AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 6, 1997
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
KUHLMAN CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 58-2058047
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
3 SKIDAWAY VILLAGE SQUARE
SAVANNAH, GEORGIA 31411
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
KUHLMAN CORPORATION 1994 STOCK OPTION PLAN, AS AMENDED
COMMUNICATION CABLE, INC. EMPLOYEES' SAVINGS PLUS PLAN
COLEMAN CABLE SYSTEMS, INC. 401(K) PLAN
SCHWITZER TAX REDUCTION INVESTMENT PLAN
FOR CERTAIN SALARIED AND EXEMPT EMPLOYEES
SCHWITZER TAX REDUCTION INVESTMENT PLAN
FOR ASHEVILLE HOURLY AND CERTAIN NONEXEMPT EMPLOYEES
(FULL TITLE OF THE PLANS)
RICHARD A. WALKER, ESQ.
EXECUTIVE VICE PRESIDENT, CHIEF ADMINISTRATIVE OFFICER,
GENERAL COUNSEL AND SECRETARY
3 SKIDAWAY VILLAGE SQUARE
SAVANNAH, GEORGIA 31411
(912) 598-7809
(NAME, ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
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COPIES TO:
STEPHEN A. LANDSMAN, ESQ.
RUDNICK & WOLFE
203 NORTH LASALLE STREET
SUITE 1800
CHICAGO, ILLINOIS 60601
(312) 368-4000
(312) 236-7516 (TELECOPIER)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED(1) REGISTERED PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, PAR VALUE $1.00 PER SHARE 400,000 $30.19 $12,076,000 $3,659.40
PREFERRED STOCK PURCHASE RIGHTS(3)...........
==================================================================================================================================
</TABLE>
(1) 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 employee benefit plans described herein
(except the Kuhlman Corporation 1994 Stock Option Plan).
(2) Pursuant to Rules 457(c) and 457(h), the registration fee has been
calculated on the basis of $30.19 per share, the average of the high and
low sale prices of the common stock on August 4, 1997, as reported on the
New York Stock Exchange Composite Tape. With respect to shares subject to
outstanding options, all such options have an exercise price of less than
$30.19. Pursuant to Rule 457(h), no separate fee is required with respect
to the plan interests.
(3) Preferred Stock Purchase Rights are evidenced by certificates for shares of
Common Stock of the Registrant and automatically trade with the Common
Stock of the Registrant. The value attributable to such Preferred Stock
Purchase Rights, if any, is reflected in the market price of the Common
Stock of the Registrant.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's (i) prospectus dated June 23, 1997 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; (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 Securities Exchange
Act of 1934; (iii) quarterly report on Form 10-Q for the quarter ended March 31,
1997; (iv) the Company's current reports on Form 8-K dated March 10, 1997, April
24, 1997 and May 28, 1997; (v) the Company's current report on Form 8-K/A
(Amendment No. 1) dated March 10, 1997; (vi) Forms 11-K for the fiscal year
ended December 31, 1996 for the Schwitzer Tax Reduction Investment Plan for
Certain Salaried and Exempt Employees, and Schwitzer Tax Reduction Investment
Plan for Asheville Hourly and Certain Nonexempt Employees; (vii) Form 11-K for
the fiscal years ended December 31, 1996 and June 30, 1995 and the six months
ended December 31, 1995 for the Coleman Cable Systems, Inc. 401(k) Plan; and
(viii) Form 11-K for the fiscal year ended October 31, 1996 and the two months
ended December 31, 1996 for the Communication Cable, Inc. Employees' Savings
Plus Plan (each of the plans in clauses (vi), (vii) and (viii) of this sentence
may be referred to herein as a "Plan" and collectively as the "Plans"). In
addition, all reports and proxy statements filed by the Company or any of the
Plans pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 subsequent to the date hereof and 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
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes
indemnification of directors, officers, employees and agents of the Company;
allows the advancement of costs of defending against litigation; and permits
companies incorporated in Delaware to purchase insurance on behalf of directors,
officers, employees and agents against liabilities whether or not in the
circumstances such companies would have the power to indemnify against such
liabilities under the provisions of the statute. The Company's Certificate of
Incorporation and Bylaws
<PAGE>
provide for indemnification of its officers and directors to the extent
permitted by Section 145 of the Delaware General Corporation Law. Pursuant to
such provisions, the Company has purchased such insurance on behalf of its
directors and officers.
