<PAGE> 1
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
------------------
KUHLMAN CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 58-2058047
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
3 Skidaway Village Square, Savannah, Georgia 31411
(Address of Principal Executive Offices) (Zip Code)
VERSAILLES UNION 401(k) PLAN
(Full Title Of The Plan)
Richard A. Walker, Esq.
Executive Vice President, Chief Administrative Officer,
General Counsel and Secretary
Kuhlman Corporation
3 Skidaway Village Square
Savannah, Georgia 31411
(Name and Address of agent for service)
Telephone number, including area code, of agent for service:
912/598-7809
Copies of Communications to:
Verne C. Hampton II, Esq.
Dickinson, Wright, Moon, Van Dusen & Freeman
500 Woodward, Suite 4000
Detroit, Michigan 48226
313/223-3546
Approximate date of proposed public offering:
As soon as practicable after the effective date of this Registration Statement
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of
be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share* Price
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 15,000 shs. $34 $510,000 $150.45
($1 par value)
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
*Based upon the market price on December 15, 1997.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Versailles Union 401(k) Plan.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Kuhlman Corporation (the "Company") hereby incorporates by reference in this
Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act") and the Securities Exchange Act of
1934, as amended (the "Exchange Act"):
The Company's (i) Prospectus dated June 23, 1997 filed with the Commission
pursuant to Rule 424(b)(4) under the Securities Act as part of Registration
Statement No. 333-28011; (ii) Item 1 of the Company's registration statements
on Form 8-A registering its Common Stock and Preferred Stock Purchase Rights
under Section 12(b) of the Exchange Act; (iii) quarterly reports on Form 10-Q
for the quarters ended March 31, 1997, June 30, 1997 and September 30, 1997;
(iv) the Company's current reports on Form 8-K dated March 10, 1997, April 24,
1997 and May 28, 1997; and (v) the Company's current report on Form 8-K/A
(Amendment No. 1) dated March 10, 1997.
The Company's unaudited Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997, should be read in
conjunction with the audited financial statements incorporated herein by
reference.
All documents subsequently filed with the Commission by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated herein by reference and to be a part hereof from the
dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Bylaws and the Delaware General Corporation Law permit the
Company's officers and directors to be indemnified under certain circumstances
for expenses and in some instances, for judgments, fines, or amounts paid in
settlement of civil, criminal, administrative and investigative suits or
proceedings, including those involving alleged violations of the Securities Act
of 1933, as amended (the "Act"). In addition, the Company
2
<PAGE> 3
maintains directors' and officers' liability insurance which, under certain
circumstances, would cover alleged violations of the Act. Insofar as
indemnification for liabilities arising under the Act may be permitted to
officers and directors pursuant to the foregoing provisions, the Company has
been informed that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. Therefore in the event that a claim for such
indemnification is asserted by any officer or director, the Company (except
insofar as such claim seeks reimbursement by the Company of expenses paid or
incurred by an officer or director, in the successful defense of any action,
suit or proceeding) will, unless the matter has heretofore been adjudicated by
precedent deemed by the Company to be controlling, submit to a court of
appropriate jurisdiction the question of whether or not the indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following exhibits are filed herewith:
Exhibit
Number Exhibit
------- -------
23(a) Consent of Arthur Andersen LLP
99(a) Adoption Agreement/Dreyfus Nonstandardized Prototype Profit
Sharing Plan and Trust for the Versailles Union 401(k) Plan.
99(b) Basic Plan Document No. 01 Dreyfus Prototype
Defined Contribution Plan
99(c) Dreyfus Trust Agreement
The Company undertakes that it will submit the Versailles Union 401(k)
Plan to the Internal Revenue Service ("IRS") in a timely manner and will make
all changes required by the IRS in order to qualify the Plan.
3
<PAGE> 4
ITEM 9. UNDERTAKINGS
The undersigned Company hereby undertakes: (1) To file, during any period in
which offers or sales are being made, a post-effective amendment to this
Registration Statement: (i) to include any Prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the Prospectus any
facts or events arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the Registration Statement; (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration Statement. (2) That, for
purposes of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. (3)
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
The undersigned Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
4
<PAGE> 5
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Savannah, Georgia, on this 19th day of December, 1997.
Kuhlman Corporation
(Registrant)
By: /s/ Robert S. Jepson, Jr.
---------------------------
Robert S. Jepson, Jr.
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 19, 1997.
<TABLE>
<CAPTION>
NAME TITLE
---- -----
<S> <C>
/s/ Robert S. Jepson, Jr. Chairman of the Board, Chief Executive
- ------------------------------ Officer and Director (Principal Executive Officer)
Robert S. Jepson, Jr.
/s/ Vernon J. Nagel Executive Vice President of Finance and Treasurer
- ------------------------------ (Principal Financial Officer and Principal Accounting
Vernon J. Nagel Officer)
/s/ Curtis G. Anderson President, Chief Operating Officer and Director
- ------------------------------
Curtis G. Anderson
/s/ William E. Burch Director
- ------------------------------
William E. Burch
/s/ Steve Cenko Director
- ------------------------------
Steve Cenko
/s/ Gary G. Dillon Director
- ------------------------------
Gary G. Dillon
/s/ Alexander W. Dreyfoos, Jr. Director
- -------------------------------
Alexander W. Dreyfoos, Jr.
/s/ William M. Kearns, Jr. Director
- ------------------------------
William M. Kearns, Jr.
/s/ George J. Michel, Jr. Director
- ------------------------------
George J. Michel, Jr.
/s/ H. Norman Schwarzkopf Director
- ------------------------------
General H. Norman Schwarzkopf
</TABLE>
5
<PAGE> 6
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
- ------- --- -----------
23(a) Consent of Arthur Andersen LLP
99(a) Adoption Agreement/Dreyfus Nonstandardized Prototype
Profit Sharing Plan and Trust for the Versailles
Union 401(k) Plan.
99(b) Basic Plan Document No. 01 Dreyfus Prototype Defined
Contribution Plan
99(c) Dreyfus Trust Agreement
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated February 3, 1997
(except with respect to the matters discussed in Note 17 and the last two
paragraphs of Note 5, as to which the dates are March 10, 1997 and May 27,
1997, respectively) appearing in the prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424 (b) (4) under the Securities Act of
1933 as part of Registration Statement No. 333-28011. We also consent to all
references to our Firm included in this Registration Statement.
Arthur Andersen LLP
Louisville, Kentucky
December 18, 1997
<PAGE> 1
EXHIBIT 99(a)
94-05
ADOPTION AGREEMENT
DREYFUS NONSTANDARDIZED
PROTOTYPE PROFIT SHARING PLAN AND TRUST
PLAN NUMBER 01002
IRS SERIAL NUMBER D362552A
The Employer named in Section I.A. below hereby establishes or restates a Profit
Sharing Plan ("Plan") and Trust, consisting of such sums as shall be paid to the
Trustee(s) under the Plan, the investments thereof and earnings thereon. The
terms of the Plan and Trust are set forth in this Adoption Agreement and the
applicable provisions of the Dreyfus Prototype Defined Contribution Plan, Basic
Plan Document No. 01, and the Dreyfus Trust Agreement, both as amended from time
to time, which are hereby adopted and incorporated herein by reference.
I. BASIC PROVISIONS
A. Employer's Name: KUHLMAN ELECTRIC CORPORATION
Address: 101 KUHLMAN BOULEVARD
VERSAILLES, KY 40383
B. Employer is a (X) corporation; ( ) S Corporation;
( ) partnership; ( ) sole proprietor; ( ) other: [....]
C. Employer's Tax ID Number: 38-0736390
D. Employer's fiscal year: JANUARY 1 - DECEMBER 31
E. Plan Name: VERSAILLES UNION 401(K) PLAN
F. If this is a new Plan, the Effective Date of the Plan is:
If this is an amendment and restatement of an existing Plan,
enter the original Effective Date JANUARY 1, 1998. THIS PLAN
WAS SPUN-OFF
1
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94-05
FROM THE KUHLMAN ELECTRIC SAVINGS MAXIMIZER PLAN 94-05 AS OF ITS
EFFECTIVE DATE. The effective date of this amended Plan is
[....].
2
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94-05
G. The Trustee shall be:
(X) The Dreyfus Trust Company
( ) Other: (Name) [....]
(Address) [....]
(Address) [....]
(Phone #) [....]
H. The first Plan Year shall be [....] through [....].
Thereafter, the Plan Year shall mean the 12-consecutive-month
period commencing on JANUARY 1 and ending on DECEMBER 31.
I. Service with the following predecessor employer(s): N/A
shall be credited for purposes of: [ ] eligibility;
[ ] vesting.
Note: Such Service must be credited if the adopting Employer
maintains the plan of the predecessor employer.
J. The following employer(s) aggregated with the Employer under
Sections 414(b), (c), (m) or (o) of the Internal Revenue Code
("Code") shall be Participating Employers in the Plan:
K. Are all employers aggregated with the Employer under Sections
414(b), (c), (m) or (o) of the Code participating in this
Plan?
( ) Yes (X) No
II. HOURS OF SERVICE
A. For Eligibility Purposes.
Hours of Service under the Plan will be determined for all Employees on
the basis of the method selected below:
(X) On the basis of actual hours for which an Employee is paid or
entitled to payment.
3
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94-05
( ) On the basis of days worked. An Employee will be credited with ten
(10) Hours of Service for any day such Employee would be credited
with at least one (1) Hour of Service during the day under the
Plan.
( ) On the basis of weeks worked. An Employee will be credited with
forty-five (45) Hours of Service for any week such Employee would
be credited with at least one (1) Hour of Service during the week
under the Plan.
( ) On the basis of semi-monthly payroll periods. An Employee will be
credited with ninety-five (95) Hours of Service for any
semi-monthly payroll period such Employee would be credited with at
least one (1) Hour of Service under the Plan.
( ) On the basis of months worked. An Employee will be credited with
one hundred ninety (190) Hours of Service for any month such
Employee would be credited with at least one (1) Hour of Service
under the Plan.
( ) On the basis of elapsed time.
B. For Vesting Purposes.
Hours of Service under the Plan will be determined for all Employees on
the basis of the method selected below:
(X) On the basis of actual hours for which an Employee is paid or
entitled to payment.
( ) On the basis of days worked. An Employee will be credited with
ten (10) Hours of Service for any day such Employee would be
credited with at least one (1) Hour of Service during the day under
the Plan.
( ) On the basis of weeks worked. An Employee will be credited with
forty-five (45) Hours of Service for any week such Employee would
be credited with at least one (1) Hour of Service during the week
under the Plan.
( ) On the basis of semi-monthly payroll periods. An Employee will be
credited with ninety-five (95) Hours of Service for any
semi-monthly
4
<PAGE> 5
94-05
payroll period such Employee would be credited with at least one
(1) Hour of Service under the Plan.
( ) On the basis of months worked. An Employee will be credited with
one hundred ninety (190) Hours of Service for any month such
Employee would be credited with at least one (1) Hour of Service
under the Plan.
( ) On the basis of elapsed time.
III. ELIGIBLE EMPLOYEES
All Employees shall be Eligible Employees, except:
(X) Employees included in a unit of Employees covered by a collective
bargaining agreement between the Employer and employee
representatives, if retirement benefits were the subject of good
faith bargaining. For this purpose, the term "employee
representatives" does not include any organization more than half
of whose members are Employees who are owners, officers, or
executives of the Employer.
(X) Employees who are nonresident aliens and who receive no earned
income from the Employer which constitutes income from sources
within the United States.
(X) Employees included in the following classification(s): A. ALL
NON-UNION EMPLOYEES; AND B. ALL UNION EMPLOYEES EXCEPT THOSE
EMPLOYED AT THE VERSAILLES PLANT OF KUHLMAN ELECTRIC CORPORATION.
(X) Employees of the following employers aggregated with the Employer
under Sections 414(b), (c), (m) or (o) of the Code:
KUHLMAN CORPORATION, EMTEC PRODUCTS CORPORATION, COLEMAN CABLE
SYSTEMS, INC. AND ITS SUBSIDIARIES, SCHWITZER U.S., INC. AND ITS
SUBSIDIARIES, TRANSPRO GROUP, INC. AND ANY OTHER ENTITY ACQUIRED BY
KUHLMAN CORPORATION OR ONE OF ITS SUBSIDIARIES ON OR AFTER THE
EFFECTIVE DATE UNLESS THIS PLAN IS SPECIFICALLY EXTENDED TO THE
EMPLOYEES OF THE ENTITY.
5
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94-05
(X) Individuals required to be considered Employees under Section
414(n) of the Code.
( ) Employees who, subject to determination by the Committee that
such election will not affect the plan's qualification, make a
one-time irrevocable election not to participate in the Plan for
purposes of the following:
[ ] Employer Discretionary Contributions.
[ ] Elective Deferrals/Thrift Contributions/Combined Contributions.
Note: The term Employee includes all employees of the Employer and
any employer required to be aggregated with the Employer under
Sections 414(b), (c), (m) or (o) of the Code, and individuals
considered employees of any such employer under Section 414(n)
or (o) of the Code.
IV. AGE AND SERVICE REQUIREMENTS
Each Eligible Employee shall become a Participant on the Entry Date
coincident with or following completion of the following requirements:
Age: (X) No age requirement.
( ) The attainment of age [....] (not to exceed age 21).
Service: ( ) No service requirement.
(X) For Employer Discretionary Contributions
only -- The completion of 30 DAYS OF SERVICE
(not to exceed 1 unless 100% immediate
vesting is elected, in which case, may not
exceed 2) Eligibility Years of Service. If
the Eligibility Years of Service is or
includes a fractional year, an Employee
shall not be required to complete any
specific number of Hours of Service to
receive credit for such fractional year.
If more than 1 Eligibility Year of Service is
required, Participants must be 100% immediately
vested.
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94-05
(X) For all other contributions -- The
completion of 30 DAYS OF SERVICE (not to
exceed 1) Eligibility Year of Service.
AND
Effective
Date: ( ) Each Eligible Employee who is employed on
the Effective Date shall become a Participant on the
Effective Date. Each Eligible Employee employed after
the Effective Date shall become a Participant on the
Entry Date coincident with or following completion of
the age and service requirements specified above.
(X) Each Eligible Employee who is employed on
the effective date of this amended plan
shall become a Participant as of such date.
Each Eligible Employee employed after the
effective date shall become a Participant on
the entry date coincident with or following
completion of the age and service
requirements specified above.
V. ELIGIBILITY YEARS OF SERVICE
A. For Employer Discretionary Contributions, in order to be
credited with an Eligibility Year of Service, an Employee
shall complete [....] (not to exceed 1,000) Hours of Service.
Note: Not applicable if elapsed time method of crediting
service for eligibility purposes is elected.
B. For all other contributions, in order to be credited with an
Eligibility Year of Service, an Employee shall complete [....]
(not to exceed 1,000) Hours of Service.
Note: Not applicable if elapsed time method of crediting
service for eligibility purposes is elected.
Note: In the case of an Employee in the Maritime Industry, for
purposes of Eligibility Years of Service, refer to Section
1.24 of the Plan.
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94-05
VI. ENTRY DATE
The Entry Date shall mean:
( ) For the first Plan Year only, the initial Entry Date shall
be ------------------;
thereafter:
( ) Annual Entry. The first day of the Plan Year. [Note: If Annual
Entry is selected, the age and service requirements cannot
exceed 20 1/2 and 1/2 Eligibility Year of Service.]
( ) Dual Entry. The first day of the Plan Year and the first day
of the seventh month of the Plan Year.
( ) Quarterly Entry. The first day of the Plan Year and the first
day of the fourth, seventh and tenth months of the Plan Year.
(X) Monthly Entry. The first day of the Plan Year and the first
day of each following month of the Plan Year.
( ) Other:_________________________________________________ (Note:
Eligible Employees must commence participation no later than
the earlier of: a) the beginning of the Plan Year after
meeting the age and service requirements, or b) 6 months after
the date the Employee meets the age and service requirements).
VII. COMPENSATION
A. Except for purposes of "annual additions" testing under
Section 415 of the Code, Compensation shall mean all of each
Participant's:
(X) Information required to be reported under Sections 6041, 6051,
and 6052 of the Code. (Wages, tips and other compensation box
on Form W-2). Compensation is defined as wages as defined in
Section 3401(a) and all other payments of compensation to the
Employee by the Employer (in the course of the Employer's
trade or business) for which the Employer is
8
<PAGE> 9
94-05
required to furnish the Employee a written statement
under Sections 6041(d), 6051(a)(3) and 6052 of the Code.
Compensation must be determined without regard to any rules
under Section 3401(a) that limit the remuneration included in
wages based on the nature or location of the employment or
services performed (such as the exception for agricultural
labor in Section 3401(a)(2) of the Code). This definition of
Compensation shall exclude amounts paid or reimbursed by the
Employer for moving expenses incurred by an Employee, but only
to the extent that at the time of the payment it is reasonable
to believe that these amounts are deductible by the Employee
under Section 217 of the Code.
( ) Section 3401(a) wages. Compensation is defined as wages within
the meaning of Section 3401(a) of the Code for purposes of
income tax withholding at the source but determined without
regard to any rules that limit the remuneration included in
wages based on the nature or location of the employment or the
services performed (such as the exception for agricultural
labor in Section 3401(a)(2) of the Code).
( ) Section 415 safe-harbor compensation. Compensation is defined
as wages, salaries, and fees for professional services and
other amounts received (without regard to whether or not an
amount is paid in cash) for personal services actually
rendered in the course of employment with the Employer to the
extent that the amounts are includible in gross income
(including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses,
fringe benefits, and reimbursements or other expense
allowances under a nonaccountable plan (as described in
Section 1.62-2(c)), and excluding the following:
(a) Employer contributions to a plan of deferred
compensation which are not includible in the
Employee's gross income for the taxable year in which
contributed, or Employer contributions under a
simplified employee pension plan described in Section
408(k), or any distributions from a plan of deferred
compensation regardless of whether such amounts are
includible in the gross income of the Employee;
(b) Amounts realized from the exercise of a nonqualified
stock option, or when restricted stock (or property)
held by the Employee either
9
<PAGE> 10
94-05
becomes freely transferable or is no longer subject
to a substantial risk of forfeiture;
(c) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(d) Other amounts which receive special tax benefits,
such as premiums for group-term life insurance (but
only to the extent that the premiums are not
includible in the gross income of the Employee), or
contributions made by the Employer (whether or not
under a salary reduction agreement) towards the
purchase of an annuity contract described in Section
403(b) of the Code (whether or not the contributions
are actually excludable from the gross income of the
Employee).
which is actually paid to the Participant during the following
applicable period:
( ) the portion of the Plan Year in which the Employee is
a Participant in the Plan.
(X) the Plan Year.
( ) the calendar year ending with or within the Plan
Year.
( ) Compensation shall be reduced by all of the following items
(even if includible in gross income): reimbursements or other
expense allowances, fringe benefits (cash and noncash), moving
expenses, deferred compensation and welfare benefits.
Compensation (X) shall; ( ) shall not include Employer contributions
made pursuant to a salary reduction agreement with an Employee which
are not includible in the gross income of the Employee by reason of
Sections 125, 402(e)(3), 402(h)(1)(B) or 403(b) of the Code.
If the Employer's contributions to the Plan are not allocated on an
integrated basis, the following may be excluded from the definition of
Compensation selected above for any year in which the Plan is not Top
Heavy:
( ) bonuses
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94-05
( ) overtime
( ) commissions
( ) amounts in excess of $ [....]
(X) SEVERANCE PAY
For any Self-Employed Individual covered under the Plan, Compensation
means Earned Income.
B. For purposes of "annual additions" testing under Section 415
of the Code, Compensation for any Limitation Year shall mean
all of each Participant's:
(X) Information required to be reported under Sections 6041, 6051
and 6052 of the Code. (Wages, tips and other compensation box
on Form W-2) Compensation is defined as wages as defined in
Section 3401(a) and all other payments of compensation to the
Employee by the Employer (in the course of the Employer's
trade or business) for which the Employer is required to
furnish the Employee a written statement under Sections
6041(d) and 6051(a)(3) of the Code. Compensation must be
determined without regard to any rules under Section 3401(a)
that limit the remuneration included in wages based on the
nature or location of the employment or services performed
(such as the exception for agricultural labor in Section
3401(a)(2) of the Code). This definition of Compensation shall
exclude amounts paid or reimbursed by the Employer for moving
expenses incurred by an Employee, but only to the extent that
at the time of the payment it is reasonable to believe that
these amounts are deductible by the Employee under Section 217
of the Code.
( ) Section 3401(a) wages. Compensation is defined as wages within
the meaning of Section 3401(a) of the Code for purposes of
income tax withholding at the source but determined without
regard to any rules that limit the remuneration included in
wages based on the nature or location of the employment or the
services performed (such as the exception for agricultural
labor in Section 3401(a)(2) of the Code).
( ) Section 415 safe-harbor compensation. Compensation is defined
as wages, salaries, and fees for professional services and
other amounts received (without regard to whether or not an
amount is paid in cash) for
11
<PAGE> 12
94-05
personal services actually rendered in the course of
employment with the Employer to the extent that the amounts
are includible in gross income (including, but not limited to,
commissions paid salesmen, compensation for services on the
basis of a percentage of profits, commissions on insurance
premiums, tips, bonuses, fringe benefits, and reimbursements
or other expense allowances under a nonaccountable plan (as
described in Section 1.62-2(c)), and excluding the following:
(a) Employer contributions to a plan of deferred
compensation which are not includible in the
Employee's gross income for the taxable year in which
contributed, or Employer contributions under a
simplified employee pension plan described in Section
408(k), or any distributions from a plan of deferred
compensation regardless of whether such amounts are
includible in the gross income of the Employee;
(b) Amounts realized from the exercise of a nonqualified
stock option, or when restricted stock (or property)
held by the Employee either becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture;
(c) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
(d) Other amounts which receive special tax benefits,
such as premiums for group-term life insurance (but
only to the extent that the premiums are not
includible in the gross income of the Employee), or
contributions made by the Employer (whether or not
under a salary reduction agreement) towards the
purchase of an annuity contract described in Section
403(b) of the Code (whether or not the contributions
are actually excludable from the gross income of the
Employee).
which is actually paid or includible in gross income during such
Limitation Year.
For any Self-Employed Individual covered under the Plan, Compensation
means Earned Income.
VIII. LIMITATION YEAR
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<PAGE> 13
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Limitation Year shall mean the twelve (12) consecutive-month period:
(X) Identical to the Plan Year.
( ) Identical to the Employer's fiscal year ending with or within the
Plan Year of reference.
( ) As fixed by a resolution of the Board of Directors of the Employer,
or the Employer if no Board of Directors exists.
IX. NORMAL RETIREMENT AGE
Normal Retirement Age shall mean:
(X) Age 65 (not to exceed 65).
( ) Age [....] (not to exceed 65), or the [....] (not to exceed the
5th) anniversary of the date the Participant commenced
participation in the Plan, if later.
X. EARLY RETIREMENT AGE
Early Retirement Age shall mean:
(X) There shall be no early retirement provision in this Plan.
( ) Age [....].
( ) Age [....] and [....] Years of Service.
XI. EMPLOYER AND EMPLOYEE CONTRIBUTIONS
A. Types and allocation of Contributions
1. Employer Discretionary Contributions
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<PAGE> 14
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( ) Not permitted.
(X) Permitted.
( ) An amount fixed by appropriate action of the Employer.
( ) [....]% of Compensation of Participants for the Plan Year
(not to exceed 15%).
( ) [....]% of Compensation of Participants for the Plan Year,
plus an additional amount fixed by appropriate action of
the Employer (in total not to exceed 15%).
Employer Discretionary Contributions ( ) shall; (X) shall not be
integrated with Social Security.
If integrated with Social Security:
a. ( ) The Permitted Disparity Percentage shall be [....]%.
b. ( ) The Permitted Disparity Percentage shall be determined
annually by appropriate action of the Employer.
c. ( ) The Integration Level shall be:
( ) the Taxable Wage Base.
( ) $____ (a dollar amount less than the Taxable Wage
Base).
( ) %____ (not to exceed 100% of the Taxable Wage
Base).
Note: The Permitted Disparity Percentage cannot exceed the
lesser of: (i) the base contribution, or (ii) the
greater of 5.7% or the tax rate under Section 3111(a) of
the Code attributable to the old age insurance
14
<PAGE> 15
94-05
portion of the Old Age, Survivors and Disability Income
provisions of the Social Security Act (as in effect on
the first day of the Plan Year). If the Integration Level
selected above is other than the Taxable Wage Base
("TWB"), the 5.7% factor in the preceding sentence must
be replaced by the applicable percentage determined from
the following table.
If the Integration Level is:
The Applicable
more than but not more than Factor is
--------- ----------------- --------------
$0 X* 5.7%
X* 80% of TWB 4.3%
80% of TWB Y** 5.4%
*X = the greater of $10,000 or 20% of TWB
**Y = any amount more than 80% of TWB, but less than 100%
of TWB
Allocation of Employer Discretionary Contributions.
In order to share in the allocation of Employer
Discretionary Contributions (and forfeitures, if
forfeitures are reallocated to Participants) an
Active Participant:
( ) Need not be employed on the last day of the
Plan Year.
(X) Must be employed on the last day of the Plan
Year, unless the Participant terminates
employment on account of:
(X) Death.
(X) Disability.
( ) Attainment of Early Retirement Age.
(X) Attainment of Normal Retirement Age.
15
<PAGE> 16
94-05
( ) Employer approved leave of absence.
(X) Must have ( ) 501 Hours of Service; (X)
1,000 Hours of Service (cannot exceed
1,000). (Note: Not applicable if elapsed
time method of crediting service is elected.
2. Elective Deferrals
( ) Not permitted.
(X) Permitted.
A Participant may elect to have his or her
Compensation reduced by:
(X) An amount not in excess of 16% of
Compensation [cannot exceed the dollar
limitation of Section 402(g) of the Code for
the calendar year].
( ) An amount not in excess of $[....] of
Compensation [cannot exceed the dollar
limitation of Section 402(g) of the Code for
the calendar year].
( ) An amount not to exceed the dollar
limitation of Section 402(g) of the Code for
the calendar year.
( ) An amount not in excess of (Note: The
percent for the Highly Compensated Employee
cannot exceed the percent for the Non-Highly
Compensated Employee):
% of Compensation [cannot
exceed the dollar limitation of
Section 402(g) of the Code for the
calendar year] for each Highly
Compensated Employee; and
% of Compensation [cannot
exceed the dollar limitation of
Section 402(g) of the Code for the
calendar year] for each Non-Highly
Compensated Employee.
16
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94-05
A Participant may elect to commence Elective
Deferrals the next pay period following: JANUARY 1,
FEBRUARY 1, MARCH 1, APRIL 1, MAY 1, JUNE 1, JULY 1,
AUGUST 1, SEPTEMBER 1, OCTOBER 1, NOVEMBER 1,
DECEMBER 1 (enter date or period -- at least once
each calendar year).
A Participant may modify the amount of Elective
Deferrals as of JANUARY 1, APRIL 1, JULY 1, AND
OCTOBER 1 (enter date or period -- at least once each
calendar year).
A Participant (X) may; ( ) may not base Elective
Deferrals on cash bonuses that, at the Participant's
election, may be contributed to the CODA or received
by the Participant in cash. Such election shall be
effective as of the next pay period following such
election or as soon as administratively feasible
thereafter.
Participants who claim Excess Elective Deferrals for
the preceding calendar year must submit their claims
in writing to the plan administrator by MARCH 1
(enter date between March 1 and April 15).
A Participant ( ) may; (X) may not elect to
recharacterize Excess Contributions as Thrift
Contributions. (Note: Available only if Thrift
Contributions are permitted.)
Participants who elect to recharacterize Excess
Contributions for the preceding Plan Year as Thrift
Contributions must submit their elections in writing
to the Committee by [....] (enter date no later than
2 1/2 months after close of Plan Year).
3. Thrift Contributions
( ) Not permitted.
(X) Permitted.
Participants shall be permitted to make
Thrift Contributions from 1% (not less than
1) to 10% (not more than 10) of their total
aggregate Compensation.
17
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94-05
A Participant may elect to commence Thrift
Contributions the next pay period following
JANUARY 1, FEBRUARY 1, MARCH 1, APRIL 1, MAY
1, JUNE 1, JULY 1, AUGUST 1, SEPTEMBER 1,
OCTOBER 1, NOVEMBER 1, DECEMBER 1 (enter
date or period--at least once each calendar
year).
The Change Date for a Participant to modify
the amount of Thrift Contributions shall be
as of JANUARY 1, APRIL 1, JULY 1, AND
OCTOBER 1 (enter date or period -- at least
once each calendar year).
4. Elective Deferrals and Thrift Contributions, combined
("Combined Contributions")
(X) Not Permitted.
( ) Permitted.
A Participant may elect to make Combined
Contributions which do not exceed [....]% of
Compensation. (Note: Elective Deferrals can
not exceed the dollar limitation of Section
402(g) of the Code for the calendar year).
A Participant may elect to commence
contributions the next pay period following:
(enter date or period -- at least once each
calendar year).
A Participant may modify his amount of
Combined Contributions as of [....] (enter
date or period -- at least once each
calendar year).
A Participant ( ) may; ( ) may not base
Elective Deferrals on cash bonuses that, at
the Participant's election, may be
contributed to the CODA or received by the
Participant in cash. Such election shall be
effective as of the next pay period
following [....] or as soon as
administratively feasible thereafter.
18
<PAGE> 19
94-05
Participants who claim Excess Elective
Deferrals for the preceding calendar year
must submit their claims in writing to the
plan administrator by [....] (enter date
between March 1 and April 15).
A Participant ( ) may; ( ) may not elect to
recharacterize Excess Contributions as
Thrift Contributions.
Participants who elect to recharacterize
Excess Contributions for the preceding Plan
Year as Thrift Contributions must submit
their elections in writing to the Committee
by [....] (enter date no later than 2 1/2
months after close of the Plan Year).
5. Matching Contributions
() Not permitted.
(X) Permitted.
() The Employer shall or may (in the
event that the Matching Contribution
amount is within the discretion of
the Employer) make Matching
Contributions to the Plan with
respect to (any one or a combination
of the following may be selected):
(X) Elective Deferrals.
( ) Thrift Contributions.
( ) Combined Contributions.
Such Matching Contributions will be made
on behalf of:
(X) All Participants
who make such contribution(s).
( ) All Participants who are
Non-Highly Compensated Employees
who make such contribution(s).
19
<PAGE> 20
94-05
The amount of such Matching Contributions
made on behalf of each such Participant
shall be:
(i) Elective Deferrals (any one or a
combination of the following may be
selected) -
(X) An amount or percentage fixed
by appropriate action of the
Employer.
( ) [....]% of the Elective
Deferrals.
( ) [....]% of the first [....]%
of Compensation contributed as
an Elective Deferral, plus
[....]% of the next [....]% of
Compensation contributed as an
Elective Deferral, plus
[....]% of the next [....]% of
Compensation contributed as an
Elective Deferral.
The Employer shall not match
Elective Deferrals as provided above
in excess of $[....] or in excess of
6% of the Participant's
Compensation.
The Employer shall not match
Elective Deferrals made by the
following class(es) of Employees:
[....]
(ii) Thrift Contributions (any one or a
combination of the following may be
selected)-
( ) An amount or percentage fixed
by appropriate action of the
Employer.
( ) $[....] for each dollar of
Thrift Contributions.
( ) [....]% of the Thrift
Contributions.
( ) [....]% of the first [....]%
of Compensation contributed,
plus [....]% of the next
[....]% of
20
<PAGE> 21
94-05
Compensation contributed, plus
[....]% of the remaining
Compensation contributed.
The Employer shall not match Thrift
Contributions as provided above in
excess of $[....] or in excess of
[....]% of the Participant's
Compensation.
The Employer shall not match Thrift
Contributions made by the following
class(es) of Employees: [...]
(iii) Combined Contributions (any one or a
combination of the following may be
selected).
( ) An amount fixed by
appropriate action of the
Employer.
( ) [....]% of Combined
Contributions.
( ) [....]% of Elective Deferrals,
plus [....]% of Thrift
contributions.
( ) [....]% of the first [....]%
of Compensation contributed,
plus [....]% of the next
[....]% of Compensation
contributed, plus [....]% of
the remaining Compensation
contributed.
The Employer shall not match Combined
Contributions as provided above in excess of
$[....] or in excess of [....]% of the
Participant's Compensation.
The Employer shall not match Combined
Contributions made by the following
class(es) of Employees: [....]
Matching Contributions shall be made each:
(X) Payroll period.
( ) Month.
( ) Quarter.
21
<PAGE> 22
94-05
( ) Plan Year.
Allocation of Matching Contributions --
In order to share in the allocation of Matching
Contributions (and forfeitures, if forfeitures are
reallocated to participants) a Participant:
( ) Must be employed on the last day of the
payroll period.
( ) Must be employed on the last day of the
Month.
( ) Must be employed on the last day of the
Quarter.
( ) Must be employed on the last day of the
Plan Year.
unless the Participant terminates employment
on account of:
( ) Death.
( ) Disability.
( ) Attainment of Early Retirement Age.
( ) Attainment of Normal Retirement
Age.
( ) Employer approved leave of absence.
( ) Must have ( ) 501 Hours of Service; ( )
[....] Hours of Service (cannot exceed
1,000). Note: Not applicable if elapsed
time method of crediting service is
elected.
6. Qualified Matching Contributions
( ) Not permitted.
(X) Permitted.
22
<PAGE> 23
94-05
(X) The Employer shall or may (in the event
that the Qualified Matching Contribution
amount is within the discretion of the
Employer) make Qualified Matching
Contributions.
Qualified Matching Contributions will be made on
behalf of:
(X) All Participants who make Elective
Deferrals.
( ) All Participants who are Non-Highly
Compensated Employees and who make Elective
Deferrals.
The amount of such Qualified Matching Contributions
made on behalf of each Participant shall be (any one
or a combination of the following may be selected):
(X) An amount or percentage fixed by appropriate
action by the Employer.
( ) [....]% of the Elective Deferrals.
The Employer shall not match Elective Deferrals as
provided above in excess of $[....] or in excess of 6% of
the Participant's Compensation.
7. Qualified Nonelective Contributions
( ) Not permitted.
(X) The Employer shall have the discretion to
contribute Qualified Nonelective Contributions
for any Plan Year in an amount to be determined
each year by the Employer.
Qualified Nonelective Contributions will be made
on behalf of (select as appropriate):
( ) All Eligible Employees.
( ) All Participants who make Elective
Deferrals.
23
<PAGE> 24
94-05
( ) All Participants who are Non-Highly
Compensated Employees and who make Elective
Deferrals.
( ) All Participants who are Non-Highly
Compensated Employees.
( ) All Non-Key Employees.
(X) Each Participant who made Elective Deferrals
during any one quarter of the Plan Year
shall be eligible to share in the allocation
of the Qualified Nonelective Contributions.
Notwithstanding the second paragraph of
Section 4.4(5)(a), Qualified Nonelective
Contributions shall be allocated pro rata
among eligible participants based on the
number of quarters during the Plan Year that
each Participant made Elective Deferrals.
