
(c) Excess Contributions shall be adjusted for any income or loss
up to the end of the Plan Year. Income or loss will be calculated
under the method used to calculate investment earnings and losses
elsewhere in the Plan.
(d) Excess Contributions shall be distributed from the
Participant's Elective Deferral account and Qualified Matching
Contribution account (if applicable) in proportion to the
Participant's Elective Deferrals and Qualified Matching
Contributions (to the extent used in the ADP test) for the Plan
Year. Excess Contributions shall be distributed from the
Participant's Qualified Non-Elective Contribution account only to
the extent that such Excess Contributions exceed the balance in
the Participant's Elective Deferral account and Qualified Matching
Contribution account.
7.13 Distribution Of Excess Aggregate Contributions
(a) Notwithstanding any other provision of this Plan, Excess
Aggregate Contributions plus any income and minus any loss
allocable thereto, shall be forfeited, if forfeitable, or if not
forfeitable, distributed, no later than the last day of each Plan
Year to Participants to whose accounts such Excess Aggregate
Contributions were allocated for the preceding Plan Year. Excess
Aggregate Contributions of Participants who are subject to the
Family Member aggregation rules of Code Section 414(q)(6) shall be
allocated among the Family Members in proportion to the Employee
and Matching Contributions (or amounts treated as Matching
Contributions) of each family member that is combined to determine
the ACP. If such Excess Aggregate Contributions are distributed
more than 2-1/2 months after the last day of the Plan Year in
which such excess amounts arose, a ten (10) percent excise tax
will be imposed on the Employer maintaining the Plan with respect
to those amounts. Excess Aggregate Contributions shall be treated
as Annual Additions under the Plan.
(b) Excess Aggregate Contributions shall be adjusted for any
income or loss up to the end of the Plan Year. The income or loss
allocable to Excess Aggregate Contributions is the sum of income
or loss for the Plan Year allocable to the Participant's Voluntary
Contribution account, Matching Contribution account (if any, and
if all amounts therein are not used in the ADP test) and, if
applicable, Qualified Non-Elective Contribution account and
Elective Deferral account. Income or loss will be calculated under
the method used to calculate investment earnings and losses
elsewhere in the Plan.
(c) Forfeitures of Excess Aggregate Contributions shall be applied
to reduce Employer contributions at the end of the Plan Year in
which they occur.
(d) Excess Aggregate Contributions shall be forfeited if such
amount is not vested. If vested, such excess shall be distributed
on a pro-rata basis from the Participant's Voluntary Contribution
account (and, if applicable, the Participant's Qualified
Non-Elective Contribution account, Matching Contribution account,
Qualified Matching Contribution account, and/or Elective Deferral
account).
ARTICLE VIII
JOINT AND SURVIVOR ANNUITY REQUIREMENTS
8.1 Applicability Of Provisions The provisions of this Article
shall apply to any Participant who is credited with at least one
Hour of Service with the Employer on or after August 23,1984 and
such other Participants as provided in paragraph 8.8.
8.2 Payment Of Qualified Joint And Survivor Annuity Unless an
optional form of benefit is selected pursuant to a Qualified
Election within the 90-day period ending on the Annuity Starting
Date, a married Participant's Vested Account Balance will be paid
in the form of a Qualified Joint and Survivor Annuity and an
unmarried Participant's Vested Account Balance will be paid in the
form of a life annuity. The Participant may elect to have such
annuity distributed upon attainment of the Early Retirement Age
under the Plan.
8.3 Payment Of Qualified Pre-Retirement Survivor Annuity Unless an
optional form of benefit has been selected within the Election
Period pursuant to a Qualified Election, if a Participant dies
before benefits have commenced then the Participant's Vested
Account Balance shall be paid in the form of an annuity for the
life of the Surviving Spouse, such an annuity is a Qualified
Pre-Retirement Survivor Annuity. The Surviving Spouse may elect to
have such annuity distributed within a reasonable period after the
Participant's death.
A Participant who does not meet the age 35 requirement set forth
in the Election Period as of the end of any current Plan Year may
make a special qualified election to waive the Qualified
Pre-Retirement Survivor Annuity for the period beginning on the
date of such election and ending on the first day of the Plan Year
in which the Participant will attain age 35. Such election shall
not be valid unless the Participant receives a written explanation
of the Qualified Pre-Retirement Survivor Annuity in such terms as
are comparable to the explanation required under paragraph 8.5.
Qualified Pre-Retirement Survivor Annuity coverage will be
automatically reinstated as of the first day of the Plan Year in
which the Participant attains age 35. Any new waiver on or after
such date shall be subject to the full requirements of this
Article.
8.4 Qualified Election A Qualified Election is an election to
either waive a Qualified Joint and Survivor Annuity or a Qualified
Pre-Retirement Survivor Annuity. Any such election shall not be
effective unless:
(a) the Participant's Spouse consents in writing to the election,
(b) the election designates a specific beneficiary, including any
class of beneficiaries or any contingent beneficiaries, which may
not be changed without spousal consent (or the Spouse expressly
permits designations by the Participant without any further
spousal consent),
(c) the Spouse's consent acknowledges the effect of the election,
and
(d) the Spouse's consent is witnessed by a Plan representative or
notary public.
Additionally, a Participant's waiver of the Qualified Joint and
Survivor Annuity shall not be effective unless the election
designates a form of benefit payment which may not be changed
without Spousal consent (or the Spouse expressly permits
designations by the Participant without any further Spousal
consent). If it is established to the satisfaction of the Plan
Administrator that there is no Spouse or that the Spouse cannot be
located, a waiver will be deemed a Qualified Election. Any consent
by a Spouse obtained under this provision (or establishment that
the consent of a Spouse may not be obtained) shall be effective
only with respect to such Spouse. A consent that permits
designations by the Participant without any requirement of further
consent by such Spouse must acknowledge that the Spouse has the
right to limit consent to a specific beneficiary, and a specific
form of benefit where applicable, and that the Spouse voluntarily
elects to relinquish either or both of such rights. A revocation
of a prior waiver may be made by a Participant without the consent
of the Spouse at any time before the commencement of benefits. The
number of revocations shall not be limited. No consent obtained
under this provision shall be valid unless the Participant has
received notice as provided in paragraphs 8.5 and 8.6 below.
8.5 Notice Requirements For Qualified Joint And Survivor Annuity
In the case of a Qualified Joint and Survivor Annuity, the Plan
Administrator shall, no less than 30 days and no more than 90 days
prior to the Annuity Starting date, provide each Participant a
written explanation of:
(a) the terms and conditions of a Qualified Joint and Survivor
Annuity,
(b) the Participant's right to make and the effect of an election
to waive the Qualified Joint and Survivor Annuity form of benefit,
(c) the rights of a Participant's Spouse, and
(d) the right to make, and the effect of, a revocation of a
previous election to waive the Qualified Joint and Survivor
Annuity.
8.6 Notice Requirements For Qualified Pre-Retirement Survivor
Annuity In the case of a Qualified Pre-Retirement Survivor Annuity
as described in paragraph 8.3, the Plan Administrator shall
provide each Participant within the applicable period for such
Participant a written explanation of the Qualified Pre-Retirement
Survivor Annuity in such terms and in such manner as would be
comparable to the explanation provided for meetmg the requirements
of paragraph 8.5 applicable to a Qualified Joint and Survivor
Annuity. The applicable period for a Participant is whichever of
the following periods ends last:
(a) the period beginning with the first day of the Plan Year in
which the Participant attains age 32 and ending with the close of
the Plan Year preceding the Plan Year in which the Participant
attains age 35,
(b) a reasonable period ending after the individual becomes a
Participant,
(c) a reasonable period ending after this Article first applies to
the Participant. Notwithstanding the foregoing, notice must be
provided within a reasonable period ending after separation from
Service in the case of a Participant who separates from Service
before attaining age 35.
For purposes of applying the preceding paragraph, a reasonable
period ending after the events described in (b) and (c) is the end
of the two-year period beginning one year prior to the date the
applicable event occurs, and ending one year after that date. In
the case of a Participant who separates from Service before the
Plan Year in which age 35 is attained, notice shall be provided
within the two-year period beginning one year prior to separation
and ending one year after separation. If such a Participant
subsequently returns to employment with the Employer, the
applicable period for such Participant shall be redetermined.
8.7 Special Safe-Harbor Exception For Certain Profit-Sharing Plans
(a) This paragraph shall apply to a Participant in a
profit-sharing plan, and to any distribution, made on or after the
first day of the first plan year beginning after 1988, from or
under a separate account attributable solely to Qualified
Voluntary Contributions, as maintained on behalf of a Participant
in a money purchase pension plan (including a target benefit
plan), if the following conditions are satisfied:
(1) the Participant does not or cannot elect payments in the form
of a life annuity, and
(2) on the death of a Participant, the Participant's Vested
Account Balance will be paid to the Participant's Surviving
Spouse, but if there is no Surviving Spouse, or if the Surviving
Spouse has consented in a manner conforming to a Qualified
Election, then to the Participant's Designated Beneficiary.
The Surviving Spouse may elect to have distribution of the Vested
Account Balance commence within the 90-day period following the
date of the Participant's death. The account balance shall be
adjusted for gains or losses occurring after the Participant's
death in accordance with the provisions of the Plan governing the
adjustment of account balances for other types of distributions.
These safe-harbor rules shall not be operative with respect to a
Participant in a profit-sharing plan if that plan is a direct or
indirect transferee of a Defined Benefit Plan, money purchase
plan, a target benefit plan, stock bonus plan, or profit-sharing
plan which is subject to the survivor annuity requirements of Code
Section 401(a)(11) and Code Section 417, and would therefore have
a Qualified Joint and Survivor Annuity as its normal form of
benefit.
(b) The Participant may waive the spousal death benefit described
in this paragraph at any time provided that no such waiver shall
be effective unless it satisfies the conditions (described in
paragraph 8.4) that would apply to the Participant's waiver of the
Qualified Pre-Retirement Survivor Annuity.