The Company's Certificate of Incorporation eliminates, to the fullest extent
permitted by Delaware law, liability of a director to the Company or its
stockholders for monetary damages for a breach of such director's fiduciary duty
of care except for liability where a director (a) breaches his or her duty of
loyalty to the Company or its stockholders, (b) fails to act in good faith or
engages in intentional misconduct or knowing violation of law, (c) authorizes
payment of an illegal dividend or stock repurchase or (d) obtains an improper
personal benefit. This provision only pertains to breaches of duty by directors
as directors and not breaches of duty by directors in any other corporate
capacity, such as any capacity as an officer. While liability for monetary
damages has been eliminated, equitable remedies such as injunctive relief or
rescission remain available. In addition, a director is not relieved of his
responsibilities under any other law, including the federal securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Specimen Common Stock Certificate [Incorporated by reference to
Exhibit No. 4.1 to Registration Statement No. 33-58133]
4.2 Adoption Agreement/Dreyfus Nonstandardized Prototype Profit Sharing
Plan and Trust for Coleman Cable Systems, Inc. 401(k) Plan
4.3 Adoption Agreement/Dreyfus Nonstandardized Prototype Profit Sharing
Plan and Trust for Communication Cable, Inc. Employees' Savings
Plus Plan
4.4 Adoption Agreement/Dreyfus Nonstandardized Prototype Profit Sharing
Plan and Trust for Schwitzer Tax Reduction Investment Plan for
Certain Salaried and Exempt Employees
4.5 Adoption Agreement/Dreyfus Nonstandardized Prototype Profit Sharing
Plan and Trust for Schwitzer Tax Reduction Investment Plan for
Asheville Hourly and Certain Nonexempt Employees
4.6 Dreyfus Prototype Basic Plan Document No. 01 - Dreyfus Prototype
Defined Contribution Plan
4.7 Dreyfus Trust Agreement
<PAGE>
4.8 Kuhlman Corporation 1994 Stock Option Plan, as amended
[Incorporated by reference to Exhibit 10.6 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1996]
5.1 Opinion of Rudnick & Wolfe
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Walsh, Cenko & Haynes, P.C.
23.3 Consent of Batchelor, Tillery & Roberts, LLP
23.4 Consent of Coopers & Lybrand L.L.P.
23.5 Consent of Rudnick & Wolfe (contained in Exhibit 5 hereof)
24 Power of Attorney by the directors and certain officers of the
Company
The Company undertakes that it will submit or has submitted the Plans and
any amendments thereto to the Internal Revenue Service ("IRS") in a timely
manner and has made or will make all changes required by the IRS in order to
qualify the Plans.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall 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 registrant pursuant to
<PAGE>
section 13 or section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Savannah, State of Georgia, on this 6th day of
August, 1997.
KUHLMAN CORPORATION
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 and on the dates indicated.
NAME TITLE DATE
ROBERT S. JEPSON, JR.* Chairman of the Board and |
Chief Executive Officer |
(Principal Executive Officer) |
and Director |
|
VERNON J. NAGEL* Executive Vice President |
of Finance, Chief Financial |
Officer and Treasurer |
(Principal Financial and |
Accounting Officer) |
|
CURTIS G. ANDERSON* President, Chief Operating |
Officer and Director | August 6, 1997
|
WILLIAM E. BURCH* Director |
|
STEVE CENKO* Director |
|
GARY G. DILLON* Director |
|
ALEXANDER W. Director |
DREYFOOS, JR.* |
|
WILLIAM M. KEARNS, JR.* Director |
|
GEORGE J. MICHEL, JR.* Director |
|
GENERAL H. NORMAN Director |
SCHWARZKOPF* |
*By:/s/ Robert S. Jepson, Jr. Individually and as
Robert S. Jepson, Jr. Attorney-in-Fact
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
Administrative Committee has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Indianapolis, State of Indiana, on August 6, 1997.
SCHWITZER TAX REDUCTION
INVESTMENT PLAN FOR CERTAIN
SALARIED AND EXEMPT EMPLOYEES,
AND SCHWITZER TAX REDUCTION
INVESTMENT PLAN FOR ASHEVILLE
HOURLY AND CERTAIN NONEXEMPT
EMPLOYEES
By:/s/ Richard H. Prange
Name: Richard H. Prange
Title: Member, Administrative Committee
Pursuant to the requirements of the Securities Act of 1933, the
Administrative Committee has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of North Chicago, State of Illinois, on August 6, 1997.