B. Forfeitures (Do not complete if 100% immediate vesting is elected).
Forfeitures of Employer Discretionary Contributions, Matching
Contributions or Excess Aggregate Contributions shall be:
( ) Allocated to participants in the manner provided in Sections 4.2
and 4.7(d)(2) of the Plan.
( ) Used to reduce:
( ) any future Employer contributions.
( ) Plan expenses.
C. Contributions Not Limited by Net Profits
Indicate for each type of Employer contribution allowed under
the Plan whether such contributions are to be limited to Net
Profits of the Employer for the taxable year of the Employer
ending with or within the Plan Year:
( ) Yes (X) No Employer Discretionary Contributions
24
<PAGE> 25
94-05
( ) Yes (X) No Elective Deferrals
( ) Yes (X) No Qualified Nonelective
Contributions
( ) Yes (X) No Matching Contributions
( ) Yes (X) No Qualified Matching Contributions.
XII. DISTRIBUTIONS AND IN-SERVICE WITHDRAWALS
A. Accounts shall be distributable upon a Participant's
separation from service, death, or Total and Permanent
Disability, and, in addition:
(X) Termination of the Plan without establishment or
maintenance of a successor plan.
(X) The disposition to an entity that is not an
Affiliated Employer of substantially all of the
assets used by the Employer in a trade or business,
but only if the Employer continues to maintain the
Plan and only with respect to participants who
continue employment with the acquiring corporation.
(X) Upon attainment of the Plan's Normal Retirement Age.
(X) The disposition to an entity that is not an
Affiliated Employer of the Employer's interest in a
subsidiary, but only if the Employer continues to
maintain the Plan and only with respect to
Participants who continue employment with such
subsidiary.
( ) Vested portion of Employer Discretionary
Contributions on account of a Participant's financial
hardship to the extent permitted by Section 4.9 of
the Plan.
( ) Vested portion of Employer Matching Contributions on
account of a Participant's financial hardship to the
extent permitted by Section 4.9 of the Plan.
25
<PAGE> 26
94-05
B. In addition to A above, Elective Deferrals, Qualified
Nonelective Contributions and Qualified Matching Contributions
(as applicable) and income allocable to such amounts shall be
distributable:
(X) Upon the Participant's attainment of age 59 1/2.
(X) On account of a Participant's financial hardship, to
the extent permitted by Section 4.9 of the Plan
(Elective Deferrals Only).
C. In-service withdrawals from a Participant's: ( ) Employer
Discretionary Contribution Account; (X) Matching Contribution
Account; (X) Transfer Account, if any (X) shall; ( ) shall not
be permitted upon the attainment of age 59 1/2. (Permitted
only if the Plan is not integrated with Social Security and a
Participant's Employer Discretionary Contribution Account and
Matching Contribution Accounts are 100% vested at time of
distribution.)
D. Distribution of benefits upon separation of service,
retirement or death of a Participant ( ) shall; (X) shall not
be subject to the Automatic Annuity rules of Section 8.2 of
the Plan.
E. (Complete only if the Plan is not subject to the Automatic
Annuity rules of Section 8.2.) Check the appropriate optional
forms of benefit that shall be available under the Plan (if
left blank, the provisions of Section 8.6(a) of this Plan
shall apply):
[X] Single lump sum payment.
[ ] Installment payments pursuant to Section 8.6
(a) of the Plan.
F. The following optional forms of benefit shall be available in
addition to the optional forms of benefit available under
Section 8.6 of the Plan (Note: If the Plan is not subject to
the Automatic Annuity rules of Section 8.2 and the Participant
is permitted to select an annuity as an optional form of
benefit, then the Automatic Annuity rules of Section 8.2 shall
apply to such participant):
-----------------------------------------------------------
[Note: If the Plan is an amendment and restatement of an
existing Plan, optional forms of benefit protected under
Section 411(d)(6) of the Code
26
<PAGE> 27
94-05
may not be eliminated, unless permitted by IRS Regulations
Sections 1.401(a)-(4) and 1.411(d)-4].
XIII. VESTING SERVICE
In order to be credited with a year of Service for vesting purposes, a
Participant shall complete [....] (not to exceed 1,000) Hours of
Service. (Not applicable if elapsed time method of crediting service
for vesting purposes is elected).
Note: In the case of Employees in the Maritime Industry, for purposes
of a year of Service, refer to Section 1.56 of the Plan.
XIV. VESTING SERVICE - EXCLUSIONS
All of an Employee's years of Service with the Employer shall be
counted to determine the vested interest of such Employee except:
( ) Years of Service before age 18.
( ) Years of Service before the Employer maintained this Plan or a
predecessor plan.
( ) Years of Service before the effective date of ERISA if such
Service would have been disregarded under the Service Break
rules of the prior plan in effect from time to time before such
date. For this purpose, Service Break rules are rules which
result in the loss of prior vesting or benefit accruals, or
deny an Employee's eligibility to participate by reason of
separation or failure to complete a required period of Service
within a specified period of time.
XV. VESTING SCHEDULES
The vested interest of each Employee (who has an Hour of Service on or
after January 1, 1989) in his Employer-derived account balance shall be
determined on the basis of the following schedules:
27
<PAGE> 28
94-05
A. Employer Discretionary Contributions.
(X) 100% immediately vested. [Note: Mandatory if more
than 1 Eligibility Year of Service is required.]
( ) 100% immediately vested after [....] (not to exceed
5) years of Service.
( ) [....]% (not less than 20%) vested for each year of
Service, beginning with the [....] (not more than the
3rd) year of Service until 100% vested.
( ) Other: [....] (Must be at least as favorable as any
one of the above 3 options).
AND
( ) Effective Date Vesting. Each Employee who is a
Participant on the Effective Date shall be 100%
immediately vested.
B. Matching Contributions.
(X) 100% immediately vested. [Note: Mandatory if more
than 1 Eligibility Year of Service is required.]
( ) 100% immediately vested after [....] (not to exceed
5) years of Service.
( ) [....]% (not less than 20%) vested for each year of
Service, beginning with the [....] (not more than the
3rd) year of Service until 100% vested.
( ) Other: [....] (Must be at least as favorable as any
one of the above 3 options).
AND
( ) Effective Date Vesting. Each Employee who is a
Participant on the Effective Date shall be 100%
immediately vested.
28
<PAGE> 29
94-05
C. Top Heavy Minimum Vesting Schedules.
One of the following schedules will be used for years when the
Plan is or is deemed to be Top-Heavy.
(X) 100% immediately vested after 0 (not to exceed 3)
years of Service.
( ) 20% vested after 2 years of Service, plus [....]%
vested (not less than 20%) for each additional year
of Service until 100% vested.
( ) Other: [....] (Note: must be at least as favorable as
either of the two schedules in this Section C).
If the vesting schedule under the Plan shifts in or out of the
Minimum Schedule above for any Plan Year because of the Plan's
Top-Heavy status, such shift is an amendment to the vesting
schedule and the election in Section 7.3 of the Plan applies.
XVI. LIFE INSURANCE
Life insurance ( ) shall; (X) shall not be a permissible investment.
XVII. LOANS
Loans (X) shall; ( ) shall not be permitted.
XVIII. TOP-HEAVY PROVISIONS
A. Top Heavy Status
( ) The provisions of Article XIII of the Plan shall
always apply.
(X) The provisions of Article XIII of the Plan shall only
apply in Plan Years after 1983, during which the Plan
is or becomes Top-Heavy.
B. Minimum Allocations
29
<PAGE> 30
94-05
If a Participant in this Plan who is a Non-Key Employee is
covered under another qualified plan maintained by the
Employer, the minimum Top Heavy allocation or benefit required
under Section 416 of the Code shall be provided to such
Non-key Employee under:
( ) this Plan.
( ) the Employer's other qualified defined
contribution plan.
(X) the Employer's qualified defined benefit
plan.
C. Determination of Present Value
If the Employer maintains a defined benefit plan in addition
to this Plan, and such plan fails to specify the interest rate
an mortality table to be used for purposes of establishing
present value to compute the Top-Heavy Ratio, then the
following assumptions shall be used:
Interest Rate: 5%
Mortality Table: UP - 1984
XIX. LIMITATION ON ALLOCATIONS
If the adopting Employer maintains or has ever maintained
another qualified plan in which any Participant in this Plan
is (or was) a Participant or could possibly become a
Participant, the adopting Employer must complete this Section.
The Employer must also complete this Section if it maintains a
welfare benefit fund, as defined in Section 419(e) of the
Code, or an individual medical account, as defined in Section
415(l)(2) of the Code, under which amounts are treated as
Annual Additions with respect to any Participant in the Plan.
(a) If the Participant is covered under another qualified
defined contribution plan maintained by the Employer,
other than a Master or Prototype Plan, Annual
Additions for any Limitation Year shall be limited to
comply with Section 415(c) of the Code:
30
<PAGE> 31
94-05
( ) in accordance with Sections 6.4(e) - (j) as
though the other plan were a Master or
Prototype Plan.
(X) by freezing or reducing Annual Additions in
the other qualified defined contribution
plan.
( ) other:____________________________________
__________________________________________
(b) If a Participant is or has ever been a Participant in
a qualified defined benefit plan maintained by the
Employer, the "1.0" aggregate limitation of Section
415(e) of the Code shall be satisfied by:
( ) freezing or reducing the rate of benefit
accrual under the qualified defined benefit
plan.
(X) freezing or reducing the Annual Additions
under this Plan (or, if the Employer
maintains more than one qualified defined
contribution plan, as indicated in (a)
above).
( ) other:____________________________________
XX. INVESTMENTS
(X) Participants (X) shall; ( ) shall not be permitted to direct
the investment of their Accounts in the investment options
selected by the Employer or the Committee.
( ) Investment of participant Accounts shall be directed
consistent with rules and procedures established by the
Committee. Such rules shall be applied to all Participants in
a uniform and nondiscriminatory basis.
XXI. TRANSFERS
Transfers pursuant to Section 10.3 of the Plan (X) shall; ( ) shall not
be permitted.
If permitted, indicate additional prior plan provisions, if applicable:
[....].
31
<PAGE> 32
94-05
A PARTICIPANT WHO HAS A TRANSFER ACCOUNT IN THIS PLAN THAT ORIGINATED
FROM THE KUHLMAN ELECTRIC CORPORATION EMPLOYEES' STOCK PURCHASE PLAN
MAY (I) WITHDRAW AT ANY TIME ANY PORTION OF SUCH TRANSFER ACCOUNT THAT
CONSISTS OF AFTER-TAX CONTRIBUTIONS; AND (II) WITHDRAW ONCE A YEAR THE
PORTION OF SUCH TRANSFER ACCOUNT THAT CONSISTS OF MATCHING
CONTRIBUTIONS AND EARNINGS EXCLUSIVE OF MATCHING CORPORATIONS THAT WERE
MADE WITHIN THE TWO YEARS IMMEDIATELY PRECEDING THE DATE THE TRANSFER
ACCOUNT WAS ESTABLISHED.
XXII. ROLLOVERS
Rollovers pursuant to Section 10.3 of the Plan (X) shall; ( ) shall not
be permitted.
XXIII. EMPLOYER REPRESENTATIONS
The Employer hereby represents that:
a. It is aware of, and agrees to be bound by, the terms of
the Plan.
b. It understands that the Sponsor will not furnish legal
or tax advice in connection with the adoption or
operation of the Plan and has consulted legal and tax
counsel to the extent necessary.
c. The failure to properly fill out this Adoption Agreement
may result in disqualification of the Plan.
32
<PAGE> 33
94-05
IN WITNESS WHEREOF, the Employer and the Trustee have executed this
instrument the ___ day of _____, 19__. If applicable, the
appropriate corporate seal has been affixed and attested to.
KUHLMAN ELECTRIC CORPORATION
----------------------------
Name of Business Entity
--------------------------------
Signature(Sole Proprietors only)
By:
------------------------------------------
Name and Title (Corporations or Partnerships)
ATTEST:
-----------------------------
Secretary (Corporations only)
SEAL:
THE DREYFUS TRUST COMPANY
-------------------------
Name(s) of Trustee(s)
------------------------------
Signature (Individual Trustee)
------------------------------
Signature (Individual Trustee)
By:
-----------------------------------
Name and Title (Corporate Trustee only)
33
<PAGE> 1
Exhibit 99(b)
94-05
DREYFUS PROTOTYPE
BASIC PLAN DOCUMENT NO. 01
DREYFUS PROTOTYPE DEFINED CONTRIBUTION PLAN
<PAGE> 2
94-05
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
DEFINITIONS 1
1.1 "Account" 1
1.2 "Act" 1
1.3 "Actual Deferral Percentage" 1
1.4 "Adoption Agreement" 1
1.5 "Affiliated Employer" 1
1.6 "Anniversary Date" 1
1.7 "Annuity Starting Date" 1
1.8 "Average Actual Deferral Percentage" 1
1.9 "Average Contribution Percentage" 2
1.10 "Beneficiary" or "Beneficiaries" 2
1.11 "Board of Directors" 2
1.12 "CODA" 2
1.13 "Code" 2
</TABLE>
i
<PAGE> 3
94-05
<TABLE>
<S> <C> <C>
1.14 "Committee" 2
1.15 "Compensation" 2
1.16 "Contribution Percentage" 4
1.17 "Contribution Percentage Amounts" 4
1.18 "Early Retirement Age" 4
1.19 "Earned Income" 4
1.20 "Easy Retirement Plan" 4
1.21 "Effective Date" 4
1.22 "Elective Deferrals" 5
1.23 "Eligible Employee" 5
1.24 "Eligibility Year(s) of Service" 5
1.25 "Employee" 6
1.26 "Employer" 7
1.27 "Employment Commencement Date" 7
1.28 "Entry Date" 7
1.29 "Excess Aggregate Contributions" 7
</TABLE>
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<TABLE>
<S> <C> <C>
1.30 "Excess Contributions" 7
1.31 "Excess Elective Deferrals" 7
1.32 "Family Member" 7
1.33 "Fund" 7
1.34 "Highly Compensated Employee" 7
1.35 "Hour of Service" 9
1.36 "Integration Level" 10
1.37 "Matching Contribution" 10
1.38 "Net Profits" 10
1.39 "Non-Highly Compensated Employee" 10
1.40 "Normal Retirement Age" 10
1.41 "Owner-Employee" 11
1.42 "Participant" 11
1.43 "Participating Employer" 12
1.44 "Period of Severance" 12
1.45 "Plan" 12
</TABLE>
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<TABLE>
<S> <C> <C>
1.46 "Plan Year" 12
1.47 "Prototype Plan" 12
1.48 "Qualified Matching Contributions" 12
1.49 "Qualified Nonelective Contributions" 12
1.50 "ReEmployment Commencement Date" 12
1.51 "Regular Account" 13
1.52 "S-Corporation" 13
1.53 "Self-Employed Individual" 13
1.54 "Service" 13
1.55 "Service Break" 14
1.56 "Severance from Service Date" 14
1.57 Shareholder-Employee" 14
1.58 "Sponsor" 15
1.59 "Taxable Wage Base" 15
1.60 "Thrift Contributions" 15
1.61 "Total and Permanent Disability" 15
</TABLE>
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<TABLE>
<S> <C> <C>
1.62 "Trustee" or "Custodian" 15
1.63 "Trust Agreement" or "Custodial Agreement" 15
1.64 "Valuation Date" 15
1.65 "Voluntary Contributions" 16
PARTICIPATION 16
2.1 Membership 16
2.2 Excluded Employees 16
2.3 Reemployment 16
2.4 Change in Employment Status 17
2.5 Limitations on Participation of Owner-Employees 17
CONTRIBUTIONS AND CREDITS TO MONEY PURCHASE PLANS 18
3.1 Employer Contributions 18
3.2 Forfeitures 18
3.3 Credit to Participants 19
CONTRIBUTIONS AND CREDITS TO PROFIT SHARING PLANS 21
4.1 Limits on Employer Contributions 21
</TABLE>
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<TABLE>
<S> <C> <C>
4.2 Forfeitures 22
4.3 Employer Discretionary Contributions 22
4.4 401(k) Cash or Deferred Arrangements ("CODA")/Thrift Contributions 25
4.5 Maximum Amount of Elective Deferrals 28
4.6 Average Actual Deferral Percentage Tests 29
4.7 Average Contribution Percentage Tests 34
4.8 Non-Hardship Withdrawals 38
4.9 Distribution on Account of Financial Hardship 39
4.10 Special Distribution Rules 42
CONTRIBUTIONS AND CREDITS TO TARGET BENEFIT PLANS 42
CONTRIBUTION AND ALLOCATION LIMITS 43
6.1 Timing of Contributions 43
6.2 Deductibility of Contributions 43
6.3 Return of Employer Contributions 43
6.4 Limitation on Allocations 44
6.5 Separate Accounts 53
</TABLE>
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<TABLE>
<S> <C> <C>
6.6 Valuation 53
6.7 Segregation of Former Participant's Account 54
VESTING 54
7.1 Vested Interest 54
7.2 Vesting of a Participant 55
7.3 Amendment of Vesting Provisions 55
7.4 Forfeitures 56
BENEFITS ON RETIREMENT AND SEPARATION FROM SERVICE 57
8.1 Commencement of Benefits 57
8.2 Automatic Annuity Requirements 60
8.3 Profit Sharing Plans: Exception from Automatic Annuity Requirements 64
8.4 Transitional Rules Applicable to Joint and Survivor Annuities 64
8.5 Required Payment of Benefits 66
8.6 Available Forms of Distribution 73
8.7 Certain Distributions 73
8.8 Forfeitures 74
</TABLE>
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<TABLE>
<S> <C> <C>
DEATH BENEFITS 74
9.1 Payment to Beneficiary 74
9.2 Method of Payment 74
PARTICIPANT CONTRIBUTIONS; ROLLOVERS 75
10.1 Voluntary Contributions 75
10.2 Voluntary Tax-Deductible Contributions 75
10.3 Transfers From Other Trusts 76
INSURANCE POLICIES 77
11.1 Policy Procurement 77
11.2 Rules and Regulations 77
11.3 Transfer of Policies 78
11.4 Payment Upon Death 79
11.5 Plan Provisions Control 79
LOANS 79
12.1 Loans to Participants 79
12.2 Provisions to be Applied in a Uniform and Nondiscriminatory Manner 81
</TABLE>
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<TABLE>
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12.3 Satisfaction of Loan 81
12.4 Loans to Owner-Employees or Shareholder-Employees 81
TOP-HEAVY PROVISIONS 82
13.1 Definitions 82
13.2 Vesting Schedules 85
13.3 Minimum Allocation 86
13.4 Adjustment to Defined Benefit Fraction and Defined Contribution
Fraction under section 6.4. 87
THE COMMITTEE 87
14.1 Creation of a Committee 87
14.2 Committee Action 87
14.3 Authorized Signatory 88
14.4 Powers and Duties 88
14.5 Nondiscrimination 88
14.6 Records and Reports 88
14.7 Reliance on Professional Advice 88
14.8 Payment of Expenses 88
</TABLE>
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<TABLE>
<S> <C> <C>
14.9 Limitation of Liability 89
14.10 Payment Certification to Trustee 89
14.11 Claims Procedure 89
GENERAL PROVISIONS 90
15.1 No Right of Continued Employment 90
15.2 Nonalienation of Interest 90
15.3 Incompetence of Participants and Beneficiaries 90
15.4 Unclaimed Benefits 91
15.5 Separate Employer Trusts Maintained 91
15.6 Governing Law 91
15.7 Severability 91
15.8 Gender and Number 91
15.9 Titles and Headings 92
15.10 Failure of Employer's Plan to Qualify 92
15.11 Exclusive Benefit 92
15.12 Action by Employer 92
</TABLE>
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<TABLE>
<S> <C> <C>
AMENDMENT AND TERMINATION 92
16.1 Amendment 92
16.2 Termination and Partial Termination 93
16.3 Plan Merger and Consolidation or Transfer of Plan Assets 94
16.4 Amended and Restated Plans 94
16.5 Participating Employers 95
PAIRED PLAN PROVISIONS 96
17.1 Compliance With Section 415(e) of the Code 96
17.2 Adjustment of Combined Plan Fractions Under Section 415 of the
Code for Top-Heavy Ratio in Excess of Ninety Percent (90%) 96
17.3 Top-Heavy Minimum Benefits and Contributions 96
17.4 Integration of Paired Plans 97
</TABLE>
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DREYFUS PROTOTYPE DEFINED
CONTRIBUTION PLAN
BASIC PLAN DOCUMENT NO. 01
ARTICLE I.
DEFINITIONS
1.1 "Account" shall mean any one of the accounts maintained by the
Committee for each Participant in accordance with Section 6.5.
1.2 "Act" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
1.3 "Actual Deferral Percentage" shall mean the ratio (expressed as a
percentage) of Elective Deferrals (including Excess Elective
Deferrals), Qualified Matching Contributions, and Qualified Nonelective
Contributions paid over to the Fund on behalf of an Eligible
Participant for the Plan Year to the Eligible Participant's
Compensation for the Plan Year. The Actual Deferral Percentage of an
Eligible Participant who does not make an Elective Deferral, and who
does not receive an allocation of a Qualified Matching Contribution or
a Qualified Nonelective Contribution, is zero.
1.4 "Adoption Agreement" shall mean the document executed by the adopting
Employer which contains all the options which may be selected and which
incorporates this Prototype Plan by reference.
1.5 "Affiliated Employer" shall mean any corporation which is a member of a
controlled group of corporations (as defined in section 414(b) of the
Code) which includes the Employer; any trade or business (whether or
not incorporated) which is under common control (as defined in section
414(c) of the Code) with the Employer; any organization (whether or not
incorporated) which is a member of an affiliated service group (as
defined in section 414(m) of the Code) which includes the Employer; and
any other entity required to be aggregated with the Employer pursuant
to regulations under section 414(o) of the Code.
1.6 "Anniversary Date" unless otherwise defined in the Adoption Agreement,
shall mean the first day of the Plan Year. If the initial Plan Year is
less than a 12 month period, the Anniversary Date shall mean the first
day of the 12 consecutive month period designated as the Plan Year in
the Adoption Agreement.
1.7 "Annuity Starting Date" shall mean the first day of the first period
for which an amount is paid as an annuity or any other form.
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1.8 "Average Actual Deferral Percentage" shall mean the average (expressed
as a percentage) of the Actual Deferral Percentages of the Eligible
Participants in a group.
1.9 "Average Contribution Percentage" shall mean the average (expressed as
a percentage) of the Contribution Percentages of the Eligible
Participants in a group.
1.10 "Beneficiary" or "Beneficiaries" shall mean one or more persons
designated as such by a Participant to receive his interest in the Fund
in the event of the death of the Participant.
1.11 "Board of Directors" shall mean the Board of Directors of the Employer
if the Employer is an incorporated business entity.
1.12 "CODA" shall mean a cash or deferred arrangement qualified under
section 401(k) of the Code.
1.13 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.14 "Committee" shall mean the person or persons appointed by the Employer
to administer the Plan in accordance with Article XIV. If the Plan is
an Easy Retirement Plan or if no such Committee is appointed by the
Employer, the Employer shall act as the Committee.
1.15 "Compensation", unless otherwise specified in the Adoption Agreement,
shall mean, in the case of an Employee other than a Self-Employed
Individual, his wages as defined in section 3401(a) of the Code and all
other payments of compensation to the Employee by the Employer (in the
course of the Employer's trade or business) for which the Employer is
required to furnish the Employee a written statement under sections
6041(d) and 6051(a)(3) of the Code, determined without regard to any
rules under section 3401(a) of the Code that limit the remuneration
included in wages based on the nature or location of the employment or
the services performed, which are actually paid during the applicable
period. In the case of a Self-Employed Individual, Compensation shall
mean his Earned Income. Unless otherwise specified in the Adoption
Agreement, the applicable period shall be the Plan Year. If elected by
the employer in the Adoption Agreement, Compensation shall also include
Employer contributions made pursuant to a salary reduction agreement
with an Employee which are not currently includible in the gross income
of the Employee by reason of the application of sections 125,
402(e)(3), 402(h)(1)(B) or 403(b) of the Code. Compensation shall
include Excess Contributions which are recharacterized in accordance
with Section 4.6(d) to the extent that Elective Deferrals are included
in Compensation.
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Solely for purposes of determining Actual Deferral Percentages and
Contribution Percentages, Compensation, if the Plan is a
non-standardized plan, shall be determined without regard to any
exclusions which may be elected in the Adoption Agreement. Solely for
purposes of determining Actual Deferral Percentages and Contribution
Percentages, the applicable period for determining the amount of an
Employee's Compensation shall be limited to the period during which the
Employee was an Eligible Participant.
For Plan Years beginning on or after January 1, 1989, annual
Compensation shall not include amounts in excess of $200,000, as
adjusted by the Secretary of the Treasury at the same time and in the
same manner as under section 415(d) of the Code except that the dollar
increases in effect on January 1 of any calendar year is effective for
Plan Years beginning in such calendar year and the first adjustment to
the $200,000 limitation is effective on January 1, 1990.
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 section 401(a)(17)(B) of the Code. The cost-of-living adjustment
in effect for a calendar year applies to the applicable period
beginning in such calendar year.
If an applicable period consists of fewer than 12 months, the annual
Compensation limit is an amount equal to the otherwise applicable
annual Compensation limit multiplied by a fraction, the numerator of
which is the number of months in the short applicable period, and the
denominator of which is 12.
In determining Compensation for purposes of the annual Compensation
limit, the family member rules of Section 414(q)(6) of the Code shall
apply except that in applying such rules, the term "family" shall
include only the Employee's spouse and any lineal descendants who have
not attained age 19 before the close of the Plan Year. If, as a result
of the application of such family member rule the annual compensation
limit is exceeded, then (except for purposes of determining the portion
of Compensation up to the Integration Level if this Plan is integrated
with Social Security), the annual compensation limit 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 such limitation.
If Compensation for any prior applicable period is taken into account
in determining a Participant's allocations for the current Plan Year,
the Compensation for such prior applicable period is subject to the
applicable annual Compensation limit in effect for that
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prior period. For this purpose, in determining allocations in
Plan Years beginning on or after January 1, 1989, the annual
Compensation limit in effect for applicable periods beginning before
that date is $200,000. In addition, in determining allocations in Plan
Years beginning on or after January 1, 1994, the annual Compensation
limit in effect for applicable periods beginning before that date is
$150,000.
1.16 "Contribution Percentage" shall mean the ratio (expressed as a
percentage) of an Eligible Participant's Contribution Percentage
Amounts to the Eligible Participant's Compensation for the Plan Year.
1.17 "Contribution Percentage Amounts" shall mean the sum of the Thrift
Contributions (including amounts recharacterized in accordance with
Section 4.6(d)), Voluntary Contributions and Matching Contributions
under the Plan on behalf of an Eligible Participant for the Plan Year.
Such Contribution Percentage Amounts shall not include Matching
Contributions that are forfeited either to correct Excess Aggregate
Contributions or because the contributions to which they relate are
Excess Elective Deferrals, Excess Contributions, or Excess Aggregate
Contributions. Such Contribution Percentage Amounts shall include
forfeitures of Excess Aggregate Contributions or Matching Contributions
allocated to the Eligible Participant's Employer Matching Contribution
Account, which shall be taken into account in the year in which such
forfeiture is allocated.
1.18 "Early Retirement Age" shall mean the date a Participant satisfies the
age and service requirements for early retirement, if any, specified in
the Adoption Agreement. Upon reaching his Early Retirement Age, a
Participant's right to his account balance shall be nonforfeitable,
notwithstanding the Plan's vesting schedule. If a Participant
separates from service before satisfying the age requirement for early
retirement, but has satisfied the service requirement, the Participant
will be entitled to elect to receive an early retirement benefit upon
satisfaction of such age requirement.
1.19 "Earned Income" shall mean the annual net earnings from self-employment
in the trade or business with respect to which the Plan is established,
provided that personal services of the individual are a material
income-producing factor. Net earnings will be determined without
regard to items not included in gross income and the deductions
allocable to such items. Net earnings are reduced by contributions by
the Employer to a qualified plan to the extent deductible under section
404 of the Code. Net earnings shall be determined with regard to the
deduction allowed to the Employer by section 164(f) of the Code for
taxable years beginning after December 31, 1989.
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1.20 "Easy Retirement Plan" shall mean a Plan established under Dreyfus Easy
Standardized/Paired Prototype Money Purchase Retirement Plan No. 01005,
Dreyfus Easy Standardized/Paired Prototype Profit Sharing Retirement
Plan No. 01006, or Dreyfus Standardized/Paired Prototype Defined
Benefit Plan No. 02001.
1.21 "Effective Date" shall mean the date specified in the Adoption
Agreement.
1.22 "Elective Deferrals" shall mean any Employer contributions made to the
Plan at the election of the Participant, in lieu of cash compensation,
and shall include contributions made pursuant to a salary reduction
agreement or other deferral mechanism. With respect to any taxable
year, a Participant's Elective Deferrals are the sum of all Employer
contributions made on behalf of such Participant pursuant to an
election to defer under any CODA, any simplified employee pension cash
or deferred arrangement as described in section 402(h)(1)(B), any
eligible deferred compensation plan under section 457, any plan as
described under section 501(c)(18), and any Employer contributions made
on behalf of a Participant for the purchase of an annuity contract
under section 403(b) pursuant to a salary reduction agreement.
Elective Deferrals shall not include any deferrals properly distributed
as an Excess Amount pursuant to Section 6.4(d).
1.23 "Eligible Employee" shall mean each Employee who is not excluded from
eligibility to participate in the Plan under the Adoption Agreement.
If the Plan is an Easy Retirement Plan, Eligible Employee shall mean
each Employee who is not (i) included in a unit of Employees covered by
a collective bargaining agreement between the Employer and employee
representatives, if retirement benefits were the subject of good faith
bargaining, or (ii) a nonresident alien who received no income from the
Employer which constitutes income from sources within the United
States. For purposes of the preceding sentence, "employee
representatives" does not include any organization more than half of
whose members are Employees who are owners, officers, or executives
of the Employer.
1.24 "Eligibility Year(s) of Service" shall mean the twelve (12) consecutive
month period commencing on an Employee's Employment Commencement Date
and anniversaries thereof, during which the Employee worked at least
one thousand (1,000) Hours of Service (or such lesser number of Hours
of Service specified in the Adoption Agreement).
In the case of an Employee in the maritime industry whose compensation
is determined based on days of service, 125 days of service shall be
treated as 1,000 Hours of Service (or such lesser number of Hours of
Service as specified in the Adoption Agreement). For purposes of the
preceding sentence "maritime industry" shall mean that industry in
which Employees perform duties on board commercial, exploratory,
service or other vessels
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moving on the high seas, inland waterways, Great Lakes, coastal
zones, harbors and noncontiguous areas, or on offshore ports, platforms
or other similar sites.
In the case of a Participant, who does not have any nonforfeitable
right to the account balance derived from Employer contributions,
Eligibility Year(s) of Service before a period of consecutive one (1)
year Service Breaks will not be taken into account in computing
Eligibility Years of Service, if the number of consecutive one (1) year
Service Breaks in such period equals or exceeds the greater of five (5)
or the aggregate number of Eligibility Years of Service before such
break. Such aggregate number of Eligibility Years of Service will not
include any Eligibility Year of Service disregarded under the preceding
sentence by reason of prior Service Breaks.
Notwithstanding the above, if the Adoption Agreement provides for full
and immediate vesting upon completion of the eligibility requirements
and an Employee has incurred a one (1) year Service Break before
satisfying the Plan's eligibility requirements, all Eligibility Year(s)
of Service before such Service Break will not be taken into account.
If the elapsed time method of crediting service is specified in the
Adoption Agreement, an Employee shall receive credit for Service,
except for credit which may be disregarded under this Section or
Section 2.3, for the aggregate of all time periods commencing on his
Employment Commencement Date or Re-Employment Commencement Date and
ending on his Severance from Service Date. An Employee shall also
receive credit for any Period of Severance of less than twelve (12)
months. Fractional periods of a year shall be expressed in terms of
days.
1.25 "Employee" shall mean an Owner-Employee, a Self-Employed Individual, a
Shareholder-Employee and any other person employed by the Employer or
any Affiliated Employer.
A "leased employee" shall also be treated as an Employee. The term
"leased employee" means any person (other than an employee of the
recipient employer) who pursuant to an agreement between the recipient
employer and any other person ("leasing organization") has performed
services for the recipient employer (or for the recipient employer and
related persons determined in accordance with section 414(n)(6) of the
Code) on a substantially full-time basis for a period of at least one
year, and such services are of a type historically performed by
employees in the business field of the recipient employer.
Contributions or benefits provided a leased employee by the leasing
organization which are attributable to services performed for the
recipient employer shall be treated as provided by the recipient
employer.
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Notwithstanding the preceding paragraph, a leased employee shall not be
considered an employee of the recipient employer if: (i) such employee
is covered by a money purchase pension plan providing (1) a
nonintegrated employer contribution rate of at least ten percent (10%)
of compensation, as defined in section 415(c)(3) of the Code, but
including amounts contributed pursuant to a salary reduction agreement
which are excludable from the employee's gross income under section
125, section 402(a)(8), section 402(h) or section 403(b) of the Code,
(2) immediate participation, and (3) full and immediate vesting; and
(ii) leased employees do not constitute more than twenty percent (20%)
of the recipient employer's non-highly compensated workforce.
1.26 "Employer" shall mean the corporation, partnership, proprietorship or
other business entity which shall adopt the Plan or any successor
thereof.
1.27 "Employment Commencement Date" shall mean the first date with respect
to which an Employee performs an Hour of Service.
1.28 "Entry Date", unless otherwise specified in the Adoption Agreement,
shall mean the first day of the Plan Year and the first day of the
seventh month of the Plan Year. The initial Entry Date shall not
precede the original effective date of the Plan.
1.29 "Excess Aggregate Contributions" shall mean, with respect to any Plan
Year, the excess of the aggregate Contribution Percentage Amounts taken
into account in computing the numerator of the Contribution Percentage,
actually made on behalf of Highly Compensated Employees for such Plan
Year, over the maximum Contribution Percentage Amounts permitted by the
Average Contribution Percentage tests of Section 4.7 (determined by
reducing contributions made on behalf of Highly Compensated Employees
in order of their Contribution Percentages, beginning with the highest
of such percentages).
1.30 "Excess Contributions" shall mean, with respect to any Plan Year, the
excess of the aggregate amount of Elective Deferrals, Qualified
Nonelective Contributions, and Qualified Matching Contributions
actually taken into account in computing the Actual Deferral Percentage
of Highly Compensated Employees for such Plan Year, over the maximum
amount of such contributions permitted under the Average Actual
Deferral Percentage tests of Section 4.6 (determined by reducing
contributions made on behalf of Highly Compensated Employees in order
of their Actual Deferral Percentages, beginning with the highest of
such percentages).
1.31 "Excess Elective Deferrals" shall mean a Participant's Elective
Deferrals for a taxable year in excess of the adjusted dollar
limitation of section 402(g) of the Code.
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1.32 "Family Member" shall, with respect to a five percent (5%) owner or top
ten Highly Compensated Employee described in section 414(q)(6)(A) of
the Code, include the spouse and lineal ascendants and descendants of
an Employee or former Employee and the spouses of such lineal
ascendants and descendants. The determination of who is a Family
Member will be made in accordance with section 414(q) of the Code.