(c) If this paragraph 8.7 is operative, then all other provisions
of this Article other than paragraph 8.8 are inoperative.
8.8 Transitional Joint And Survivor Annuity Rules Special
transition rules apply to Participants who were not receiving
benefits on August 23,1984.
(a) Any living Participant not receiving benefits on August
23,1984, who would otherwise not receive the benefits prescribed
by the previous paragraphs of this Article, must be given the
opportunity to elect to have the prior paragraphs of this Article
apply if such Participant is credited with at least one Hour of
Service under this Plan or a predecessor Plan in a Plan Year
beginning on or after January 1,1976 and such Participant had at
least 10 Years of Service for vesting purposes when he or she
separated from Service.
(b) Any living Participant not receiving benefits on August
23,1984, who was credited with at least one Hour of Service under
this Plan or a predecessor Plan on or after September 2,1974, and
who is not otherwise credited with any Service in a Plan Year
beginning on or after January 1,1976, must be given the
opportunity to have his or her benefits paid in accordance with
paragraph 8.9.
(c) The respective opportunities to elect [as described in (a) and
(b) above] must be afforded to the appropriate Participants during
the period commencing on August 23,1984 and ending on the date
benefits would otherwise commence to said Participants.
8.9 Automatic Joint And Survivor Annuity And Early Survivor
Annuity Any Participant who has elected pursuant to paragraph
8.8(b) and any Participant who does not elect under paragraph
8.8(a) or who meets the requirements of paragraph 8.8(a), except
that such Participant does not have at least 10 years of vesting
Service when he or she separates from Service, shall have his or
her benefits distributed in accordance with all of the following
requirements if benefits would have been payable in the form of a
life annuity.
(a) Automatic Joint and Survivor Annuity. If benefits in the form
of a life annuity become payable to a married Participant who:
(1) begins to receive payments under the Plan on or after Normal
Retirement Age, or
(2) dies on or after Normal Retirement Age while still working for
the Employer, or
(3) begins to receive payments on or after the Qualified Early
Retirement Age, or
(4) separates from Service on or after attaining Normal Retirement
(or the Qualified Early Retirement Age) and after satisfying the
eligibility requirements for the payment of benefits under the
Plan and thereafter dies before beginning to receive such
benefits, then such benefits will be received under this Plan in
the form of a Qualified Joint and Survivor Annuity, unless the
Participant has elected otherwise during the Election Period. The
Election Period must begin at least 6 months before the
Participant attains Qualified Early Retirement Age and end not
more than 90 days before the commencement of benefits. Any
election will be in writing and may be changed by the Participant
at any time.
(b) Election of Early Survivor Annuity. A Participant who is
employed after attaining the Qualified Early Retirement Age will
be given the opportunity to elect, during the Election Period, to
have a survivor annuity payable on death. If the Participant
elects the survivor annuity, payments under such annuity must not
be less than the payments which would have been made to the Spouse
under the Qualified Joint and Survivor Annuity if the Participant
had retired on the day before his or her death. Any election under
this provision will be in writing and may be changed by the
Participant at any time. The Election Period begins on the later
of:
(1) the 90th day before the Participant attains the Qualified
Early Retirement Age, or
(2) the date on which participation begins, and ends on the date
the Participant terminates employment.
8.10 Annuity Contracts Any annuity contract distributed under this
Plan must be nontransferable. The terms of any annuity contract
purchased and distributed by the Plan to a Participant or Spouse
shall comply with the requirements of this Plan.
ARTICLE IX
VESTING
9.1 Employee Contributions A Participant shall always have a 100%
vested and nonforfeitable interest in his or her Elective
Deferrals, Voluntary Contributions, Qualified Voluntary
Contributions, Rollover Contributions, and Transfer Contributions
plus the earnings thereon. No forfeiture of Employer related
contributions (including any minimum contributions made under
paragraph 14.2) will occur solely as a result of an Employee's
withdrawal of any Employee contributions.
9.2 Employer Contributions A Participant shall acquire a vested
and nonforfeitable interest in his or her account attributable to
Employer contributions in accordance with the table selected in
the Adoption Agreement, provided that if a Participant is not
already fully vested, he or she shall become so upon attaining
Normal Retirement Age, Early Retirement Age, on death prior to
normal retirement, on retirement due to Disability, or on
termination of the Plan.
9.3 Computation Period The computation period for purposes of
determining Years of Service and Breaks in Service for purposes of
computing a Participant's nonforfeitable right to his or her
account balance derived from Employer contributions shall be
determined by the Employer in the Adoption Agreement. In the event
a former Participant with no vested interest in his or her
Employer contribution account requalifies for participation in the
Plan after incurring a Break in Service, such Participant shall be
credited for vesting with all pre-break and post-break Service.
9.4 Requalification Prior To Five Consecutive One-Year Breaks In
Service The account balance of such Participant shall consist of
any undistributed amount in his or her account as of the date of
re-employment plus any future contributions added to such account
plus the investment earnings on the account. The vested account
balance of such Participant shall be determined by multiplying the
Participant's account balance (adjusted to include any
distribution or redeposit made under paragraph 6.3) by such
Participant's vested percentage. All Service of the Participant,
both prior to and following the break, shall be counted when
computing the Participant's vested percentage.
9.5 Requalification After Five Consecutive One-Year Breaks In
Service If such Participant is not fully vested upon
re-employment, a new account shall be established for such
Participant to separate his or her deferred vested and
nonforfeitable account, if any, from the account to which new
allocations will be made. The Participant's deferred account to
the extent remaining shall be fully vested and shall continue to
share in earnings and losses of the Fund. When computing the
Participant's vested portion of the new account, all pre-break and
post-break Service shall be counted. However, notwithstanding this
provision, no such former Participant who has had five consecutive
one-year Breaks in Service shall acquire a larger vested and
nonforfeitable interest in his or her prior account balance as a
result of Requalification hereunder.
9.6 Calculating Vested Interest A Participant's vested and
nonforfeitable interest shall be calculated by multiplying the
fair market value of his or her account attributable to Employer
contributions on the Valuation Date concurrent with or preceding
distribution by the decimal equivalent of the vested percentage as
of his or her termination date. The amount attributable to
Employer contributions for purposes of the calculation includes
amounts previously paid out pursuant to paragraph 6.3 and not
repaid. The Participant's vested and nonforfeitable interest once
calculated above, shall be reduced to reflect those amounts
previously paid out to the Participant and not repaid by the
Participant. The Participant's vested and nonforfeitable interest
so determined shall continue to share in the investment earnings
and any increase or decrease in the fair market value of the Fund
up to the Valuation Date preceding or coinciding with payment.
9.7 Forfeitures Any balance in the account of a Participant who
has separated from Service to which he or she is not entitled
under the foregoing provisions, shall be forfeited and applied as
provided in the Adoption Agreement. A forfeiture may only occur if
the Participant has received a distribution from the Plan or if
the Participant has incurred five consecutive one-year Breaks in
Service. For purposes of this paragraph, 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. Furthermore, a Highly Compensated Employee's
Matching Contributions may be forfeited, even if vested, if the
contributions to which they relate are Excess Deferrals, Excess
Contributions or Excess Aggregate Contributions.
9.8 Amendment Of Vesting Schedule No amendment to the Plan shall
have the effect of decreasing a Participant's vested interest
determined without regard to such amendment as of the later of the
date such amendment is adopted or the date it becomes effective.
Further, if the vesting schedule of the Plan is amended, or the
Plan is amended in any way that directly or indirectly affects the
computation of any Participant's nonforfeitable percentage or if
the Plan is deemed amended by an automatic change to or from a
Top-Heavy vesting schedule, each Participant with at least three
Years of Service with the Employer may elect, within a reasonable
period after the adoption of the amendment, to have his or her
nonforfeitable percentage computed under the Plan without regard
to such amendment. For Participants who do not have at least one
Hour of Service in any Plan Year beginning after 1988, the
preceding sentence shall be applied by substituting "Five Years of
Service" for "Three Years of Service" where such language appears.
The period during which the election may be made shall commence
with the date the amendment is adopted and shall end on the later
of:
(a) 60 days after the amendment is adopted,
(b) 60 days after the amendment becomes effective, or
(c) 60 days after the Participant is issued written notice of the
amendment by the Employer or the Trustee. If the Trustee is asked
to so notify, the Fund will be charged for the costs thereof.
No amendment to the Plan shall be effective to the extent that it
has the effect of decreasing a Participant's accrued benefit.
Notwithstanding the preceding sentence, a Participant's account
balance may be reduced to the extent permitted under section
412(c)(8) of the Code (relating to financial hardships). For
purposes of this paragraph, a Plan amendment which has the effect
of decreasing a Participant's account balance or eliminating an
optional form of benefit, with respect to benefits attributable to
service before the amendment, shall be treated as reducing an
accrued benefit.
9.9 Service With Controlled Groups All Years of Service with other
members of a controlled group of corporations [as defined in Code
Section 414(b)], trades or businesses under common control [as
defined in Code Section 414(c)], or members of an affiliated
service group [as defined in Code Section 414(m)] shall be
considered for purposes of determining a Participant's
nonforfeitable percentage.
ARTICLE X
LIMITATIONS ON ALLOCATIONS
AND ANTIDISCRIMINATION TESTING
10.1 Participation In This Plan Only If the Participant does not
participate in and has never participated in another qualified
plan, a Welfare Benefit Fund as defined in paragraph 1.91,
individual medical account as defined in Code Section 415(1)(2),
or a Simplified Employee Pension Plan (as defined in paragraph
1.77) maintained by the adopting Employer, which provides an
Annual Addition as defined in paragraph 1.5, the amount of Annual
Additions which may be credited to the Participant's account for
any Limitation Year will not exceed the lesser of the Maximum
Permissible Amount or any other limitation contained in this Plan.