COLEMAN CABLE SYSTEMS, INC. 401(K)
PLAN
By:/s/ Richard N. Burger
Name: Richard N. Burger
Title: Member, Administrative Committee
Pursuant to the requirements of the Securities Act of 1933, the
Administrative Committee has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Sanford, State of North Carolina, on August 6, 1997.
COMMUNICATION CABLE, INC.
EMPLOYEES' SAVINGS PLUS PLAN
By:/s/ Gary Yetman
Name: Gary Yetman
Title: Member, Administrative Committee
<PAGE>
EXHIBIT INDEX
EXHIBIT
4.1 Specimen Common Stock Certificate [Incorporated by
reference to Exhibit No. 4.1 to Registration Statement
No. 33-58133]
4.2 Adoption Agreement/Dreyfus Nonstandardized Prototype
Profit Sharing Plan and Trust for Coleman Cable Systems,
Inc. 401(k) Plan
4.3 Adoption Agreement/Dreyfus Nonstandardized Prototype
Profit Sharing Plan and Trust for Communication Cable,
Inc. Employees' Savings Plus Plan
4.4 Adoption Agreement/Dreyfus Nonstandardized Prototype
Profit Sharing Plan and Trust for Schwitzer Tax Reduction
Investment Plan for Certain Salaried and Exempt
Employees
4.5 Adoption Agreement/Dreyfus Nonstandardized Prototype
Profit Sharing Plan and Trust for Schwitzer Tax Reduction
Investment Plan for Asheville Hourly and Certain
Nonexempt Employees
4.6 Dreyfus Prototype Basic Plan Document 01 - Dreyfus
Prototype Defined Contribution Plan
4.7 Dreyfus Trust Agreement
4.8 Kuhlman Corporation 1994 Stock Option Plan, as amended
[Incorporated by reference to Exhibit 10.6 to the
Registrant's Annual Report on Form 10-K for the year
ended December 31, 1996]
5.1 Opinion of Rudnick & Wolfe
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Walsh, Cenko & Haynes, P.C.
23.3 Consent of Batchelor, Tillery & Roberts, LLP
23.4 Consent of Coopers & Lybrand L.L.P.
23.5 Consent of Rudnick & Wolfe (contained in Exhibit 5
hereof)
24 Power of Attorney by the directors and certain officers of
the Company
<PAGE>
EXHIBIT 4.2
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: COLEMAN CABLE SYSTEMS, INC.
Address: 2500 COMMONWEALTH AVENUE
NORTH CHICAGO, IL 60064
B. Employer is a (X) corporation; ( ) S Corporation; ( ) partnership; ( )
sole proprietor; ( ) other: [....]
C. Employer's Tax ID Number: 36-3091262
D. Employer's fiscal year: JANUARY 1 - DECEMBER 31
E. Plan Name: COLEMAN CABLE SYSTEMS, INC. 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 JULY 1, 1985. The effective date of this
amended Plan is JULY 1, 1997.
G. The Trustee shall be: (X) The Dreyfus Trust Company
<PAGE>
( ) 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):
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: BARON WIRE & CABLE CORP., AND THE
DEKALB WORKS COMPANY (KNOWN AS NEHRING ELECTRICAL WORKS COMPANY PRIOR
TO JANUARY 19, 1996). PRIOR TO JULY 1, 1995, THE EMPLOYEES OF COLEMAN
INTERNATIONAL ALSO PARTICIPATED 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:
( ) 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.
3
<PAGE>
( ) 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.
(X) 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:
( ) On the basis of actual hours for which an Employee is paid or
entitled to payment.
( ) On the basis of days worked. An Employee will be credited with
ten (10) Hours of Service for any day such Employee would be
credited with at least one (1) Hour of Service during the day
under the Plan.
( ) On the basis of weeks worked. An Employee will be credited with
forty-five (45) Hours of Service for any week such Employee would
be credited with at least one (1) Hour of Service during the week
under the Plan.
( ) On the basis of semi-monthly payroll periods. An Employee will be
credited with ninety-five (95) Hours of Service for any
semi-monthly payroll period such Employee would be credited with
at least one (1) Hour of Service under the Plan.
( ) On the basis of months worked. An Employee will be credited with
one hundred ninety (190) Hours of Service for any month such
Employee would be credited with at least one (1) Hour of Service
under the Plan.