1.33 "Fund" shall mean all property received by the Trustee or Custodian for
purposes of the Plan, investments thereof and earnings thereon, less
payments made by the Trustee to carry out the Plan.
1.34 "Highly Compensated Employee" shall include highly compensated active
employees and highly compensated former employees.
A highly compensated active employee includes any Employee who performs
services for the Employer or any Affiliated Employer during the
determination year and who, during the look-back year: (i) received
Compensation from the Employer or any Affiliated Employer in excess of
$75,000 (as adjusted pursuant to section 415(d) of the Code); (ii)
received Compensation from the Employer or any Affiliated Employer in
excess of $50,000 (as adjusted pursuant to section 415(d) of the Code)
and was a member of the top-paid group for such year; or (iii) was an
officer of the Employer or any Affiliated Employer and received
Compensation during such year that is greater than fifty percent (50%)
of the dollar limitation in effect under section 415(b)(1)(A) of the
Code. The term Highly Compensated Employee also includes: (i) an
Employee who is described in the preceding sentence if the term
"determination year" is substituted for the term "look-back year" and
the Employee is one of the 100 most highly compensated Employees of the
Employer or any Affiliated Employer during the Plan Year; and (ii) an
Employee who is a five percent (5%) owner of the Employer or any
Affiliated Employer at any time during the look-back year or
determination year.
If no officer has satisfied the compensation requirement of (iii) above
during either a determination year or look-back year, the highest paid
officer for such year shall be treated as a Highly Compensated
Employee.
For this purpose, the determination year shall be the Plan Year, and
the look-back year shall be the twelve (12) month period immediately
preceding the determination year unless the Employer has elected to use
the calendar year ending with or within the determination year as the
look-back year for purposes of its employee benefit plans. If the
Employer has so elected to use such calendar year as the look-back year
for its
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employee benefit plans, the determination year shall be the "lag
period," if any, by which the applicable determination year extends
beyond such calendar year.
A highly compensated former employee includes any Employee who
terminated employment (or was deemed to have terminated) prior to the
determination year, performs no service for the Employer or any
Affiliated Employer during the determination year, and was a highly
compensated active employee for either the separation year or any
determination year ending on or after the Employee's 55th birthday.
If an Employee is, during a determination year or look-back year, a
Family Member of either a five percent (5%) owner who is an active or
former Employee or a Highly Compensated Employee who is one of the 10
most Highly Compensated Employees of the Employer or any Affiliated
Employer during such year, then the Family Member and the five percent
(5%) owner or top-10 Highly Compensated Employee shall be aggregated.
The Family Member and five percent (5%) owner or top-10 Highly
Compensated Employee shall be treated as a single Employee receiving
Compensation and Plan contributions equal to the sum of Compensation
and contributions of the Family Member and five percent (5%) owner or
top-10 Highly Compensated Employee.
The determination of who is a Highly Compensated Employee, including
the determinations of the number and identify of employees in top-paid
group, the top 100 employees, the number of employees treated as
officers and the compensation that is considered, will be made in
accordance with section 414(q) of the Code and the regulations
thereunder.
1.35 "Hour of Service" shall mean:
(a) Each hour for which an Employee is compensated by the Employer,
or is entitled to be so compensated, for services rendered by
him to the Employer. These hours will be credited to the
Employee for the computation period in which the duties are
performed; and
(b) Each hour for which an Employee is compensated by the Employer,
or is entitled to be so compensated, on account of a period of
time during which no services are rendered by him to the
Employer (regardless of whether the Employee shall have ceased
to be an Employee) due to vacation, holiday, illness,
incapacity (including disability), layoff, jury duty, military
duty or leave of absence. No more than five hundred and one
(501) Hours of Service shall be credited pursuant to this
subparagraph (b) on account of any single continuous period
during which an
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Employee renders no services to the Employer (whether or not
such period occurs in a single computation period). Hours
under this paragraph will be calculated and credited pursuant
to section 2530.200b-2 of the Department of Labor Regulations
which are incorporated herein by this reference; and
(c) Each hour for which back pay, without regard to mitigation of
damages, has been awarded or agreed to by the Employer. The
same Hours of Service shall not be credited both under
subparagraph (a) or subparagraph (b), whichever shall be
applicable, and also under this subparagraph (c). The hours
will be credited to the Employee for the computation period or
periods to which the award or agreement pertains rather than
the computation period in which the award, agreement or payment
is made.
Hours of Service will be credited for employment with an
Affiliated Employer. Hours of Service will also be credited
for employment with a predecessor employer if the Employer
maintains the plan of such predecessor or the Employer so
elects in the Adoption Agreement.
Hours of Service will also be credited for any individual
considered an Employee under sections 414(n) or 414(o) of the
Code or the regulations thereunder.
Solely for purposes of determining whether a Service Break, as
defined in Section 1.54, for participation and vesting purposes
has occurred in a computation period, an individual who is
absent from work for maternity or paternity reasons shall
receive credit for the Hours of Service which would otherwise
have been credited to such individual but for such absence, or
in any case in which such hours cannot be determined, eight (8)
Hours of Service per day of such absence. For purposes of this
paragraph, an absence from work for maternity or paternity
reasons means an absence (1) by reason of the pregnancy of the
individual, (2) by reason of a birth of a child of the
individual, (3) by reason of the placement of the child with
the individual in connection with the adoption of such child by
such individual, or (4) for purposes of caring for such child
for a period beginning immediately following such birth or
placement. The Hours of Service credited under this paragraph
shall be credited (1) in the computation period in which the
absence begins if the crediting is necessary to prevent a
Service Break in that period, (2) in all other cases, in the
following computation period.
Hours of Service shall be credited on the basis of actual hours
worked unless another method has been specified in the Adoption
Agreement. Hours of Service shall not be counted if the
elapsed time method is specified in the Adoption
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Agreement, except to determine an Employee's Employment
Commencement Date or Re-Employment Commencement Date.
1.36 "Integration Level" shall mean the Taxable Wage Base or such lesser
amount elected by the Employer in the Adoption Agreement.
1.37 "Matching Contribution" shall mean Employer contributions made to this
Plan or any other defined contribution plan by reason of Thrift
Contributions or Elective Deferrals under this Plan.
1.38 "Net Profits" shall mean current and accumulated earnings of the
Employer before Federal and State taxes and contributions to this and
any other qualified plan.
1.39 "Non-Highly Compensated Employee" shall mean an Employee of the
Employer who is neither a Highly Compensated Employee nor a
Family Member.
1.40 "Normal Retirement Age" shall mean the age specified in the Adoption
Agreement. Upon reaching his Normal Retirement Age, the Participant's
right to his retirement benefit shall be nonforfeitable,
notwithstanding the Plan's vesting schedule. In the event the Employer
imposes a mandatory normal retirement age, the Normal Retirement Age
may not exceed such mandatory normal retirement age.
Notwithstanding any other provision of this Plan, the Employer, in
accordance with the provisions of the Age Discrimination in Employment
Act, shall have no right to compel a Participant to retire, except as
otherwise provided herein, if in the calendar year or the preceding
calendar year, the Employer has twenty (20) or more employees for each
work day in each of twenty (20) or more calendar weeks. The Employer
may retire a Participant who for the two (2) year period prior to
retirement is employed in a bona fide executive or high policy-making
position if (1) he has attained age sixty-five (65); (2) he has
attained his Normal Retirement Date; and (3) his annual retirement
benefit from the pension, profit sharing, savings or deferred
compensation plans maintained by the Employer equals, in the aggregate,
at least forty-four thousand dollars ($44,000). This Section shall be
deemed to be automatically amended to reflect any subsequent Federal
legislation or regulations.
1.41 "Owner-Employee" shall mean a sole proprietor or a partner who owns
more than ten percent (10%) of either the capital interest or profits
interest of a partnership.
1.42 "Participant" shall mean an Eligible Employee who enters the Plan
pursuant to Section 2.1 of the Plan.
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<PAGE> 24
(a) "Active Participant" shall mean a Participant who is credited
with one thousand (1,000) or more Hours of Service (or such
lesser number of Hours of Service specified in the Adoption
Agreement) in the Plan Year. Unless otherwise specified in the
Adoption Agreement, it is not necessary that the Participant be
employed on the last day of the Plan Year in order to be deemed
an Active Participant and share in the Employer contribution,
if any. If the elapsed time method of crediting service is
specified in the Adoption Agreement, Active Participant shall
include all Participants, unless otherwise specified in the
Adoption Agreement.
Notwithstanding the foregoing paragraph, if the Plan is a
standardized plan, "Active Participant" shall mean, for each
Plan Year beginning on or after January 1, 1990, each
Participant other than a Participant who is not employed on the
last day of the Plan Year and is credited with more than 500
Hours of Service in the Plan Year. If the elapsed time method
of crediting service is specified in the Adoption Agreement,
"Active Participant" shall mean all Participants.
If the elapsed time method of crediting Hours of Service is
specified in the Adoption Agreement, Active Participant shall
mean a Participant who is credited with three (3) consecutive
calendar months of service.
(b) "Eligible Participant" shall mean an Employee who is eligible
under the terms of the Plan to make Thrift Contributions,
Elective Deferrals or Elective Deferrals and Thrift
Contributions, combined ("Combined Contributions") made on his
behalf.
1.43 "Participating Employer" shall mean any Affiliated Employer which has
adopted the Plan in accordance with Section 16.5.
1.44 "Period of Severance" shall mean a continuous period of time during
which the Employee is not employed by the Employer. Such period begins
on the Employee's Severance from Service Date and ends on the
Employee's Re-Employment Commencement Date.
1.45 "Plan" shall mean this Prototype Plan, the Trust Agreement or Custodial
Agreement and the Adoption Agreement of the adopting Employer, as from
time to time amended.
1.46 "Plan Year" shall mean the calendar year, unless another twelve (12)
consecutive month period is specified in the Adoption Agreement.
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1.47 "Prototype Plan" shall mean the basic plan document described herein.
1.48 "Qualified Matching Contributions" shall mean Employer contributions to
the Plan which are allocated to Participants' accounts by reason of
Elective Deferrals, which are at all times subject to the distribution
and nonforfeitability requirements of section 401(k) of the Code.
1.49 "Qualified Nonelective Contributions" shall mean Employer contributions
(other than Matching Contributions or Qualified Matching Contributions)
which are allocated to Eligible Participants' accounts, which such
Participants may not elect to receive in cash until distributed from
the Plan and, which are at all times subject to the distribution and
nonforfeitability requirements of section 401(k) of the Code.
1.50 "ReEmployment Commencement Date" shall mean the first day on which the
Employee is credited with an Hour of Service for the performance of
duties after the first eligibility computation period in which the
Employee incurs a one (1) year Service Break.
In the case of any Participant who has a one (1) year Service Break,
Eligibility Year(s) of Service before such break will not be taken into
account until the Employee has completed one (1) Eligibility Year of
Service after returning to employment. Such Eligibility Year of
Service shall be measured by the twelve (12) consecutive month period
beginning on the Employee's Reemployment Commencement Date and, if
necessary, subsequent twelve (12) consecutive month periods beginning
on anniversaries of the Re-Employment Commencement Date.
If a former Participant completes an Eligibility Year of Service in
accordance with this provision, such Participant's participation will
be reinstated as of the Re-Employment Commencement Date.
1.51 "Regular Account" shall mean the account to which Employer
contributions are credited with respect to the Dreyfus prototype money
purchase and target benefit plans (Plan Numbers 01001, 01004, and
01005).
1.52 "S-Corporation" shall mean an Employer who has made an election for its
taxable year of reference under section 1362(a) of the Code, or any
other applicable section pertaining thereto.
1.53 "Self-Employed Individual" shall mean an individual who has Earned
Income for the taxable year from the unincorporated trade, or business
or partnership with respect to
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which the Plan is established; also, an individual who would have
had Earned Income but for the fact such trade, business or partnership
had no net profits for the taxable year.
1.54 "Service" shall mean any twelve (12) consecutive month period identical
to the Plan Year during which the Employee completes at least one
thousand (1,000) or more Hours of Service (or such lesser number of
Hours of Service specified in the Adoption Agreement). Periods of time
to be excluded, if any, shall be stipulated in the Adoption Agreement.
In the case of Employees in the Maritime Industry, 125 days of service
shall be treated as 1,000 Hours of Service (or such lesser number of
hours of Service as specified in the Adoption Agreement).
Service will be credited in accordance with the rules set forth above
for any employment, for any period of time, for any Affiliated
Employer. Service will also be credited for any individual required to
be considered an Employee, for purposes of this Plan under section
414(n) or (o) of the Code, of the Employer or any Affiliated Employer.
If the elapsed time method of crediting service is specified in the
Adoption Agreement, an Employee shall receive credit for Service,
except for Service which may be disregarded under Sections 7.2(b), for
the aggregate of all time periods commencing on his Employment
Commencement Date or Re-Employment Commencement Date and ending on his
Severance from Service Date. An Employee shall also receive credit,
for vesting purposes, for any Period of Severance of less than twelve
(12) consecutive months. An Employee will receive a year of Service
for vesting purposes for each twelve (12) months of Service.
Fractional periods of a year shall be expressed in terms of days.
1.55 "Service Break" shall mean:
(a) For purposes of calculating Eligibility Years of Service, any
twelve (12) consecutive month period commencing on an
Employee's Employment Commencement Date or anniversaries
thereof during which the Employee is credited with five hundred
(500) Hours of Service or less. In the case of Employees in
the Maritime Industry, 62 days of service or less.
(b) For purposes of calculating years of Service, any Plan Year
during which the Employee is credited with five hundred (500)
Hours of Service or less, where such Service Break shall be
measured from the first day of such Plan Year. In the case of
Employees in the Maritime Industry, 62 days of service or less.
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<PAGE> 27
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(c) If the elapsed time method of crediting service is specified in
the Adoption Agreement, a Service Break shall mean a Period of
Severance of at least twelve (12) consecutive months; provided,
however, that in the case of an Employee absent for maternity
or paternity reasons (as defined in Section 1.35), the Period
of Severance shall not commence for this purpose until the
twenty-four (24) month anniversary of the first date of such
absence.
(d) A Service Break shall not be deemed to have occurred as a
result of absence due to service in the armed forces of the
United States, provided the Employee makes application for
resumption of work with the Employer following discharge,
within the time specified by then applicable laws.
1.56 "Severance from Service Date" shall mean the earlier of
(a) the date on which an Employee quits, retires, is discharged or
dies; or
(b) the twelve (12) month anniversary of the date an Employee is
first absent (with or without pay) for reason other than quit,
retirement, discharge or death (such as vacation, holiday,
sickness, disability, leave of absence or layoff).
1.57 Shareholder-Employee" shall mean a Participant who owns (or is
considered as owning) more than five percent (5%) of the outstanding
stock of an S-Corporation on any day during the taxable year of
reference of such S-Corporation. In determining the percent of a
Participant's ownership of the outstanding stock, the family
attribution rules of section 318(a)(1) of the Code, or any other
applicable section of the Code pertaining thereto shall apply.
1.58 "Sponsor" shall mean The Dreyfus Corporation.
1.59 "Taxable Wage Base" shall mean, except for purposes of Article V, the
contribution and benefit base in effect under Section 230 of the Social
Security Act at the beginning of the Plan Year.
1.60 "Thrift Contributions" shall mean contributions made by a Participant
which are included in the Participant's gross income in the
year in which made.
1.61 "Total and Permanent Disability" shall mean the inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or which has lasted or can be expected to last for a
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<PAGE> 28
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continuous period of not less than twelve (12) months. The permanence
and degree of such impairment shall be supported by medical evidence
satisfactory to the Committee.
1.62 "Trustee" or "Custodian" shall mean the individual or individuals, or
institution appointed in the Adoption Agreement by the Employer to act
in accordance with the provisions of the Trust Agreement or Custodial
Agreement.
If the contributions will be made to a Custodian, references herein to
the "Trustee" shall be deemed to refer to the "Custodian" and the term
"Trust Fund" shall be deemed to refer to the "Custodial Account."
1.63 "Trust Agreement" or "Custodial Agreement" shall mean:
(a) for "Trust Agreement" shall mean the agreement between the
Employer and the Trustee if the Plan is established under
Dreyfus Standardized/Paired Prototype Money Purchase Plan No.
01001, Dreyfus Nonstandardized Prototype Profit Sharing Plan
No. 01002, Dreyfus Standardized/Paired Prototype Profit Sharing
Plan No. 01003, or Dreyfus Standardized/Paired Prototype Target
Benefit Pension Plan No. 01004.
(b) for "Custodial Agreement" shall mean the agreement between the
Employer and the Custodian under which the Plan is funded if
the Plan is established under Dreyfus Easy Standardized/Paired
Prototype Money Purchase Retirement Plan No. 01005 or Dreyfus
Easy Standardized/Paired Prototype Profit Sharing Retirement
Plan No. 01006. Such Plans are hereinafter referred to as
"Easy Retirement Plans."
1.64 "Valuation Date" shall mean the last day of the Plan Year and such
other dates as may be determined by the Committee.
1.65 "Voluntary Contributions" shall mean contributions previously made by a
Participant which were included in the Participant's gross income in
the year in which made.
ARTICLE II.
PARTICIPATION
2.1 Membership
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Each Eligible Employee shall become a Participant on the Effective Date
or the Entry Date coincident with or next following the completion of
the age and service requirements set forth in the Adoption Agreement.
2.2 Excluded Employees
The Adoption Agreement may exclude Employees from participation in the
Plan based upon minimum age and service requirements or the inclusion
of such Employees in certain ineligible classifications.
In the event an Employee who is not a member of the eligible class of
Employees becomes a member of the eligible class, such Employee will
participate immediately if such Employee has satisfied the minimum age
and service requirements and would otherwise have previously become a
Participant.
In the event a Participant is no longer a member of an eligible class
of Employees and becomes ineligible to participate, but has not
incurred a Service Break, such Employee will participate immediately
upon returning to an eligible class of Employees. If such Participant
incurs a Service Break, eligibility to participate will be determined
under the rules of Section 1.24 of the Plan.
2.3 Reemployment
(a) A former Participant will become a Participant immediately upon
returning to the employ of the Employer if such former
Participant had a nonforfeitable right to all or a portion of
the account balance derived from Employer contributions at the
time of termination from service.
(b) A former Participant who did not have a nonforfeitable right to
any portion of the account balance derived from Employer
contributions at the time of termination from service will be
considered a new Employee, for eligibility purposes, if the
number of consecutive one (1) year Service Breaks equal or
exceed the greater of five (5) or the aggregate number of years
of Service before such Service Breaks. If such former
Participant's years of Service before termination from service
may not be disregarded pursuant to the preceding sentence, such
former Participant shall participate immediately upon
reemployment.
(c) Any former Employee who was never a Participant and is
reemployed as an Employee will be eligible to participate
subject to the provisions of Section 2.1.
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2.4 Change in Employment Status
In the event that a Participant who was credited with a year of Service
for the preceding Plan Year, at the request of the Employer, enters
directly into the employ of any other business entity, such Participant
shall be deemed to be an Active Participant. If such Participant
returns to the employ of the Employer or becomes eligible for benefits
pursuant to Articles VIII or IX, without interruption of employment
with the Employer or other business entity, he shall be deemed not to
have had a Service Break for such period. However, if such Participant
does not immediately return to the employ of the Employer upon his
termination of employment with such other business entity or upon
recall by the Employer, he shall be deemed to have terminated his
employment for all purposes of the Plan as of the Anniversary Date
following the date of transfer.
2.5 Limitations on Participation of Owner-Employees
Notwithstanding the above, Plans which allow Owner-Employees to
participate must satisfy the following additional requirements:
(a) If this Plan provides contributions or benefits for one or more
Owner-Employees who control both the business for which this
Plan is established and one or more other trades or businesses,
this Plan and the plan established for other trades or
businesses must, when looked at as a single plan, satisfy
sections 401(a) and (d) of the Code for the Employees of this
and all other trades or businesses.
(b) If the Plan provides contributions or benefits for one or more
Owner-Employees who control one or more other trades or
businesses the employees of the other trades or businesses
must be included in a plan which satisfies sections 401(a) and
(d) of the Code and which provides contributions and benefits
not less favorable than provided for Owner-Employees under this
Plan.
(c) If an individual is covered as an Owner-Employee under the
plans of two or more trades or businesses which are not
controlled and the individual controls a trade or business,
then the contributions or benefits of the employees under the
plan of the trades or businesses which are controlled must be
as favorable as those provided for him under the most favorable
plan of the trade or business which is not controlled.
For purposes of the preceding paragraphs, an Owner-Employee, or
two or more Owner-Employees, will be considered to control a
trade or business if the Owner-Employee, or two or more
Owner-Employees together:
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(1) own the entire interest in an unincorporated trade or
business, or
(2) in the case of a partnership, own more than fifty
percent (50%) of either the capital interest or the
profits interest in the partnership.
For purposes of the preceding sentence, an Owner-Employee, or
two or more Owner-Employees shall be treated as owning any
interest in a partnership which is owned, directly or
indirectly, by a partnership which such Owner-Employee, or such
two or more Owner-Employees, are considered to control within
the meaning of the preceding sentence.
ARTICLE III.
CONTRIBUTIONS AND CREDITS TO MONEY PURCHASE PLANS
(The provisions of this Article shall apply
only with respect to Money Purchase Plans)
3.1 Employer Contributions
For each Plan Year the Employer's contribution to the Fund shall be
determined in accordance with the Adoption Agreement. Such
contribution shall not exceed an amount equal to twenty-five percent
(25%) of each Participant's Compensation.
3.2 Forfeitures
Unless otherwise specified in the Adoption Agreement, any forfeitures
which occur will reduce Employer contributions for the next Plan Year.
If the Adoption Agreement specifies that forfeitures are to be
allocated to the Accounts of other Participants, the Plan shall
continue to be designed to qualify as a money purchase pension plan for
purposes of sections 401(a), 402, 412 and 417 of the Code.
3.3 Credit to Participants
(a) If the Plan is not integrated with Social Security, the
Employer's contribution (as specified in the Adoption
Agreement) for any Plan Year (and any forfeitures, if
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forfeitures are allocated to Active Participants in accordance
with Section 3.2) shall be allocated to the Regular Account of
each Active Participant in the ratio in which each Active
Participant's Compensation for the Plan Year bears to that of
all Active Participants for such Plan Year.
(b) If the Plan is integrated with Social Security:
(i) Subject to the overall permitted disparity limits, if
under Article XIII, the Plan is Top-Heavy for the Plan
Year and the minimum Top-Heavy contribution is made
under the Plan, then Employer Discretionary
Contributions plus forfeitures shall be allocated to
the Account of each Participant who either completes
more than 500 Hours of Service during the Plan Year or
is employed on the last day of the Plan Year as
follows:
Step One: Contributions and forfeitures will be
allocated to each Participant's Account
in the ratio that each Participant's
total Compensation bears to all
Participants' total Compensation, but
not in excess of 3% of each
Participant's Compensation.
Step Two: Any contributions and forfeitures
remaining after the allocation in Step
One will be allocated to each
Participant's Account in the ratio that
each Participant's Compensation for the
Plan Year in excess of the integration
level bears to the excess compensation
of all Participants, but not in excess
of 3% of each Participant's
Compensation. For purposes of this
Step Two, in the case of any
Participant who has exceeded the
Cumulative Permitted Disparity Limit
described below, such Participant's
total Compensation for the Plan Year
will be taken into account.
Step Three: Any contributions and forfeitures
remaining after the allocation in Step
Two will be allocated to each
Participant's Account in the ratio that
the sum of each Participant's total
Compensation and Compensation in excess
of the Integration Level bears to the
sum of all Participants' total
Compensation and Compensation in excess
of the Integration Level; however, the
allocation cannot exceed the product of
(a) the Permitted Disparity Percentage
specified in the Adoption Agreement
multiplied
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by (b) each Participant's total
Compensation and Compensation in excess
of the Integration Level. For purposes
of this Step Three, in the case of any
Participant who has exceeded the
Cumulative Permitted Disparity Limit
described below, two times such
Participant's total Compensation for
the Plan Year will be taken into
account.
Step Four: Any remaining Employer contributions or
forfeitures will be allocated to each
Participant's Account in the ratio that
each Participants's total Compensation
for the Plan Year bears to all
Participants' total Compensation for
that year.
The Integration Level shall be equal to the Taxable Wage Base
or such lesser amount elected by the Employer in the Adoption
Agreement.
(ii) Subject to the overall permitted disparity limits, if
the Plan is not Top Heavy for the Plan Year, Employer
Discretionary Contributions plus forfeitures shall be
allocated to the Account of each Participant who either
completes more than 500 Hours of Service during the
Plan Year or is employed on the last day of the Plan
Year as follows:
Step One: Contributions and forfeitures will be
allocated to each Participant's Account
in the ratio that the sum of each
Participant's total Compensation and
Compensation in excess of the
Integration Level bears to the sum of
all Participants' total Compensation
and Compensation in excess of the
Integration Level; however, the
allocation cannot exceed the product of
(a) the Permitted Disparity Percentage
specified in the Adoption Agreement
multiplied by (b) each Participant's
total Compensation and Compensation in
excess of the Integration Level. For
purposes of this Step One, in the case
of any Participant who has exceeded the
Cumulative Permitted Disparity Limit
described below, two times such
Participant's total Compensation for
the Plan Year will be taken into
account.
Step Two: Any remaining Employer contributions or
forfeitures will be allocated to each
Participant's Account in the ratio that
each Participants' total Compensation
for the Plan Year bears to all
Participants' total Compensation for
that year.
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The Integration Level shall be equal to the Taxable Wage Base
or such lesser amount elected by the Employer in the Adoption
Agreement.
Overall Permitted Disparity Limit
Annual Overall Permitted Disparity Limit: Notwithstanding
section 4.3(b)(i) and (ii) above, for any Play Year this Plan
benefits any Participant who benefits under another qualified
plan or simplified employee pension, as defined in section
408(k) of the Code, maintained by the Employer that provides
for permitted disparity (or imputes disparity), Employer
contributions and forfeitures will be allocated to the Account
of each Participant who either completes more than 500 Hours of
Service during the Plan Year or is employed on the last day of
the Plan Year in the ratio that such Participant's total
Compensation bears to the total Compensation of all
Participants.
Cumulative Permitted Disparity Limit: Effective for Plan Years
beginning on or after January 1, 1995, the Cumulative Permitted
Disparity Limit for a Participant is 35 total cumulative
permitted disparity years. Total cumulative permitted years
means the number of years credited to the Participant for
allocation or accrual purposes under this Plan, any other
qualified plan or simplified employer pension plan (whether or
not terminated) ever maintained by the Employer. For purposes
of determining the Participant's cumulative permitted disparity
limit, all years ending in the same calendar year are treated
as the same year. If the Participant has not benefited under a
defined benefit or target benefit plan for any year beginning
on or after January 1, 1994, the Participant has no cumulative
disparity limit.
ARTICLE IV.
CONTRIBUTIONS AND CREDITS TO PROFIT SHARING PLANS
(The provisions of this Article shall apply only
with respect to Profit Sharing Plans)
4.1 Limits on Employer Contributions
Employer contributions for each Plan Year (including, if applicable,
Elective Deferrals) shall be determined in accordance with the Adoption
Agreement, but shall not exceed the
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94-05
maximum amount which shall constitute an allowable deduction under
section 404(a) of the Code. Unless otherwise specified in the Adoption
Agreement, Employer contributions may only be made out of Net Profits.
If the Adoption Agreement provides that one or more Employer
contributions may be made without regard to Net Profits, the Plan shall
continue to be designed to qualify as a profit sharing plan for
purposes of the Code.
4.2 Forfeitures
Unless otherwise specified in the Adoption Agreement, forfeitures, if
any, will be allocated to Participants' Accounts in the following
manner: Forfeitures of Employer Discretionary Contributions will be
allocated in the same manner as are such contributions. Forfeitures of
Matching Contributions will be allocated to the Matching Contribution
Account in the same manner as are such contributions. Forfeitures of
Matching Contributions that are forfeited to the extent they relate to
Excess Elective Deferrals, Excess Contributions or Excess Aggregate
Contributions will be allocated to the Matching Contribution Account in
the same manner as are such Matching Contributions, except no such
forfeitures shall be allocated to any Highly Compensated Employee.
4.3 Employer Discretionary Contributions
The following provisions shall apply if the Employer has elected in the
Adoption Agreement to make Employer Discretionary Contributions.
(a) If the Plan is not integrated with Social Security, the
Employer Discretionary Contribution for any Plan Year (and any
forfeitures, if forfeitures are reallocated to Active
Participants in accordance with Section 4.2) shall be allocated
to the Employer Discretionary Contribution Account established
for each Active Participant in the ratio in which each Active
Participant's Compensation for the Plan Year bears to that of
all Active Participants for such Plan Year.
(b) If the Plan is integrated with Social Security:
(i) Subject to the overall permitted disparity limits,if
under Article XIII, the Plan is Top-Heavy for the Plan
Year and the minimum Top-Heavy contribution is made
under the Plan, then Employer Discretionary
Contributions plus forfeitures shall be allocated to
the Account of each Participant who either completes
more than 500 Hours of Service during the Plan Year or
is employed on the last day of the Plan Year as
follows:
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94-05
Step One: Contributions and forfeitures will be
allocated to each Participant's Account
in the ratio that each Participant's
total Compensation bears to all
Participants' total Compensation, but
not in excess of 3% of each
Participant's Compensation.
Step Two: Any contributions and forfeitures
remaining after the allocation in Step
One will be allocated to each
Participant's Account in the ratio that
each Participant's Compensation for the
Plan Year in excess of the integration
level bears to the excess compensation
of all Participants, but not in excess
of 3% of each Participant's
Compensation. For purposes of this
Step Two, in the case of any
Participant who has exceeded the
Cumulative Permitted Disparity Limit
described below, such Participant's
total Compensation for the Plan Year
will be taken into account.
Step Three: Any contributions and forfeitures
remaining after the allocation in Step
Two will be allocated to each
Participant's Account in the ratio that
the sum of each Participant's total
Compensation and Compensation in excess
of the Integration Level bears to the
sum of all Participants' total
Compensation and Compensation in excess
of the Integration Level; however, the
allocation cannot exceed the product of
(a) the Permitted Disparity Percentage
specified in the Adoption Agreement
multiplied by (b) each Participant's
total Compensation and Compensation in
excess of the Integration Level. For
purposes of this Step Three, in the
case of any Participant who has
exceeded the Cumulative Permitted
Disparity Limit described below, two
times such Participant's total
Compensation for the Plan Year will be
taken into account.
Step Four: Any remaining Employer contributions or
forfeitures will be allocated to each
Participant's Account in the ratio that
each Participants's total Compensation
for the Plan Year bears to all
Participants' total Compensation for
that year.
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<PAGE> 37
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The Integration Level shall be equal to the Taxable Wage Base
or such lesser amount elected by the Employer in the Adoption
Agreement.
(ii) Subject to the overall permitted disparity limits,if
the Plan is not Top- Heavy for the Plan Year, Employer
Discretionary Contributions plus forfeitures shall be
allocated to the Account of each Participant who either
completes more than 500 Hours of Service during the
Plan Year or is employed on the last day of the
Plan Year as follows:
Step One: Contributions and forfeitures will be
allocated to each Participant's Account
in the ratio that the sum of each
Participant's total Compensation and
Compensation in excess of the
Integration Level bears to the sum of
all Participants' total Compensation
and Compensation in excess of the
Integration Level; however, the
allocation cannot exceed the product of
(a) the Permitted Disparity Percentage
specified in the Adoption Agreement
multiplied by (b) each Participant's
total Compensation and Compensation in
excess of the Integration Level. For
purposes of this Step One, in the case
of any Participant who has exceeded the
Cumulative Permitted Disparity Limit
described below, two times such
Participant's total Compensation for
the Plan Year will be taken into
account.
Step Two: Any remaining Employer contributions or
forfeitures will be allocated to each
Participant's Account in the ratio that
each Participant's total Compensation
for the Plan Year bears to all
Participants' total Compensation for
that year.
The Integration Level shall be equal to the Taxable Wage Base
or such lesser amount elected by the Employer in the Adoption
Agreement.
Overall Permitted Disparity Limits
Annual Overall Permitted Disparity Limit: Notwithstanding
section 4.3(b)(i) and (ii) above, for any Plan Year this Plan
benefits any Participant who benefits under another qualified
plan or simplified employee pension, as defined in section
408(k) of the Code, maintained by the Employer that provides
for permitted disparity (or imputes disparity), Employer
contributions and forfeitures will be allocated to the Account
of each Participant who either completes more than 500 Hours of
Service
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during the Plan Year or who is employed on the last
day of the Plan Year in the ratio that such Participant's total
Compensation bears to the total Compensation of all
Participants.
Cumulative Permitted Disparity Limit: Effective for Plan Years
beginning on or after January 1, 1995, the Cumulative Permitted
Disparity Limit for a Participant is 35 total cumulative
permitted disparity years. Total cumulative permitted years
means the number of years credited to the Participant for
allocation or accrual purposes under this Plan, any other
qualified plan or simplified employer pension plan (whether or
not terminated) ever maintained by the Employer. For purposes
of determining the Participant's cumulative permitted disparity
limit, all years ending in the same calendar year are treated
as the same year. If the Participant has not benefited under a
defined benefit or target benefit plan for any year beginning
on or after January 1, 1994, the Participant has no cumulative
disparity limit.
4.4 401(k) Cash or Deferred Arrangements ("CODA")/Thrift Contributions
(1) Elective Deferrals
If elected in the Adoption Agreement, the Employer may make
contributions under a CODA.
(a) Allocation of Deferrals. The Employer shall contribute
and allocate to each Participant's Elective Deferral
Account an amount equal to the amount of a
Participant's Elective Deferrals.
(1) Elective Deferrals Pursuant to a Salary
Reduction Agreement. To the extent provided in
the Adoption Agreement, a Participant may elect
to have Elective Deferrals made under this
Plan. Elective Deferrals shall include both
single-sum and continuing contributions made
pursuant to a salary reduction agreement.
(i) Commencement of Elective Deferrals. A
Participant shall be afforded a
reasonable period at least once each
calendar year, as specified in the
Adoption Agreement, to elect to
commence Elective Deferrals. Such
election shall become effective as soon
as administratively feasible, but not
before the time specified in the
Adoption Agreement.
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<PAGE> 39
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(ii) Modification and Termination of
Elective Deferrals. A Participant's
election to commence Elective Deferrals
shall remain in effect until modified
or terminated. A Participant shall be
afforded a reasonable period at least
once each calendar year, as specified
in the Adoption Agreement, to modify
the amount or frequency of his or her
Elective Deferrals. A Participant may
terminate his or her election to make
Elective Deferrals at any time.
(2) Cash bonuses. If permitted in the Adoption
Agreement, a Participant may also base Elective
Deferrals on cash bonuses that, at the
Participant's election, may be contributed to
the CODA or received by the Participant in
cash. A Participant shall be afforded a
reasonable period at least once a year to elect
to defer such amounts to the CODA. Such
election shall become effective as soon as
administratively feasible, but not before the
time specified in the Adoption Agreement.