If the Employer contribution that would otherwise be contributed
or allocated to the Participant's account would cause the Annual
Additions for the Limitation Year to exceed the Maximum
Permissible Amount, the amount contributed or allocated will be
reduced so that the Annual Additions for the Limitation Year will
equal the Maximum Permissible Amount. Prior to determining the
Participant's actual Compensation for the Limitation Year, the
Employer may determine the Maximum Permissible Amount for a
Participant on the basis of a reasonable estimate of the
Participant's Compensation for the Limitation Year, uniformly
determined for all Participants similarly situated. As soon as is
administratively feasible after the end of the Limitation Year,
the Maximum Permissible Amount for the Limitation Year will be
determined on the basis of the Participant's actual Compensation
for the Limitation Year.
10.2 Disposition Of Excess Annual Additions If, pursuant to
paragraph 10.1 or as a result of the allocation of forfeitures,
there is an Excess Amount, the excess will be disposed of under
one of the following methods as determined in the Adoption
Agreement. If no election is made in the Adoption Agreement then
method "(a)" below shall apply.
(a) Suspense Account Method
(1) Any nondeductible Employee Voluntary, Required Voluntary
Contributions and unmatched Elective Deferrals to the extent they
would reduce the Excess Amount will be returned to the
Participant. To the extent necessary to reduce the Excess Amount,
non-Highly Compensated Employees will have all Elective Deferrals
returned whether or not there was a corresponding match.
(2) If after the application of paragraph (1) an Excess Amount
still exists, and the Participant is covered by the Plan at the
end of the Limitation Year, the Excess Amount in the Participant's
account will be used to reduce Employer contributions (including
any allocation of forfeitures) for such Participant in the next
Limitation Year, and each succeeding Limitation Year if necessary.
(3) If after the application of paragraph (1) an Excess Amount
still exists, and the Participant is not covered by the Plan at
the end of the Limitation Year, the Excess Amount will be held
unallocated in a suspense account. The suspense account will be
applied to reduce future Employer contributions (including
allocation of any forfeitures) for all remaining Participants in
the next Limitation Year, and each succeeding Limitation Year if
necessary.
(4) If a suspense account is in existence at any time during the
Limitation Year pursuant to this paragraph, it will not
participate in the allocation of investment gains and losses. If a
suspense account is in existence at any time during a particular
Limitation Year, all amounts in the suspense account must be
allocated and reallocated to Participants' accounts before any
Employer Contributions or any Employee contributions may be made
to the Plan for that Limitation Year. Excess amounts may not be
distributed to Participants or former Participants.
(b) Spillover Method
(1) Any nondeductible Employee Voluntary, Required Voluntary
Contributions and unmatched Elective Deferrals to the extent they
would reduce the Excess Amount will be returned to the
Participant. To the extent necessary to reduce the Excess Amount,
non-Highly Compensated Employees will have all Elective Deferrals
returned whether or not there was a corresponding match.
(2) Any Excess Amount which would be allocated to the account of
an individual Participant under the Plan's allocation formula will
be reallocated to other Participants in the same manner as other
Employer contributions. No such reallocation shall be made to the
extent that it will result in an Excess Amount being created in
such Participant's own account.
(3) To the extent that amounts cannot be reallocated under (1)
above, the suspense account provisions of (a) above will apply.
10.3 Participation In This Plan And Another Qualified Master and
Prototype Defined Contribution Plan, Welfare Benefit Fund,
Individual Medical Account Or Simplified Employee Pension Plan
Maintained By The Employer The Annual Additions which may be
credited to a Participant's account under this Plan for any
Limitation Year will not exceed the Maximum Permissible Amount
reduced by the Annual Additions credited to a Participant's
account under the other qualified Master or Prototype Defined
Contribution Plans, Welfare Benefit Funds, individual medical
accounts as defined in Code Section 415(1)(2), and Simplified
Employee Pension Plans maintained by the Employer, which provide
an Annual Addition as defined in paragraph 1.5 for the same
Limitation Year. If the Annual Additions with respect to the
Participant under other Defined Contribution Plans, Welfare
Benefit Funds, individual medical accounts and Simplified Employee
Pension Plans maintained by the Employer are less than the Maximum
Permissible Amount and the Employer contribution that would
otherwise be contributed or allocated to the Participant's account
under this Plan would cause the Annual Additions for the
Limitation Year to exceed this limitation, the amount contributed
or allocated will be reduced so that the Annual Additions under
all such plans and funds for the Limitation Year will equal the
Maximum Permissible Amount. If the Annual Additions with respect
to the Participant under such other Defined Contribution Plans and
Welfare Benefit Funds in the aggregate are equal to or greater
than the Maximum Permissible Amount, no amount will be contributed
or allocated to the Participant's account under this Plan for the
Limitation Year. Prior to determining the Participant's actual
Compensation for the Limitation Year, the Employer may determine
the Maximum Permissible Amount for a Participant in the manner
described in paragraph 10.1. As soon as administratively feasible
after the end of the Limitation Year, the Maximum Permissible
Amount for the Limitation Year will be determined on the basis of
the Participant's actual Compensation for the Limitation Year.
10.4 Disposition Of Excess Annual Additions Under Two Plans If,
pursuant to paragraph 10.3 or as a result of forfeitures, a
Participant's Annual Additions under this Plan and such other
plans would result in an Excess Amount for a Limitation Year, the
Excess Amount will be deemed to consist of the Annual Additions
last allocated except that Annual Additions attributable to a
Simplified Employee Pension Plan will be deemed to have been
allocated first followed by Annual Additions to a Welfare Benefit
Fund or individual medical account as defined in Code Section
415(1)(2) will be deemed to have been allocated next regardless of
the actual allocation date. If an Excess Amount was allocated to a
Participant on an allocation date of this Plan which coincides
with an allocation date of another plan, the Excess Amount
attributed to this Plan will be the product of:
(a) the total Excess Amount allocated as of such date, times
(b) the ratio of:
(1) the Annual Additions allocated to the Participant for the
Limitation Year as of such date under the Plan, to
(2) the total Annual Additions allocated to the Participant for
the Limitation Year as of such date under this and all the other
qualified Master or Prototype Defined Contribution Plans.
Any Excess Amount attributed to this Plan will be disposed of in
the manner described in paragraph 10.2.
10.5 Participation In This Plan And Another Defined Contribution
Plan Which Is Not A Master Or Prototype Plan If the Participant is
covered under another qualified Defined Contribution Plan
maintained by the Employer which is not a Master or Prototype
Plan, Annual Additions which may be credited to the Participant's
account under this Plan for any Limitation Year will be limited in
accordance with paragraphs 10.3 and 10.4 as though the other plan
were a Master or Prototype Plan.
10.6 Participation In This Plan And A Defined Benefit Plan If the
Employer maintains, or at any time maintained, a qualified Defined
Benefit Plan covering any Participant in this Plan, the sum of the
Participant's Defined Benefit Plan Fraction and Defined
Contribution Plan Fraction will not exceed 1.0 in any Limitation
Year. For any Plan Year during which the Plan is Top-Heavy, the
Defined Benefit and Defined Contribution Plan Fractions shall be
calculated in accordance with Code Section 416(h). The Annual
Additions which may be credited to the Participant's account under
this Plan for any Limitation Year will be limited in accordance
with the provisions set forth in the Adoption Agreement.
10.7 Average Deferral Percentage (ADP) Test With respect to any
Plan Year, the Average Deferral Percentage for Participants who
are Highly Compensated Employees and the Average Deferral
Percentage for Participants who are non-Highly Compensated
Employees must satisfy one of the following tests:
(a) Basic Test - The Average Deferral Percentage for Participants
who are Highly Compensated Employees for the Plan Year is not more
the 1.25 times the Average Deferral Percentage for Participants
who are non-Highly Compensated Employees for the same Plan Year,
or
(b) Alternative Test - The Average Deferral Percentage for
Participants who are Highly Compensated Employees for the Plan
Year does not exceed the Average Deferral Percentage for
Participants who are non-Highly Compensated Employees for the same
Plan Year by more than two percentage points provided that the
Average Deferral Percentage for Participants who are Highly
Compensated Employees is not more the 2.0 times the Average
Deferral Percentage for Participants who are non-Highly
Compensated Employees.
10.8 Special Rules Relating To Application Of ADP Test
(a) The Actual Deferral Percentage for any Participant who is a
Highly Compensated Employee for the Plan Year and who is eligible
to have Elective Deferrals (and Qualified Non-Elective
Contributions or Qualified Matching Contributions, or both, if
treated as Elective Deferrals for purposes of the ADP test)
allocated to his or her accounts under two or more arrangements
described in Code Section 401(k), that are maintained by the
Employer, shall be determined as if such Elective Deferrals (and,
if applicable, such Qualified Non-Elective Contributions or
Qualified Matching Contributions, or both) were made under a
single arrangement. If a Highly Compensated Employee participates
in two or more cash or deferred arrangements that have different
Plan Years, all cash or deferred arrangements ending with or
within the same calendar year shall be treated as a single
arrangement. Notwithstanding the foregoing, certain plans shall be
treated as separate if mandatorily disaggregated under regulations
under Code Section 401(k).
(b) In the event that this Plan satisfies the requirements of Code
Sections 401(k), 401(a)(4), or 410(b) only if aggregated with one
or more other plans, or if one or more other plans satisfy the
requirements of such Code Sections only if aggregated with this
Plan, then this Section shall be applied by determining the Actual
Deferral Percentage of Employees as if all such plans were a
single plan. For Plan Years beginning after 1989, plans may be
aggregated in order to satisfy Code Section 401(k) only if they
have the same Plan Year.