(X) On the basis of elapsed time.
4
<PAGE>
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.
NOTWITHSTANDING THE FOREGOING, EMPLOYEES WHO ARE MEMBERS OF TEAMSTERS
LOCAL 743 ARE ELIGIBLE EMPLOYEES EFFECTIVE JULY 1, 1995.
( ) 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): THOSE EMPLOYEES
AT THE WEB WIRE LOCATION WHO ARE NOT OFFICE, CLERICAL OR SUPERVISORY
EMPLOYEES. THOSE EMPLOYEES COVERED BY THE COMMUNICATION CABLE, INC.
EMPLOYEES' SAVINGS PLUS PLAN OR EMPLOYED AT A LOCATION WHERE EMPLOYEES
ARE ELIGIBLE TO PARTICIPATE IN THAT PLAN.
(X) Employees of the following employers aggregated with the Employer
under Sections 414(b), (c), (m) or (o) of the Code: KUHLMAN
CORPORATION, KUHLMAN ELECTRIC CORPORATION AND ITS SUBSIDIARIES, EMTEC
PRODUCTS CORPORATION, AND SCHWITZER, INC. AND ITS SUBSIDIARIES, AND
ANY OTHER ENTITY ACQUIRED B KUHLMAN CORPORATION OR ONE OF ITS
SUBSIDIARIES ON OR AFTER JANUARY 1, 1997 UNLESS THIS PLAN IS
SPECIFICALLY EXTENDED TO THE EMPLOYEES OF THE ENTITY.
(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.
5
<PAGE>
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: ( ) No age requirement.
(X) The attainment of age 18 (not to exceed age 21).
Service: ( ) No service requirement.
( ) For Employer Discretionary Contributions only -- The
completion of [....] (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.
(X) For all other contributions -- The completion of 1/2
(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.
( ) 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
6
<PAGE>
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.
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.
(X) Quarterly Entry. The first day of the Plan Year and the first day of
the fourth, seventh and tenth months of the Plan Year.
7
<PAGE>
( ) 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
required to furnish the Employee a written statement under Sections
6041(d) and 6051(a)(3) of the Code. Compensation must be determined
without regard to any rules under Section 3401(a) that limit the
remuneration included in wages based on the nature or location of the
employment or services performed (such as the exception for
agricultural labor in Section 3401(a)(2) of the Code). This definition
of Compensation shall exclude amounts paid or reimbursed by the
Employer for moving expenses incurred by an Employee, but only to the
extent that at the time of the payment it is reasonable to believe
that these amounts are deductible by the Employee under Section 217 of
the Code.
( ) Section 3401(a) wages. Compensation is defined as wages within the
meaning of Section 3401(a) of the Code for purposes of income tax
withholding at the source but determined without regard to any rules
that limit the remuneration included in wages based on the nature or
location of the employment or the services performed (such as the
exception for agricultural labor in Section 3401(a)(2) of the Code).
( ) Section 415 safe-harbor compensation. Compensation is defined as
wages, salaries, and fees for professional services and other amounts
received (without regard to whether or not an amount is paid in cash)
for personal services actually rendered in the course of employment
with the Employer to the extent that the amounts are includible in
gross income (including, but not limited to, commissions paid
salesmen, compensation for services on the basis of a
8
<PAGE>
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 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.
(X) 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.
9
<PAGE>
Compensation (X) shall; ( ) shall not include Employer contributions
made pursuant to a salary reduction agreement with an Employee which
are not includible in the gross income of the Employee by reason of
Sections 125, 402(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
( ) overtime
( ) commissions
( ) amounts in excess of $ [....]
( ) [....]
For any Self-Employed Individual covered under the Plan, Compensation
means Earned Income.
B. For purposes of "annual additions" testing under Section 415 of
the Code, Compensation for any Limitation Year shall mean all of
each Participant's:
(X) Information required to be reported under Sections 6041, 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
10
<PAGE>
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 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.
11
<PAGE>
VIII. LIMITATION YEAR
Limitation Year shall mean the twelve (12) consecutive-month period:
(X) Identical to the Plan Year.
( ) Identical to the Employer's fiscal year ending with or within
the Plan Year of reference.
( ) As fixed by a resolution of the Board of Directors of the
Employer, or the Employer if no Board of Directors exists.