(3) Elective Deferrals shall be contributed and
allocated to the Fund as soon as practicable
(but in no event later than 90 days) following
the close of the applicable pay period.
(2) Thrift Contributions
Starting for Plan Year(s) beginning January 1, 1987, if
permitted under the Adoption Agreement, Participants
may make Thrift Contributions which shall be allocated
to a Thrift Account for each such Participant.
(a) A Participant shall always be one hundred
percent (100%) vested in his Thrift Account.
(b) Unless specified otherwise in the Adoption
Agreement, Thrift Contributions shall take
effect on the Anniversary Date coincident with
or next following the Participant's election to
make Thrift Contributions. Elections to change
the amount of the Thrift Contribution shall
take effect on the Change Date specified in the
Adoption Agreement which is coincident with or
next following the date the Participant's
election is received by the Committee.
Notwithstanding this provision, a Participant's
revocation of an
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<PAGE> 40
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election to make Thrift Contributions shall
take effect as soon as administratively
feasible.
(c) Thrift Contributions shall be made to the Fund
as soon as practicable (but in no event later
than 90 days) following the close of the
applicable pay period.
(d) Notwithstanding any other provisions of this
Section 4.4(2), distributions or withdrawals
from a Participant's Thrift Account shall be
made in accordance with the rules applicable to
Voluntary Contributions under Section 10.1
However, if the Employer has elected to make
Matching Contributions with respect to Thrift
Contributions, any Participant who withdraws
any amount from his Thrift Account, shall be
precluded from making Thrift Contributions
until the next permitted Change Date specified
in the Adoption Agreement which is at least six
(6) months after the date of withdrawal.
(e) Thrift Contributions shall be subject to the
Contribution Percentage tests and the rules
applicable to Excess Aggregate Contributions
set forth in Section 4.7.
(3) Matching Contributions
(a) If elected by the Employer in the Adoption
Agreement, the Employer will make Matching
Contributions to the Plan. The amount of such
Matching Contributions shall be calculated by
reference to each eligible Participant's
Elective Deferrals or Thrift Contributions or
Combined Contributions as specified by the
Employer in the Adoption Agreement.
(b) Separate Account. Matching Contributions shall
be allocated to each eligible Participant's
Employer Matching Contribution Account.
(c) Vesting. Matching Contributions will be vested
in accordance with the Employer's election in
the Adoption Agreement and the terms of this
plan. Notwithstanding anything in the Plan to
the contrary, Matching Contributions shall be
forfeited to the extent they relate to Excess
Elective Deferrals, Excess Contributions or
Excess
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Aggregate Contributions, and shall not
be taken into account for purposes of Section
4.7(a).
(d) Forfeitures. Forfeitures of Matching
Contributions other than Excess Aggregate
Contributions shall be made in accordance with
the forfeiture provisions pursuant to
Section 4.2 of the Plan.
(e) Matching Contributions shall be subject to the
Contribution Percentage tests and the rules
applicable to Excess Aggregate Contributions
set forth in Section 4.7.
(4) Qualified Matching Contributions
(a) If elected by the Employer in the Adoption
Agreement, the Employer will make Qualified
Matching Contributions to the CODA. The amount
of such Qualified Matching Contributions shall
be calculated by reference to each eligible
Participant's Elective Deferrals or the
Elective Deferral portion of Combined
Contributions, as specified in the Adoption
Agreement.
(b) Separate Account. Qualified Matching
Contributions shall be allocated to each
Participant's Qualified Nonelective
Contribution Account.
(c) Vesting. Qualified Matching Contributions
shall be fully vested and
nonforfeitable at all times.
(d) Distributions. Qualified Matching
Contributions and income allocable thereto
shall be distributable only in accordance with
Section 4.10.
(5) Qualified Nonelective Contributions
(a) The Employer may elect to make Qualified
Nonelective Contributions under the Plan on
behalf of Employees as provided in the Adoption
Agreement.
The Qualified Nonelective Contributions will be
allocated to each eligible Participant's
Qualified Nonelective Contribution Account in
the ratio in which each eligible Participant's
Compensation for
29
<PAGE> 42
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the Plan Year bears to the total Compensation
of all eligible Participants for such Plan
Year.
(b) Separate Account. Qualified Nonelective
Contributions shall be allocated to each
Eligible Participant's Qualified Nonelective
Contribution Account.
(c) Vesting. Qualified Nonelective Contributions
shall be fully vested and
nonforfeitable at all times.
(d) Distributions. Qualified Nonelective
Contributions and income allocable thereto
shall be distributable only in accordance with
Section 4.10.
4.5 Maximum Amount of Elective Deferrals
(a) General Rule. A Participant's Elective Deferrals are subject
to any limitations imposed in the Adoption Agreement and any
further limitations under the Plan. No Participant shall be
permitted to have Elective Deferrals made under this Plan or
any other CODA maintained by the Employer or an Affiliated
Employer, during any calendar year beginning after 1986, in
excess of the adjusted dollar limitation of section 402(g) of
the Code. Other dollar limitations may apply under section
402(g) of the Code to the extent that a Participant makes
Elective Deferrals to arrangements other than CODAs (see also
sections 402(h)(1)(B), 403(b), 457, and 501(c)(18) of the
Code).
(b) Distribution of Excess Elective Deferrals. A Participant may
allocate to the Plan any Excess Deferrals made during a
calendar year by notifying the Committee on or before the date
specified in the Adoption Agreement of the amount of the Excess
Elective Deferrals to be assigned to the Plan. A Participant
shall be deemed to notify the Committee of any Excess Elective
Deferrals that arise by taking into account only those Elective
Deferrals made to this Plan and any other plans of the
Employer. Notwithstanding any other provision of the Plan,
Excess Elective Deferrals, plus any income and minus any loss
allocable thereto, shall be distributed no later than April 15
to Participants to whose accounts Excess Elective Deferrals
were allocated for the preceding year and who claim Excess
Elective Deferrals for such taxable year no later than the date
specified in the Adoption Agreement.
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<PAGE> 43
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(c) Determination of Income or Loss. Excess Elective Deferrals
shall be adjusted for income or loss for the taxable year.
Unless indicated otherwise by the Committee, the income or loss
allocable to Excess Elective Deferrals is the income or loss
allocable to the Participant's Elective Deferral Account for
the taxable year multiplied by a fraction, the numerator of
which is such Participant's Excess Elective Deferrals for the
year and the denominator is the Participant's account balance
attributable to Elective Deferrals without regard to any income
or loss occurring during such taxable year. If the Committee
selects another method in order to compute the income or loss,
the method selected must not violate the requirements of Code
section 401(a)(4) and must be used consistently for all Plan
participants and for all corrective distributions under the
Plan for the taxable year.
4.6 Average Actual Deferral Percentage Tests
(a) General Rule. The Average Actual Deferral Percentage for
Eligible Participants who are Highly Compensated Employees for
each Plan Year beginning on or after January 1, 1987 and the
Average Actual Deferral Percentage for Eligible Participants
who are Non-Highly Compensated Employees for the same Plan Year
must satisfy one of the following tests:
(1) The Average Actual Deferral Percentage for Eligible
Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Average Actual
Deferral Percentage for Eligible Participants who are
Non-Highly Compensated Employees for the Plan Year
multiplied by 1.25;
or
(2) The Average Actual Deferral Percentage for Eligible
Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Average Actual
Deferral Percentage for Eligible Participants who are
Non-Highly Compensated Employees for the Plan Year
multiplied by 2.0, provided that the Average Actual
Deferral Percentage for Eligible Participants who are
Highly Compensated Employees does not exceed the
Average Actual Deferral Percentage for Eligible
Participants who are Non-Highly Compensated Employees
by more than two (2) percentage points.
(b) Special Rules.
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(1) The Actual Deferral Percentage for any
Participant who is a Highly Compensated
Employee for the Plan Year and who is
eligible to have Elective Deferrals
(and, if applicable, Qualified
Nonelective Contributions or Qualified
Matching Contributions, or both)
allocated for his account under two or
more CODAs, that are maintained by the
Employer, shall be determined as if
such Elective Deferrals (and, if
applicable, such Qualified Nonelective
Contributions and Qualified Matching
Contributions, or both) were made under
a single arrangement. If a Highly
Compensated Employee participates in
two or more CODAs that have different
Plan Years, all CODAs ending with or
within the same calendar year shall be
treated as a single arrangement.
(2) In the event that this Plan satisfies
the requirements of sections 401(a)(4),
401(k) or 410(b) of the Code only if
aggregated with one or more other
plans, or if one or more other plans
satisfy the requirements of such
sections of the Code only if aggregated
with this Plan, then this Section shall
be applied by determining the Actual
Deferral Percentage of Eligible
Participants as if all such plans were
a single plan. For Plan Years
beginning after December 31, 1989,
plans may be aggregated in order to
satisfy section 401(k) of the Code only
if they have the same Plan Year.
(3) For purposes of the Average Actual
Deferral Percentage of an Eligible
Participant who is a 5 percent owner or
one of the 10 most highly-paid Highly
Compensated Employees, the Elective
Deferrals (and, if applicable,
Qualified Nonelective Contributions or
Qualified Matching Contributions, or
both) and Compensation of such
Participant shall include the Elective
Deferrals (and, if applicable,
Qualified Nonelective Contributions and
Qualified Matching Contributions or
both), and Compensation for the Plan
Year of Family Members. Family
Members, with respect to Highly
Compensated Employees, shall be
disregarded as separate employees in
determining the Actual Deferral
Percentage both for Eligible
Participants who are Non-Highly
Compensated
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<PAGE> 45
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Employees and for Eligible Participants
who are Highly Compensated Employees.
(4) Notwithstanding anything in this Plan
to the contrary, Qualified Nonelective
Contributions and Qualified Matching
Contributions used to meet the Average
Actual Deferral Percentage tests may be
made at any time before the last day of
the twelve (12) month period
immediately following the Plan Year to
which the contributions relate.
(5) The determination and treatment of the
Elective Deferrals, Qualified
Nonelective Contributions, Qualified
Matching Contributions and the Actual
Deferral Percentage of any Eligible
Participant shall satisfy such other
requirements as may be prescribed by
the Secretary of the Treasury.
(6) The Employer shall maintain adequate
records to demonstrate compliance with
the Average Actual Deferral Percentage
tests, including the extent to which
Qualified Nonelective and Qualified
Matching Contributions are taken into
account.
(c) Distribution of Excess Contributions.
Notwithstanding any other provision of the Plan
except Section 4.6(d) below, Excess
Contributions, plus any income and minus any
loss allocable thereto, shall be distributed no
later than the last day of each Plan Year to
Participants to whose accounts Excess
Contributions were allocated for the preceding
Plan Year. The amount of Excess Contributions
to be distributed shall be reduced by the
amount of any Excess Contributions
recharacterized in accordance with Section
4.6(d) below. Distributions of Excess
Contributions shall be made to Highly
Compensated Employees on the basis of the
respective portions of the Excess Contributions
attributable to each Highly Compensated
Employee. Excess Contributions shall be
allocated to Participants who are subject to
the family member aggregation rules of section
414(q)(6) of the Code in the manner prescribed
by the regulations. [If such excess amounts are
not distributed or recharacterized (in
accordance with Section 4.6(d) below) within
2 1/2 months after the last day of the Plan
Year in which such excess amounts arose, then
section 4979 of the Code
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<PAGE> 46
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imposes a ten percent (10%) excise tax on the
Employer maintaining the Plan with respect to
such amounts.] Excess Contributions of
Participants who are subject to the Family
Member aggregation rules described in Section
4.6(b)(3) 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 combined Actual Deferral
Percentage.
(1) Determination of Income or Loss.
Excess Contributions shall be adjusted
for income or loss for the Plan Year.
Unless indicated otherwise by the
Committee, the income or loss allocable
to Excess Contributions is the income
or loss allocable to the Participant's
Elective Deferrals (and, if applicable,
Qualified Nonelective Contributions or
Qualified Matching Contributions or
both) for the Plan Year multiplied by a
fraction, the numerator of which is
such Participant's Excess Contributions
for the year and the denominator is the
Participant's account balance
attributable to Elective Deferrals
(and, if applicable, Qualified
Nonelective Contributions or Qualified
Matching Contributions or both) without
regard to any income or loss occurring
during such Plan Year. If the
Committee selects another method in
order to compute the income or loss,
the method selected must not violate
the requirements of Code section
401(a)(4) and must be used consistently
for all Plan participants and for all
corrective distributions under the Plan
for the Plan Year.
(2) Accounting for Excess Contributions.
Excess Contributions shall be
distributed first from the
Participant's account balance
attributable to Elective Deferrals and
(to the extent used in the Average
Actual Deferral Percentage tests)
Qualified Matching Contributions in
proportion to the Participant's
Elective Deferrals and Qualified
Matching Contributions for the Plan
Year. Excess Contributions shall be
distributed from the Participant's
Qualified Nonelective Contribution
Account only to the extent that such
Excess Contributions exceed the
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<PAGE> 47
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Participant's account balance
attributable to Elective Deferrals and
Qualified Matching Contributions.
(d) Recharacterization of Excess Contributions. If
the Plan provides for Thrift Contributions by
Participants and if permitted in the Adoption
Agreement, each Participant to whom Excess
Contributions are allocable may elect, in lieu
of distribution under Section 4.6(c) above,
that all or a portion of such Excess
Contributions be recharacterized as Thrift
Contributions no later than the later of (i)
2 1/2 months after the last day of the Plan
Year in which such excess amounts arose or
(ii) October 24, 1988. Recharacterization is
deemed to occur no earlier than the date
the last Highly Compensated Employee is
informed in writing of the amount
recharacterized and the consequences thereof.
In no event may the amount of Excess
Contributions recharacterized for any Plan Year
exceed the amount of Elective Deferrals for
such Plan Year. Excess Contributions may not
be recharacterized as Thrift Contributions to
the extent that, in combination with the Thrift
Contributions actually made for the Plan Year,
they exceed the maximum amount of Thrift
Contributions permitted under the Plan (prior
to the application of the Contribution
Percentage tests of Section 4.7).
Recharacterized Excess Contributions shall be
treated as Thrift Contributions for purposes of
the Contribution Percentage tests of Section
4.7.
However, no matching Employer contribution
shall be made with respect to Recharacterized
Contributions. In addition, recharacterized
Excess Contributions shall be reported to the
Internal Revenue Service and the Participant as
employee contributions in accordance with such
rules as the Internal Revenue Service may
prescribe and shall be accounted for as
Voluntary Contributions for purposes of
sections 72 and 6047 of the Code.
Recharacterized Excess Contributions will be
taxable to the Participant for the
Participant's taxable year in which the
Participant would have received them in cash.
Recharacterized Excess Contributions will be
taxable to the Participant for the
Participant's taxable year in which the
Participant would have
35
<PAGE> 48
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received them in cash. Recharacterized Excess
Contributions shall remain non-forfeitable and
shall continue to be treated for all other
purposes, including the limitations on
distributions of section 401(k), the deduction
limitations of section 404 of the Code, the
contribution limitations of section 415 of the
Code and the top heavy rules of section 416 of
the Code, as Elective Deferrals, except that
Recharacterized Excess Contributions which
relate to Plan Years beginning before January
1, 1989 shall be treated as employee
contributions for purposes of section 401(k)(2)
of the Code. Recharacterized Excess
Contributions shall be allocated to the
Participant's Elective Deferral Account.
4.7 Average Contribution Percentage Tests
(a) General Rule. The Average Contribution Percentage for Eligible
Participants who are Highly Compensated Employees for each Plan
Year beginning on or after January 1, 1987 and the Average
Contribution Percentage for Eligible Participants who are
Non-Highly Compensated Employees for the same Plan Year must
satisfy one of the following tests:
(1) The Average Contribution Percentage for Eligible
Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Average Contribution
Percentage for Eligible Participants who are Non-highly
Compensated Employees for the Plan Year multiplied by
1.25; or
(2) The Average Contribution Percentage for Eligible
Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Average Contribution
Percentage for Eligible Participants who are Non-highly
Compensated Employees for the Plan Year multiplied by
two (2), provided that the Average Contribution
Percentage for Eligible Participants who are Highly
Compensated Employees does not exceed the Average
Contribution Percentage for Eligible Participants who
are Non-highly Compensated Employees by more than two
(2) percentage points.
(b) Multiple Use Test.
(1) Effective for Plan Years beginning on or after January
1, 1989, if one or more Highly Compensated Employees
participate in both a CODA and a
36
<PAGE> 49
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plan subject to the Average Contribution Percentage
tests maintained by the Employer and the sum of the
Average Actual Deferral Percentage and Average
Contribution Percentage of those Highly Compensated
Employees subject to either or both tests exceeds the
"Aggregate Limit" (as defined in (2) below), then the
Average Contribution Percentage of those Highly
Compensated Employees who also participate in a CODA
will be reduced (beginning with such Highly Compensated
Employee whose Contribution Percentage is the highest)
so that the limit is not exceeded. The amount by which
each Highly Compensated Employee's Contribution
Percentage Amounts is reduced shall be treated as an
Excess Aggregate Contribution. The Average Actual
Deferral Percentage and Average Contribution Percentage
of the Highly Compensated Employees are determined
after any corrections required to meet the Average
Actual Deferral Percentage and Average Contribution
Percentage tests. Notwithstanding the foregoing, the
Multiple Use limitations of Section 4.7 (b) do not
apply if the Average Actual Deferral Percentage of
Eligible Participants who are Highly Compensated
Employees does not exceed 1.25 multiplied by the
Average Actual Deferral Percentage of all other
Eligible Participants and the Average Contribution
Percentage of Eligible Participants who are Highly
Compensated Employees does not exceed 1.25 multiplied
by the Average Contribution Percentage of all other
Eligible Participants.
(2) For this purpose, "Aggregate Limit" shall mean the
greater of the limit produced by (A) or (B) below:
(A) the sum of (i) one hundred twenty-five percent
(125%) of the greater of the Average Actual
Deferral Percentage of the Non-Highly
Compensated Employees eligible to participate
in the CODA for the Plan Year or the Average
Contribution Percentage of the Non-Highly
Compensated Employees eligible to participate
under the Plan subject to section 401(m) of the
Code for the Plan Year beginning with or within
the Plan Year of the CODA, and (ii) two (2)
plus the lesser of such Average Actual Deferral
Percentage or Average Contribution Percentage
(however, this amount shall not exceed two
hundred percent (200%) of the lesser such
Average Actual Deferral Percentage or Average
Contribution Percentage).
(B) the sum of (i) one hundred twenty-five percent
(125%) of the lesser of the Average Actual
Deferral Percentage of the Non-Highly
Compensated Employees eligible to participate
in the CODA for
37
<PAGE> 50
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the Plan Year or the Average Contribution
Percentage of the Non-Highly Compensated
Employees eligible to participate under the
Plan subject section 401(m) of the Code for the
Plan Year beginning with or within the Plan
Year of the CODA, and (ii) two (2) plus the
greater of such Average Actual Deferral
Percentage or Average Contribution Percentage
(however, this amount shall not exceed two
hundred percent (200%) of the greater of such
Average Actual Deferral Percentage or Average
Contribution Percentage).
(c) Special Rules.
(1) For purposes of this Section 4.7, the Contribution
Percentage for any Participant who is a Highly
Compensated Employee and who is eligible to have
Contribution Percentage Amounts allocated to his
account under two or more Plans described in section
401(a) of the Code, or CODAs, that are maintained by
the Employer or an Affiliated Employer, shall be
determined as if the total of such Contribution
Percentage Amounts was made under each Plan. If a
Highly Compensated Employee participates in two or more
CODAs that have different Plan Years, all CODAs ending
with or within the same calendar year shall be treated
as a single arrangement.
(2) In the event that this Plan satisfies the requirements
of sections 401(a)(4), 401(m) or 410(b) of the Code
only if aggregated with one or more other plans, or if
one or more other plans satisfy the requirements of
such sections of the Code only if aggregated with this
Plan, then this Section shall be applied by determining
the Contribution Percentages of Participants as if all
such plans were a single plan. For Plan Years
beginning after December 31, 1989, plans may be
aggregated in order to satisfy section 401(m) of the
Code only if they have the same Plan Year.
(3) For purposes of determining the Contribution Percentage
of an Eligible Participant who is a 5-percent owner or
one of the 10 most highly-paid Highly Compensated
Employees, the Contribution Percentage Amounts and
Compensation of such Participant shall include the
Contribution Percentage Amounts and Compensation for
the Plan Year of Family Members. Family Members, with
respect to Highly Compensated Employees, shall be
disregarded as separate employees in determining the
Average Contribution Percentage both for Eligible
Participants who are
38
<PAGE> 51
94-05
Non-Highly Compensated Employees and for Eligible
Participants who are Highly Compensated Employees.
(4) For purposes of the Contribution Percentage tests,
Voluntary Contributions and Thrift Contributions are
considered to have been made in the Plan Year in which
contributed to the Fund. Notwithstanding anything in
this Plan to the contrary, Matching Contributions will
be considered made for a Plan Year if allocated to such
year and made no later than the end of the twelve (12)
month period beginning on the day after the close
of the Plan Year.
(5) The determination and treatment of the Contribution
Percentage of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of
the Treasury.
(6) The Employer shall maintain adequate records to
demonstrate compliance with the Average Contribution
Percentage tests.
(d) Distribution of Excess Aggregate Contributions.
Notwithstanding any other provision of this Plan, Excess
Aggregate Contributions, plus any income and minus any loss
allocable thereto, shall be forfeited, if forfeitable, or if
not forfeitable, distributed no later than the last day of each
Plan Year to Participants to whose accounts such Excess
Aggregate Contributions were allocated for the preceding Plan
Year. [If such excess amounts are distributed more than 2 1/2
months after the last day of the Plan Year in which such excess
amounts arose, then section 4979 of the Code imposes a ten
percent (10%) excise tax on the Employer maintaining the Plan
with respect to such amounts]. Excess Aggregate Contributions
of Participants who are subject to the Family Member
aggregation rules described in Section 4.7(c)(3) shall be
allocated among the Family Members in proportion to the Thrift
Contributions, Voluntary Contributions, and Matching
Contributions (or amounts treated as Matching Contributions) of
each Family Member that is combined to determine the combined
Actual Contribution Percentage.
(1) Determination of Income or Loss. The Excess Aggregate
Contributions shall be adjusted for income or loss for
the Plan Year. Unless indicated otherwise by the
Committee, the income or loss allocable to Excess
Aggregate Contributions is the income or loss allocable
to the Participant's Voluntary Contribution Account,
Thrift Account and Employer Matching Contribution
Account for the Plan Year multiplied by a fraction, the
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numerator of which is such Participant's Excess
Aggregate Contributions for the year and the
denominator is the Participant's account balance(s)
attributable to Contribution Percentage Amounts without
regard to any income or loss occurring during such Plan
Year. If the Committee selects another method in order
to compute the income or loss, the method selected must
not violate the requirements of Code section 401(a)(4)
and must be used consistently for all Plan participants
and for all corrective distributions under the Plan for
the Plan Year.
(2) Treatment of Forfeitures. Forfeitures of Excess
Aggregate Contributions shall be allocated to
Participants' Accounts or applied to reduce Employer
contributions, as elected by the Employer in the
Adoption Agreement, under Section 4.2. If forfeitures
are reallocated to the accounts of Participants under
Section 4.2, forfeitures of Excess Aggregate
Contributions shall be allocated in the same manner as
Matching Contributions, except that no such forfeitures
shall be allocated to any Highly Compensated Employee.
(3) The determination of the Excess Aggregate Contributions
shall be made after first determining the Excess
Elective Deferrals pursuant to Section 4.5, and then
determining the Excess Contributions pursuant to
Section 4.6.
4.8 Non-Hardship Withdrawals
(a) If Employer Discretionary Contributions are not integrated with
Social Security and a Participant's Employer Discretionary
Contributions and Matching Contribution Accounts are 100%
vested at the time of distribution, and if permitted by the
Adoption Agreement, a Participant may make withdrawals from his
Employer Discretionary Contributions and Matching Contribution
Accounts, for any reason, after attainment of age fifty-nine
and one-half (59 1/2).
(b) If permitted by the Adoption Agreement, a Participant may make
withdrawals from his Elective Deferral Account or Qualified
Nonelective Contribution Account, for any reason, after
attainment of age fifty-nine and one-half (59 1/2).
(c) A withdrawal under (a) or (b) above may be made at such time as
the Committee shall designate, but not more than quarterly
during a Plan Year provided that no single withdrawal shall be
less than five hundred dollars ($500) and a withdrawal by a
Participant prior to his separation from service may never
exceed the smaller
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of the actual amount contributed to the account or the adjusted
value of the account.
(d) If the Plan is subject to the Automatic Annuity Rules of
Section 8.2, the written consent of the Participant's spouse
(consistent with the requirements for a Qualified Election
under Section 8.2) must be obtained with respect to any
withdrawal.
4.9 Distribution on Account of Financial Hardship
(a) If elected by the Employer in the Adoption Agreement,
distributions may be made from a Participant's Elective
Deferral, Qualified Nonelective Contribution Account, vested
portion of the Participant's Employer Discretionary
Contribution Account, or the vested portion of the Employer
Matching Contribution Account on account of financial hardship
if the distribution is necessary in light of the immediate and
heavy financial needs of the Participant.
Effective for Plan Years beginning on or after January 1, 1989,
distributions on account of financial hardship with respect to
Elective Deferrals shall be limited to the amount of the
Participant's Elective Deferrals and income allocable to such
contributions credited to the Participant's Elective Deferral
Account as of the end of the last Plan Year ending before July
1, 1989; neither the income allocable to Elective Deferrals
credited to a Participant's Elective Deferral Account after the
end of the last Plan Year ending before July 1, 1989 nor a
Participant's Qualified Non-elective Contribution Account shall
be available for such distributions.
(b) A distribution on account of financial hardship shall not
exceed the amount required to meet the immediate financial need
created by the hardship. With respect to the Elective Deferral
Account, and the Qualified Nonelective Contribution Account,
the determination of the existence of financial hardship, and
the amount required to meet the immediate financial need
created by the hardship shall be made by the Committee, in
accordance with the criteria specified in (c) below.
With respect to the Employer Discretionary Contribution Account
and the Employer Matching Contribution Account, the
determination of the existence of financial hardship, and the
amount required to meet the immediate financial need created by
the hardship shall be made by the Committee, in accordance with
the criteria specified in (d) below.
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If the Plan is subject to the Automatic Annuity Rules of
Section 8.2, the written consent of the Participant's spouse
(consistent with the requirements for a Qualified Election
under Section 8.2) must be obtained with respect to any
withdrawal on account of financial hardship.
The Committee shall establish written procedures specifying the
requirements for distributions on account of hardship,
including the forms to be submitted. Distributions of amounts
under this Section shall be made as soon as administratively
feasible.
(c) (1) Immediate and Heavy Financial Need. Hardship
distributions will be allowed only on account of:
(i) Expenses for medical care (described in section
213(d) of the Code) incurred by the Employee,
the Employee's spouse, or any dependents of the
Employee (as defined in section 152 of the
Code) or necessary for these persons to obtain
such care;
(ii) Purchase (excluding mortgage payments) of a
principal residence for the Employee;
(iii) Payment of tuition and related educational fees
for the next 12 months of post-secondary
education for the Employee, the Employee's
spouse, children or dependents;
(iv) The need to prevent the eviction of the
Employee from his principal residence or
foreclosure on the mortgage of the Employee's
principal residence; or
(v) Such other financial need which the
Commissioner of Internal Revenue, through the
publication of revenue rulings, notices and
other documents of general applicability, deems
to be immediate and heavy.
(2) Distribution Necessary to Satisfy Financial Need. A
distribution shall not be made on account of a
financial need unless all of the following requirements
are satisfied:
(i) The distribution is not in excess of the amount
of the immediate and heavy financial need
(including amounts necessary to pay any
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federal, state or local income taxes or
penalties reasonably anticipated to result from
the distribution) of the Employee;
(ii) The Employee has obtained all distributions,
other than hardship distributions, and all
nontaxable loans currently available under all
plans maintained by the Employer;
(iii) Elective contributions and employee
contributions under this Plan and all other
qualified and nonqualified deferred
compensation plans maintained by the Employer
(other than mandatory contributions to a
defined benefit plan) shall be suspended for at
least twelve (12) months after receipt of the
hardship distribution. For this purpose, the
phrase "qualified and nonqualified deferred
compensation plans" includes stock option,
stock purchase and similar plans, and cash or
deferred arrangements under a cafeteria plan,
within the meaning of Section 125 of the Code.
It does not include health or welfare benefit
plans; and
(iv) The Plan, and all other plans maintained by the
Employer, provide that the Employee may not
make elective contributions for the Employee's
taxable year immediately following the taxable
year of the hardship distribution in excess of
the applicable limit under section 402(g) of
the Code for such next taxable year less the
amount of such Employee's elective
contributions for the taxable year of the
hardship distribution.
An Employee shall not fail to be treated as an
Eligible Participant for purposes of the Actual
Deferral Percentage tests of Section 4.6 merely
because his Elective Deferrals are suspended in
accordance with this provision.
(d) Immediate and Heavy Financial Need. The determination of
whether an immediate and heavy financial need exists shall be
made by the Committee in a uniform and nondiscriminatory
manner. The criteria may include the events described in
Section 4.9(c) of this plan.
(e) If a distribution is made pursuant to this Section when the
Participant has a nonforfeitable right to less than 100 percent
of his Account balance derived from contributions made by the
Employer and the Participant may increase the nonforfeitable
percentage in the account:
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(1) A separate account will be established for the
Participant's interest in the Plan as of the time of
the distribution, and
(2) At any relevant time the Participant's nonforfeitable
portion of the separate account will be equal to an
amount ("X") determined by the formula:
X = P(AB + (R x D)) - (R x D)
For purposes of applying the formula: P is the nonforfeitable
percentage at the relevant time, D is the amount of the distribution
and R is the ratio of the Account balance AB at the relevant time to
the Account balance after distribution.
4.10 Special Distribution Rules
Except as provided in the Adoption Agreement, Elective
Deferrals, Qualified Nonelective Contributions, Qualified
Matching Contributions and income allocable thereto are not
distributable to the Participant, or the Participant's
Beneficiary, in accordance with the Participant's or
Beneficiary's election, earlier than upon separation from
service, death, or Total and Permanent Disability.
Distribution (if elected in the Adoption Agreement) upon
termination of the Plan without the establishment or
maintenance of a successor plan, the Employer's sale of
substantially all of the assets of a trade or business or the
sale of the Employer's interest in a subsidiary may only be
made, after March 31, 1988, in a lump sum distribution within
the meaning of section 401(k)(10)(B) of the Code.
Unless the Plan is a Profit Sharing Plan exempt from the
Automatic Annuity rules of Section 8.2 pursuant to Section 8.3,
all distributions that may be made pursuant to one or more of
the foregoing distributable events are subject to the spousal
and Participant consent requirements contained in sections
401(a)(11) and 417 of the Code.
ARTICLE V.
CONTRIBUTIONS AND CREDITS TO TARGET BENEFIT PLANS
[All provisions regarding target benefit plan
contributions are in the Adoption Agreement
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for Dreyfus Standardized Prototype Target
Benefit Plan No. 01004].
45
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ARTICLE VI.
CONTRIBUTION AND ALLOCATION LIMITS
6.1 Timing of Contributions
Contributions under Sections 3.1, 4.1, 4.4(3), 4.4(4), 4.4(5) and 5.1
shall be made no later than the time prescribed by law (including any
extensions thereof) for filing the Employer's federal income tax return
for the Plan Year for which they are made.
6.2 Deductibility of Contributions
All contributions made by an Employer shall be conditioned upon their
deductibility by the Employer for income tax purposes; provided,
however, that no contributions shall be returned to an Employer except
as provided in Section 6.3.
6.3 Return of Employer Contributions
Notwithstanding any other provision of this Plan, contributions made by
an Employer may be returned to such Employer if:
(a) the contribution was made by reason of a mistake of fact and is
returned to the Employer within one year of the mistaken
contribution, or
(b) the contribution was conditioned upon its deductibility by the
Employer for income tax purposes, the deduction was disallowed
and the contribution is returned to the Employer within one
year after the disallowance of the deduction, or
(c) the contribution was conditioned upon initial qualification of
the Plan, the Plan was submitted to the Internal Revenue
Service for a determination as to its initial qualification
within the time prescribed by law for filing the Employer's
return for the taxable year in which the Plan was adopted or
such later date as the Secretary of the Treasury may prescribe,
the Plan received an adverse determination, and the
contribution is returned to the Employer within one year after
the date of the adverse determination.
Employer contributions may be returned even if such contributions have
been allocated to a Participant's Account which is fully or partially
nonforfeitable and it is necessary to adjust said Account to reflect
the return of the Employer contributions. The amount which may be
returned to the Employer is the excess of the amount contributed over
the
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<PAGE> 59
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amount that would have been contributed had there not occurred the
circumstances causing the excess. Earnings attributable to the excess
contribution may not be returned to the Employer, but losses thereto
shall reduce the amount to be so returned. Furthermore, if the
withdrawal of the amount attributable to the excess contribution would
cause the balance of the individual Account of any Participant to be
reduced to less than the balance which would have been in the Account
had the excess amount not been contributed, then the amount to be
returned to the Employer shall be limited to avoid such reduction.
6.4 Limitation on Allocations:
(a) If the Participant does not participate in, and has never
participated in another qualified plan or a welfare benefit
fund, as defined in section 419(e) of the Code, maintained by
the Employer, or an individual medical benefit account, as
defined in section 415(l)(2) of the Code, maintained by the
Employer, or a simplified employee pension, as defined in
section 408(k) of the Code, maintained by the Employer which
provides an Annual Addition, the amount of Annual Additions
which may be credited to the Participant's Accounts for any
Limitation Year will not exceed the lesser of the Maximum
Permissible Amount or any other limitation contained in this
Plan. If the Employer contribution that would otherwise be
contributed or allocated to the Participant's Accounts would
cause the Annual Additions for the Limitation Year to exceed
the Maximum Permissible Amount, the amount contributed or
allocated will be reduced so that the Annual Additions for the
Limitation Year will equal the Maximum Permissible Amount.
(b) Prior to the determination of the Participant's actual
Compensation for a Limitation Year, the Maximum Permissible
Amount may be determined on the basis of the Participant's
estimated annual compensation for such Limitation Year. Such
estimated annual compensation shall be determined on a
reasonable basis and shall be uniformly determined for all
Participants similarly situated.
(c) As soon as administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for such
Limitation Year shall be determined on the basis of the
Participant's actual Compensation for such Limitation Year.
(d) If, pursuant to Subsection (c) above or as a result of the
allocation of forfeitures, there is an Excess Amount with
respect to a Participant for a Limitation Year, such Excess
Amount shall be disposed of as follows:
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(1) First, any deferrals made pursuant to a salary
reduction agreement or other deferral mechanism and
Thrift/Voluntary Employee contributions, to the extent
that the return would reduce the Excess Amount, shall
be returned to the Participant.
(2) Unless otherwise specified in the Adoption Agreement,
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 Accounts will be used to
reduce Employer contributions (including any allocation
of forfeitures) for such Participant in the next
Limitation Year, and each succeeding Limitation Year if
necessary.