(c) For purposes of determining the Actual Deferral Percentage of
a Participant who is a five-percent owner or one of the ten most
highly-paid Highly Compensated Employees, the Elective Deferrals
(and Qualified Non-Elective Contributions or Qualified Matching
Contributions, or both, if treated as Elective Deferrals for
purposes of the ADP test) and Compensation of such Participant
shall include the Elective Deferrals (and, if applicable,
Qualified Non-Elective Contributions and Qualified Matching
Contributions, or both) and Compensation for the Plan Year of
Family Members as defined in paragraph 1.37 of this Plan. Family
Members, with respect to such Highly Compensated Employees, shall
be disregarded as separate Employees in determining the ADP both
for Participants who are non-Highly Compensated Employees and for
Participants who are Highly Compensated Employees. In the event of
repeal of the family aggregation rules under Code Section
414(q)(6), all applications of such rules under this Plan will
cease as of the effective date of such repeal.
(d) For purposes of determining the ADP test, Elective Deferrals,
Qualified Non-Elective Contributions and Qualified Matching
Contributions must be made before the last day of the twelve-month
period immediately following the Plan Year to which contributions
relate.
(e) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ADP test and the amount of Qualified
Non-Elective Contributions or Qualified Matching Contributions, or
both, used in such test.
(f) The determination and treatment of the Actual Deferral
Percentage amounts of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the
Treasury.
10.9 Average Contribution Percentage (ACP) Test If the Employer
makes Matching Contributions or if the Plan allows Employees to
make Voluntary Contributions the Plan must meet additional
nondiscrimination requirements provided under Code Section 401(m).
If Employee contributions (including any Elective Deferrals
recharacterized as Voluntary Contributions) are made pursuant to
this Plan, then in addition to the ADP test referenced in
paragraph 10.7, the Average Contribution Percentage test is also
applicable. The Average Contribution Percentage for Participants
who are Highly Compensated Employees for each Plan Year and the
Average Contribution Percentage for Participant who are non-Highly
Compensated Employees for the same Plan Year must satisfy one of
the following tests:
(a) Basic Test - The Average Contribution Percentage for
Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the Average Contribution Percentage for
Participants who are non-Highly Compensated Employees for the same
Plan Year multiplied by 1.25; or
(b) Alternative Test - The Average Contribution Percentage for
Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the Average Contribution Percentage for
Participants who are non-Highly Compensated Employees for the same
Plan Year multiplied by two (2), provided that the Average
Contribution Percentage for Participants who are Highly
Compensated Employees does not exceed the Average Contribution
Percentage for Participants who are non-Highly Compensated
Employees by more than two (2) percentage points.
10.10 Special Rules Relating To Application Of ACP Test
(a) If one or more Highly Compensated Employees participate in
both a cash or deferred arrangement and a plan subject to the ACP
test maintained by the Employer and the sum of the ADP and ACP of
those Highly Compensated Employees subject to either or both tests
exceeds the Aggregate Limit, then the ADP or ACP of those Highly
Compensated Employees who also participate in a cash or deferred
arrangement will be reduced (beginning with such Highly
Compensated Employee whose ADP or ACP is the highest) as set forth
in the Adoption Agreement so that the limit is not exceeded. The
amount by which each Highly Compensated Employee's Contribution
Percentage Amount is reduced shall be treated as an Excess
Aggregate Contribution. The ADP and ACP of the Highly Compensated
Employees are determined after any corrections required to meet
the ADP and ACP tests. Multiple use does not occur if both the ADP
and ACP of the Highly Compensated Employees does not exceed 1.25
multiplied by the ADP and ACP of the non-Highly Compensated
Employees.
(b) For purposes of this Article, the Contribution Percentage for
any Participant who is a Highly Compensated Employee and who is
eligible to have Contribution Percentage Amounts allocated to his
or her account under two or more plans described in Code Section
401(a) or arrangements described in Code Section 401(k) that are
maintained by the Employer, shall be determined as if the total of
such Contribution Percentage Amounts was made under each plan. If
a Highly Compensated Employee participates in two or more cash or
deferred arrangements that have different plan years, all cash or
deferred arrangements ending with or within the same calendar year
shall be treated as a single arrangement. Notwithstanding the
foregoing, certain plans shall be treated as separate if
mandatorily disaggregated under regulations under Code Section
401(k).
(c) In the event that this Plan satisfies the requirements of Code
Sections 401(a)(4), 401(m), or 410(b) only if aggregated with one
or more other plans, or if one or more other plans satisfy the
requirements of such Code Sections only if aggregated with this
Plan, then this Section shall be applied by determining the
Contribution Percentage of Employees as if all such plans were a
single plan. For plan years beginning after 1989, plans may be
aggregated in order to satisfy Code Section 401(m) only if the
aggregated plans have the same Plan Year.
(d) For purposes of determining the Contribution percentage of a
Participant who is a five-percent owner or one of the ten most
highly-paid Highly Compensated Employees, the Contribution
Percentage Amounts and Compensation of such Participant shall
include the Contribution Percentage Amounts and Compensation for
the Plan Year of Family Members as defined in Paragraph 1.37 of
this Plan. Family Members, with respect to Highly Compensated
Employees, shall be disregarded as separate Employees in
determining the Contribution Percentage both for Participants who
are non-Highly Compensated Employees and for Participants who are
Highly Compensated Employees. In the event of repeal of the family
aggregation rules under Code Section 414(q)(6), all applications
of such rules under this Plan will cease as of the effective date
of such repeal.
(e) For purposes of determining the Contribution Percentage test,
Employee Contributions are considered to have been made in the
Plan Year in which contributed to the trust. Matching
Contributions and Qualified Non-Elective Contributions will be
considered made for a Plan Year if made no later than the end of
the twelve-month period beginning on the day after the close of
the Plan Year.
(f) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ACP test and the amount of Qualified
Non-Elective Contributions or Qualified Matching Contributions, or
both, used in such test.
(g) The determination and treatment of the Contribution Percentage
of any Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(h) Qualified Matching Contributions and Qualified Non-Elective
Contributions used to satisfy the ADP test may not be used to
satisfy the ACP test.
ARTICLE XI
ADMINISTRATION
11.1 Plan Administrator The Employer shall be the named fiduciary
and Plan Administrator. The Plan Administrator's duties shall
include but are not limited to:
(a) appointing the Plan's attorney, accountant, actuary, or any
other party needed to administer the Plan,
(b) directing the Trustee or Recordkeeper with respect to payments
from the Fund,
(c) communicating with Employees regarding their participation and
benefits under the Plan, including the administration of all
claims procedures,
(d) filing any returns and reports with the Internal Revenue
Service, Department of Labor, or any other government agency,
(e) reviewing and approving any financial reports, investment
reviews, or other reports prepared by any party appointed by the
Employer under paragraph (a),
(f) ensuring that any and all Plan loans are in compliance with
all requirements of law, including but not limited to, the
requirements of the Internal Revenue Code and the regulations
thereunder and the regulations of the Department of Labor,
(g) obtaining a legal determination of the qualified status of all
Qualified Domestic Relations Orders and complying with all
requirements of the law with regard thereto, in accordance with
paragraph 12.5,
(h) establishing a funding policy and investment objectives
consistent with the purposes of the Plan and the Employee
Retirement Income Security Act of 1974, and
(i) construing and resolving any question of Plan interpretation.
The Plan Administrator's interpretation of Plan provisions
including eligibility and benefits under the Plan is final, and
unless it can be shown to be arbitrary and capricious will not be
subject to "de novo" review.
11.2 Trustee The Trustee shall be responsible for the safekeeping
of investments held in the Fund and shall act solely as a directed
Trustee. The Trustee's duties shall include:
(a) receiving contributions under the terms of the Plan,
(b) making distributions from the Fund in accordance with written
instructions received from an authorized representative of the
Employer, including any Recordkeeper, and
(c) filing with the Employer, within 90 days after each Plan Year,
and within 90 days after its removal or resignation as Trustee, an
accounting of its safekeeping of the Fund during such year or from
the end of the preceding Plan Year to the date of removal or
resignation. Such accounting shall include a statement of cash
receipts and disbursements since the date of its last accounting
and shall contain an asset list showing the fair market value of
investments held in the Fund as of the end of the Plan Year. The
value of marketable investments shall be determined using the most
recent price quoted on a national securities exchange or over the
counter market. The value of non-marketable investments shall be
determined in the sole judgment of the Trustee, which
determination shall be binding and conclusive. The value of
investments in securities or obligations of the Employer in which
there is no market shall be determined in the sole judgement of
the Employer, and the Trustee shall have no responsibility with
respect to the valuation of such assets. The Employer shall review
the Trust accounting and notify the Trustee in the event of its
disapproval of the report within 90 days, providing the Trustee
with a written description of the items in question. Upon
expiration of 90 days after furnishing such Trust accounting to
the Employer, the Trustee shall be forever released and discharged
from all liability and accountability to anyone with respect to
its acts, actions, duties, obligations or responsibilities as
shown in or reflected by such statement, except with respect to
any such acts or transactions as to which the Employer shall have
filed written objections with the Trustee within such 90-day
period. The Trustee shall have 60 days to provide the Employer
with a written explanation of the items in question. If the
Employer again disapproves, the Trustee shall file its accounting
in a court of competent jurisdiction for audit and adjudication.
(d) employing such agents, attorneys or other professionals as the
Trustee may deem necessary or advisable in the performance of its
duties.
The Trustee's duties shall be limited to those described above.
The Employer shall be responsible for any other duties required
under the Plan or by applicable law.
11.3 Recordkeeper The Recordkeeper shall be responsible for
maintaining Plan administrative records. The Recordkeeper's duties
shall include but are not limited to:
(a) transmitting Employer directives, as agent of the Employer, to
the Trustee,
(b) keeping accurate records reflecting the administration of the
Fund,
(c) making such records available to the Employer for review and
audit,
(d) accounting of any loans made to Participants, and
(e) any and all duties agreed upon between the Employer and
Recordkeeper.