IX. NORMAL RETIREMENT AGE
Normal Retirement Age shall mean:
(X) Age 65 (not to exceed 65).
( ) Age [....] (not to exceed 65), or the [....] (not to exceed the 5th)
anniversary of the date the Participant commenced participation in the
Plan, if later.
X. EARLY RETIREMENT AGE
Early Retirement Age shall mean:
( ) There shall be no early retirement provision in this Plan.
(X) Age 55.
( ) Age [....] and [....] Years of Service.
XI. EMPLOYER AND EMPLOYEE CONTRIBUTIONS
A. Types and allocation of Contributions
1. Employer Discretionary Contributions
(X) Not permitted.
12
<PAGE>
( ) 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; ( ) 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
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
13
<PAGE>
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.
( ) 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.
2. Elective Deferrals
14
<PAGE>
( ) Not permitted.
(X) Permitted.
A Participant may elect to have his or her Compensation
reduced by:
(X) An amount not in excess of 15% 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.
A Participant may elect to commence Elective Deferrals the
next pay period following: JANUARY 1, APRIL 1, JULY 1,
OCTOBER 1 (enter date or period -- at least once each
calendar year).
A Participant may modify the amount of Elective Deferrals as
of JANUARY 1, APRIL 1, JULY 1, OCTOBER 1 (enter date or
period -- at least once each calendar year).
A Participant (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.
15
<PAGE>
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
(X) Not permitted.
( ) Permitted.
Participants shall be permitted to make Thrift
Contributions from [....] % (not less than 1) to
[....]% (not more than 10) of their total aggregate
Compensation.
A Participant may elect to commence Thrift
Contributions the next pay period following [....]
(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 [....] (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).
16
<PAGE>
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.
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.
(X) The Employer shall or may (in the event that the
Matching Contribution amount is within the
discretion of the Employer) make Matching
Contributions to the Plan with respect to (any one
or a combination of the following may be
selected):
(X) Elective Deferrals.
( ) Thrift Contributions.
17
<PAGE>
( ) 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).
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) -
( ) An amount or percentage fixed by
appropriate action of the Employer.
(X) 20% 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 5% 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.
18
<PAGE>
( ) [....]% of the 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 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:
( ) Payroll period.
(X) Month.
( ) Quarter.
19
<PAGE>
( ) 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.
(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:
20
<PAGE>
( ) All Participants who make Elective Deferrals.
(X) All Participants who are Non-Highly
Compensated Employees and who make Elective
Deferrals.
The amount of such Qualified Matching
Contributions made on behalf of each Participant
shall be (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 5%
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.
(X) 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.
21
<PAGE>
B. Forfeitures (Do not complete if 100% immediate vesting is
elected).
Forfeitures of Employer Discretionary Contributions, Matching
Contributions or Excess Aggregate Contributions shall be:
(X) 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 ( ) No Employer Discretionary Contributions
( ) 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
22
<PAGE>
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.
(X) 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. 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;
( ) 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):
[ ] Single lump sum payment.
23
<PAGE>
[ ] 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): DEATH BENEFITS SHALL BE
PAID IN A LUMP-SUM UNLESS WITHIN THE 90 DAYS FOLLOWING THE DATE THE
COMMITTEE IS NOTIFIED OF THE PARTICIPANT'S DEATH, THE BENEFICIARY
ELECTS IN WRITING TO RECEIVE THE BENEFITS IN ONE OF THE FORMS LISTED
IN SECTION 8.6(B)(I), (II), (III) OR (IV), OR IN THE FORM OF A JOINT
AND 50% SURVIVOR ANNUITY CONTRACT PURCHASED FROM AN INSURANCE COMPANY
SELECTED BY THE COMMITTEE.
[Note: If the Plan is an amendment and restatement of an existing
Plan, optional forms of benefit protected under Section 411(d)(6) of
the Code may not be eliminated, unless permitted by IRS Regulations
Sections 1.401(a)-(4) and 1.411(d)-4].
XIII. VESTING SERVICE
In order to be credited with a year of Service for vesting purposes, a
Participant shall complete [....] (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.
24
<PAGE>
( ) 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:
A. Employer Discretionary Contributions.
( ) 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.
( ) 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.
(X) 20% (not less than 20%) vested for each year of Service,
beginning with the 1ST (not more than the 3rd) year of Service
until 100% vested EXCEPT THAT ANY EMPLOYEE WHO WAS ELIGIBLE AS OF
25
<PAGE>
JUNE 30, 1995 TO PARTICIPATE IN THE PLAN IS 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.