(3) If after the application of paragraph (1) an Excess
Amount still exists, and the Participant is not covered
by the Plan at the end of the Limitation Year, the
Excess Amount will be held unallocated in a suspense
account. The suspense account will be applied to
reduce future Employer contributions (including
allocation of any forfeitures) for all remaining
Participants in the next Limitation Year, and each
succeeding Limitation Year if necessary;
(4) If a suspense account is in existence at any time
during the Limitation Year pursuant to this Section, it
will not participate in the allocation of the Trust's
investment gains and losses. If a suspense account is
in existence at any time during a particular Limitation
Year, all amounts in the suspense account must be
allocated and reallocated to Participants' Accounts
before any Employer or any employee contributions may
be made to the Plan for that Limitation Year. Excess
Amounts may not be distributed to Participants or
former Participants.
(e) Subsections (e), (f), (g), (h), (i) and (j) apply if, in
addition to this Plan, the Participant is covered under another
qualified master or prototype defined contribution plan
maintained by the Employer or a welfare benefit fund, as
defined in section 419(e) of the Code, maintained by the
Employer or an individual medical benefit account, as defined
in section 415(l)(2) of the Code, maintained by the Employer,
or a simplified employee pension maintained by the Employer
which provides an Annual Addition, during any Limitation Year.
The Annual Additions which may be credited to a Participant's
Accounts under this Plan for any such Limitation Year will not
exceed the Maximum Permissible Amount reduced by the Annual
Additions credited to a Participant's account under
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the other qualified master or prototype defined contribution
plans, welfare benefit funds, individual medical accounts, and
simplified employee pensions for the same Limitation Year. If
the Annual Additions with respect to the Participant under
other qualified master or prototype defined contribution plans,
welfare benefit funds, individual medical accounts, and
simplified employee pensions maintained by the Employer are
less than the Maximum Permissible Amount and the Employer
contribution that would otherwise be contributed or allocated
to the Participant's Accounts under this Plan would cause the
Annual Additions for the Limitation Year to exceed this
limitation, the amount contributed or allocated will be reduced
so that the Annual Additions under such plans and welfare
benefit funds for the Limitation Year will equal the Maximum
Permissible Amount. If the Annual Additions with respect to the
Participant under such other qualified master or prototype
defined contribution plans, and welfare benefit funds,
individual medical accounts, and simplified employee pensions
in the aggregate are equal to or greater than the Maximum
Permissible Amount, no amount will be contributed or allocated
to the Participant's Accounts under this Plan for the
Limitation Year.
(f) Prior to determining the Participant's actual Compensation for
the Limitation Year, the Employer may determine the Maximum
Permissible Amount based on the Participant's estimated annual
compensation in the manner described in Subsection (b).
(g) As soon as administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for such
Limitation Year shall be determined on the basis of the
Participant's actual Compensation for such Limitation Year.
(h) If pursuant to Subsection (g) above or as a result of the
allocation of forfeitures, a Participant's Annual Additions
under this Plan and all such other plans result in an Excess
Amount for a Limitation Year, the Excess Amount will be deemed
to consist of the Annual Additions last allocated, except that
Annual Additions attributable to a simplified employee pension
will be deemed to have been allocated first, followed by Annual
Additions to a welfare benefit fund or individual medical
account, regardless of the actual allocation date.
(i) If an Excess Amount was allocated to a Participant on an
allocation date of this Plan which coincides with an allocation
date of another plan, the Excess Amount attributed to this Plan
will be the product of:
(1) the total Excess Amount allocated as of such date,
times,
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(2) the ratio of (A) the Annual Additions allocated to the
Participant for the Limitation Year as of such date
under this Plan, to (B) the total Annual Additions
allocated to the Participant for the Limitation Year as
of such date under this Plan and all other qualified
Master and Prototype defined contribution plans.
(j) Any Excess Amounts attributed to this Plan shall be disposed of
as provided in Subsection (d).
(k) If the Participant is covered under another qualified defined
contribution plan maintained by the Employer which is not a
Master or Prototype plan, Annual Additions which may be
credited to the Participant's Accounts under this Plan for any
Limitation Year will be limited in accordance with Subsections
(e), (f), (g), (h), (i) and (j) as though the other plan were a
Master or Prototype plan unless the Employer provides other
limitations in the Adoption Agreement.
(l) If the Employer maintains, or at any time maintained, a
qualified defined benefit plan (other than the Sponsor's paired
plan number 02001, covering any Participant in this Plan, the
sum of the Participant's Defined Benefit Fraction and Defined
Contribution Fraction will not exceed one (1.0) in any
Limitation Year. Unless the Employer elects otherwise in the
Adoption Agreement, this limitation will be met by freezing or
reducing the rate of benefit accrual under the qualified
defined benefit plan.
(m) For purposes of this Section 6.4, the following definitions
shall apply:
(1) "Annual Additions" shall mean the sum of the following
credited to a Participant's account for the Limitation
Year:
(A) All Employer contributions,
(B) All forfeitures, and
(C) All Employee contributions.
All excess deferrals as described in section 402(g) of
the Code, all excess contributions as defined in
section 401(k)(8)(B) of the Code, (including amounts
recharacterized), and all excess aggregate
contributions as defined in section 401(m)(6)(B) of the
Code, regardless of whether such amounts
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are distributed or forfeited, shall continue to be
treated as Annual Additions.
For purposes of the above, amounts reapplied to reduce
Employer contributions under Subsections (d) and (j)
shall also be included as Annual Additions.
Amounts allocated, after March 31, 1984, to an
individual medical benefit account, as defined in
section 415(l)(2) of the Code, which is part of a
pension or annuity plan maintained by the Employer, are
treated as Annual Additions to a defined contribution
plan. Also, amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years
ending after such date, which are attributable to
post-retirement medical benefits allocated to the
separate account of a Key Employee, as defined in
section 419A(d)(3) of the Code, under a welfare benefit
fund, as defined in section 419(e) of the Code,
maintained by the Employer, are treated as Annual
Additions to a defined contribution plan, and
allocations under a simplified employee pension.
(2) Unless specified otherwise in the Adoption Agreement, for
purposes of this Section, Compensation shall have the same
meaning as described in Section 1.15 of the Plan. One of the
following definitions of Compensation may be elected by the
employer in the Adoption Agreement.
(1) Information required to be reported under
section 6041, 6051, and 6052, (Wages, Tips and
Other Compensation Box on Form W-2).
Compensation defined as wages as defined in
section 3401(a) and all other payments of
compensation to an employee by the employer (in
the course of the employer's trade or business)
for which the employer is required to furnish
the employee a written statement under section
6041(d) and 6051(a)(3) of the Code.
Compensation must be determined without regard
to any rules under section 3401(a) that limit
the remuneration included in wages based on the
nature or location of the employment or the
services performed (such as the exception for
agricultural labor in section 3401(a)(2)).
(2) Section 3401(a) wages. Compensation is defined
as wages within the meaning of section 3401(a)
for the purposes of income tax withholding at
the source but determined without regard to any
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rules that limit the remuneration included in
wages based on the nature or location of the
employment or the services performed (such as
the exception for agricultural labor in section
3401(a)(2).
(3) 415 safe-harbor compensation. Compensation is
defined as wages, salaries, and fees for
professional services and other amounts
received (without regard to whether or not an
amount is paid in cash) for personal services
actually rendered int he course of employment
with the employer maintaining the plan to the
extent that the amounts are includable in gross
income (including, but not limited to,
commissions paid salesmen, compensation for
services on the basis of percentage of profits,
commissions on insurance premiums, tips,
bonuses, fringe benefits, and reimbursements or
other expense allowances under a nonaccountable
plan (as described in 1.62-2(c)), and excluding
the following:
(a) Employer contributions to a plan of
deferred compensation which are not
includable in the employee's gross
income for the taxable year in which
contributed, or employer contributions
under a simplified employee pension
plan to the extent such contributions
are deductible by the employee, or any
distributions from a plan of deferred
compensation;
(b) Amounts realized from the exercise of a
non-qualified stock option, or when
restricted stock (or property) held by
the employee either becomes freely
transferable or is no longer subject to
a substantial risk of forfeiture;
(c) Amounts realized from the sale,
exchange or other disposition of stock
acquired under a qualified stock
option; and
(d) Other amounts which 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 section 403(b) of the Code
(whether or not the contributions are
actually excludable from the gross
income of the employee).
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For any self-employed individual compensation
will mean earned income.
For limitation years beginning after December 31, 1991,
for purposes of applying the limitations of this
article, 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 section
22(e)(3) of the Internal Revenue Code) is the
compensation such participant would have received for
the limitation year if the participant had been paid at
the rate of compensation paid immediately before
becoming permanently and totally disabled; such imputed
compensation for the disabled participant may be taken
into account only if the participant is not a highly
compensated employee (as defined in section 414(q) of
the Code) and contributions made on behalf of such
participant are nonforfeitable when made.
(3) "Defined Benefit Fraction" shall mean a
fraction, the numerator of which is the sum of
the Participant's Projected Annual Benefits
under all the defined benefit plans (whether or
not terminated) maintained by the Employer, and
the denominator of which is the lesser of one
hundred twenty-five percent (125%) of the
dollar limitation determined for the Limitation
Year under sections 415(b) and (d) of the Code
or one hundred forty percent (140%) of the
Highest Average Compensation (which shall mean
the average compensation for the three
consecutive years of Service with the Employer
that produces the highest average), including
any adjustments under section 415(b) of the
Code. A year of Service with the Employer is
the twelve (12) consecutive month period
defined in Section 1.54 of the Plan.
Notwithstanding the above, if the Participant was a
Participant as of the first day of the first Limitation
Year beginning after December 31, 1986, in one or more
defined benefit plans maintained by the Employer which
were in existence on May 6, 1986, the denominator of
this fraction will not be less than one hundred twenty
five percent (125%) of the sum of the annual benefits
under such plans which the Participant had accrued as
of the close of the last Limitation Year beginning
before January 1, 1987,
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disregarding any changes in the terms and
conditions of the Plan after May 5, 1986. The
preceding sentence applies only if the defined
benefit plans individually and in the
aggregate satisfied the requirements of section
415 of the Code for all Limitation Years
beginning before January 1, 1987.
(4) "Defined Contribution Fraction" shall mean a
fraction, the numerator of which is the
sum of the Annual Additions to the
Participant's Account under all the defined
contribution plans (whether or not terminated)
maintained by the Employer for the current and
all prior Limitation Years (including the
Annual Additions attributable to the
Participant's nondeductible Voluntary
Contributions to all defined benefit plans,
whether or not terminated, maintained by the
Employer and the Annual Additions attributable
to all welfare benefit funds, as defined in
section 419(e) of the Code, and individual
medical benefit accounts as defined in section
415(l)(2) of the Code, and simplified employee
pensions, maintained by the Employer) and the
denominator of which is the sum of the Maximum
Aggregate Amounts for the current and all prior
Limitation Years of Service with the Employer
(regardless of whether a defined contribution
plan was maintained by the Employer). The
Maximum Aggregate Amount in any Limitation Year
is the lesser of one hundred twenty-five
percent (125%) of the dollar limitation in
effect under section 415(c)(1)(A) of the Code
or thirty-five percent (35%) of the
Participant's Compensation for such year.
If the Employee was a Participant as of the end
of the first day of the first Limitation Year
beginning after December 31, 1986, in one or
more defined contribution plans maintained by
the Employer which were in existence on
May 6, 1986, the numerator of this fraction
will be adjusted if the sum of this fraction
and the Defined Benefit Fraction would
otherwise exceed one (1.0) under the terms of
this Plan. Under the adjustment, an amount
equal to the product of (A) the excess of the
sum of the fractions over one (1.0) times (B)
the denominator of this fraction, will be
permanently subtracted from the numerator of
this fraction. The adjustment is calculated as
of the end of the last Limitation Year
beginning before January 1, 1987, and
disregarding any changes in the terms and
conditions of the Plan made after May 5, 1986,
but using the section 415 limitation applicable
to the first Limitation Year beginning on or
after January 1, 1987.
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The Annual Additions for any Limitation Year
beginning before January 1, 1987 shall
not be recomputed to treat all Employee
contributions as Annual Additions.
(5) "Employer" shall mean the Employer that adopts
this Plan and all members of a controlled
group of corporations (as defined in section
414(b) of the Code and as modified by section
415(h) of the Code) which includes the
Employer; any trade or business (whether or not
incorporated) which is under common control (as
defined in section 414(c) and as modified by
section 415(h) of the Code) with the Employer;
any organization (whether or not incorporated)
which is a member of an affiliated service
group (as defined in section 414(m)); and any
other entity required to be aggregated with the
Employer under Section 414(o) of the Code.
(6) "Excess Amount" shall mean the excess of the
Participant's Annual Additions for the
Limitation Year over the Maximum Permissible
Amount.
(7) "Limitation Year" shall mean the calendar year,
unless another twelve (12) consecutive month
period is elected in the Adoption Agreement.
All qualified plans maintained by the Employer
must use the same Limitation Year. If the
Limitation Year is changed by amendment, the
new Limitation Year must begin on a date within
the Limitation Year in which the amendment is
made.
(8) "Master or Prototype Plan" shall mean a plan
the form of which is the subject of a
favorable opinion letter from the Internal
Revenue Service.
(9) "Maximum Permissible Amount" shall mean the
lesser of:
(A) thirty-thousand dollars ($30,000) (or,
if greater, one-fourth (1/4th) of
the defined benefit dollar limitation
set forth in section 415(b)(1) of the
Code as in effect for the Limitation
Year), or
(B) twenty-five percent (25%) of the
Participant's Compensation for the
Limitation Year.
The compensation limitation referred to in
paragraph (B) above shall not apply to any
contribution for medical benefits (within the
meaning of section 401(h) or section 419A(f)(2)
of the Code) which is otherwise
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treated as an Annual Addition under section
415(l)(1) or 419A(d)(2) of the Code.
If a short Limitation Year is created because
of an amendment changing the Limitation Year to
a different twelve (12) consecutive month
period, the Maximum Permissible Amount will not
exceed the defined contribution dollar
limitation set forth in paragraph (A) above
multiplied by the following fraction:
Number of Months in the Short Limitation Year
---------------------------------------------
12
(10) "Projected Annual Benefit" shall mean the annual
retirement benefit (adjusted to an 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 the Plan
assuming:
(A) The Participant will continue
employment until the Normal
Retirement Date under the Plan (or
current date, if later) and
(B) the Participant's Compensation for the
current Limitation Year and all other
relevant factors used to determine
benefits under the Plan will remain
constant for all future Limitation
Years.
6.5 Separate Accounts
The Committee shall maintain the following separate Accounts, as are
applicable, with respect to each Participant:
(a) a Regular Account (as described in Article III),
(b) an Elective Deferral Account (as described in Article IV),
(c) a Qualified Nonelective Contribution Account (as described in
Article IV),
(d) a Thrift Account (as described in Article IV),
(e) a Matching Contribution Account (as described in Article IV),
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(f) a Voluntary Account (as described in Article X),
(g) a Voluntary Tax-Deductible Account (as described in Article X),
(h) a Rollover Account (as described in Article X),
(i) an Employer Discretionary Contribution Account (as described in
Article IV), and
(j) a Transfer Account (as described in Article X).
Each such Account shall be credited with the applicable contributions,
forfeitures, earnings losses, expenses, and distributions. The
maintenance of separate Accounts is only for accounting purposes and a
segregation of the Trust Fund to each Account shall not be required.
6.6 Valuation
(a) Except as otherwise provided in subsection (b) below, or as
directed by the Committee subject to approval by the Trustee,
the assets of the Trust Fund shall be valued at their
current fair market value as of each Valuation Date, and the
earnings and losses of the Trust Fund since the immediately
preceding Valuation Date shall be allocated to the separate
Accounts of all Participants and former Participants under the
Plan in the ratio that the fair market value of each such
Account as of the immediately preceding Valuation Date, reduced
by any distributions or withdrawals therefrom since such
preceding Valuation Date, bears to the total fair market value
of all separate Accounts as of the immediately preceding
Valuation Date, reduced by any distributions or withdrawals
therefrom since such preceding Valuation Date; provided,
however, that if Participant-directed investments have been
elected in the Adoption Agreement, the earnings and losses of
each separate Account shall be allocated solely to such
Account.
Notwithstanding any other provision of the Plan, the Committee
may, in its sole discretion, on any date other than the last
day of the Plan Year, determine the value of an Account. If
such a determination is made, the date of such determination
shall be considered to be a Valuation Date.
(b) If the plan is an Easy Retirement Plan, the dividends, capital
gain distributions, and other earnings or losses received on
any share or unit of a regulated investment company or
collective investment fund, or on any other investment,
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that is specifically credited to a Participant's separate
Accounts under the Plan and/or held under the Custodial
Agreement shall be allocated to such separate Accounts and, in
the absence of investment directions to the contrary,
immediately reinvested, to the extent practicable, in
additional shares or units of such regulated investment company
or collective investment fund, or in such other investments.
6.7 Segregation of Former Participant's Account
The Committee may segregate any portion of a former Participant's
account balance which is retained in the Fund after his death or
separation from service in an interest-bearing account and debited or
credited only with income and charges attributable directly.
ARTICLE VII.
VESTING
7.1 Vested Interest
Each Participant shall at all times have a fully vested interest in his
Elective Deferral Account, Qualified Nonelective Account, Voluntary
Account, Voluntary Tax-Deductible Account and Thrift Account. Each
Participant's Regular Account, Employer Discretionary Contribution
Account, and Employer Matching Contribution Account shall vest in
accordance with the vesting schedule elected in the Adoption Agreement.
If a Participant is not already fully vested in his Regular Account,
Employer Discretionary Contribution Account, and Employer Matching
Contributions Account, he shall become so upon reaching Normal
Retirement Age or Early Retirement Age, or upon his death or Total and
Permanent Disability.
7.2 Vesting of a Participant
Except in the case of Plans subject to full and immediate vesting, a
Participant's vested amount shall be calculated by multiplying his
Regular Account balance, Employer Discretionary Contribution Account
balance, and Employer Matching Contribution Account balance, if any, as
determined on the Valuation Date following his termination of
employment by his vested interest as determined under Section 7.1.
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In order to determine the vested interest of a Participant after a
Service Break, the following rules shall apply:
(a) Subject to (b) below, a former Participant who had a
nonforfeitable right to all or a portion of the account balance
derived from Employer contributions at the time of the
Participant's termination will receive credit for all years of
Service prior to a Service Break if the Participant completes a
year of Service after returning to the employ of the Employer.
(b) In the case of a Participant who have five (5) or more
consecutive one (1) year Service Breaks, all Service after such
Service Breaks will be disregarded for the purpose of vesting
the Employer-derived account balance that accrued before such
Service Breaks. Such Participants' pre-Service Break Service
will count in vesting the post-Service Break Employer-derived
account balance only if (1) such Participant has any
nonforfeitable interest in the account balance attributable to
Employer contributions at the time of separation from service,
or (2) upon returning to service the number of consecutive one
(1) year Service Breaks is less than the number of years of
Service. Separate accounts will be maintained for the
Participant's pre-Service Break and post-Service Break
Employer-derived account balance. Both accounts will share in
the earnings and losses of the Fund.
7.3 Amendment of Vesting Provisions
No amendment to the vesting provisions pursuant to Section 7.1 shall
deprive a Participant of his nonforfeitable rights to benefits accrued
to the date of the amendment. Further, if the vesting provisions of
the Plan are amended, or the Plan is amended in any way that directly
or indirectly affects computation of a Participant's nonforfeitable
percentage or if the Plan is deemed amended by an automatic change to
or from a top-heavy vesting schedule, each Participant with at least
three (3) years of Service may elect, within a reasonable period after
the adoption of the amendment, to have his nonforfeitable percentage
computed under the Plan without regard to such amendment. For
Participants who do not have at least one Hour of Service in any Plan
Year beginning on or after January 1, 1989, the preceding sentence
shall be applied by substituting "five (5) years of Service" for "three
(3) years of Service." The period during which the election may be
made shall commence with the date the amendment is adopted and shall
end on the later of (1) sixty (60) days after the amendment is adopted;
(2) sixty (60) days after the amendment becomes effective; or (3) sixty
(60) days after the Participant is issued written notice of the
amendment by the Employer or Committee.
7.4 Forfeitures
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(a) If a Participant terminates employment with the Employer and
the value of the Participant's vested account balance derived
from Employer and Employee contributions (other than
accumulated deductible employee contributions) is not greater
than $3,500, the Employee shall receive a distribution of the
value of the entire vested portion of such account balance, and
the nonvested portion will be treated as a forfeiture. For
purposes of this Section 7.4, if the value of a Participant's
vested account balance is zero, the Participant shall be deemed
to have received a distribution of such vested account balance.
A Participant's vested account balance shall not include
Voluntary Tax-Deductible Contributions for Plan Years beginning
before January 1, 1989.
(b) If a Participant terminates employment with the Employer, and
elects (with his or her spouse's consent) in accordance with
Article VIII to receive the value of his or her vested account
balance, the nonvested portion will be treated as a forfeiture.
If the Participant elects to have distributed less than the
entire vested portion of the account balance derived from
Employer contributions, the part of the nonvested portion that
will be treated as a forfeiture is the total nonvested portion
multiplied by a fraction, the numerator of which is the amount
of the distribution attributable to Employer contributions and
the denominator of which is the total value of the vested
Employer derived account balance.
(c) If a Participant terminates employment with the Employer but
does not receive a distribution described in (a) or (b) above,
the non-vested portion of his account balance will be treated
as a forfeiture upon the occurrence of a Service Break of five
(5) consecutive years.
(d) If a Participant who receives a distribution pursuant to this
Section 7.4 resumes employment, the Participant's
Employer-derived account balance will be restored to the
amount on the date of distribution if the Participant repays to
the Plan the full amount of the distribution attributable to
Employer contributions before the earlier of (i) five (5) years
after the Participant's Re-Employment Commencement Date or (ii)
the date the Participant incurs five (5) consecutive one (1)
year Service Breaks following the date of distribution. If a
Participant is deemed to receive a distribution pursuant to
this Section, and the Participant resumes employment covered
under this Plan before the date the Participant incurs five (5)
consecutive one year Service Breaks, upon the reemployment of
such Participant, the Employer-derived account balance of the
Participant will be restored to the amount on the date of such
deemed distribution.
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ARTICLE VIII.
BENEFITS ON RETIREMENT AND SEPARATION FROM SERVICE
8.1 Commencement of Benefits
(a) Any Participant who terminates employment with the Employer for
any reason (including Total and Permanent Disability as defined
in Section 1.61 of the Plan) shall be entitled to receive the
value of the vested portion of his Accounts (determined as of
the Valuation Date coincident with or immediately subsequent to
his termination with employment) as soon as administratively
feasible after the date of his termination of employment. If
the value of the Employee's vested account balance derived from
Employer and Employee contributions (excluding, for Plan Years
beginning before January 1, 1989, accumulated Voluntary
Tax-Deductible Contributions) is greater than (or at the time
of any prior distribution was greater than) $3,500, then no
such amount shall be distributed prior to Normal Retirement Age
(or age sixty-two (62), if later) unless the Participant
consents to the distribution. If the Plan is subject to the
Automatic Annuity rules of Section 8.2, then the consent of the
Participant's spouse shall also be required to a distribution
in any form other than a Qualified Joint and Survivor Annuity
(as defined in Section 8.2).
In the case of the Dreyfus Easy Retirement Plans (Plan Numbers
01005, and 01006), Participants who attain the Plan's Normal
Retirement Age shall be entitled to receive the value of the
vested portion of their Accounts. With respect to the Dreyfus
standardized and non-standardized prototype profit-sharing
plans (Plan Numbers 01002 and 01003) if permitted under the
Adoption Agreement, Participants who attain the Plan's Normal
Retirement Age shall be entitled to receive the value of the
vested portion of their Accounts.
The Committee shall provide the Participant with a written
explanation of the material features and relative values of the
optional forms of benefit available under the Plan. Such
notice shall also notify the Participant of the right to defer
distribution until a future date specified by the Participant
(not permitted in the case of the Dreyfus Easy Retirement Plans
-- Plan Numbers 01005 and 01006) or until Normal Retirement
Age (or age sixty-two (62), if later), and if the Plan is
subject to the Automatic Annuity Rules of Section 8.2, shall be
provided during the period beginning ninety (90) days before
and ending thirty (30) days before the Annuity Starting Date.
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(b) If the value of the Participant's vested account balance
derived from Employer and Employee contributions (excluding,
for Plan Years beginning before January 1, 1989, accumulated
Voluntary Tax-Deductible Contributions) is not greater than
$3,500, the Employee shall receive a distribution of the value
of the entire vested portion of such account balance. However,
no such distribution shall be made after the Annuity Starting
Date unless the Participant and his or her spouse (or the
Participant's surviving spouse) consent in writing to such
distribution.
(c) Unless the Participant elects otherwise, distribution of
benefits shall commence no later than the sixtieth (60th) day
after the close of the Plan Year in which the latest of the
following events occurs:
(i) the Participant reaches his Normal Retirement Age (or
age sixty-five (65), if earlier),
(ii) the tenth (10th) anniversary of the year in which the
Participant commenced participation in the Plan, or
(iii) the Participant terminates employment with the
Employer.
The failure of a Participant or surviving spouse to consent to
a distribution shall be deemed to be an election to defer
commencement of benefit distributions sufficient to satisfy
this Section.
(d) Neither the consent of the Participant nor the Participant's
spouse shall be required to the extent a distribution is
necessary to satisfy section 401(a)(9) or section 415 of the
Code.
(e) This Article applies to distribution made on or after January
1, 1993. Notwithstanding any provision of the plan to the
contrary that would otherwise limit a distributee's
election under this Article, a distributee may elect, at the
time and in the manner prescribed by the Committee, to have any
portion of an eligible rollover distribution paid directly to
an eligible retirement plan specified by the distributee in a
direct rollover.
Definitions:
(i) Eligible rollover distribution: An eligible
rollover distribution is any distribution of
all or any portion of the balance to the
credit of
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the distributee, except that an eligible
rollover distribution does not include: any
distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or
life expectancy) of the distributee or the
joint lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten
years or more; any distribution to the extent
such distribution is required under section
401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross
income (determined without regard to the
exclusion for net unrealized appreciation with
respect to employer securities).
(ii) Eligible retirement plan: An eligible
retirement plan is an individual retirement
account described in section 408(a) of the
Code, an individual retirement annuity
described in section 408(b) of the Code, an
annuity plan described in section 402(a) of the
Code, or a qualified trust described in section
401(a) of the Code, that accepts the
distributee's eligible rollover distribution.
However, in the case of an eligible rollover
distribution to the surviving spouse, an
eligible retirement plan is an individual
retirement account or individual retirement
annuity.
(iii) Distributee: A distributee includes an
Employee or former Employee. In addition, the
Employee's or former Employee's surviving
spouse and the Employee's or former Employee's
spouse or former spouse who is the alternate
payee under a qualified domestic relations
order as defined in section 414(p) of the Code,
are distributees with regard to the interest of
the spouse or former spouse.
(iv) Direct rollover: A direct rollover is a
payment by the Plan to the eligible retirement
plan specified by the distributee.
8.2 Automatic Annuity Requirements
The provisions of Section 8.2 through 8.4 shall take precedence over
any conflicting provisions in this Plan.
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(a) Applicability of Automatic Annuity Requirements.
Except as provided in Section 8.3 with respect to certain
Profit Sharing Plans, the provisions of this Section shall
apply to any Participant who is credited with at least one (1)
Hour of Service with the Employer on or after August 23, 1984,
and such other Participants as provided in Section 8.4.
Qualified Joint and Survivor Annuity. Unless an optional form
of benefit is selected pursuant to a Qualified Election within
the ninety (90) day period ending on the Annuity Starting Date,
a married Participant's Vested Account Balance shall be paid in
the form of a Qualified Joint and Survivor Annuity and an
unmarried Participant's Vested Account Balance will be paid in
the form of a life annuity. The Participant may elect to have
such annuity distributed upon attainment of the Earliest
Retirement Age.
Qualified Pre-Retirement Survivor Annuity. Unless an optional
form of benefit has been selected within the Election Period
pursuant to a Qualified Election, if a Participant dies before
the Annuity Starting Date then the Participant's Vested Account
Balance shall be paid in the form of a Qualified Pre-Retirement
Survivor Annuity. The Surviving Spouse may elect to elect to
have such annuity distributed within a reasonable period after
the Participant's death.
Definitions. For purposes of this Section 8.2, the following
words shall have the following meanings:
(i) "Earliest Retirement Age" shall mean the earliest date
on which, under the Plan, the Participant could elect
to receive retirement benefits.
(ii) "Election Period" shall mean the period which begins on
the first day of the Plan Year in which the Participant
attains age thirty-five (35) and ends on the date of
the Participant's death. If a Participant separates
from service prior to the first day of the Plan Year in
which age thirty-five (35) is attained, with respect to
benefits accrued prior to separation, the Election
Period shall begin on the date of separation.
A Participant who will not yet attain age thirty-five
(35) as of the end of any current Plan Year may make a
special Qualified Election to waive the Qualified
Pre-Retirement Survivor Annuity for the period
beginning on the date of such election and ending on
the first day of the plan year in which the Participant
will attain age thirty-five (35). Such election shall
not be
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valid unless the Participant receives a written
explanation of the Qualified Pre-Retirement Survivor
Annuity in such terms as are comparable to the
explanation required under Section 8.2(b). Qualified
Pre-Retirement Survivor Annuity coverage will be
automatically reinstated as of the first day of the
Plan Year in which the Participant attains age
thirty-five (35). Any new waiver on or after such date
shall be subject to the full requirements of this
Section 8.2.
(iii) "Qualified Election" shall mean a Participant's waiver
of a Qualified Joint and Survivor Annuity or a
Qualified Pre-Retirement Survivor Annuity. Any such
waiver must be consented to in writing by the
Participant's Spouse. The Spouse's consent must:
designate a specific Beneficiary (including any class
of Beneficiaries or any contingent Beneficiaries, which
may not be changed without spousal consent) or
expressly permits designations by the Participant
without any further spousal consent; acknowledge the
effect of the election; and be witnessed by a member of
the Committee or a Notary Public. Additionally, a
Participant's waiver of the Qualified Joint and
Survivor Annuity shall not be effective unless the
election designates a form of benefit payment which may
not be changed without spousal consent (or the Spouse
expressly permits designations by the Participant
without any further spousal consent). Notwithstanding
this consent requirement, if the Participant
establishes to the satisfaction of a member of the
Committee that there is no Spouse or the Spouse cannot
be located, a waiver will be deemed a Qualified
Election. Any spousal consent (or deemed spousal
consent) obtained under this provision will be valid
only with respect to such Spouse. A consent that
permits designations by the Participant without further
consent by such Spouse must acknowledge that the Spouse
has the right to limit consent to a specific
Beneficiary and, where applicable, a specific form of
benefit, and that the Spouse voluntarily elects to
relinquish either or both of such rights. A revocation
of a prior waiver may be made by a Participant without
the consent of the Spouse at any time before the
commencement of benefits. The number of revocations
shall not be limited. No consent obtained under this
provision shall be valid unless the Participant has
received notice as provided in paragraph (b) below.
(iv) "Qualified Joint and Survivor Annuity" shall mean an
immediate annuity for the life of the Participant with
a survivor annuity for the life of the Spouse which
is fifty percent (50%) of the amount of the annuity
which is payable during the joint lives of the
Participant and the Spouse and which
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is the amount of benefit which can be purchased
with the Participant's Vested Account Balance.
(v) "Qualified Pre-Retirement Survivor Annuity" shall mean
an annuity for the life of the Participant's surviving
spouse purchased with the Participant's Vested Account
Balance.
(vi) "Spouse (Surviving Spouse)" shall mean the Spouse or
Surviving Spouse of the Participant, provided that
former spouse will be treated as the Spouse or
Surviving Spouse to the extent provided under a
qualified domestic relations order as described in
section 414(p) of the Code.
(vii) "Vested Account Balance" shall mean the aggregate value
of the Participant's vested account balance derived
from employer and employee contributions (including
rollovers), whether vested before or upon death,
including the proceeds of insurance contracts,
if any, on the Participant's life. The provisions of
this Section 8.2 shall apply to a Participant who is
vested in amounts attributable to employer
contributions, employee contributions (or both) at the
time of death or distribution.
(b) Notice Requirements
Qualified Joint and Survivor Annuity. In the case of a
Qualified Joint and Survivor Annuity as described above, the
Committee shall provide each Participant within the period
beginning ninety (90) days before and ending thirty (30) days
before the Annuity Starting Date a written explanation of: (i)
the terms and conditions of a Qualified Joint and Survivor
Annuity; (ii) the Participant's right to make and the effect of
an election to waive the Qualified Joint and Survivor Annuity
form of benefit; (iii) the rights of a Participant's Spouse;
(iv) the right to make, and the effect of, a revocation of a
previous election to waive the Qualified Joint and Survivor
Annuity; and (v) the right, if any, to defer the commencement
of benefits.
Qualified Pre-Retirement Survivor Annuity. In the case of a
Qualified Pre-Retirement Survivor Annuity as described above,
the Committee shall provide each Participant with a written
explanation of the Qualified Pre-Retirement Survivor Annuity in
such terms and in such manner as would be comparable to the
explanation provided for meeting the requirements applicable to
explaining a Qualified Joint and Survivor Annuity within
whichever of the following periods ends last:
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(i) The period beginning on the first day of the Plan Year
in which the Participant attains age thirty-two (32)
and ending with the close of the Plan Year preceding
the Plan Year in which the Participant attains age
thirty-five (35).
(ii) A reasonable period ending after a Participant enters
the Plan.
(iii) A reasonable period ending after Section 8.3 ceases to
apply to a Profit Sharing Plan.
(iv) A reasonable period after Section 8.2 first applies to
a Participant.
Notwithstanding the foregoing, notice must be provided within a
reasonable period ending after termination of employment in the
case of a Participant who terminates employment before
attaining age 35.
For purposes of applying the preceding paragraph, a reasonable
period ending after the enumerated events described in (ii),
(iii), and (iv) is the end of the two-year period beginning one
year prior to the date the applicable event occurs, and ending
one year after that date. In the case of a Participant who
terminates employment before the Plan Year in which age
thirty-five (35) is attained, notice shall be provided within
the two-year period beginning one year prior to termination and
ending one year after termination. If such a Participant
thereafter returns to employment with the Employer, the
applicable period for such Participant shall be redetermined.
If a distribution is one to which sections 401(a)(11) and 417
of the Code do not apply, such distribution may commence less
than 30 days after the notice required under section
1.411(a)-11(c) of the Income Tax Regulations in given, provided
that:
(1) the Plan Administrator clearly informs the
Participant that the Participant has a right to
a period of at least 30 days after receiving
the notice to consider the decision of whether
or not to elect a distribution (and, if
applicable, a particular distribution option),
and
(2) the participant, after receiving the
notice,affirmatively elects a distribution.