11.4 Administrative Fees And Expenses All reasonable costs,
charges and expenses incurred by the Trustee in connection with
its duties hereunder, and all reasonable costs, charges and
expenses, including any recordkeeping fees incurred by the Plan
Administrator in connection with the administration of the Plan
(including fees for legal services rendered to the Trustee or Plan
Administrator) may be paid by the Employer, but if not paid by the
Employer when due, shall be paid from the Fund. Such reasonable
compensation to the Trustee as may be agreed upon from time to
time between the Employer and the Trustee and such reasonable
compensation to the Plan Administrator as may be agreed upon from
time to time between the Employer and Plan Administrator may be
paid by the Employer, but if not paid by the Employer when due
shall be paid by the Fund. The Trustee shall have the right to
liquidate trust assets to cover its fees. Notwithstanding the
foregoing, no compensation other than reimbursement for expenses
shall be paid to a Plan Administrator who is the Employer or a
full-time Employee of the Employer. In the event any part of the
Trust becomes subject to tax, all taxes incurred will be paid from
the Fund unless the Plan Administrator advises the Trustee not to
pay such tax.
11.5 Division Of Duties And Indemnification
(a) The Trustee shall have no authority except pursuant to the
Employer's direction or that of any authorized agent of the
Employer.
(b) The Trustee shall not be liable for the making, retention or
sale of any investment or reinvestment made by it, as herein
provided, or for any loss to, or diminution of the Fund, or for
any other loss or damage which may result from the discharge of
its duties hereunder except to the extent it is judicially
determined that the Trustee has failed to exercise the care,
skill, prudence and diligence under the circumstances then prevailing
that a prudent person acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise of a like
character with like aims.
(c) The Employer warrants that all directions issued by it to the
Trustee or the Recordkeeper will be in accordance with the terms
of the Plan and not contrary to the provisions of the Employee
Retirement Income Security Act of 1974 and regulations issued
thereunder.
(d) Neither the Trustee nor the Recordkeeper shall be answerable
for any action taken pursuant to any direction, consent,
certificate, or other paper or document on the belief that the
same is genuine and signed by the proper person. All directions by
the Employer, Participant, or the Plan Administrator shall be in
writing. The Employer shall deliver to the Trustee or
Recordkeeper, if any, certificates evidencing the individual or
individuals authorized to act as set forth in the Adoption
Agreement or as the Employer may subsequently inform the Trustee
or Recordkeeper, if any, in writing and shall deliver to the
Trustee or Recordkeeper, if any, specimens of their signatures.
(e) The duties and obligations of the Trustee and the Recordkeeper
shall be limited to those expressly imposed upon it by this
instrument or otherwise agreed upon in writing. Responsibility for
administrative duties required under the Plan or applicable law
not expressly imposed upon or agreed to by the Trustee and the
Recordkeeper, shall rest solely with the Employer.
(f) The Trustee shall be indemnified and saved harmless by the
Employer from and against any and all liability to which the
Trustee may be subjected, including all expenses reasonably
incurred in its defense for any action or failure to act resulting
from compliance with the instructions of the Employer, the
employees or agents of the Employer, the Plan Administrator, the
Recordkeeper, or any other fiduciary to the Plan, and for any
liability arising from the actions or non-actions of any
predecessor Trustee or fiduciary or other fiduciaries of the Plan.
(g) Neither the Trustee nor the Recordkeeper shall be responsible
in any way for the application of any payments it is directed to
make or for the adequacy of the Fund to meet and discharge any and
all liabilities under the Plan.
ARTICLE XII
TRUST FUND
12.1 The Fund The Fund shall consist of all contributions made
under Article III and Article IV of the Plan and the investment
thereof and earnings thereon. All contributions and the earnings
thereon less payments made under the terms of the Plan, shall
constitute the Fund. The Fund shall be administered as provided in
this document.
12.2 Control Of Plan Assets The assets of the Fund or evidence of
ownership shall be held by the Trustee under the terms of the Plan
and Trust. If the assets represent amounts transferred from
another trustee under a former plan, the Trustee named hereunder
shall not be responsible for any actions of the prior fiduciary,
including the review of the propriety of any investment under the
former plan. Any such review is to be the responsibility of the
Employer.
12.3 Exclusive Benefit Rules No part of the Fund shall be used
for, or diverted to, purposes other than for the exclusive benefit
of Participants, former Participants with a vested interest, and
the beneficiary or beneficiaries of deceased Participants having a
vested interest in the Fund at death.
12.4 Assignment And Alienation Of Benefits No right or claim to,
or interest in, any part of the Fund, or any payment from the
Fund, shall be assignable, transferable, or subject to sale,
mortgage, pledge, hypothecation, commutation, anticipation,
garnishment, attachment, execution, or levy of any kind. Any
attempt to assign, transfer, sell, mortgage, pledge, hypothecate,
commute, or anticipate the same, except to the extent required by
law, shall not be recognized. The preceding sentences shall also
apply to the creation, assignment, or recognition of a right to
any benefit payable with respect to a Participant pursuant to a
domestic relations order ("Order"), unless such order is
determined to be a qualified domestic relations order, as defined
in Code Section 414(p), or any Order entered before January 1,
1985 determined to be qualified.
12.5 Determination Of Qualified Domestic Relations Order (QDRO) An
Order shall specifically state all of the following to be deemed a
Qualified Domestic Relations Order ("QDRO"):
(a) the name and last known mailing address (if any) of the
Participant and of each alternate payee covered by the QDRO.
However, if the QDRO does not specify the current mailing address
of the alternate payee, but the Plan Administrator has independent
knowledge of that address, the QDRO will still be valid,
(b) the dollar amount or percentage of the Participant's benefit
to be paid by the Plan to each alternate payee, or the manner in
which the amount or percentage will be determined,
(c) the number of payments or period for which the order applies,
(d) the specific plan (by name) to which the Order applies.
The Order shall not be deemed a QDRO if it requires the Plan to
provide:
(e) any type or form of benefit, or any option not already
provided for in the Plan,
(f) increased benefits, or benefits in excess of the Participant's
vested rights,
(g) payment of a benefit earlier than allowed by the Plan's
earliest retirement provisions or in the case of a profit-sharing
plan, prior to the allowability of in-service withdrawals, or
(h) payment of benefits to an alternate payee which are required
to be paid to another alternate payee under another QDRO.
Promptly, upon receipt of an Order which may or may not be
qualified, the Plan Administrator shall notify the Participant and
any alternate payee(s) named in the Order of such receipt, and
include a copy of this paragraph 12.5. The Plan Administrator
shall then obtain a legal determination as to whether or not the
Order is in fact qualified as defined in Code Section 414(p).
Within a reasonable time after receipt of the Order, not to exceed
60 days, a legal determination shall be made as to its qualified
status and the Participant and any alternate payee(s) shall be
promptly notified in writing of the determination.
If the qualified status of the Order is in question, there will be
a delay in any payout to any payee including the Participant,
until the status is resolved. In such event, the Plan
Administrator shall segregate the amount that would have been
payable to the alternate payee(s) if the Order had been deemed a
QDRO. If the Order is not qualified, or the status is not resolved
(for example, it has been sent back to the Court for clarification
or modification) within 18 months beginning with the date the
first payment would have to be made under the Order, the Plan
Administrator shall pay the segregated amounts plus interest to
the person(s) who would have been entitled to the benefits had
there been no Order. If a determination as to the qualified status
of the Order is made after the 18-month period described above,
then the Order shall only be applied on a prospective basis. If
the Order is determined to be a QDRO, the Participant and
alternate payee(s) shall again be notified promptly after such
determination. Once an Order is deemed a QDRO, the Plan
Administrator shall pay to the alternate payee(s) all the amounts
due under the QDRO, including segregated amounts plus interest
which may have accrued during a dispute as to the Order's
qualification.
Unless specified otherwise in the Adoption Agreement, the earliest
retirement age with respect to the Participant against whom the
Order is entered shall be the date the Order is determined to be
qualified. This will only allow payments to the alternate payee(s)
and not the Participant.
ARTICLE XIII
INVESTMENTS
13.1 Fiduciary Standards The Trustee shall invest and reinvest
principal and income in the same Fund in accordance with the
investment objectives established by the Employer, provided that:
(a) such investments are prudent under the Employee Retirement
Income Security Act of 1974 and the regulations thereunder,
(b) such investments are sufficiently diversified or otherwise
insured or guaranteed to minimize the risk of large losses, and
(c) such investments are similar to those which would be purchased
by another professional money manager for a like plan with similar
investment objectives.
13.2 Funding Arrangement The Employer shall appoint Capital
Guardian Trust Company to serve as Trustee of the Fund. The Fund
shall be invested in any of the alternatives available to the
Trustee under paragraph 13.3 herein.
13.3 Investment Alternatives Of The Trustee The Trustee shall
invest assets in accordance with the Employer's investment
instructions and the Employee Retirement Income Security Act of
1974. In addition to powers given by law, the Trustee may:
(a) Invest the Fund in any form of property, including common and
preferred stocks, exchange traded put and call options, bonds,
money market instruments, mutual funds (including funds for which
the Trustee or any of its affiliates serve as investment advisor),
savings accounts, certificates of deposit, Treasury bills,
insurance policies and group annuity or other contracts, or in any
other property, real or personal, having a ready market including
securities issued by the Trustee and/or affiliates of the Trustee;
provided, however, that the Trustee must consent to investments
other than mutual funds or insurance policies and contracts issued
by am insurer acceptable to the Trustee. The Trustee may invest in
its own deposits and, if applicable, those of affiliates, which
bear a reasonable interest rate. No portion of any Qualified
Voluntary Contribution, or the earnings thereon, may be invested
in life insurance contracts or, as with any Participant-directed
investment, in tangible personal property characterized by the IRS
as a collectible,
(b) invest any assets of the Fund in a group or collective trust
established to permit the pooling of funds of separate pension and
profit-sharing trusts, provided the Internal Revenue Service has
ruled such group or collective trust to be qualified under Code
Section 401(a) and exempt under Code Section 501(a) (or the
applicable corresponding provision of any other Revenue Act) or to
any other common, collective, or commingled trust fund which has
been or may hereafter be established and maintained by the Trustee
and/or affiliates of the Trustee. Such commingling of assets of
the Fund with assets of other qualified trusts is specifically
authorized, and to the extent of the investment of the Fund in
such a group or collective trust, the terms of the instrument
establishing the group or collective trust shall be a part hereof
as though set forth herein,
(c) invest up to 100% of the Fund in the common stock (Qualifying
Employer Securities), debt obligations, or any other security
issued by the Employer or by an affiliate of the Employer within
the limitations provided under Sections 406, 407, and 408 of the
Employee Retirement Income Security Act of 1974 and further
provided that such investment does not constitute a prohibited
transaction under Code Section 4975. Any such investment in
Employer securities shall only be made upon written direction of
the Employer who shall be solely responsible for propriety of such
investment,
(d) hold cash uninvested and deposit same with any banking or
savings institution, including its own banking department or the
banking department of an affiliate,
(e) join in or oppose the reorganization, recapitalization,
consolidation, sale or merger of corporations or properties,
including those in which it is interested as Trustee, upon such
terms as it deems wise,
(f) hold investments in nominee or bearer form,
(g) vote proxies and, if appropriate, pass them on to any
investment manager which may have directed the investment in the
equity giving rise to the proxy; however, with regard to
registered investment company shares advised by an affiliate of
the Trustee, deliver to the Employer, and the Employer will in
turn deliver to the Participants, copies of any notices of
shareholder meetings, prospectuses, proxies and proxy information
and such shareholder reports which are received by the Trustee
with respect to such investment company shares. The Trustee shall
not vote any of such shares except in accordance with the written
instructions of the Employer.
(h) exercise all ownership rights with respect to assets held in
the Fund.
13.4 Participant Loans If agreed upon by the Trustee and permitted
by the Employer in the Adoption Agreement, a Participant may make
application to the Employer requesting a loan from the Fund. The
Employer shall have the sole right and responsibility of approving
or disapproving Participant applications. Loans shall be made
available to all Participants on a reasonably equivalent basis.
Loans shall not be made available to Highly Compensated Employees
[as defined m Code Section 414(q)] m an amount greater than the
amount made available to other Employees. Any loan granted under
the Plan shall be made subject to the following rules:
(a) no loan, when aggregated with any outstanding Participant
loan(s), shall exceed the lesser of (i) $50,000 reduced by the
excess, if any, of the highest outstanding balance of loans during
the one year period ending on the day before the loan is made,
over the outstanding balance of loans from the Plan on the date
the loan is made or (ii) one-half of the fair market value of a
Participant's Vested Account Balance built up from Employer
contributions, Voluntary Contributions, and Rollover
Contributions. For the purpose of the above limitation, all loans
from all plans of the Employer and other members of a group of
employers described in Code Sections 414(b), 414(c), and 414(m)
are aggregated. An assignment or pledge of any portion of the
Participant's interest in the Plan will be treated as a loan under
this paragraph.
(b) all applications must be made on forms provided by the
Employer and must be signed by the Participant.
(c) any loan shall bear interest at a rate reasonable at the time
of application, considering the purpose of the loan and the rate
being charged by representative commercial banks in the local area
for a similar loan unless the Employer sets forth a different
method for determining loan interest rates m its loan procedures.
The loan agreement shall also provide that the payment of
principal and interest be amortized in level payments not less
than quarterly.
(d) the term of such loan shall not exceed five years except m the
case of a loan for the purpose of acquiring any house, apartment,
condominium, or mobile home (not used on a transient basis) which
is used or is to be used within a reasonable time as the principal
residence of the Participant. The term of such loan shall be
determined by the Employer considering the maturity dates quoted
by representative commercial banks in the local area for a similar
loan.
(e) the principal and interest paid by a Participant on his or her
loan shall be credited to the Fund m the same manner as for any
other Plan investment. Loans are treated as segregated investments
of the individual Participants. This provision is not available if
its election will result in discrimination in operation of the
Plan.
(f) if a Participant's loan application is approved by the
Employer, such Participant shall be required to sign a note, loan
agreement, and assignment of 50% of his or her interest in the
Fund as collateral for the loan. The Participant, except in the
case of a profit-sharing plan satisfying the requirements of
paragraph 8.7, must obtain the consent of his or her Spouse, if
any, within the 90-day period before the time his or her account
balance is used as security for the loan. A new consent is
required if the account balance is used for any renegotiation,
extension, renewal or other revision of the loan, including an
increase in the amount thereof. The consent must be written, must
acknowledge the effect of the loan, and must be witnessed by a
Plan representative or notary public. Such consent shall
subsequently be binding with respect to the consenting Spouse or
any subsequent Spouse.
(g) if a valid Spousal consent has been obtained, then,
notwithstanding any other provision of this Plan, the portion of
the Participant's Vested Account Balance used as a security
interest held by the Plan by reason of a loan outstanding to the
Participant shall be taken into account for purposes of
determining the amount of the account balance payable at the time
of death or distribution, but only if the reduction is used as
repayment of the loan. If less than 100% of the Participant's
Vested Account Balance (determined without regard to the preceding
sentence) is payable to the Surviving Spouse, then the account
balance shall be adjusted by first reducing the Vested Account
Balance by the amount of the security used as repayment of the
loan, and then determining the benefit payable to the Surviving
Spouse.
(h) a Participant's loan shall immediately become due and payable
if such Participant terminates employment for any reason or fails
to make a principal and/or interest payment as provided in the
loan agreement. If such Participant terminates employment, the
Employer shall immediately request payment of principal and
interest on the loan. If the Participant refuses payment following
termination, the Employer shall reduce the Participant's Vested
Account Balance by the remaining principal and interest on his or
her loan. If the Participant's Vested Account Balance is less than
the amount due, the Employer shall take whatever steps are
necessary to collect the balance due directly from the
Participant. However, no foreclosure on the Participant's note or
attachment of the Participant's account balance will occur until a
distributable event occurs in the Plan.
(i) no loans will be made to Owner-Employees (as defined in
paragraph 1.52) or Shareholder-Employees (as defined in paragraph
1.76), unless the Employer obtains a prohibited transaction
exemption from the Department of Labor.
13.5 Employer Investment Direction If elected by the Employer in
the Adoption Agreement, the Employer, or the Recordkeeper shall
have the right to direct the Trustee with respect to investments
of the Fund or, the Employer may appoint an investment manager
(registered as an investment advisor under the Investment Advisors
Act of 1940) to direct investments. Such investments shall be
restricted to investments acceptable to the Trustee. The Employer
may purchase and sell interests in a registered investment company
(i.e., mutual funds) for which the Sponsor, its parent affiliates,
or successors, may serve as investment advisor and for which the
Sponsor receives compensation from the registered investment
company for its services as investment advisor. The Employer shall
advise the Trustee in writing regarding the retention of
investment powers or the appointment of an investment manager. Any
investment directive under this Plan shall be made in writing by
the Employer or investment manager, as the case may be. Such
instructions regarding the delegation of investment responsibility
shall remain in force until revoked or amended in writing. The
Trustee shall not be responsible for the propriety of any
investment made at the direction of the Employer or Recordkeeper
and shall not be required to consult with or advise the Employer
regarding the investment quality of any investment held hereunder.
If the Employer or Recordkeeper does not issue investment
directions, the Trustee shall invest the assets in cash,
cash-equivalents or a money market mutual fund advised by an
affiliate of the Trustee until the Employer designates an
investment. While the Employer may direct the Trustee or
Recordkeeper with respect to Plan investments, the Employer may
not:
(a) borrow from the Fund or pledge any of the assets of the Fund
as security for a loan,
(b) buy property or assets from or sell property or assets to the
Fund,
(c) charge any fee for services rendered to the Fund, or
(d) receive any services from the Fund on a preferential basis.
13.6 Employee Investment Direction If elected by the Employer in
the Adoption Agreement, Participants shall be given the option to
direct the investment of their personal contributions and their
share of the Employer's contribution among alternative investment
funds established as part of the overall Fund. Such investment
funds shall be restricted to funds acceptable to the Trustee. If
investments outside the Trustee's control are allowed,
Participants may not direct that investments be made in
collectibles. In this connection, a Participant's right to direct
the investment of any contribution shall apply only to selection
of the desired fund. The following rules shall apply to the
administration of such funds.
(a) At the time an Employee becomes eligible to participate in the
Plan, he or she shall complete an investment designation form
stating the percentage of his or her contributions to be invested
in the selected funds.
(b) A Participant may change his or her election with respect to
future contributions by filing a new investment designation form
with the Employer in accordance with the procedures established by
the Plan Administrator.
(c) A Participant may elect to transfer all or part of his or her
balance from one investment fund to another by filing an
investment designation form with the Employer in accordance with
the procedures established by the Plan Administrator.
(d) The Employer shall be responsible, when transmitting Employee
and Employer contributions, to show the dollar amount to be
credited to each investment fund for each Employee.
(e) Except as otherwise provided in the Plan, neither the Trustee,
the Employer, the Recordkeeper nor any fiduciary of the Plan shall
be liable to the Participant or any of his or her beneficiaries
for any loss resulting from action taken at the direction of the
Participant.
13.7 Appointment Of Additional Trustee And Allocation Of
Responsibilities Thereto If the Employer selects Qualifying
Employer Securities or other specific investments for which the
Trustee is not serving as trustee, as an investment of the Plan,
then an additional trustee will be appointed by the Employer to
serve as trustee of the Qualifying Employer Securities or other
specific investments. In the event that an additional trustee is
appointed for the Plan to serve as the trustee of Qualifying
Employer Securities or other specific investments which are
permitted by the Plan, but for which this Trustee is not serving
as trustee, this Trustee shall have no responsibilities to these
assets other than as set forth herein. The duties of the Trustee
shall be limited to the assets held in the Fund and the Trustee
shall have no duties with respect to assets held by any other
person including, without limitation, any other trustee for the
Plan. Inversely, any other trustee of the Plan shall have no
duties with respect to assets held in the Fund by the Trustee.