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8.3 Profit Sharing Plans: Exception from Automatic Annuity Requirements
Unless otherwise specified in the Adoption Agreement, the provisions of
Sections 8.2 and 8.4 shall be inoperative in the case of a Profit
Sharing Plan if the following two (2) conditions are met: (1) the
Participant cannot or does not elect payments in the form of a life
annuity, and (2) on the death of the Participant, the Participant's
Vested Account Balance (as defined in Section 8.2) will be paid to the
Participant's Surviving Spouse (as defined in Section 8.2), but if
there is no Surviving Spouse, or, if the Surviving Spouse has already
consented in a manner conforming to a Qualified Election to a waiver of
a Qualified Pre-Retirement Survivor Annuity (under Section 8.2), then
to the Participant's Beneficiary.
However, the foregoing shall not be operative with respect to a
Participant if it is determined that this Profit Sharing Plan is a
direct or indirect transferee of a defined benefit plan, money purchase
pension plan (including a target benefit plan), stock bonus, or
profit-sharing plan which is subject to the survivor annuity
requirements of sections 401(a)(11) and 417 of the Code.
8.4 Transitional Rules Applicable to Joint and Survivor Annuities
(a) Any living Participant not receiving benefits on August 23,
1984, who would otherwise not receive the benefits prescribed
by Section 8.2 must be give the opportunity to elect to have
Section 8.2 apply if such Participant is credited with at least
one (1) Hour of Service under this Plan or a predecessor plan
in a Plan Year beginning on or after January 1, 1976, and such
Participant had at least ten (10) years of Service when he or
she terminated employment.
(b) Any living Participant not receiving benefits on August 23,
1984, who was credited with at least one (1) Hour of Service
under this Plan or a predecessor Plan on or after September 2,
1974, and who is not otherwise credited with any Service in a
Plan Year beginning on or after January 1, 1976, must be given
the opportunity to have his or her benefits paid in the manner
set forth in paragraph (d) below.
(c) The respective opportunities to elect (as described in
paragraphs (a) and (b) above) must be afforded to the
appropriate Participants during the period commencing on
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August 23, 1984, and ending on the date benefits would
otherwise commence to said Participants.
(d) Any Participant who has elected pursuant to paragraph (b) above
and any Participant who does not elect under paragraph (a)
above or who meets the requirements of paragraph (a) except
that such Participant does not have at least ten (10) Years of
Service when he or she terminates employment, shall have his
or her benefits distributed in accordance with all of the
following requirements if benefits would have been payable
in the form of a life annuity:
(1) Qualified Joint and Survivor Annuity. If benefits in
the form of a life annuity become payable to a married
Participant who:
(i) Begins to receive payments under the Plan on or
after his Normal Retirement Age; or
(ii) Dies on or after his Normal Retirement Age
while still working for the Employer; or
(iii) Begins to receive payments on or after the
Qualified Early Retirement Age; or
(iv) Separates from service on or after attaining
his Normal Retirement Age (or the Qualified
Early Retirement Age) and after satisfying the
eligibility requirements for the payment of
benefits under the Plan and thereafter dies
before beginning to receive such benefits;
then such benefits shall be received under this Plan in
the form of a Qualified Joint and Survivor Annuity,
unless the Participant, with the consent of his or her
Spouse, has elected otherwise during the election
period which shall begin at least six (6) months before
the Participant attains the Qualified Early Retirement
Age (or the date the Participant begins participation
in the Plan, if later) and end not more than ninety
(90) days before the commencement of benefits. Any
election hereunder shall be in writing and may be
changed by the Participant, with the consent of his or
her Spouse, at any time during the election period.
(2) Election of Early Survivor Annuity. A Participant who
is employed after attaining the Qualified Early
Retirement Age will be given the opportunity to elect,
during the election period, to have a survivor annuity
payable on
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death. If the Participant elects the survivor annuity,
payments under such annuity must not be less than the
payments which would have been made to the Spouse under
the Qualified Joint and Survivor Annuity if the
Participant had retired on the day before his or her
death. Any election under this provision will be in
writing and may be changed by the Participant with the
consent of his or her Spouse at any time. The election
period begins on the later of (1) the ninetieth (90)
day before the Participant attains the Qualified Early
Retirement Age, or (2) the date on which participation
begins, and ends on the date the Participant terminates
employment.
Notwithstanding the availability of the elections set
forth above, in the event a Participant dies after
attaining the Qualified Early Retirement Age while
still employed by the Employer, but before reaching the
Normal Retirement Date, the Participant's account
balance as of the date of death shall be paid to the
Participant's Spouse. If the Participant is not
married, such benefit shall be paid to the
Participant's designated Beneficiary or, if none, to
the Participant's estate.
(3) Definitions. For purpose of this Section 8.4, the
following words shall have the following meanings:
(i) "Qualified Joint and Survivor Annuity" shall
mean an annuity for the life of the Participant
with a survivor annuity for the life of his
Spouse as described in Section 8.2.
(ii) "Qualified Early Retirement Age" shall mean the
latest of:
(A) the earliest date, under the Plan, on
which the Participant may elect to
receive retirement benefits;
(B) the first day of the one hundred
twentieth (120th) month beginning
before the Participant reaches his
Normal Retirement Age; or
(C) the date on which the Participant
begins participation.
8.5 Required Payment of Benefits
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(a) General Rule. Except as otherwise provided in Section 8.2, the
requirements of this Section shall apply to any distribution of
a Participant's account balance and will take precedence over
any inconsistent provisions of the Plan. Unless otherwise
specified, the provisions of this Section shall apply to
calendar years beginning after December 31, 1984.
All distributions required under this Section 8.5 shall be
determined and made in accordance with the Income Tax
Regulations under section 401(a)(9) of the Code, including the
minimum distribution incidental benefit requirement of section
1.401(a)(9)-2 of the regulations.
(b) Limits on Distribution Periods. Distributions, if not made in
a single-sum, may only be made over one of the following
periods (or a combination thereof): (1) the life of the
Participant; (2) the life of the Participant and a Designated
Beneficiary; (3) a period certain not extending beyond the life
expectancy of the Participant; or (4) a period certain not
extending beyond the joint and last survivor expectancy of the
Participant and a Designated Beneficiary.
Any annuity contract purchased and distributed to a Participant
or his Beneficiary shall comply with the requirements of this
Plan, and shall be made and endorsed as nontransferable.
(c) Minimum Amounts to be Distributed. If the Participant's entire
interest is to be distributed in other than a single sum, the
following minimum distribution rules shall apply on or
after the Required Beginning Date:
(i) If a Participant's benefit is to be distributed over
(1) a period not extending beyond the life expectancy
of the Participant or the joint life and last
survivor expectancy of the Participant and the
Participant's Designated Beneficiary or (2) a period
not extending beyond the life expectancy of the
Designated Beneficiary, the amount required to be
distributed for each calendar year, beginning with
distributions for the first distribution calendar year,
must at least equal the quotient obtained by dividing
the Participant's benefit by the applicable life
expectancy.
(ii) For calendar years beginning before January 1, 1989, if
the Participant's spouse is not the designated
Beneficiary, the method of distribution selected
must assure that at least fifty percent (50%) of the
present value of the amount available for distribution
is paid within the life expectancy of the Participant.
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(iii) For calendar years beginning after December 31, 1988,
the amount to be distributed each year, beginning with
distributions for the first distribution calendar
year shall not be less than the quotient obtained by
dividing the Participant's benefit by the lesser of (1)
the applicable life expectancy or (2) if the
Participant's spouse is not the Designated Beneficiary,
the applicable divisor determined from the table set
forth in Q&A-4 of section 1.401 (a)(9)-2 of the Income
Tax Regulations. Distributions after the death of the
Participant shall be distributed using the applicable
life expectancy in paragraph (c)(i) above as the
relevant divisor without regard to section 1.401
(a)(9)-2 of the regulations.
(iv) The minimum distribution required for the Participant's
first distribution calendar year must be made on or
before the Participant's Required Beginning
Date. The minimum distribution for other calendar
years, including the minimum distribution for the
distribution calendar year in which the Employee's
Required Beginning Date occurs, must be made on or
before December 31 of that distribution calendar year.
(d) Commencement of Death Benefits. Upon the death of the
Participant, the following distribution provisions shall take
effect:
(i) If the Participant dies after distribution of his or
her interest has commenced, the remaining portion of
such interest will continue to be distributed at
least as rapidly as under the method of distribution
being used prior to the Participant's death. Upon the
death of the Participant's Beneficiary, any
undistributed interest shall be paid to the legal
representatives of such Beneficiary's estate.
(ii) If the Participant dies before distribution of his or
her interest commences, the Participant's entire
interest will be distributed by December 31
of the calendar year in which falls the fifth
anniversary of the Participant's death except to the
extent that an election is made to receive
distributions in accordance with (1) or (2) below:
(1) If any portion of the Participant's interest is
payable to a Designated Beneficiary,
distributions may be made in substantially
equal installments over the life or over a
period certain not greater than the life
expectancy of the Designated Beneficiary
commencing
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on or before December 31 of the calendar year
immediately following the calendar year in
which the Participant died.
(2) If the Designated Beneficiary is the
Participant's surviving spouse, the date
distributions are required to begin in
accordance with (1) above shall not be earlier
than the later of (A) December 31 of the
calendar year immediately following the
calendar year in which the Participant died and
(B) December 31 of the calendar year in which
the Participant would have attained age seventy
and one-half (70-1/2).
If the Participant has not made an election pursuant to this
Section 8.5(d)(ii) by the time of his or her death, the
Participant's Designated Beneficiary must elect the method of
distribution no later than the earlier of (1) December 31 of
the calendar year in which distributions would be required to
begin under this Section, or (2) December 31 of the calendar
year which contains the fifth anniversary of the date of death
of the Participant. If the Participant has no Designated
Beneficiary, or if the Designated Beneficiary does not elect a
method of distribution, distribution of the Participant's
entire interest must be completed by December 31 of the
calendar year containing the fifth anniversary of the
Participant's death.
(iii) For purposes of Section 8.5(d)(ii) above, if the
surviving spouse dies after the Participant, but before
payments to such spouse begin, the provisions of
Section 8.5(d)(ii), with the exception of subparagraph
(2) thereof, shall be applied as if the surviving
spouse were the Participant.
(iv) For purposes of this Section 8.5(d), any amount paid to
a child of the Participant will be treated as if it had
been paid to the Surviving Spouse if the amount
becomes payable to the Surviving Spouse when the child
reaches the age of majority.
(v) For purposes of this Section 8.5(d), distribution of a
Participant's interest is considered to begin on the
Participant's Required Beginning Date (or, if Section
8.5(d)(iii) above is applicable, the date distribution
is required to begin to the surviving spouse pursuant
to Section 8.5(d)(ii) above). If distribution in the
form of an annuity irrevocably commences to the
Participant before the Required Beginning Date, the
date distribution is considered to begin is the date
distribution actually commences.
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(e) Definitions. For purposes of this Section 8.5, the following
terms shall have the following meanings:
(i) Designated Beneficiary. The individual who is
designated as the Beneficiary under the Plan in
accordance with section 401(a)(9) of the Code and the
regulations thereunder.
(ii) Distribution calendar year. A calendar year for which
a minimum distribution is required. For distributions
beginning before the Participant's death, the first
distribution calendar year is the calendar year
immediately preceding the calendar year which contains
the Participant's Required Beginning Date. For
distributions beginning after the Participant's death,
the first distribution calendar year is the calendar
year in which distributions are required to begin
pursuant to Section 8.5(d) above.
(iii) Life expectancy. The life expectancy (or joint and
last survivor expectancy) calculated using the attained
age of the Participant (or Designated Beneficiary) as
of the Participant's (or Designated Beneficiary's)
birthday in the applicable calendar year. The
applicable calendar year shall be the first
distribution calendar year. If annuity payments
commerce before the required beginning date, the
applicable calendar year is the year such payments
commence. Life expectancy and joint and last survivor
expectancy are computed by use of the expected return
multiples in Tables V and VI of section 1.72-9 of the
Income Tax Regulations.
Unless otherwise elected by the Participant (or spouse,
in the case of distributions described in Section
8.5(d)(ii)(2) above) by the time distributions are
required to begin, life expectancies shall be
recalculated annually. Such election shall be
irrevocable as to the Participant (or spouse) and shall
apply to all subsequent years. The life expectancy of
a nonspouse Beneficiary may not be recalculated.
(iv) Participant's benefit.
(A) The account balance as of the last valuation
date in the calendar year immediately preceding
the distribution calendar year (valuation
calendar year) increased by the amount of any
contributions or forfeitures allocated to the
account balance as of
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dates in the valuation calendar year after the
valuation date and decreased by distributions
made in the valuation calendar year after the
valuation date.
(B) Exception for second distribution calendar
year. For purposes of paragraph (A) above, if
any portion of the minimum distribution
for the first distribution calendar year is
made in the second distribution calendar year
on or before the Required Beginning Date, the
amount of the minimum distribution made in the
second distribution calendar year shall be
treated as if it had been made in the
immediately preceding distribution calendar
year.
(v) Required Beginning Date.
(A) General rule. The Required Beginning Date of a
Participant is the first day of April of the
calendar year following the calendar year
in which the Participant attains age seventy
and one-half (70 1/2).
(B) Transitional rules. The Required Beginning
Date of a Participant who attains age seventy
and one-half (70 1/2) before January 1, 1988,
shall be determined in accordance with
(1) or (2) below:
(1) Non-Five percent owners. The Required
Beginning Date of a Participant who is
not a five percent (5%) owner is the
first day of April of the calendar year
following the calendar year in which
the later of retirement or attainment
of age of seventy and one-half (70 1/2)
occurs.
(2) Five percent owners. The required
beginning date of a Participant who is
a five percent (5%) owner during any
year beginning after December 31, 1979,
is the first day of April following the
later of:
(i) the calendar year in which the
Participant attains age seventy
and one-half (70 1/2), or
(ii) the earlier of the calendar
year with or within which ends
the plan year in which the
Participant becomes a five
percent (5%) owner, or the
calendar year in which the
Participant retires.
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The Required Beginning Date of a
Participant who is not a five percent
(5%) owner who attains age seventy and
one-half (70 1/2) during 1988 and who
has not retired as of January 1, 1989,
is April 1, 1990.
(C) Five percent owner. A Participant is treated
as a five percent (5%) owner for purposes of
this Section if such Participant is a
five percent (5%) owner as defined in section
416(i) of the Code but without regard to
whether the Plan is top-heavy) at any time
during the Plan Year ending with or within the
calendar year in which such owner attains age
sixty-six and one-half (66 1/2) or any
subsequent Plan Year.
(D) Once distributions have begun to a five percent
(5%) owner under this Section, they must
continue to be distributed, even if the
Participant ceases to be a five percent (5%)
owner in a subsequent year.
(f) Transitional Rule. Notwithstanding the other requirements of
this Section and subject to the requirements of Section 8.2,
distribution on behalf of any Employee, including a five
percent (5%) owner, may be made in accordance with all of the
following requirements (regardless of when such distribution
commences):
(i) The distribution by the trust is one which would not
have disqualified such trust under section 401(a)(9) of
the Code as in effect prior to amendment by the
Deficit Reduction Act of 1984.
(ii) The distribution is in accordance with a method of
distribution designated by the Employee whose interest
in the trust is being distributed or, if the Employee
is deceased, by a Beneficiary of such Employee.
(iii) Such designation was in writing, was signed by the
Employee or the Beneficiary, and was made before
January 1, 1984.
(iv) The Employee had accrued a benefit under the Plan as of
December 31, 1983.
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(v) The method of distribution designated by the Employee
or the Beneficiary specifies the time at which
distribution will commence, the period over which
distributions will be made, and in the case of any
distribution upon the Employee's death, the
Beneficiaries of the Employee listed in order of
priority.
A distribution upon death will not be covered by this transitional rule
unless the information in the designation contains the required
information described above with respect to the distributions to be
made upon the death of the Employee.
For any distribution which commences before January 1, 1984, but
continues after December 31, 1983, the Employee, or the Beneficiary, to
who such distribution is being made, will be presumed to have
designated the method of distribution under which the distribution is
being made if the method of distribution was specified in writing and
the distribution satisfies the requirements in Subsections (i) through
(v) above.
If a designation is revoked, any subsequent distribution must satisfy
the requirements of section 401(a)(9) of the Code and the regulations
thereunder. If a designation is revoked subsequent to the date
distributions are required to begin, the trust must distribute by the
end of the calendar year following the calendar year in which the
revocation occurs the total amount not yet distributed which would have
been required to have been distributed to satisfy section 401(a)(9) of
the Code and the regulations thereunder, but for the election under
section 242(b)(2) of Pub. L. No. 97-248. For calendar years beginning
after December 31, 1988, such distributions must meet the minimum
distribution incidental benefit requirements in section 1.401(a)(9)-2
of the Income Tax Regulations. Any changes in the designation will be
considered to be a revocation of the designation. However, the mere
substitution or addition of another Beneficiary (one not named in the
designation) under the designation will not be considered to be a
revocation of the designation, so long as such substitution or addition
does not alter the period over which distributions are to be made under
the designation, directly or indirectly (for example, by altering the
relevant measuring life). The rules of Q&A J-2 and J-3 of Income Tax
Regulations section 1.401(a)(9)-1 shall apply to rollovers and
transfers from one plan to another.
8.6 Available Forms of Distribution
(a) If pursuant to Section 8.3, the Plan is a Profit Sharing Plan
exempt from the Automatic Annuity Rules of Section 8.2, the
normal form of distribution shall be a lump sum distribution.
Unless specified otherwise in the Adoption Agreement, in
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lieu of the lump sum distribution, a Participant or
Beneficiary may elect to receive installment payments payable
monthly, quarterly, semi-annually or annually.
(b) If the Plan is subject to the Automatic Annuity Rules of
Section 8.2, the normal form of distribution shall be the
applicable form of Automatic Annuity under Section 8.2.
In lieu of the Automatic Annuity, a Participant or Beneficiary
may elect a lump sum distribution or such other available forms
of distribution as are set forth below or as are specified in
the Adoption Agreement. Any such election by a Participant
must be accompanied by the written consent of his spouse
(consistent with the requirements for a Qualified Election
under Section 8.2).
The available forms of distribution shall be:
(i) a joint and 100% survivor annuity contract purchased
from an insurance company selected by the Committee.
(ii) a single life annuity contract purchased from an
insurance company selected by the Committee.
(iii) a single life annuity contract, with 10 years
guaranteed, purchased from an insurance company
selected by the Committee.
(iv) installments payable monthly, quarterly, semi-annually
or annually.
8.7 Certain Distributions
In the event a distribution of an account balance made to or on behalf
of a Participant prior to the attainment of age fifty-nine and one-half
(59-1/2) would be subject to the ten percent (10%) penalty tax set forth
in section 72(t) or 72(m)(5) of the Code, the Participant may, within
sixty (60) days of the distribution date, request that the distribution
be transferred to another qualified retirement plan or an Individual
Retirement Account as a rollover contribution if the distribution
satisfies the requirements of section 402(a)(5) of the Code.
8.8 Forfeitures
Any balance in the Regular Account, Employer Discretionary Contribution
Account or in the Employer Matching Contribution Account, if any, of a
Participant who is separated from service, to which he is not entitled
under the foregoing provisions, shall be forfeited and applied as
provided in Sections 3.2 and 4.2 of this Plan, and Section X(E) of the
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Dreyfus Standardized/Paired Prototype Target Benefit Plan and Trust
Adoption Agreement.
ARTICLE IX.
DEATH BENEFITS
9.1 Payment to Beneficiary
(a) Subject to the provisions of Article VIII, upon the death of a
Participant, such Participant's account balance shall be paid
to his designated Beneficiary or if no such Beneficiary
is designated or survives the Participant, to the legal
representative of such Participant's estate. Such payment
shall commence as soon as practicable after the Participant's
death and after the Trustee is given such documentation as may
be required under the provisions of the Trust Agreement or
Custodial Agreement.
(b) Subject to the provisions of the Custodial Agreement if the
Plan is an Easy Retirement Plan, the Committee may prescribe
the manner in which a Beneficiary is to be designated in
writing and the Custodial Agreement, may prescribe the manner
in which such designations shall be filed. Notwithstanding the
foregoing, any designation (or change of designation) of a
Beneficiary must be consented to by the Participant's Spouse
pursuant to a Qualified Election under Section 8.2, if such
Beneficiary is not the Participant's Spouse.
9.2 Method of Payment
Subject to the provisions of Article VIII, death benefits may be paid
in any mode of benefit payment provided for in this Plan as elected by
the Participant or Beneficiary, except in the event of the death of the
Participant after payments have commenced under an annuity contract, by
the Beneficiary.
ARTICLE X.
PARTICIPANT CONTRIBUTIONS; ROLLOVERS
10.1 Voluntary Contributions
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(a) Effective for Plan Years beginning January 1, 1987,
non-deductible Voluntary Contributions shall not be permitted
under this Plan. A separate Account shall be maintained
for Voluntary Contributions made prior to such time. Such
Account shall be nonforfeitable at all times.
(b) A Participant may make withdrawals from the Voluntary Account
at such time as the Committee shall designate, but not more
than quarterly during a Plan Year provided that no single
withdrawal shall be less than the total amount available for
withdrawal under the other limitations of this Section 10.1 or
five hundred dollars ($500), whichever is less.
Notwithstanding the preceding sentence, if the Plan is an Easy
Retirement Plan, a Participant may make such a withdrawal at
any time.
(c) If the Plan is subject to the Automatic Annuity rules of
Section 8.2, the written consent of the Participant's spouse
(consistent with the requirements for a Qualified Election
under Section 8.2) must be obtained with respect to any
withdrawal.
(d) No forfeitures of amounts allocated to Participants from
Employer contributions and earnings thereon, shall occur solely
as a result of a Participant's withdrawal of voluntary
contributions.
(e) Voluntary Contributions for Plan years beginning after December
31, 1986 shall be subject to the Contribution Percentage tests
and the rules applicable to Excess Aggregate Contributions
set forth in Section 4.7.
10.2 Voluntary Tax-Deductible Contributions
(a) Voluntary Tax-Deductible Contributions (within the meaning of
section 72(o)(5)(A) of the Code) shall not be permitted under
this Plan for taxable years beginning after December 31,
1986. A separate Voluntary Tax-Deductible Account shall be
established for such contributions made for taxable years
beginning on or before December 31, 1986. Such Account shall
be nonforfeitable at all times. However, no part of the
Voluntary Tax-Deductible Account will be used to purchase life
insurance or available for loans under Article XII.
(b) The Participant may withdraw any part of the Voluntary
Tax-Deductible Account by making written application to the
Committee. If the Plan is subject to the Automatic
Annuity Rules of Section 8.2, the written consent of the
Participant's Spouse (consistent with the requirements of a
Qualified Election under Section
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8.2) must be obtained to any withdrawal made after the first
day of the first Plan Year beginning on or after January 1,
1989.
10.3 Transfers From Other Trusts
Unless specified otherwise in the Adoption Agreement, the
Committee may, in its discretion, direct the Trustee to accept a
rollover contribution described in sections 401(a)(31), 402(a)(5),
403(a)(4) or 408(d)(3)(A)(ii) of the Code or a direct transfer of funds
from a qualified retirement plan, provided that, in the opinion of
counsel for the Employer, the transfer will not jeopardize the tax
exempt status of the Plan or create adverse tax consequences to the
Employer. The Committee shall exercise such discretion in a uniform
and nondiscriminatory manner. A transfer or rollover contribution may
be made on behalf of an Employee eligible to participate in the Plan
who has not met the age and service requirements, if any, for
participation. Such an Employee shall become a Participant on the date
the Trustee accepts the rollover contribution or transfer for all
purposes, except that no employer or employee contributions shall be
made by or on behalf of such Employee and such Employee shall not share
in Plan forfeitures until he has completed the age and service
requirements for participation and become a Participant. A rollover
contribution or transfer shall be maintained in a Participant's
Rollover Account and Transfer Account, respectively. Notwithstanding
the preceding sentence, amounts attributable to voluntary deductible
employee contributions shall be maintained in a Participant's Voluntary
Tax-Deductible Account.
A Participant may take withdrawals from the Rollover Account at such
time as the Committee shall designate, but not more than quarterly
during a Plan Year, provided that no single withdrawal shall be less
than the total amount available for withdrawal or five hundred dollars
($500) whichever is less. If the Plan is subject to the Automatic
Annuity Rules of Section 8.2 and the Participant is married, the
request for withdrawal must be consented to in writing by the
Participant's spouse. Notwithstanding the preceding sentence, if the
Plan is an Easy Retirement Plan, a Participant may make such a
withdrawal at any time.
Unless indicated otherwise in the Adoption Agreement, distributions
shall be made from the Transfer Account upon meeting the requirements
set forth under Articles VIII and IX of the Plan. If the Plan is
subject to the Automatic Annuity Rules of Section 8.2 and the
Participant is married, the request for distribution must be consented
to in writing by the Participant's spouse.
The written consent of the Participant's spouse (consistent with the
requirements for a Qualified Election under Section 8.2) must be
obtained with respect to any withdrawal.
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ARTICLE XI.
INSURANCE POLICIES
11.1 Policy Procurement
The Employer may elect in the Adoption Agreement to have the provisions
of this Article XI apply. If so authorized, the Committee may elect to
provide all Active Participants with the option of having life
insurance or annuity contracts (hereinafter referred to as "policy")
purchased on their behalf from a legal reserve life insurance company.
11.2 Rules and Regulations
The following rules shall be applicable to the acquisition, handling
and disposition of any policy:
(a) The basic options, cash surrender values and other material
features of all policies shall be as nearly uniform as
possible. No endowment policies shall be purchased.
(b) The Trustee shall be designated as the sole owner of any policy
purchased hereunder. However, all benefits, rights, privileges
and options under such policy and any dividends or credits
earned in insurance contracts will be allocated to the
Participant's account balance derived from Employer
contributions for whose benefit the contract is held.
Notwithstanding any other provision of the Plan, in computing
the amount of the vested interest of any Participant, the cash
surrender value of any policy shall be included in the
Participant's account balance. The applicable vested interest
percentage shall be applied to this sum. The product of this
computation shall then constitute the Participant's vested
interest.
(c) Payments made to any insurance company with respect to any such
policy shall constitute an investment of the funds credited to
the account balance of the Participant on whose behalf it
was purchased and his account balance derived from Employer
contributions shall accordingly be reduced by any such
payments.
(d) If the policy or policies purchased are ordinary life
insurance, the aggregate premiums payable with respect to such
policy or policies may not equal or exceed fifty percent
(50%) of the aggregate Employer contributions and forfeitures
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credited to such Participant's account balance, exclusive of
investment earnings. A Participant may upon consultation with
the Committee and with its consent modify or terminate this
election at any time. If the policy purchased is term or
universal life insurance, the phrase "twenty-five percent
(25%)" shall be substituted for the phrase "fifty percent
(50%)." If the policy or policies purchased are ordinary life
insurance and term insurance, the sum of one-half (1/2) the
ordinary life premiums and the term premiums may not exceed
twenty-five percent (25%) of the aggregate Employer
contributions and forfeitures credited to such Participant's
account balance, exclusive of investment earnings. For
purposes of these incidental insurance provisions, ordinary
life insurance contracts are contracts with both nondecreasing
death benefits and nonincreasing premiums.
(e) If a Participant is not insurable as a standard risk but may
nevertheless be eligible for insurance coverage at an extra
rating because of excess mortality hazards, the Committee, in
its discretion, may agree or not agree to obtain insurance.
The insurance to be purchased for a substandard life shall not
exceed the face amount that could have been purchased by the
premium that would have been available for the purchase of
insurance had the Participant not been rated a substandard
life. In determining whether or not to purchase insurance,
the Committee shall not discriminate and shall accord uniform
treatment to all of its Participants in a similar situation.
11.3 Transfer of Policies
(a) Upon the Participant's retirement, the Trustee shall, upon
instructions from the Committee, either transfer and deliver to
the Participant any policy held on his behalf (with such
endorsements as the Committee may direct), convert such policy
to an annuity, or surrender such policy, in which case the cash
proceeds thereof shall be included as part of the account
balance of such Participant and distributed accordingly.
(b) The Committee shall offer to a vested Participant any policy
held in his behalf at a price equal to the total cash surrender
value of such policy. If the Participant elects to purchase
such policy, the Trustee shall, upon instructions from the
Committee, transfer ownership of the policy to such
Participant, endorsed so as to vest in the transferee all
right, title and interest thereto, free and clear of the Trust.
If the Participant declines to purchase such policy, the
Trustee shall, upon instructions from the Committee, liquidate
the policy for its cash surrender value; transfer the policy to
the Participant as a distribution of benefits; or if the
Participant has terminated employment with the Employer other
than by reason of
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retirement, death or disability, place the policy on a
paid-up basis. The Committee may direct the Trustee to
designate itself, if not so designated, as Beneficiary under
such policy for the period prior to the date on which it is
liquidated.
(c) Subject to the Qualified Joint and Survivor Annuity Rules of
Section 8.2, the contracts on a Participant's life will be
converted to cash or an annuity or distributed to the
Participant upon commencement of benefits.
11.4 Payment Upon Death
Subject to the Qualified Pre-Retirement Survivor Annuity Rules of
Section 8.2, all death benefits payable under any policy held on behalf
of a deceased Participant shall be paid to his Beneficiary. Such
benefits may, as the Committee shall determine, be paid either to the
Trust Fund, in which case the cash proceeds thereof shall be included
as part of vested account balance of such Participant and distributed
accordingly, or directly by the insurance company to the Beneficiary
pursuant to the settlement option in effect at the time of the
Participant's death. In the absence of such election, the benefits may
be paid in a lump sum or under any other settlement option contained in
such policy, as determined by the Committee.
11.5 Plan Provisions Control
In the event of any conflict between the terms of this Plan and the
terms of any policy issued hereunder, the Plan provisions shall
control.
ARTICLE XII.
LOANS
12.1 Loans to Participants
If permitted under the Adoption Agreement, the Committee, in its
discretion, may authorize and direct the Trustee to grant loans to
Participants and Beneficiaries in accordance with written rules
established by the Committee. Such loans:
(a) Shall not exceed the lesser of:
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(1) fifty thousand dollars ($50,000) reduced by the excess,
if any, of (i) the highest outstanding balance of loans
from the Plan during the one (1) year period ending
on the day before the date on which such loan was made,
over (ii) the outstanding balance of loans from the
Plan on the date such loan was made, or
(2) one-half (1/2) of the Participant's or Beneficiary's
vested interest under the Plan.
For this purpose, all plans of the Employer and
Affiliated Employers shall be treated as a single plan.
(b) Shall be evidenced by a promissory note, secured by an
assignment of a portion of the Participant's or Beneficiary's
vested interest in the Plan, other than a Voluntary
Tax-Deductible Account (effective for loans granted or renewed
after October 18, 1989, the portion of a Participant's or
Beneficiary's vested interest which may be used as security for
a loan hereunder shall not exceed fifty percent (50%));
(c) Shall bear a reasonable rate of interest as determined by the
Committee to be a rate of interest commensurate with the
interest rates charged by persons in the business of lending
money for loans which would be made under similar
circumstances; and
(d) Shall require substantially level repayments of principal and
interest (with repayments made not less frequently than
quarterly) over a period not to exceed five (5) years.
Any such loan shall be nonrenewable except that if the loan was
originally granted for a period of less than five (5) years,
then the same may be renewed, in the discretion of the
Committee, for a period of time equal to the difference between
five (5) years and the duration of the original loan. The five
(5) year repayment period shall not apply to any loan used to
acquire any dwelling unit which within a reasonable period of
time is to be used (to be determined at the time the loan is
made) as the principal residence of the Participant.
If the Plan is subject to the Automatic Annuity Rules of Section 8.2,
the written consent of the Participant's spouse (consistent with the
requirements for a Qualified Election under Section 8.2) must be
obtained within the ninety (90) day period ending on the date the
account balance is used as security for the loan. Such consent shall
thereafter be binding with respect to the consenting spouse or any
subsequent spouse. However, a new
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consent shall be required if the account balance is used for
renegotiation, extension, renewal or other revision of the loan.
If Participant-directed investments have been elected in the Adoption
Agreement, loans shall be treated as an investment of one or more of
the borrower's separate Accounts, in accordance with rules established
by the Committee. Repayments of principal and interest shall be
allocated solely to the Account(s) of the borrower from which such loan
was made, and any loss caused by non-payment or default shall be
charged solely to such Account(s). Otherwise, all loans hereunder
shall be treated as an investment of the Fund.
12.2 Provisions to be Applied in a Uniform and Nondiscriminatory Manner
In deciding whether or not to grant any request for a loan hereunder,
the Committee shall be guided by procedures and criteria designed to
assure that the loans shall be made available to all Participants and
Beneficiaries on a reasonably equivalent basis and shall not be
available to Highly Compensated Employees in an amount greater than the
amount made available to other Employees.
12.3 Satisfaction of Loan
In the event of default, foreclosure on the note and attachment of the
security will not occur until a distributable event occurs under the
terms of the Plan.
If spousal consent (consistent with the requirements for a Qualified
Election under Section 8.2) has been obtained, then, notwithstanding
any other provision of the Plan, the portion of the Participant's
vested account balance used as security for a loan shall be taken into
account for purposes of determining the amount of the account balance
payable at the time of death or distribution, but only if the reduction
is used as repayment of the loan. If less than one hundred percent
(100%) of the Participant's vested account balance (determined without
regard to the preceding sentence) is payable to the surviving spouse,
then the account balance shall be adjusted by first reducing the vested
account balance by the amount of the security used as repayment of the
loan, and then determining the benefit payable to the surviving spouse.
12.4 Loans to Owner-Employees or Shareholder-Employees
No loan shall be granted to an Owner-Employee or Shareholder-Employee
unless an exemption has been obtained for such loan from the Secretary
of Labor under Section 408 of the Act (and such loan is exempt from the
excise tax imposed under Section 4975 of the Code).
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ARTICLE XIII.
TOP-HEAVY PROVISIONS
As specified in the Adoption Agreement, the provisions of this Article XIII
will either (1) always supersede any conflicting provisions in the Plan or (2)
only supersede such conflicting provisions in any Plan Year beginning after
1983, during which the Plan is or becomes Top-Heavy.
13.1 Definitions
For purposes of this Article and Article XVII, the following words
shall have the following meanings:
(a) "Compensation" shall mean Compensation as defined in Article I
as limited by section 401(a)(17) of the Code.
(b) "Determination Date" shall mean (1) the last day of the
preceding Plan Year, or (2) in the case of the first Plan Year
of any Plan, the last day of such Plan Year.
(c) "Employer" shall mean the Employer and all Affiliated
Employers.
(d) "Key Employee" shall mean any Employee or former Employee (and
the Beneficiaries of such Employee) who at any time during the
Plan Year containing the Determination Date and the four (4)
preceding Plan Years was:
(1) An officer of the Employer if such individual's annual
compensation exceeds fifty percent (50%) of the dollar
limitation under section 415(b)(1)(A) of the
Code (provided that the number of employees treated as
officers shall be no more than fifty (50) or, if fewer,
the greater of three (3) employees or ten percent (10%)
of all employees);
(2) An owner (or considered an owner under section 318 of
the Code) of at least a one-half of one percent (.5%)
interest and one of the ten (10) largest interests in
the Employer if such individual's annual compensation
exceeds one hundred percent (100%) of the dollar
limitation under section 415(c)(1)(A) of the Code;
(3) A five percent (5%) owner of the Employer; or
(4) A one percent (1%) owner of the Employer who has an
annual compensation of more than one hundred fifty
thousand dollars ($150,000).
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For this purpose, annual compensation means compensation as
defined in section 415(c)(3) of the Code, but including amounts
excludible from the Employee's gross income by reason of
sections 125, 402(a)(8), 402(h) or 403(b) of the Code. The
determination of who is a Key Employee will be made in
accordance with section 416(i)(1) of the Code and the
regulations thereunder.
(d) "Non-Key Employee" shall mean any Employee who is not a Key
Employee.
(e) "Permissive Aggregation Group" shall mean the Required
Aggregation Group of plans plus any other plan or plans of the
Employer which, when considered as a group with the Required
Aggregation Group, would continue to satisfy the requirements
of sections 401(a)(4) and 410 of the Code.
(f) "Present Value" shall be based on the interest and mortality
table specified in the Employer's qualified defined benefit
plan for Top-Heavy purposes, or if such assumptions are
not specified in the Employer's qualified defined benefit plan,
Present Value shall be based on the assumptions specified in
the Adoption Agreement.
(g) "Required Aggregation Group" shall mean (1) each qualified plan
of the Employer in which at least one Key Employee participates
or participated at any time during the determination period
(regardless of whether the Plan has terminated), and (2) any
other qualified plan of the Employer which enables a plan
described in (1) to meet the requirements of Sections 401(a)(4)
or 410 of the Code.
(h) "Super Top-Heavy Plan": For any Plan Year after 1983, this
Plan is Super Top-Heavy if the Top-Heavy Ratio for the Plan,
the Required Aggregation Group or the Permissive Aggregation
Group, as applicable, exceeds ninety percent (90%).
(i) "Top-Heavy": For any Plan Year beginning after 1983, this Plan
is Top-Heavy if any of the following conditions exist:
(1) If the Top-Heavy Ratio for this Plan exceeds sixty
percent (60%) and this Plan is not part of any Required
Aggregation Group or Permissive Aggregation Group of
plans.
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(2) If this Plan is a part of a Required Aggregation Group
of plans, but not part of a Permissive Aggregation
Group and the Top-Heavy Ratio for the group of plans
exceeds sixty percent (60%).
(3) If this Plan is a part of a Required Aggregation Group
and part of a Permissive Aggregation Group of plans and
the Top-Heavy Ratio for the Permissive Aggregation
Group exceeds sixty percent (60%).
(j) "Top-Heavy Ratio":
(1) If the Employer maintains one or more defined
contribution plans (including any Simplified Employee
Pension Plan) and the Employer has not maintained any
defined benefit plan which during the five (5) year
period ending on the Determination Date has or has had
accrued benefits, the Top-Heavy Ratio for this Plan
alone or for the Required or Permissive Aggregation
Group as appropriate is a fraction, the numerator of
which is the sum of the account balances of all Key
Employees as of the Determination Date (including any
part of any account balance distributed in the five (5)
year period ending on the Determination Date, and the
denominator of which is the sum of all account balances
(including any part of any account balance distributed
in the five (5) year period ending on the Determination
Date, both computed in accordance with section 416 of
the Code and the regulations thereunder. Both the
numerator and denominator of the Top-Heavy Ratio are
increased to reflect any contribution not actually made
as of the Determination Date, but which is required to
be taken into account on that date under section 416 of
the Code and the regulations thereunder.
(2) If the Employer maintains one or more defined
contribution plans (including any Simplified Employee
Pension Plan) and the Employer maintains or has
maintained one or more defined benefit plans which
during the five (5) year period ending on the
Determination Date has or has had any accrued 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 (d)
above, and the Present Value of accrued benefits under
the aggregated defined benefit plan or plans
for all employees as of the Determination Date, and the
denominator of which is the sum of the account balances
under the aggregated defined contribution plan or plans
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for all participants, determined in accordance with
(j)(1) above, and the Present Value of accrued benefits
under the defined benefit plan or plans for all
Participants as of the Determination Date, all
determined in accordance with section 416 of the Code
and the regulations thereunder. The accrued benefits
under a defined benefit plan in both the numerator and
denominator of the Top-Heavy Ratio are increased for
any distribution of an accrued benefit made in the five
(5) year period ending on the Determination Date.
(3) For purposes of (1) and (2) above, the value of account
balances and the Present Value of accrued benefits will
be determined as of the most recent Valuation Date that
falls within or ends with the twelve (12) month period
ending on the Determination Date, except as provided in
section 416 of the Code and the regulations thereunder
for the first and second Plan years of a defined
benefit plan. The account balances and accrued
benefits of a participant who is not a Key Employee but
who was a Key Employee in a prior year, or has not been
credited with at least one Hour of Service for any
Employer maintaining the Plan at any time during the
five (5) year period ending on the Determination Date
will be disregarded. The calculation of the Top-Heavy
Ratio, and the extent to which distributions,
rollovers, and transfers are taken into account will be
made in accordance with section 416 of the Code and the
regulations thereunder. Deductible Employee
contributions will not be taken into account for
purposes of computing the Top-Heavy Ratio. When
aggregating plans the value of account balances and
accrued benefits will be calculated with references to
the Determination Date that falls within the same
calendar year.
(4) Solely for the purpose of determining if the Plan, or
any other plan included in a Required Aggregation Group
of which this Plan is a part, is Top-Heavy (within the
meaning of section 416(g) of the Code) the accrued
benefit of a Non-Key Employee shall be determined under
(a) the method, if any, that uniformly applies for
accrual purposes under all plans maintained by the
Employer, or (b) if there is no such method, as if such
benefit accrued not more rapidly than the slowest
accrual rate permitted under the fractional accrual
rate of section 411(b)(1)(C) of the Code.
(k) "Valuation Date" shall mean the last day of the Plan Year and
is the day on which account balances and accrued benefits are
valued for purposes of calculating the Top-Heavy Ratio.
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13.2 Vesting Schedules
For any Plan Year in which this Plan is Top-Heavy, one of the Top Heavy
minimum vesting schedules as elected by the Employer in the Adoption
Agreement will automatically apply to the Plan. The Top Heavy Minimum
vesting schedule applies to all benefits within the meaning of section
411(a)(7) of the Code except those attributable to Employee
contributions, including benefits accrued before the effective date of
section 416 of the Code and benefits accrued before the Plan became
Top-Heavy. Further, no reduction in a vested benefit may occur in the
event the Plan's status as Top-Heavy changes for any Plan Year.
However, this Section does not apply to the account balance of any
Employee who does not have an Hour of Service after the Plan has
initially become Top-Heavy and such Employee's account balance
attributable to Employer contributions and forfeitures will be
determined without regard to this Section.
13.3 Minimum Allocation
(a) Except as otherwise provided in (b), (c) and (d) below, when
the Plan is Top-Heavy the Employer contributions and
forfeitures allocated on behalf of any Participant who
is a Non-Key Employee shall not be less than the lesser of
three percent (3%) of such Participant's Compensation or, if
neither the Employer nor an Affiliated Employer maintains a
defined benefit plan which designates this Plan to satisfy
sections 401(a)(4) or 410 of the Code, the largest percentage
of Employer contributions and forfeitures, as a percentage of
the Key Employee's Compensation, as limited by section
401(a)(17) of the Code allocated on behalf of any Key Employee
for that year. For purposes of determining whether a Plan is
Top-Heavy, Elective Deferrals are considered Employer
contributions. However, neither Elective Deferrals nor
Matching Contributions may be taken into account for purposes
of satisfying the three percent (3%) minimum Top-Heavy
contributions requirements for Plan Years beginning on or after
January 1, 1989.
The Minimum Allocation is determined without regard to a Social
Security contribution. This Minimum Allocation shall be made
even though, under other Plan provisions, the Participant would
not otherwise be entitled to receive an allocation, or would
have received a lesser allocation for the year because of (1)
the Participant's failure to complete one thousand (1,000)
Hours of Service (or any equivalent provided in the Plan), (2)
the Participant's failure to make mandatory employee
contributions, or (3) the Participant's Compensation is less
than a stated amount.
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(b) The provision in (a) above shall not apply to any Participant
who was not employed by the Employer on the last day of the
Plan Year.
(c) If the Employer maintains a qualified defined benefit plan and
this Plan is Top-Heavy, but is not Super Top-Heavy, each
Participant who is a Non-Key Employee and is not covered by
the defined benefit plan shall receive the Minimum Allocation
under (a) above, except that "four percent (4%) "shall be
substituted for "three percent (3%)".
(d) The provision in (a) above shall not apply with respect to any
Participant covered under any other qualified plan or plans of
the Employer other than a paired plan of the Sponsor and the
adopting Employer has elected in the Adoption Agreement that
the minimum Top Heavy allocation or benefit will be met in the
other plan or plans.
If the Employer maintains a qualified defined benefit plan,
other than Sponsor's paired defined benefit plan 02001, and the
adopting Employer has elected in the Adoption Agreement to
provide the Top Heavy minimum allocation or benefit under this
Plan, then with respect to participants covered under both
plans, "five percent (5%)" shall be substituted for "three
percent (3%)" in (a) above if the Plan is Super Top Heavy and
"seven and one-half percent (7 1/2%)" shall be substituted for
"three percent (3%)" in (a) above if the Plan is Top Heavy, but
not Super Top Heavy.
(e) The Minimum Allocation required (to the extent nonforfeitable
under section 416(b) of the Code) may not be forfeited under
section 411(a)(3)(B) or 411(a)(3)(D) of the Code.
13.4 Adjustment to Defined Benefit Fraction and Defined Contribution
Fraction under section 6.4.
If the Plan is Super Top-Heavy, then "one-hundred percent (100%)" shall
be substituted for "one hundred twenty-five percent (125%)" in the
denominator of the Defined Benefit Fraction and the Defined
Contribution Fraction under Section 6.4.
ARTICLE XIV.
THE COMMITTEE
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14.1 Creation of a Committee
The Employer may appoint a person or persons to act as the Committee
and serve at its pleasure. If no such Committee is appointed, the
Employer shall act as the Committee. The Employer shall notify the
Trustee of the appointment of the original members of the Committee and
of each change in the membership of the Committee. Vacancies in the
Committee shall be filled by the Employer.
14.2 Committee Action
In the event that the Employer appoints such person or persons to act
as the Committee, such Committee shall act by a majority of its members
at a meeting (which can be by telephone) or in writing without a
meeting. A member of the Committee who is also a Participant of the
Plan shall not vote or act as a member of the Committee upon any matter
relating solely to his rights or benefits under the Plan.
14.3 Authorized Signatory
Except as otherwise provided in Section 14.10, the Committee may
designate a person or persons who shall be authorized to sign any
document in the name of the Committee. The Trustee shall be fully
protected in relying upon any notice, instruction or certification from
the Committee or executed pursuant to the provisions of this Section.
14.4 Powers and Duties
The Committee shall have such powers and duties as are necessary for
the proper administration of the Plan, including but not limited to the
power to make decisions with respect to the application and
interpretation of the Plan. The Committee shall be empowered to
establish rules and regulations for the transactions of its business
and for the administration of the Plan. The determinations of the
Committee with respect to the interpretation, application, or
administration of the Plan shall be final, binding, and conclusive upon
each person or party interested or concerned.
14.5 Nondiscrimination
Where provisions of this Plan are at the discretion of the Committee,
all Participants shall be treated in a uniform and nondiscriminatory
manner.
14.6 Records and Reports
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The Committee shall maintain such records as may be necessary for
proper administration of the Plan and shall be responsible for
supplying all information and reports to the Internal Revenue Service,
Department of Labor, Participants, Beneficiaries and others as required
by law. Employees may examine records pertaining directing to them.
14.7 Reliance on Professional Advice
The Committee shall be entitled to rely conclusively on the advice or
opinion of any consultant, accountant, or attorney and such persons may
also act in their respective professional capacities as advisors to the
Employer.
14.8 Payment of Expenses
All expenses of administration may be paid out of the Trust Fund unless
paid by the Employer. Such expenses shall include any expenses
incident to the duties of the Committee, including, but not limited to,
fees of consultants, accountants, and attorneys, and other costs of
administering the Plan. Until paid, the expenses shall constitute a
liability of the Trust Fund. However, the Employer may reimburse the
Trust Fund for any administration expense incurred. Any administration
expense paid to the Trust Fund as a reimbursement shall not be
considered an Employer contribution.
14.9 Limitation of Liability
The Committee must discharge its duties solely in the interest of the
Participants and their Beneficiaries. The Committee must carry out its
duties with the care, skill, prudence and diligence under circumstances
then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of
like character and with like aims. The Committee, however, shall not
be liable for any acts or decisions based on the advice or opinion of
any consultant, accountant or attorney employed by the Committee in
their respective professional capacities as advisors to the Employer,
provided, however, that the Committee did not violate its general
fiduciary duty in selecting or retaining such advisor.
14.10 Payment Certification to Trustee
The Committee shall provide written instruction to the Trustee with
respect to all payments which become due under the terms of the Plan
and shall direct the Trustee to make such payments from the Trust Fund.
All orders, requests and instructions by the Committee to the Trustee
shall be in writing and signed by an authorized member of the
Committee.
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The Trustee shall act and shall be fully protected in acting in
accordance with such orders, requests and instructions.
14.11 Claims Procedure
A Participant or Beneficiary ("Claimant") may file a written claim for
benefits with the Committee. If the Committee decides that a Claimant
is not entitled to all or any part of the benefits claimed, it shall
within ninety (90) days of receipt of such claim, inform the Claimant
in writing of its determination; the reasons for its determination,
including specific references to the pertinent Plan provisions; and the
Plan's review procedures. The Claimant or his authorized personal
representative shall be permitted to review pertinent documents and
within sixty (60) days after receipt of the notice of denial of claim
to request to appear personally before it or to submit such further
information or comments to the Committee as will, in the Claimant's
opinion establish his right to such benefits. The Committee will
render its final decision with the specific reason therefore in writing
and will transmit it to the claimant by certified mail within sixty
(60) days (or one hundred twenty (120) days, if special circumstances
require an extension of time and the claimant is given written notice
within the initial sixty (60) day period) of any such appearance. If
the final decision is not made within such period, it will be
considered denied. If, upon review of a request for benefits
hereunder, the Committee finds the Participant ineligible for such
benefits, it shall inform the Participant in writing the reason or
reasons for such denial. In the event any Participant or Beneficiary
disagrees with the conclusions of the Committee, the Committee must
reconsider their decision based on the facts and evidence presented to
them by the Participant or Beneficiary. Further, the Committee must
substantiate in writing to any Participant or Beneficiary who disagrees
with the amount of his benefit the method under which the benefit
computations were made.
ARTICLE XV.
GENERAL PROVISIONS
15.1 No Right of Continued Employment
No Employee or Participant shall have any right or claim to any benefit
under the Plan except in accordance with the provisions of the Plan.
The adoption of the Plan shall not be construed as creating any
contract of employment between the Employer and any Employee or
otherwise conferring upon any Employee or other person any legal right
to continuation of employment, nor as limiting or qualifying the right
of the Employer to
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discharge any Employee without regard to the effect that such
discharge might have upon his rights under the Plan.
15.2 Nonalienation of Interest
No benefit or interest available hereunder will be subject to
assignment or alienation, either voluntarily or involuntarily. The
preceding sentence shall not apply to loans made to the Participant
under the Plan, or domestic relations orders which are determined by
the Committee to be qualified domestic relations orders, as defined in
section 414(p) of the Code and section 206(d)(3) of the Act, or were
entered before January 1, 1985. Notwithstanding any provision in the
Plan to the contrary, payments pursuant to a qualified domestic
relations order may be made to an alternate payee prior to the time
that the Plan may make payments to the affected Participant.
15.3 Incompetence of Participants and Beneficiaries
If the Committee deems any person incapable of receiving benefits to
which he is entitled by reason of minority, illness, infirmity, or
other incapacity, it may direct the Trustee to make payment directly
for the benefit of such person to a legal representative of such
person. Such payment shall, to the extent thereof, discharge all
liability of the Employer, the Committee, the Trustee and the Fund.
15.4 Unclaimed Benefits
If any benefit hereunder has been payable and unclaimed for four (4)
years since the whereabouts or continued existence of the person
entitled thereto was last known to the Committee, such benefit shall be
placed in a segregated, interest-bearing suspense account with no
further attempts to uncover the whereabouts of the person entitled
thereto. The Committee shall rely upon notification from the
Department of Health, Education and Welfare as to the whereabouts of
such person when he applies for benefits under the Social Security Act.
The four (4) year period may be extended by the Committee whenever, in
its discretion, special circumstances justify such action. The
Committee shall make a reasonable and diligent search for the
Participant before any benefit is segregated. If a benefit is
forfeited because the Participant or Beneficiary cannot be found, such
benefit will be reinstated if a claim is made by the Participant or
Beneficiary.
15.5 Separate Employer Trusts Maintained
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Except as provided in Section 16.5, the Plan of each Employer which
adopts this Prototype Plan and corresponding Trust Agreement as part of
its Plan shall be administered separately from those of any other
Employer.
15.6 Governing Law
The Plan shall be administered, construed and enforced to the state
wherein the Trustee maintains its principal place of business, except
to the extent preempted by the Act.
15.7 Severability
Should any provision of the Plan or rules and regulations adopted
thereunder be deemed or held to be unlawful or invalid for any reason,
such fact shall not adversely affect the other provisions unless such
invalidity shall render impossible or impractical the functioning of
the Plan. In such case, the appropriate parties shall immediately
adopt a new provision to take the place of the illegal or invalid
provision.
15.8 Gender and Number
The masculine pronoun wherever used shall include the feminine pronoun
and the singular shall include the plural and the plural shall include
the singular, wherever appropriate to the context.
15.9 Titles and Headings
The titles or headings of the respective Articles and Sections are
inserted merely for convenience and shall be given no legal effect.
15.10 Failure of Employer's Plan to Qualify
The use of this Prototype Plan and corresponding Trust Agreement shall
be available only to the Plans of Employers which meet the requirements
of section 401(a) of the Code. If the Employer's Plan fails to attain
or retain qualification, such Plan will no longer participate in this
Prototype Plan and will be considered an individually designed plan.
15.11 Exclusive Benefit
Except as provided in Section 6.3, at no time shall any part of the
corpus or income of the Fund be used for or diverted to purposes other
than for the exclusive benefit of the Participants and their
Beneficiaries and defraying reasonable expenses of the Plan.
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15.12 Action by Employer
Any action, including the amendment or termination of the Plan as
provided in Sections 16.1 and 16.2 of the Plan, by an Employer which is
a corporation shall be taken by the board of directors of the
corporation or any person or persons duly empowered to exercise the
powers of the corporation with respect to the Plan. In the case of an
Employer which is a partnership, any action, including the amendment or
termination of the Plan as provided in Sections 16.1 and 16.2 of the
Plan, shall be taken by any general partner or the partnership. In the
case of an Employer which is a sole proprietorship, any action,
including the amendment or termination of the Plan as provided in
Sections 16.1 and 16.2 of the Plan, shall be taken by the sole
proprietor.
ARTICLE XVI
AMENDMENT AND TERMINATION
16.1 Amendment
(a) The Employer expressly recognizes the authority of the Sponsor
to amend the Plan and the Trust Agreement or Custodial
Agreement from time to time, and the Employer shall be deemed
to have consented to any such amendment. The Employer shall
receive a written instrument indicating the amendment of the
Plan and Trust Agreement and such amendment shall become
effective as of the effective date of such instrument.
(b) The Employer reserves the right to amend the Plan at any time.
Except for (1) changes to the choice of options in the Adoption
Agreement, (2) amendments stated in the Adoption Agreement
which allow the Plan to satisfy section 415 of the Code or to
avoid duplication of minimums under section 416 of the Code
because of the required aggregation of multiple plans, or (3)
amendments published by the Internal Revenue Service which
specifically provide that their adoption will not cause the
Plan to be treated as individually designed, an Employer will
no longer participate in the Prototype Plan and will be
considered to have an individually designed plan if it amends
the Plan or obtains a waiver of the minimum funding requirement
under Section 412(d) of the Code.
(c) Notwithstanding anything in this Plan to the contrary, no
amendment shall:
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(1) Increase the responsibility of the Trustee without the
Trustee's written consent;
(2) Have the effect of decreasing a Participant's account
balance or eliminating an optional form of benefit with
respect to accrued benefits, except to the extent
permitted by section 412(c)(8) of the Code;
(3) In the case of an Employee who is a Participant as of
the later of the date such amendment is adopted or the
date it becomes effective, decrease the nonforfeitable
percentage (determined as of such date) of such
Employee's right to his Employer-derived account
balance below his non-forfeitable percentage computed
under the Plan without regard to such amendment;
(4) Violate the exclusive benefit rule of Section 15.11.
16.2 Termination and Partial Termination
The adopting Employer may, at any time, by written notice to the
Trustee in such form as is acceptable to the Trustee, terminate the
Plan and discontinue all further contributions hereunder. Upon
termination or partial termination of the Plan or upon complete
discontinuance of contributions to a Profit Sharing Plan, each affected
Employee shall have a one hundred percent (100%) vested and
nonforfeitable interest in his account balance. Upon a termination or
partial termination of the Plan (and subject to the limitations of
section 4.10 in the case of a cash or deferred arrangement qualified
under section 401(k) of the Code), each affected Participant's account
balance may be distributed in accordance with the provisions of Article
VIII or, at the option of the Employer and with the Trustee's consent,
shall continue to be held by the Trustee for distribution as authorized
by Articles VIII and IX. Notwithstanding the preceding sentence, a
Profit Sharing Plan which does not offer an annuity form of benefit
(purchased from a commercial provider) may distribute each affected
Participant's account balance immediately in a single sum without
Participant consent, provided that neither the Employer nor any
Affiliated Employer maintains another defined contribution plan, other
than an employee stock ownership plan (as defined in section 4975(e)(7)
of the Code). If either the Employer or any Affiliated Employer
maintains another such defined contribution plan, then a Participant's
account balance may be transferred to such plan without his consent if
the Participant does not consent to the single sum distribution from
this Plan.
16.3 Plan Merger and Consolidation or Transfer of Plan Assets
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In the event of any merger or consolidation with, or transfer of assets
or liabilities to, any other plan, each Participant of this Plan would
(if the Plan then terminated) receive an amount immediately after such
merger, consolidation or transfer which is equal to or greater than the
amount he would have been entitled to receive immediately before the
merger, consolidation, or transfer (if the Plan had then terminated).
16.4 Amended and Restated Plans
If this Plan is an amendment and restatement of an existing plan
("Existing Plan"), the following provisions shall apply:
(a) Each Employee who was a participant in the Existing Plan
immediately prior to the Effective Date shall become a
Participant in this Plan on the Effective Date.
(b) The balance of such Employee's accounts under the Existing Plan
attributable to employer or employee contributions shall be
allocated to the corresponding Accounts under this Plan or
accounted for separately.
(c) All years of service credited for vesting service under the
Existing Plan shall be credited as years of Service under this
Plan. The amendment and restatement shall not reduce the
vested interest of a participant in the Existing Plan, and any
change in the vesting schedule shall be subject to the
provisions of Section 7.3.
(d) The amendment and restatement shall not reduce a Participant's
account balance and shall not eliminate any optional form of
benefit.
(e) Any beneficiary designation in effect under the Existing Plan
immediately before the amendment and restatement shall be
deemed to be a valid Beneficiary designation under this Plan,
to the extent consistent with Article VIII.
16.5 Participating Employers
(a) With the consent of the Employer and Trustee, and by duly
authorized action, any Affiliated Employer may adopt this Plan
and become a Participating Employer.
(b) Each such Participating Employer shall be bound by the same
Adoption Agreement provisions as those selected by the
Employer, and to use the same Trustee as the Employer. If the
Employer does not make a contribution to the Plan, the
Participating Employer shall be obligated to do so.
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(c) The Trustee may, but shall not be required to commingle, hold
and invest as one Trust Fund all contributions made by
Participating Employers, as well as all increments thereof.
(d) With respect to its relations with the Trustee and Committee
for the purposes of this Plan, each Participating Employer
shall be deemed to have irrevocably designated the
adopting Employer as its agent. Amendment of this Plan by the
adopting Employer at any time when there shall be a
Participating Employer hereunder shall only be by the written
action of the adopting Employer, with the consent of the
Trustee where such consent is necessary in accordance with the
terms of this Plan.
(e) A Participating Employer may, at any time, by written notice to
the Employer and Trustee in such form as is acceptable to the
Employer and Trustee, discontinue its participation in the
plan and discontinue all further contributions hereunder. The
Employer shall direct the Trustee to transfer, deliver and
assign Fund assets attributable to the Participants of such
Participating Employer to such successor trustee as shall have
been designated by such Participating Employer, in the event
that it has established a separate plan for its Employees. If
no successor trustee is designated, the Trustee shall retain
such assets for the Employees of said Participating Employer
pursuant to the provisions of Articles VIII and IX hereof.
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ARTICLE XVII.
PAIRED PLAN PROVISIONS
The provisions of this Article are applicable only if the Employer adopts a set
of Dreyfus paired plans. Paired plans are a combination of standardized form
plans offered by the Sponsor, so designed that if any single plan or
combination of plans is adopted by an Employer each plan by itself, or the
plans together, will meet the anti-discrimination rules set forth in section
401(a)(4) of the Code, the contribution and benefit limits set forth in section
415 of the Code and the Top-Heavy provisions set forth in section 416 of the
Code.
17.1 Compliance With Section 415(e) of the Code
If the Employer adopts one or two of Sponsor's paired defined
contribution plans and Sponsor's paired defined benefit plan, the "1.0"
aggregate limitation of section 415(e) of the Code on contributions and
benefits will be met by freezing or reducing the rate of benefit
accruals under the paired defined benefit plan.
17.2 Adjustment of Combined Plan Fractions Under Section 415 of the Code for
Top-Heavy Ratio in Excess of Ninety Percent (90%)
In any Plan Year in which the Plan becomes Super Top-Heavy, the
denominators of the Defined Benefit Fraction (as defined in Section 6.4
of the Plan) and the Defined Contribution Fraction (as defined in
Section 6.4 of the Plan) shall be computed using one hundred percent
(100%) of the dollar limitation instead of one hundred twenty-five
percent (125%).
17.3 Top-Heavy Minimum Benefits and Contributions
(a) When the paired plans maintained by the Employer are Top-Heavy,
but are not Super Top-Heavy, each Non-Key Employee who
participates in paired defined contribution plan number 01001,
01003, 01004, 01005 or 01006, but does not participate in
paired defined benefit plan number 02001, will receive the
Minimum Allocation provided for in Section 13.3. Each Non-Key
Employee who participates in two of the paired defined
contribution plans, but not the paired defined benefit plan,
shall receive the minimum Top-Heavy allocation under the paired
defined contribution plan specified in the Adoption Agreement.
Each Non-Key Employee who is a participant in this Plan and the
paired defined benefit plan shall receive the minimum top-heavy
benefit accrual under such plan and shall not receive any
top-heavy minimum contribution under the paired defined
contribution plan or plans.
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(b) When the paired plans maintained by the Employer are Super
Top-Heavy, each Non-Key Employee who participates in paired
defined contribution plan number 01001, 01003, 01004, 01005 or
01006 but who does not participate in paired defined benefit
plan number 02001, will receive the Minimum Allocation provided
for in Section 13.3. Each Non-Key Employee who participates in
two of the paired defined contribution plans, but not the
defined benefit plan, shall receive the minimum top-heavy
allocation under the paired defined contribution plan specified
in the Adoption Agreement. Each Non-Key Employee who is a
Participant in this Plan and the paired defined benefit plan
shall receive the minimum top heavy benefit accrual under such
plan and shall not receive any top heavy minimum contribution
under the paired defined contribution plan or plans.
17.4 Integration of Paired Plans
If the Employer adopts paired plans, only one plan may allocate
contributions or determine benefits on an integrated basis.
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AMENDMENT TO BASIC PLAN DOCUMENT NO. 01
The Dreyfus Prototype Defined Contribution Basic Plan Document No. 01, Article
IV, 4.2, has been modified to read as follows:
4.2 FORFEITURES
Unless otherwise specified in the Adoption Agreement, forfeitures, if any, will
be allocated to Participants' Accounts in the following manner: Forfeitures of
Employer Discretionary Contributions will be allocated in the same manner as are
such contributions. Forfeitures of Matching Contributions will be allocated to
the Matching Contribution Account in the same manner as are such contributions.
Forfeitures of Matching Contributions that are forfeited to the extent they
relate to Excess Elective Deferrals, Excess Contributions or Excess Aggregate
Contributions will be allocated to the Matching Contribution Account in the same
manner as are such Matching Contributions, except no such forfeitures shall be
allocated to any Highly Compensated Employee.
Please retain this amendment with your copy of the Basic Plan Document.
<PAGE> 1
EXHIBIT 99(c)
94-05
DREYFUS TRUST AGREEMENT
THIS TRUST AGREEMENT is made by and between the Employer whose name is set forth
on the attached adoption agreement (the "Adoption Agreement") and the person
designated as Trustee in the Adoption Agreement (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Employer has adopted the qualified employee retirement plan
described in the Adoption Agreement (the "Plan") for the exclusive benefit of
its employees who are participants in such Plan (collectively the "Participants"
and individually a "Participant") and their beneficiaries; and
WHEREAS, the Employer desires to appoint the Trustee as a "nondiscretionary
trustee" (within the meaning of Section VI(g) of Prohibited Transaction Class
Exemption 77-9 under Section 408(a) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")) for the limited purposes hereinafter set
forth; and
WHEREAS, the Trustee desires to act as such a nondiscretionary trustee of the
Plan for the limited purposes hereinafter set forth;
NOW, THEREFORE, the Employer hereby establishes a fund with the Trustee that
shall be held, managed and controlled by the Trustee without distinction between
principal and income (the "Trust Fund") upon the terms and conditions
hereinafter set forth:
ARTICLE 1
CONCERNING THE TRUST FUND
Section 1.1. The Plan, this Trust Agreement and the Trust Fund created hereunder
are intended to meet all the applicable requirements of Sections 401(a) and
501(a) of the Internal Revenue Code of 1986, as amended (the "Code") and ERISA.
The Employer assumes full responsibility to establish and maintain the Plan as a
plan meeting the qualification requirements of Section 401(a) of the Code and
hereby agrees to notify the Trustee promptly in the event of any change in such
qualified status. Copies of all documents related to the Plan including, without
limitation, the Plan, amendments to the Plan and the most recent determination
letter received from the Internal Revenue Service with respect to the Plan (or
an opinion of counsel satisfactory to the Trustee as to the plan's qualified
status), upon request will be provided to the Trustee by the Employer.
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Section 1.2. The Employer certifies and represents to the Trustee that there are
no duties imposed on the Trustee under the terms of the Plan that are not
consistent with the provisions of this Trust Agreement.
Section 1.3. The Trustee agrees to accept contributions that are paid to it by
the Employer (as well as rollover contributions and transfers from other
qualified retirement plans) in accordance with the terms of the Plan. The
Trustee shall be entitled to rely upon the determination of the fiduciary named
in the Plan as having the authority to control and manage the administration of
the Plan and its delegates, designers, agents and employees (the "Committee")
that all assets received by the Trustee are properly contributed or transferred
in accordance with the terms of the Plan. Such contributions shall be in cash or
in such other form that may be acceptable to the Trustee. All contributions
received by the Trustee and all other receipts of the Trustee, whether by way of
dividends, interest or otherwise, for the account of the Trust Fund shall be
held, managed and controlled by the Trustee pursuant to the terms of this Trust
Agreement without distinction between principal and income and may be
commingled, and held and invested and, with all disbursements therefrom,
accounted for by the Trustee, as a single fund. The Employer hereby agrees that
the Employer and the Committee shall have the exclusive responsibility, and the
Trustee shall not have any responsibility or duty under this Trust Agreement, to
determine whether the amount, timing and type of any contribution by the
Employer or any Participant is in accordance with the terms of the Plan or
applicable law, or for the collection of any contributions under the Plan.
Section 1.4 The Trustee, solely from assets held in the Trust Fund, shall make
payments in such amounts and for such proper purposes as may be specified in the
Committee's Directions (as defined in Section 2.1 herein). The Employer hereby
agrees that the Committee shall have the exclusive responsibility, and the
Trustee shall not have any responsibility or duty, under this Trust Agreement
for determining that the Committee's Directions are in accordance with the terms
of the Plan and applicable law, including without limitation, determining the
amount, timing or method of payment or the identity of each person to whom such
payments shall be made. The Trustee shall have no responsibility or duty to
determine the tax effect of any payment or to see to the application of any
payment, but shall be responsible for the proper application of amounts withheld
from distributions for payment of taxes to the appropriate authorities.
Section 1.5. The Trustee shall have no duties or obligations with respect to the
Trust Fund unless such duties or obligations have been specifically undertaken
by the Trustee by the express terms of the Trust Agreement or except to the
extent such duties or obligations are required under applicable laws.
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ARTICLE II
INVESTMENT AND ADMINISTRATION OF THE FUND
Section 2.1.1. In accordance with the provisions of ERISA, the Trustee shall
have exclusive authority and discretion to manage and control the Trust Fund;
provided, however, that the Trustee's authority and discretion with respect to
the Trust Fund shall at all times, except to the extent that an Investment
Manager has been appointed pursuant to Section 2.5, be subject to the proper,
written directions of the Committee which are made in accordance with the terms
of the Plan and which are not contrary to ERISA (the "Committee's Directions").
The Trustee shall be entitled to rely entirely on the Committee's Directions,
shall be under no duty to determine or make inquiry whether the Committee's
Directions received by it are in accordance with the provisions of the Plan or
applicable law, and shall have no liability and shall be fully indemnified by
the Employer for any action taken in accordance with, or any failure to act in
the absence of, the Committee's Directions.
Section 2.1.2. If the Committee advises the Trustee that the Plan provides for
individual accounts and permits each Participant to direct the investment of the
assets in the Participant's account, then, pursuant to the Committee's
Directions, the Trustee shall invest the assets in such account among the
investment options established pursuant to Section 2.3 as directed by each such
Participant in accordance with such procedures as are acceptable to the Trustee.
If such procedures include the effecting of exchanges among the investment
options established pursuant to Section 2.3 or otherwise directing the
investment of the assets allocated to a Participant's account by use of the
telephone system maintained for such purpose by the trustee or its agent, the
Trustee shall be entitled to rely on any telephonic direction reasonably
believed by it to be genuine from any person representing himself or herself to
be a Participant directing the investment of assets in his or her account,
provided that the Trustee employs reasonable procedures for processing such
directions, such as requiring a form of personal identification, to confirm that
telephonic directions are genuine. If the Trustee does not follow such
procedures, it may be liable for any losses due to processing unauthorized or
fraudulent directions. Subject to the foregoing, the Trustee shall be entitled
to rely entirely on Participants' directions, shall be under no duty to
determine or make inquiry whether Participants' directions are in accordance
with the provisions of the Plan or applicable law, and shall have no liability
and shall be fully indemnified by the Employer for any action taken in
accordance with, or any failure to act in the absence of, Participants'
directions.