ARTICLE XIV
TOP-HEAVY PROVISIONS
14.1 Applicability Of Rules If the Plan is or becomes Top-Heavy in
any Plan Year beginning after 1983, the provisions of this Article
will supersede any conflicting provisions in the Plan or Adoption
Agreement.
14.2 Minimum Contribution Notwithstanding any other provision in
the Employer's Plan, for any Plan Year in which the Plan is
Top-Heavy or Super Top- Heavy, the aggregate Employer
contributions and forfeitures allocated on behalf of any
Participant (without regard to any Social Security contribution)
under this Plan and any other Defined Contribution Plan of the
Employer shall be lesser of three percent of such Participant's
Compensation or the largest percentage of Employer contributions
and forfeitures, as a percentage of the Participant's Compensation
as imposed by Code Section 401(a)(17) and, as adjusted under Code
Section 415(d), of the Key Employee's Compensation, allocated on
behalf of any Key Employee for that year.
Each Participant who is employed by the Employer on the last day
of the Plan Year shall be entitled to receive an allocation of the
Employer's minimum contribution for such Plan Year. The minimum
allocation applies even though under other Plan provisions the
Participant would not otherwise be entitled to receive an
allocation, or would have received a lesser allocation for the
year because the Participant fails to make Mandatory Contributions
to the Plan, the Participant's Compensation is less than a stated
amount, or the Participant fails to complete 1,000 Hours of
Service (or such lesser number as may be required in Section
3(k)(ii) of Adoption Agreement #002) during the Plan Year. A
Paired profit-sharing plan designated to provide the minimum
Top-Heavy contribution must do so regardless of profits. An
Employer may make the minimum Top-Heavy contribution available to
all Participants or just non-Key Employees.
For purposes of computing the minimum allocation, Compensation
shall mean Compensation as defined in the second paragraph of
paragraph 1.13 of the Plan.
The Top-Heavy minimum contribution does not apply to any
Participant to the extent the Participant is covered under any
other plan(s) of the Employer and the Employer has provided in the
Adoption Agreement that the minimum allocation or benefit
requirements applicable to Top-Heavy Plans will be met in the
other plan(s).
If a Key Employee makes an Elective Deferral or has an allocation
of Matching Contributions made to his or her account, a Top-Heavy
minimum will be required for non-Key Employees who are
Participants, however, neither Elective Deferrals by nor Matching
Contributions to non-Key Employees may be taken into account for
purposes of satisfying the Top-Heavy minimum contribution
requirement.
14.3 Minimum Vesting For any Plan Year in which this Plan is
Top-Heavy, the minimum vesting schedule elected by the Employer in
the Adoption Agreement will automatically apply to the Plan. If
the vesting schedule selected by the Employer in the Adoption
Agreement is less liberal than the allowable schedule, the
schedule will automatically be modified. If the vesting schedule
under the Employer's Plan shifts in or out of the Top-Heavy
schedule for any Plan Year, such shift is an amendment to the
vesting schedule and the election in paragraph 9.8 of the Plan
applies. The minimum vesting schedule applies to all accrued
benefits within the meaning of Code Section 411(a)(7) except those
attributable to Employee contributions, including benefits accrued
before the effective date of Code Section 416 and benefits accrued
before the Plan became Top-Heavy. Further, no reduction in vested
benefits may occur in the event the Plan's status as Top-Heavy
changes for any Plan Year. However, this paragraph does not apply
to the account balances of any Employee who does not have an Hour
of Service after the Plan initially becomes Top-Heavy and such
Employee's account balance attributable to Employer contributions
and forfeitures will be determined without regard to this
paragraph.
14.4 Limitations On Allocations In any Plan Year in which the
Top-Heavy Ratio exceeds 90% (i.e., the Plan becomes Super
Top-Heavy), the denominators of the Defined Benefit Fraction (as
defined in paragraph 1.17) and Defined Contribution Fraction (as
defined in paragraph 1.20) shall be computed using 100% of the
dollar limitation instead of 125%.
ARTICLE XV
AMENDMENT AND TERMINATION
15.1 Amendment By Sponsor The Sponsor may amend any or all
provisions of this Plan and Trust at any time without obtaining
the approval or consent of any Employer which has adopted this
Plan and Trust provided that no amendment shall authorize or
permit any part of the corpus or income of the Fund to be used for
or diverted to purposes other than for the exclusive benefit of
Participants and their beneficiaries, or eliminate an optional
form of distribution. In the case of a mass-submitted plan, the
mass-submitter shall amend the Plan on behalf of the Sponsor.
15.2 Amendment By Employer The Employer may amend any option in
the Adoption Agreement, and may include language as permitted in
the Adoption Agreement,
(a) to satisfy Code Section 415, or
(b) to avoid duplication of minimums under Code Section 416
because of the required aggregation of multiple plans.
The Employer may add certain model amendments published by the
Internal Revenue Service which specifically provide that their
adoption will not cause the Plan to be treated as an individually
designed plan for which the Employer must obtain a separate
determination letter.
If the Employer amends the Plan and Trust other than as provided
above, the Employer's Plan shall no longer participate in this
Prototype Plan and will be considered an individually designed
plan.
15.3 Termination Employers shall have the right to terminate their
Plans upon 60 days notice in writing to the Trustee. If the Plan
is terminated, partially terminated, or if there is a complete
discontinuance of contributions under a profit-sharing plan
maintained by the Employer, all amounts credited to the accounts
of Participants shall vest and become nonforfeitable. In the event
of a partial termination, only those who are affected by such
partial termination shall be fully vested. In the event of
termination, the Employer or Recordkeeper shall direct the Trustee
with respect to the distribution of accounts. The Trustee shall
dispose of the Fund in accordance with the written directions of
the Plan Administrator or Recordkeeper, provided that no
liquidation of assets and payment of benefits, (or provision
therefor), shall actually be made by the Trustee until after it is
established by the Employer in a manner satisfactory to the
Trustee, that the applicable requirements, if any, of the Employee
Retirement Income Security Act of 1974 and the Internal Revenue
Code governing the termination of employee benefit plans, have
been or are being, complied with, or that appropriate
authorizations, waivers, exemptions, or variances have been, or
are being obtained.
15.4 Qualification Of Employer's Plan If the adopting Employer
fails to attain or retain Internal Revenue Service qualification,
such Employer's Plan shall no longer participate in this Prototype
Plan and will be considered an individually designed plan.
15.5 Mergers And Consolidations
(a) In the case of any merger or consolidation of the Employer's
Plan with, or transfer of assets or liabilities of the Employer's
Plan to, any other plan Participants in the Employer's Plan shall
be entitled to receive benefits immediately after the merger,
consolidation, or transfer which are equal to or greater than the
benefits they would have been entitled to receive immediately
before the merger, consolidation, or transfer if the Plan had then
terminated.
(b) Any corporation into which the Trustee or any successor
trustee may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which
the Trustee or any successor trustee may be a party, or any
corporation to which all or substantially all the trust business
of the Trustee or any successor trustee may be transferred, shall
be the successor of such Trustee without the filing of any
instrument or performance of any further act, before any court.
15.6 Resignation And Removal The Trustee may resign by written
notice to the Employer which shall be effective 60 days after
delivery. The Employer may discontinue its participation in this
Prototype Plan and Trust effective upon 60 days written notice to
the Sponsor. In such event the Employer shall, prior to the
effective date thereof, amend the Plan to eliminate any reference
to this Prototype Plan and Trust and appoint a successor trustee
or arrange for another funding agent. The Trustee shall deliver
the Fund to its successor on the effective date of the resignation
or removal, or as soon thereafter as practicable, provided that
this shall not waive any lien the Trustee may have upon the Fund
for its compensation or expenses. If the Employer fails to amend
the Plan and appoint a successor trustee, or other funding agent
within the said 60 days, or such longer period as the Trustee may
specify in writing, the Plan shall be deemed individually designed
and the Employer shall be deemed the successor trustee. The
Employer must then obtain its own determination letter.
15.7 Qualification Of Prototype The Sponsor intends that this
Prototype Plan will meet the requirements of the Code as a
qualified Prototype Retirement Plan and Trust. Should the
Commissioner of Internal Revenue or any delegate of the
Commissioner at any time determine that the Plan and Trust fails
to meet the requirements of the Code, the Sponsor will amend the
Plan and Trust to maintain its qualified status.
ARTICLE XVI
ELAPSED TIME RULES AND DEFINITIONS
16.1 Application If the Adoption Agreement specifies the Elapsed
Time method of determining Service, the rules and definitions
provided in this Article XVI shall supersede the corresponding
provisions of the Plan to the extent provided herein.
16.2 Hour Of Service In lieu of the provisions of paragraph
1.43(a), (b) and (c), an Hour of Service shall mean an hour for
which an Employee is paid or entitled to payment for the
performance of duties for the Employer.
16.3 Service Or Period Of Service In lieu of the provisions of
paragraph 1.75, Service shall mean the aggregate of all years and
fractions of years of an Employee's employment by the Employer.
Fractions of a year shall be expressed in terms of days. A Period
of Service shall mean the period beginning on the date on which
the Employee first performs an Hour of Service upon employment or
reemployment, and ending on the date on which a Period of
Severance begins. A Period of Service shall also include any
Periods of Severance of less than 12 consecutive months.
16.4 Year Of Service In lieu of the provisions of paragraph 1.92,
a Year of Service shall mean a Period of Service of 12 months,
whether or not consecutive.
16.5 Period Of Severance A Period of Severance shall mean a
continuous period during which the Employee is not employed by the
Employer. A Period of Severance shall begin on the earlier of:
(a) the date on which the Employee retires, dies, quits or is
discharged, or
(b) the first 12-month anniversary of the date on which the
Employee is first absent from employment for reasons other than
retirement, death, quit or discharge;
provided, however, that in the case of an Employee who is absent
from employment beyond the first 12-month anniversary of the first
day of absence by reason of Parental Leave, the Period of
Severance shall begin on the second 12-month anniversary of the
date of such absence. The period between the first and second 12-
month anniversaries of the first day of absence from employment
shall be neither a Period of Service nor a Period of Severance.