Section 2.2 Except to the extent an Investment Manager has been appointed
pursuant to Section 2.5, the Committee shall have authority and discretion to
select the nature and amount of the investments to be made under the Plan.
Subject to Section 2.5, the Trustee shall invest, reinvest and dispose of the
assets comprising the Trust Fund in accordance with the Committee's Directions.
The Committee shall exercise such
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authority and discretion solely in the interest of the Participants and their
beneficiaries and (1) for the exclusive purpose of (a) providing benefits to the
Participants and their beneficiaries and (b) defraying reasonable expenses of
administering the Plan, (2) with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, (3) by diversifying the
investments of the Plan so as to minimize the risk of large losses, unless under
the circumstances it is clearly prudent not to do so and (4) in accordance with
the terms of the Plan and with applicable law. The Trustee shall have no duty
hereunder to review the investments held in the Trust Fund. The Trustee shall
not make suggestions or otherwise render investment advice to the Committee or
any Participant with respect to investment, reinvestment, or disposition of
assets held in the Trust Fund.
Section 2.3. Except to the extent required under applicable law, the authority
and discretion of the Trustee with respect to the Trust Fund shall be limited to
the following nondiscretionary powers which, with the exception of those powers
set forth in Section 2.3(0), shall be exercised solely in accordance with the
Committee's Directions or, to the extent provided in Section 2.1.2, the
directions of Participants or, to the extent provided in Section 2.5, the
directions of an Investment Manager:
(a) To open and maintain accounts for the Plan, and to the extent
that the Plan is a "defined contribution plan" (within the
meaning of Section 3(34) of ERISA), individual accounts for
each of the Participants.
(b) To receive contributions from the Employer and to credit
contributions made by the Employer to the individual accounts
of Participants established pursuant to paragraph (a) above.
(c) To invest contributions made by the Employer and other assets
of the Plan in shares of any investment company sponsored,
managed, advised, administered or distributed by The Dreyfus
Corporation or any of its affiliates (the "Dreyfus Funds"), in
equity securities issued by the Employer or an affiliate which
are publicly traded and which are "qualifying employer
securities" within the meaning of Section 407(d)(5) of ERISA
("Employer Stock"), in any collective investment fund
maintained by a bank or trust company as a "group trust" for
the collective investment of employee benefit plans qualified
under Section 401(a) of the Code, and such other investments
as may be acceptable to the Trustee and as agreed to in
writing by The Dreyfus Corporation ("Sponsor") and the
Committee (the Dreyfus Funds and such other investments shall
be collectively referred to as the "Investments"); and to
reinvest dividends and other distributions in the Dreyfus
Funds or other Investments provided, however, that if the Plan
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is established pursuant to one of the Sponsor's prototype plan
documents, investments shall be subject to such investment
limitations or minimum requirements for investments in Dreyfus
Funds as may be imposed by the Sponsor. The Employer hereby
agrees that the Trustee shall not be restricted in making such
investments to investments that are authorized by governing
state laws (as determined under Section 9.5) for the
investment of trust funds. If Plan assets are invested in any
group trust, the terms of the group trust agreement or other
governing document are hereby incorporated by reference and
made a part of the Trust Agreement as long as the group trust
remains exempt from taxation under Section 501(a) of the Code.
The Trustee shall not be responsible in any way respecting the
form, terms, payment provisions or issuer of any insurance
contract which it is directed to purchase and/or hold to
provide for the payment of benefits, or for performing any
functions under any such insurance contract which it may be
directed to purchase and/or hold as contract holder thereunder
(other than the execution of any documents incidental thereto
and transfer or receipt of funds thereunder in accordance with
the Committee's Directions).
(d) To redeem, transfer or exchange shares of the Dreyfus Funds,
to sell, exchange, convey, transfer or otherwise dispose of
any other Investments; and to make, execute and deliver to the
purchasers thereof good and sufficient legal documents of
conveyance therefor, and all assignments, transfers and other
legal instruments, either necessary or convenient for passing
the title and ownership of the Investments, and no person
dealing with the Trustee shall be bound to see to the
application of the purchase money or to inquire into the
validity, expediency or propriety of any such sale or
disposition.
(e) To make distributions from the Trust Fund to Participants and
their beneficiaries.
(f) To deliver notices, prospectuses and proxy statements to
Participants or to the Employer, and to vote in person or by
proxy with respect to any securities held by the Trust Fund in
accordance with the written directions of the Committee or of
the Participants, as the case may be; and in accordance with
such power, to exercise subscription, conversion and other
rights and options and to take action or refrain from taking
any action with respect to any reorganization, consolidation,
merger, dissolution or other recapitalization or refinancing
to the extent that the exercise of such rights and options or
the taking or refraining from such actions may be deemed by
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the Trustee to be necessary or proper to protect the best
interests of the Trust Fund.
(g) To maintain records of contributions, investments,
distributions and other transactions, and to report such
transactions to the Employer or such other persons as may be
designated by the Employer.
(h) To make necessary filings with the Internal Revenue Service,
the Department of Labor and other governmental agencies.
(i) To hold any part of the Trust Fund in cash or cash balances.
(j) To hold custody of the assets of the Plan; and with respect to
any such assets held in custody by the Trustee, to cause any
investment of the Trust Fund to be registered in the name of
the Trustee or the name of its nominee or nominees or to
retain such investment unregistered or in a form permitting
transfer by delivery, provided that the books and records of
the Trustee shall at all times show that all such investments
are part of the Trust Fund.
(k) To apply for, purchase, hold or transfer any life insurance,
retirement income, endowment or annuity contract.
(l) To consult and employ any suitable agent(s) to act on behalf
of the Trustee and to contract for legal, accounting, clerical
and other services deemed necessary by the Trustee to
administer the Trust Fund according to the terms of this Trust
Agreement and the instructions of the Committee.
(m) To make loans from the Trust Fund to Participants in amounts
and on terms approved by the Committee; and Employer hereby
agrees that the Committee shall have the sole responsibility,
and the Trustee shall not have any duty or responsibility, for
computing and collecting any loan repayments required to be
made under the Plan.
(n) To pay from the Trust Fund all taxes imposed or levied with
respect to the Trust Fund or any part thereof under existing
or future laws, and to contest the validity or amount of any
tax, assessment, claim or demand respecting the Trust Fund or
any part thereof.
(o) To pay out of the Trust Fund (i) all brokerage fees and
transfer tax expenses and other expenses incurred in
connection with the sale or purchase of investments, (ii) the
Trustee's compensation and (iii) all other
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expenses of administering the Plan and the Trust Fund
including, without limitation, any payments authorized by
Section 1.4 of this Agreement, unless promptly paid to the
Trustee, or otherwise, by the Employer. The Trustee shall have
the authority to pay all fees and expenses described in this
Section 2.3(0) out of the Trust Fund in the event such fees
and expenses are not promptly paid by the Employer and the
Trustee is not in receipt of Committee Direction to make such
payments.
(p) To do all such acts, and to exercise all such rights and
privileges, although not specifically mentioned herein, as the
Trustee may deem necessary or proper to carry out any of the
nondiscretionary powers set forth herein or otherwise in the
best interests of the Trust Fund and required by applicable
law.
Section 2.4. Investments in Employer Stock shall be subject to the following
notwithstanding any other provision in this Trust Agreement:
(a) In accordance with the Committee's Directions, the Trust Fund
may be invested in Employer Stock without regard to the ten
percent (10%) limitation with respect to the acquisition and
holding of employer securities set forth in Section 407(a)(2)
of ERISA if the Plan qualifies as an "eligible individual
account plan" under Section 407(d)(3) of ERISA.
(b) The Committee shall be responsible for determining the
appropriateness under the fiduciary responsibility and other
applicable provisions of ERISA of acquiring and holding
Employer Stock. The Trustee shall not be liable for any loss,
or by reason of any breach, which arises from following
directions with respect to the acquisition and holding of
Employer Stock.
(c) Subject to the provisions of Section 2.4(d), the Trustee shall
purchase and sell Employer Stock in accordance with such
procedures and guidelines as annexed hereto as Schedule A.
(d) At the Committee's Directions, the Trustee shall purchase or
sell Employer Stock on the open market or from or to the
Employer. In addition, the Employer may contribute Employer
Stock in lieu of cash to the Trust Fund. In the event the
Trustee uses one of its affiliates to effect the purchase or
sale of Employer Stock, the Trustee and such affiliate shall
comply with the provisions of Prohibited Transaction Class
Exemption 86-128. In the event that the Committee directs the
Trustee to use a particular broker or dealer to effect the
purchase or sale of Employer Stock, the Committee shall
represent to the Trustee that such direction (i) is for the
exclusive benefit of
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Participants and Beneficiaries of the Plan, and (ii)
shall not constitute, or cause the Trust Fund to be engaged
in, a "prohibited transaction" as defined in Section 406 of
ERISA. In the event the Trustee purchases or sells Employer
Stock from or to the Employer, such purchase or sale shall be
for "adequate consideration" as defined in Section 3(18) of
ERISA and no commission shall be charged. In the event that
the Employer contributes Employer Stock in lieu of cash to the
Trust Fund, such transfer shall be for "adequate
consideration" as defined in Section 3(18) of ERISA and no
commission shall be charged.
(e) The Employer represents and warrants that it has filed and
will file with the Securities and Exchange Commission and with
all applicable state agencies or authorities all required
registration statements relating to shares of Employer Stock
and other interests which may be issued under the Plan. The
Employer acknowledges that it is and shall be responsible for,
and that the Trustee shall not be responsible for, preparing
or filing such registration statements or for the accuracy of
statements contained therein, or for preparing or filing any
other reports, statements or filings required under federal or
state securities laws with respect to the Trust Fund's
investment in Employer Stock.
(f) The Employer shall provide the Trustee with a copy of all
proxy solicitation materials proposed to be sent to
stockholders at least (7) days before the materials are sent
to stockholders or if the issuer of Employer Stock held in the
Trust Fund files preliminary proxy solicitation materials with
the Securities and Exchange Commission, the Employer shall
cause a copy of all materials to be simultaneously sent the
Trustee. The Trustee, in its discretion, may prepare or amend
any proxy voting form sent to Participants. The Trustee shall
determine which of the procedures set forth in subparagraph
(f)(i) or subparagraph (f)(ii) are to be followed in sending
proxy solicitation materials, including any amended or
supplemental materials, to Participants.
(i) The Trustee shall provide the Employer or its
designee with mailing labels and proxy labels for
each Participant to whose account shares of Employer
Stock (both vested and non-vested) are credited.
Proxy labels so provided shall indicate the number of
shares (including fractional interests in shares) of
Employer Stock credited to each Participant's account
(both vested and non-vested). At the time of mailing
of notice of each annual or special stockholders'
meeting of the issuer of Employer Stock, the Employer
or its designee shall cause a copy of the notice, all
proxy solicitation materials, and all
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other materials to be sent to stockholders to be sent
to each affected Participant. The Employer shall
provide the Trustee with a copy of all materials
provided to Participants and shall certify to the
Trustee that the materials have been mailed or
otherwise sent to each affected Participant.
(ii) The Employer shall provide the Trustee with such
quantities of the notice of meeting, all proxy
solicitation materials and all other materials to be
sent to stockholders as may be requested by the
Trustee. At the time of mailing of notice of each
annual or special stockholders' meeting of the issuer
of the Employer Stock, the Trustee or its designee
shall send a copy of such materials and a voting
instruction form prepared by the Trustee to each
affected Participant.
The proxy voting form shall be returnable to the Trustee or
its designee. Each Participant shall be entitled to direct the
Trustee by means of the proxy voting form as to the voting of
shares (including fractional interests in shares) of Employer
Stock credited to such Participant's account (both vested and
non-vested). Upon timely receipt of the proxy voting form, the
Trustee shall vote the shares of Employer Stock as instructed.
Instructions received by the Trustee from Participants shall
be held by the Trustee in strict confidence and shall not,
except as may be required by law, be divulged or released to
any person including officers or employees of the Employer or
members of the Committee; provided, however, that the Trustee
may advise the Employer, upon request, of the total number of
votes that have been cast with respect to a particular issue.
The Trustee shall not make recommendations to Participants on
whether to vote or how to vote shares of Employer Stock. The
Trustee shall not vote shares of Employer Stock credited to a
Participant's account for which it has not received
instructions from the Participant. The Trustee shall not be
obligated to solicit a response from Participants from whom it
has not received instructions. The Trustee shall vote shares
of Employer Stock not credited to Participants' accounts in
the same proportion on each issue as it votes those shares
credited to Participants' accounts for which it received
voting instructions from Participants.
(g) In the event of a tender or exchange offer for any Employer
Stock held in the Trust Fund, the Trustee shall use its best
efforts to distribute or cause to be distributed to each
affected Participant in a timely manner all information and
materials that are distributed to the stockholders of the
issuer of the Employer Stock in connection with the offer and
directions as to how the
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Participant may instruct the Trustee whether or not to tender
or exchange the Employer Stock credited to the Participant's
account (both vested and non-vested). Alternatively, the
Trustee may agree that the notification of Participants and
distribution of the information, materials and directions
described above are to be effected by the Employer or its
designee. In such event, the Employer shall provide the
Trustee with a copy of all information, materials and
directions provided to Participants and shall certify to the
Trustee that the information, materials and directions have
been mailed or otherwise sent to each affected Participant.
The Trustee, in its discretion, may prepare or amend any
instruction form sent to Participants. Instructions shall be
returnable to the Trustee or its designee. Each Participant
shall be entitled to direct the Trustee to tender or exchange
shares (including fractional interest in shares) of Employer
Stock credited to such Participant's account (both vested and
non-vested). Upon timely receipt of instructions, the Trustee
shall act with respect to Employer Stock as instructed.
Instructions received by the Trustee from Participants shall
be held by the Trustee in strict confidence and shall not,
except as may be required by law, be divulged or released to
any person including officers or employees of the Employer or
members of the Committee; provided, however, that the Trustee
may advise the Employer, upon request, of the total number of
shares of Employer Stock that have been tendered or exchanged.
The Trustee shall not make recommendations to Participants on
whether to tender or exchange. The Trustee shall not tender or
exchange shares of Employer Stock credited to a Participant's
account for which it has not received instructions from the
Participant. The Trustee shall not be obligated to solicit a
response from Participants from whom it has not received
instructions. The Trustee shall tender or exchange that number
of shares of Employer Stock not credited to Participants'
accounts which is determined (after giving effect to the
withdrawal of any shares of Employer Stock before the
expiration of the offer or any earlier date set by the
Trustee) by multiplying the total number of shares of Employer
Stock not credited to Participants' accounts by a fraction of
which the numerator is the number of shares of Employer Stock
credited to Participants' accounts for which the Trustee has
received instructions from Participants to tender or exchange
and of which the denominator is the total number of shares of
Employer Stock credited to Participants' accounts. A
Participant who has instructed the Trustee to tender or
exchange shares of Employer Stock credited to such
Participant's account may, at any time prior to the expiration
of the offer or any earlier date set by the Trustee, instruct
the Trustee to withdraw a specified number of shares from the
offer. A Participant shall not be limited as to the number of
instructions that the Participant may give to the Trustee. If
a Participant
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instructs the Trustee to tender or exchange shares of Employer
Stock credited to the Participant's account, the Trustee shall
credit to each account of such Participant from which the
shares were taken the consideration received by the Trustee
for the shares of Employer Stock tendered or exchanged from
that account. Pending receipt of Committee Directions or, to
the extent provided in Section 2.1.2 of the Trust Agreement,
instructions from the Participant as to the investment of such
proceeds, the Trustee shall invest any cash consideration in
such money market mutual fund as is designated in writing by
the Committee.
(h) For purposes of this Section 2.4, the number of shares of
Employer Stock deemed "credited" to a Participant's account
shall be determined as of the last preceding valuation date
for which an allocation has been completed and Employer Stock
has actually been credited to Participants' accounts. The
Trustee may, in its discretion, require a special valuation of
Participant accounts and crediting of Employer Stock.
(i) In the event that the Trustee, in its discretion, determines
that time constraints make it unlikely that Participant voting
or tender or exchange instructions can be received in a timely
fashion, the Trustee shall notify the Committee and the
Committee or its designee shall be responsible for such
matter, and the Trustee shall vote proxies or respond to a
tender or exchange offer in accordance with the Committee's
Directions.
(j) All costs incurred by the Trustee in handling proxy and tender
or exchange offer matters, including without limitation all
costs associated with the printing and mailing of Participant
instruction forms and other materials and attorneys' fees,
shall be expenses of the Trust Fund within the meaning of
Section 6.1 of the Trust Agreement.
Section 2.5. If permitted by the Plan, the Employer or the Committee may appoint
one or more investment managers within the meaning of Section 3(38) of ERISA
("Investment Manager") to direct investments with respect to all or part of the
Trust Fund. Any Investment Manager so appointed shall be (i) an investment
adviser registered as such under the Investment Advisers Act of 1940, or (ii) a
bank, as defined in that Act, or (iii) any insurance company qualified to
perform investment management services under the laws of more than one state.
Any Investment Manager so appointed shall, in writing, certify to the Employer
that it is qualified to act in such capacity under clause (i), (ii) or (iii) of
the preceding sentence, accept its appointment as Investment Manager,
acknowledge that it is a fiduciary with respect to the Plan, and certify the
identity of the person or persons authorized to give instructions or directions
on its behalf. The Employer shall certify to the Trustee that it has appointed
each Investment Manager in accordance with
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the provisions of the Plan and ERISA, and instruct the Trustee as to the
portion of the Plan that is to be managed by each Investment Manager. The
Trustee may continue to rely upon all certifications and agreements made under
this Section 2.5 unless otherwise notified in writing by the Employer or the
Investment Manager, as the case may be. The Trustee shall be entitled to rely
entirely on an Investment Manager's directions, shall be under no duty to
determine or make inquiry whether an Investment Manager's directions received by
it are in accordance with the provisions of the Plan or applicable law, and
shall have no duty to review or recommend the sale, retention, or other
disposition of any asset purchased or retained in accordance with an Investment
Manager's directions. The Trustee shall have no liability for any loss to the
Trust Fund resulting from the purchase, sale, or retention of any asset in
accordance with an Investment Manager's directions, or resulting from not having
sold such assets so purchased or retained in the absence of an Investment
Manager's directions, to make such sale or take any other action. The Trustee
shall be fully indemnified by the Employer for any action taken in accordance
with, or any failure to act in the absence of, an Investment Manager's
directions.
ARTICLE III
DUTIES AND RESPONSIBILITIES
Section 3.1.1. The Trustee shall discharge its duties and responsibilities under
this Trust Agreement solely in the interest of Participants and their
beneficiaries, and
(a) for the exclusive purpose of providing benefits to the
Participants and their beneficiaries and defraying the
reasonable expenses of administering the Plan;
(b) with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person acting in
a like capacity and familiar with such matters would use in
the conduct of an enterprise of a like character and with like
aims.
Section 3.1.2. In the event that the Employer designates The Dreyfus Trust
Company ("The Trust Company") as the Trustee in the Adoption Agreement hereto,
and the Trustee has been designated as an additional Trustee for the Plan, The
Trust Company as Trustee shall have no responsibilities other than as set forth
herein, and this Trust Agreement shall constitute a supplemental trust
agreement. The duties of The Trust Company shall be limited to assets held in
the Trust Fund, and The Trust Company shall have no duties with respect to
assets held by any other person including, without limitation, any other trustee
for the Plan. The Employer hereby agrees that The Trust Company shall not serve
as, and shall not be deemed to be, a co-trustee under any circumstances.
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Section 3.1.3. Subject to the limitations set forth in Section 3.1.2 herein, in
the event that more than one individual Trustee has been designated in the
Adoption Agreement, the action of such individual Trustees shall be determined
by vote of the majority of such individual Trustees; provided, however, that any
one of such individual Trustees may execute any applications for insurance or
annuity contracts provided for herein and documents necessary for the exercise
of ownership rights thereunder and may perform other such ministerial acts; and
further provided, that the Trustees may enter into an agreement allocating among
themselves specific responsibilities, obligations and duties.
Section 3.1.4. The Trustee shall be solely responsible for its own acts and
omissions. The Trustee shall have no duty to question, or otherwise inquire
into, the performance of another fiduciary with respect to duties allocated to
such other fiduciary under the Plan. The Trustee shall not be responsible for
the breach of any other such fiduciary unless the Trustee (i) participates
knowingly in, or knowingly undertakes to conceal, an act or omission of such
other fiduciary, knowing such act or omission is a breach, (ii) has actual
knowledge of a breach by such other fiduciary and fails to make reasonable
effort under the circumstances to remedy the breach or (iii) has failed to
perform its own specific fiduciary duties and thereby has enabled another
fiduciary to commit a breach.
Section 3.2. The Trustee shall keep full and accurate records of all receipts,
investments, disbursements and other transactions hereunder, including such
specific records as may be agreed upon in writing between the Company, the
Committee and the Trustee. All such records shall be open to inspection during
the Trustee's normal business hours by any authorized representative of the
Employer or the Committee upon reasonable prior notice to the Trustee.
Section 3.3. Within 90 days after the end of each Plan Year, as that term is
defined in the Plan, or within 90 days after its removal or resignation, or the
termination of the Plan or this Trust Agreement, the Trustee shall file with the
Committee a written account of the administration of the Trust Fund showing all
transactions effected by the Trustee subsequent to the period covered by the
last such accounting, if any, to the end of such Plan Year or date of such
removal or resignation, or the termination of the Plan or this Trust Agreement,
and all property held at its fair market value at the end of the accounting
period. Upon approval of such accounting by the Committee, neither the Employer
nor the Committee shall be entitled to any further accounting by the Trustee.
The Committee shall approve such accounting by written notice of approval
delivered to the Trustee or by failure to express objection to such accounting
in writing delivered to the Trustee within 60 days from the date on which the
accounting is mailed to the Committee and, in either case, the Trustee shall be
forever released and discharged from all liability and accountability with
respect to the propriety of its acts and transactions as to which the Committee
shall within such 60 day period file with the Trustee no such written
objections.
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Section 3.4. The Trustee may from time to time consult with counsel and shall be
entitled to rely entirely upon the advice of counsel with respect to any act or
omission.
Section 3.5. In the event of any disagreement resulting in conflicting
instructions to, or adverse claims or demands upon, the Trustee with respect to
payments or instructions, the Trustee shall be entitled, at its option, to
refuse to comply with any such instruction, claim or demand so long as such
disagreement shall continue, and in the exercise of such refusal, the Trustee
may elect not to make any payment or other disposition of assets held pursuant
to this Trust Agreement. The Trustee shall not be or become liable in any way
for its failure or refusal to comply with any such conflicting instructions or
adverse claims or demands, and it shall be entitled to continue to refrain from
acting until such conflicting or adverse instructions, claims or demands (a)
shall have been adjusted by agreement and it shall have been notified in writing
therefor or (b) shall have been finally determined in a court of competent
jurisdiction.
Section 3.6. The Trustee shall not, by act, delay, omission or otherwise, be
deemed to have waived any right or remedy it may have either under this Trust
Agreement or generally, and no waiver shall be valid unless it is contained in a
written instrument signed by the Trustee and only to the extent expressly set
forth therein. A waiver by the Trustee under the terms of this Trust Agreement
shall not be construed as a bar to, or waiver of, the same or any other such
right or remedy that it would otherwise have on any other occasion.
Section 3.7. The Trustee will not be compelled to do any act under this Trust
Agreement or to take any action toward the execution or enforcement of the Trust
Fund created hereunder or to prosecute or defend any suit in respect thereof,
unless indemnified by the Employer to its satisfaction against any loss, costs,
liability and expense; and the Trustee will be fully indemnified by the Employer
for any liability or obligation to any person that results from any failure on
the part of the Employer or the Committee to perform any of their respective
obligations under the Plan or under the terms of this Trust Agreement, or for
any error or omission whatsoever on the part of the Committee or the Employer.
Section 3.8. Unless resulting from the Trustee's own gross negligence or willful
misconduct, the Employer shall indemnify the Trustee and save it harmless from,
against, for and in respect of any and all damages, losses, obligations,
liabilities, liens, deficiencies, costs and expenses (including, without
limitation, attorney's fees and other costs and expenses incident to any suit,
action, investigation, claim or proceedings) suffered, sustained, incurred or
required to be paid by the Trustee in connection with the Plan or this Trust
Agreement. The provisions of this Section 3.8 shall survive termination of this
Trust Agreement.
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ARTICLE IV
PROHIBITION OF DIVERSION
Section 4.1. Except as provided in Section 4.2 herein, at no time prior to the
satisfaction of all liabilities with respect to Participants and their
beneficiaries under the Plan shall any part of the corpus or income of the Fund
be used for, or diverted to, purposes other than for the exclusive benefit of
Participants or their beneficiaries, or for defraying reasonable expenses of
administering the Plan.
Section 4.2.1. Notwithstanding the provisions of Section 4.1, but subject to the
provisions of Section 4.2.2 herein, contributions made by the Employer under the
Plan shall be returned to the Employer under the following conditions and only
as the Trustee is instructed in writing by the Committee:
(a) If a contribution is made by mistake of fact, such
contribution shall be returned to the Employer within one year
of the payment of such contributions;
(b) To the extent that contributions to the Plan are specifically
conditioned upon their deductibility under the Code, and a
deduction is disallowed for any such contribution, it shall be
returned to the Employer within one year after the
disallowance of the deduction; and
(c) To the extent that contributions to the Plan are specifically
conditioned on initial qualification of the Plan under the
Code, and the Plan is determined to be disqualified,
contributions and the earnings thereon made in respect of any
period subsequent to the effective date of such
disqualification shall be returned to the Employer within one
year after the date of denial of qualification, provided that
the Employer makes timely application to the Internal Revenue
Service for a determination of the qualified status of the
Plan.
Section 4.2.2 Earnings attributable to any contributions returned to the
Employer under Sections 4.2.1(a) and 4.2.1 (b) shall not be returned to the
Employer. Losses attributable to any contributions returned to Employer under
Section 4.2.1 shall reduce the amount to be so returned.
ARTICLE V
COMMUNICATION WITH COMMITTEE AND THE EMPLOYER
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Section 5.1. Except as otherwise specifically provided herein, any action by an
Employer that is a corporation pursuant to any of the provisions of this Trust
Agreement shall be evidenced by (1) a resolution of its board of directors (the
"Board") certified to the Trustee over the signature of its Secretary or
Assistant Secretary or other duly authorized agent under the corporate seal, if
any, or (2) by appropriate written authorization of any person or committee to
which the Board has delegated the authority to take such action. Any action by
an Employer that is a partnership or a sole proprietorship shall be evidenced by
a written certification of a general partner of the partnership or the sole
proprietor, as the case may be. The Trustee shall be entitled to rely entirely
on, and shall be fully indemnified by the Employer for acting in accordance
with, any such resolution, certification or other authorization.
Section 5.2. The Employer shall provide to the Trustee a certificate, signed by
an authorized officer of the Employer, that contains (a) the name, (b) specimen
signature and (c) a description of the specific powers and duties, of each
member of the Committee. The Employer shall give prompt written notice of any
change in the identity, powers or duties of any member of the Committee, and the
Trustee shall be entitled to rely entirely on its failure to receive such notice
as a certification of the Employer that a designated member of the Committee and
such member's duties and powers have not been changed. The Trustee shall have no
duty to inquire into the qualifications of any member of the Committee.
Section 5.3. The Committee's Directions shall be communicated to the Trustee in
a certificate that sets forth the action of the Committee, signed by the person
then acting as Chairman or Secretary of the Committee, or in a written statement
signed by any two or more members of the Committee or any person or agent
designated to act on behalf of the Committee. Such person or agent shall be so
designated either under the provisions of the Plan or in a certificate by the
Committee that contains (a) the name, (b) specimen signature and (c) a
description of the specific powers and duties of each such person or agent. The
Committee shall give prompt written notice of any change in the identity, powers
and duties of any such person or agent, and the Trustee shall be entitled to
rely entirely on its failure to receive such notice as a certification of the
Committee that the identity, powers and duties of such person or agent have not
been changed.
Section 5.4. The Trustee shall have no liability hereunder for any action taken
in good faith in reliance upon any instructions, directions, certifications and
communications believed by the Trustee to be genuine and to have been signed or
communicated by the proper person.
ARTICLE VI
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TRUSTEE'S COMPENSATION; EXPENSES
Section 6.1. The Trustee shall receive reasonable compensation for its services
in accordance with its schedule of compensation in effect when such services are
rendered. The Trustee may amend the schedule from time to time, which amendment
shall become effective no earlier than 30 days after written notice is sent to
the Employer. The Trustee shall also be entitled to reimbursement for all
reasonable expenses incurred by it in the performance of its duties hereunder
including, without limitation, any expenses incurred in the consultation or
employment of any agent pursuant to Section 2.3(l). Any such compensation or
expenses and any income or other taxes which may be levied against the Trust
Fund shall be paid out of the Trust Fund, unless paid directly by the Employer.
ARTICLE VII
RESIGNATION AND REMOVAL OF TRUSTEE
Section 7.1. The Trustee may resign at any time by written notice to the
Employer which shall be effective 30 days after delivery to the Employer of such
notice, provided that a successor Trustee shall have been appointed by the
Employer; provided, however, that such notice may be waived by the Employer.
Section 7.2. The Trustee may be removed by the Employer at any time upon 30
days' prior written notice to the Trustee, provided that a successor Trustee
shall have been appointed by the Employer; provided, however, that such notice
may be waived by the Trustee.
Section 7.3. The appointment of a successor Trustee hereunder shall be
accomplished by and shall take effect upon the delivery to the resigning or
removed Trustee, as the case may be, of written notice from the Employer
appointing such successor Trustee, and an acceptance in writing of the successor
Trustee. Any successor Trustee may be either a corporation authorized and
empowered to exercise trust powers or one or more individuals. All of the
provisions set forth herein with respect to the Trustee shall relate to each
successor Trustee so appointed with the same force and effect as if such
successor Trustee had been originally named herein as the Trustee hereunder. If
a successor Trustee shall not have been appointed within 30 days after delivery
to the Employer of notice of the Trustee's resignation pursuant to Section 7.1,
the resigning Trustee may apply to a court of competent jurisdiction for the
appointment of a successor Trustee.
Section 7.4. Upon the appointment of a successor Trustee, the resigning or
removed Trustee shall transfer and deliver the Trust Fund to such successor
Trustee, after reserving such reasonable amounts as are necessary to provide for
its reasonable expenses in the settlement of its account, the amount of any
compensation due to it and
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any sums chargeable against the Trust Fund for which it may be liable. If the
sums so reserved are not sufficient for such purposes, the resigning or removed
Trustee shall be entitled to reimbursement for any deficiency from the Employer
or out of the Trust Fund.
Section 7.5. At the time the Trust Fund shall have been transferred and
delivered to a successor trustee and the accounts of the Trustee have been
approved pursuant to Section 3.3 herein, the Trustee shall be released and
discharged from all further accountability or liability for the Trust Fund and
shall not be responsible in any way for the further disposition of the Trust
Fund or any part thereof.
ARTICLE VIII
AMENDMENT AND TERMINATION OF THE TRUST AND PLAN
Section 8.1. The Employer may terminate this Agreement at any time upon 30 days'
prior written notice delivered to the Trustee; provided that such termination by
the Employer is subject to the condition that a new trustee assumes the
responsibilities and functions of the Trustee as set forth herein; and provided,
further, that the trusteeship shall, if terminated by the Employer, continue
thereafter for such period as may be necessary for the complete divestiture to a
newly appointed trustee of all assets held in the Trust Fund.
Section 8.2. If the Plan is terminated in whole or in part, or if the Employer
permanently discontinues its contributions to the Plan, the Trustee shall
distribute the Fund or any part thereof in accordance with the Committee's
Directions. Upon the Employer's termination of the Plan in whole or in part or
the revocation or termination of this Trust Agreement, the Trustee shall have
the right to have its accounts approved. When the Trust Fund shall have been so
applied or distributed, and the accounts of the Trustee shall have been approved
pursuant to Section 3.3 herein, the Trustee shall not be responsible in any way
for the further disposition of the Trust Fund (or that part thereof so applied
or distributed, if the Plan is terminated only in part). The Trustee shall have
the right to withhold distribution or application of any part of the Trust Fund
unless and until written approval of any such termination has been granted by
the Internal Revenue Service and, if the Plan is subject to the jurisdiction of
the Pension Benefit Guaranty Corporation (the "PBGC"), (a) the period of time
set forth in Section 4041(b)(2)(C) of ERISA has elapsed and the PBGC has not
issued any notice of noncompliance or (b) the PBGC has notified the Plan
Administrator that the requirements or a distress termination have been met
pursuant to Section 4041(c)(3)(A) of ERISA. Assets of the Trust Fund shall not
be returned to the Employer unless and until the Employer has delivered to the
Trustee (a) a certification of an enrolled actuary stating that there is an
amount remaining in the Trust Fund that is not required for the payment of the
benefits provided under the Plan for participants or their beneficiaries and (b)
an opinion of counsel satisfactory to the Trustee, stating that such return of
assets is permitted under the terms of the Plan and applicable law.
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Section 8.3. This Trust Agreement may be amended or modified by a written
agreement signed by the parties hereto or by the Trustee upon 60 days' prior
written notice to the Employer.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 9.1. This Trust Agreement shall be adopted by execution of the Adoption
Agreement.
Section 9.2. In the event that any provision of this Trust Agreement is deemed
or held to be unlawful or invalid for any reason, such event shall not adversely
affect any other provision contained herein unless such illegality shall make
impossible or impracticable the functioning of this Trust Agreement, and in such
case, the appropriate parties shall immediately amend this Trust Agreement.
Section 9.3. The titles and headings of the Sections in this instrument are
placed herein for convenience of reference only. In the event of any conflict,
the text of this instrument, rather than such titles or headings, shall control
the interpretation of any of the terms and provisions contained herein.
Section 9.4. Except as otherwise specifically provided herein, all notices or
other communications required or permitted to be given pursuant to this
Agreement shall be given in writing and delivered by personal delivery or sent
by U.S. first class mail, postage prepaid, addressed to their last respective
address of record.
Section 9.5. The construction, validity and administration of this Trust
Agreement shall be governed by the laws of the state where the Trustee has its
principal place of business, except to the extent that such laws are preempted
by ERISA.
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AMENDMENT #1 TO DREYFUS TRUST AGREEMENT
The Dreyfus Trust Agreement, Article XI, has been modified to add Section 9.6 as
follows:
SECTION 9.6 FORCE MAJEURE
The Trustee shall not be responsible or liable for any losses to the Fund
resulting from nationalization, expropriation, devaluation, seizure, or similar
action by any governmental authority, de facto or de jure; or enactment,
promulgation, imposition or enforcement by any such governmental authority of
currency restrictions, exchange controls, levies or other charges affecting the
Fund's property; or acts of war, terrorism, insurrection or revolution; or acts
of God; or any other similar event beyond the control of the Trustee or its
agents. This Section shall survive the termination of this Trust Agreement.
Please retain this amendment with your copy of the Dreyfus Trust Agreement.