A Period of Severance shall end on the date on which the Employee
again performs an Hour of Service.
16.6 Break In Service In lieu of the provisions of paragraph 1.11,
a Break in Service shall mean a Period of Severance of 12
consecutive months.
16.7 Parental Leave For purposes of paragraph 16.5 and in lieu of
the provisions of paragraph 1.43(e), Parental Leave shall mean any
period during which an individual is absent from employment,
(a) by reason of the pregnancy of the individual,
(b) by reason of the birth of a child of the individual
(c) by reason of placement of a child with the individual in
connection with the adoption of such child by the individual, or
(d) for purposes of caring for such child for a period beginning
immediately following the birth or placement.
An absence from employment shall not be a Parental Leave unless
the Employee furnishes to the Employer such timely information as
the Employer may reasonably require in order to establish that the
nature and period of absence from employment meet the requirements
of this paragraph 16.7. Nothing contained in this Article XVI
shall be construed to establish an Employer leave policy or treat
a Parental Leave as an authorized leave of absence.
16.8 Computation Period In lieu of the provisions of paragraphs
2.3 and 9.3, Years of Service and Breaks in Service shall be
determined as provided below:
(a) all Periods of Service shall be aggregated so that a Year of
Service shall be completed as of the date that the Employee
completes 12 months of Service (30 days shall be considered to be
one month in the case of aggregation of fractional months), and
(b) all Breaks in Service shall be determined in accordance with
paragraph 16.6.
16.9 Allocating Employer Contributions In lieu of the provisions
of paragraph 5.3, the Employer's contribution shall be allocated
to Participants in accordance with the allocation formula selected
by the Employer in the Adoption Agreement and the minimum
contribution and allocation requirements for Top-Heavy Plans;
provided, however, that each Participant shall share in Employer
contributions for the period beginning on the date on which the
Participant begins participation under the Plan and ending on the
earlier of:
(a) the date on which the Participant severs employment with the
Employer, or
(b) the date on which the Participant is no longer a member of an
eligible class of Employees.
ARTICLE XVII
GOVERNING LAW
Construction, validity and administration of the Prototype Plan
and Trust, and any Employer Plan and Trust as embodied in the
Prototype document and accompanying Adoption Agreement, shall be
governed by Federal law to the extent applicable and to the extent
not applicable by the laws of the State in which the principal
office of the Sponsor is located.
IRS OPINION LETTERS
Below are the Internal Revenue Service opinion letters approving
the form of The American Funds Prototype Defined Contribution Plan
and Trust.
Internal Revenue Service Department of the Treasury
Plan Description: Prototype Standardized Profit Sharing Plan with
CODA
FFN: 50270211903-001
Case: 9307908 EIN: 95-2769620 Washington, DC 20224
BPD: 03 Plan: 001
Letter Serial No: D261759a Person to Contact: Mr. Dua
Telephone Number: (202) 622-8380
Refer Reply to: CP:E:EP:Q:3
Date: 01/26/94
American Funds Distributors Inc
333 South Hope Street
Los Angeles, CA 90071
Dear Applicant:
In our opinion, the form of the plan identified above is
acceptable under section 401 of the Internal Revenue Code for use
by employers for the benefit of their employees. This opinion
relates only to the acceptability of the form of the plan under
the Internal Revenue Code. It is not an opinion of the effect of
other Federal or local statutes.
You must furnish a copy of this letter to each employer who adopts
this plan. You are also required to send a copy of the approved
form of the plan, any approved amendments and related documents to
each Key District Director of Internal Revenue Service in whose
jurisdiction there are adopting employers.
Our opinion on the acceptability of the form of the plan is not a
ruling or determination as to whether an employer's plan qualifies
under Code section 401(a). An employer who adopts this plan will
be considered to have a plan qualified under Code section 401(a)
provided all the terms of the plan are followed, and the
eligibility requirements and contribution or benefit provisions
are not more favorable for highly compensated employees than for
other employees. Except as stated below, the Key District
Director will not issue a determination letter with regard to this
plan.
Our opinion does not apply to the form of the plan for purposes of
Code section 401(a)(16) if: (1) an employer ever maintained
another qualified plan for one or more employees who are covered
by this plan, other than a specified paired plan within the
meaning of section 7 of Rev. Proc. 89-9, 1989-1 C.B. 780; or (2)
after December 31, 1985, the employer maintains a welfare benefit
fund defined in Code section 419(e), which provides postretirement
medical benefits allocated to separate accounts for key employees
as defined in Code section 419(d)(3).
An employer that has adopted a standardized plan may not rely on
this opinion letter with respect to: (1) whether any amendment or
series of amendments to the plan satisfies the nondiscrimination
requirements of section 1.401(a)(4)-5(a) of the regulations,
except with respect to plan amendments granting past service that
meet the safe harbor described in section 1.401(a)(4)-5(a)(5) and
are not part of a pattern of amendments that significantly
discriminates in favor of highly compensated employees; or (2)
whether the plan satisfies the effective availability requirement
of section 1.401(a)(4)-4(c) of the regulations with respect to any
benefit, right or feature.
An employer that has adopted a standardized plan as an amendment
to a plan other than a standardized plan may not rely on this
opinion letter with respect to whether a benefit, right or other
feature that is prospectively eliminated satisfies the current
availability requirements of section 1.401(a)-4 of the
regulations.
The employer may request a determination (1) as to whether the
plan, considered with all related qualified plans and, if
appropriate, welfare benefit funds, satisfies the requirements of
Code section 401(a)(16) as to limitations on benefits and
contributions in Code section 415; (2) regarding the
nondiscriminatory effect of grants of past service; and (3) with
respect to whether a prospectively eliminated benefit, right or
feature satisfies the current availability requirements.
Our opinion does not apply to the form of the plan for purposes of
section 401(a) of the Code unless the terms of the plan, as
adopted or amended, that pertain to the requirements of sections
401(a)(4), 401(a)(5), 401(a)(17), 401(l), 410(b) and 414(s) of the
Code, as amended by the Tax Reform Act of 1986 or subsequent
legislation, (a) are made effective retroactively to the first day
of the first plan year beginning after December 31, 1988 (or such
other date on which these requirements first became effective with
respect to this plan); or (b) are made effective no later than the
first day on which the employer is no longer entitled, under
regulations, to rely on a reasonable, good faith interpretation of
these requirements, and the prior provisions of the plan
constitute such an interpretation.
Because you submitted this plan for approval after March 31, 1991,
the continued, interim and extended reliance provisions of
sections 13 and 17.03 of Rev. Proc. 89-9, 1989-1 C.B. 780, are not
applicable.
If you, the sponsoring organization, have any questions concerning
the IRS processing of this case, please call the above telephone
number. This number is only for use of the sponsoring
organization. Individual participants and/or adopting employers
with questions concerning the plan should contact the sponsoring
organization. The plan's adoption agreement must include the
sponsoring organization's address and telephone number for
inquires by adopting employers.
If you write to the IRS regarding this plan, please provide your
telephone number and the most convenient time for us to call in
case we need more information. Whether you call or write, please
refer to the Letter Serial Number and File Folder number shown in
the heading of this letter.
You should keep this letter as a permanent record. Please notify
us if you modify or discontinue sponsorship of this plan.
Sincerely yours,
Chief, Employee Plans Qualifications Branch
Internal Revenue Service Department of the Treasury
Plan Description: Prototype Non-standardized Profit Sharing Plan
with CODA
FFN: 50370211903-002
Case: 9307909 EIN: 95-2769620 Washington, DC 20224
BPD: 03 Plan: 002
Letter Serial No: D361760a Person to Contact: Mr. Dua
Telephone Number: (202) 622-8380
Refer Reply to: CP:E:EP:Q:3
Date: 01/26/94
American Funds Distributors Inc.
333 South Hope Street
Los Angeles, CA 90071
Dear Applicant:
In our opinion, the form of the plan identified above is
acceptable under section 401 of the Internal Revenue Code for use
by employers for the benefit of their employees. This opinion
relates only to the acceptability of the form of the plan under
the Internal Revenue Code. It is not an opinion of the effect of
other Federal or local statutes.
You must furnish a copy of this letter to each employer who adopts
this plan. You are also required to send a copy of the approved
form of the plan, any approved amendments and related documents to
each Key District Director of Internal Revenue Service in whose
jurisdiction there are adopting employers.
Our opinion on the acceptability of the form of the plan is not a
ruling or determination as to whether an employer's plan qualifies
under Code section 401(a). Therefore, an employer adopting the
form of the plan should apply for a determination letter by filing
an application with the Key District Director of Internal Revenue
Service on Form 5307, Short Form Application for Determination for
Employee Benefit Plan.
Because you submitted this plan for approval after March 31, 1991,
the continued, interim and extended reliance provisions of
sections 13 and 17.03 of Rev. Proc. 89-9, 1989-1 C.B. 780, are not
applicable.
If you, the sponsoring organization, have any questions concerning
the IRS processing of this case, please call the above telephone
number. This number is only for use of the sponsoring
organization. Individual participants and/or adopting employers
with questions concerning the plan should contact the sponsoring
organization. The plan's adoption agreement must include the
sponsoring organization's address and telephone number for
inquires by adopting employers.
If you write to the IRS regarding this plan, please provide your
telephone number and the most convenient time for us to call in
case we need more information. Whether you call or write, please
refer to the Letter Serial Number and File Folder Number shown in
the heading of this letter.
You should keep this letter as a permanent record. Please notify
us if you modify or discontinue sponsorship of this plan.
Sincerely yours,
Chief, Employee Plans Qualifications Branch
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<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> MAR-31-1995
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0
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