C. Top Heavy Minimum Vesting Schedules.
One of the following schedules will be used for years when the Plan is
or is deemed to be Top-Heavy.
( ) 100% immediately vested after (not to exceed 3) years of Service.
(X) 20% vested after 2 years of Service, plus 20% 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
26
<PAGE>
( ) The provisions of Article XIII of the Plan shall always apply.
(X) The provisions of Article XIII of the Plan shall only apply in
Plan Years after 1983, during which the Plan is or becomes
Top-Heavy.
B. Minimum Allocations
If a Participant in this Plan who is a Non-Key Employee is covered
under another qualified plan maintained by the Employer, the minimum
Top Heavy allocation or benefit required under Section 416 of the Code
shall be provided to such Non-key Employee under:
( ) 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: 8%
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,
27
<PAGE>
Annual Additions for any Limitation Year shall be limited to comply
with Section 415(c) of the Code:
( ) in accordance with Sections 6.4(e) - (j) as though the other plan
were a Master or Prototype Plan.
( ) by freezing or reducing Annual Additions in the other qualified
defined contribution plan.
( ) other:
(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.
( ) 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:
[....].
XXII. ROLLOVERS
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<PAGE>
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.
XXIV. RELIANCE ON PLAN QUALIFICATION
The adopting Employer may not rely on an opinion letter issued by the
National Office of the Internal Revenue Service as evidence that the Plan
is qualified under Section 401 of the Code. In order to obtain reliance
with respect to plan qualification, the Employer must apply to the
appropriate key district office of the Internal Revenue Service for a
determination letter.
XXV. PROTOTYPE PLAN DOCUMENTS
This Adoption Agreement may be used only in conjunction with the Dreyfus
Prototype Defined Contribution Plan, Basic Plan Document No. 01, and the
Dreyfus Trust Agreement both as amended from time to time. In the event the
Sponsor amends the Basic Plan Document or this Adoption Agreement or
discontinues this type of plan, it will inform the Employer. The Sponsor,
The Dreyfus Corporation, is available to answer questions regarding the
intended meaning of any Plan provisions, adoption of the Plan and the
effect of an Opinion Letter at 144 Glenn Curtiss Boulevard, Uniondale, New
York 11556-0144 [(516) 338-3418].
29
<PAGE>
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: COLEMAN CABLE SYSTEMS, INC.
Address: 1378 CHARLESTON DRIVE SANFORD, NORTH CAROLINA 27330
B. Employer is a (X) corporation; ( ) S Corporation; ( ) partnership; ( )
sole proprietor; ( ) other: [....]
C. Employer's Tax ID Number: 36-3091262
D. Employer's fiscal year: JANUARY 1 - DECEMBER 31
E. Plan Name: COMMUNICATION CABLE, INC. EMPLOYEES' SAVINGS PLUS 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 NOVEMBER 1, 1987. The effective date of this
amended Plan is FEBRUARY 7, 1997.
G. The Trustee shall be:
<PAGE>
(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): COMMUNICATION CABLE,
INC.
shall be credited for purposes of: [X] eligibility; [X] 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.
( ) 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.
2
<PAGE>
( ) 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
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:
3
<PAGE>
(X) Employees included in a unit of Employees covered by a collective
bargaining agreement between the Employer and employee
representatives, if retirement benefits were the subject of good faith
bargaining. For this purpose, the term "employee representatives" does
not include any organization more than half of whose members are
Employees who are owners, officers, or executives of the Employer.
( ) Employees who are nonresident aliens and who receive no earned income
from the Employer which constitutes income from sources within the
United States.
(X) Employees included in the following classification(s): THOSE EMPLOYEES
COVERED BY THE COLEMAN CABLE SYSTEMS, INC. 401(K) PLAN OR EMPLOYED AT
A LOCATION WHERE EMPLOYEES ARE ELIGIBLE TO PARTICIPATE IN THE COLEMAN
CABLE SYSTEMS, INC. 401(K) PLAN.
(X) Employees of the following employers aggregated with the Employer
under Sections 414(b), (c), (m) or (o) of the Code: KUHLMAN
CORPORATION, KUHLMAN ELECTRIC CORPORATION AND ITS SUBSIDIARIES, EMTEC
PRODUCTS CORPORATION, SCHWITZER, INC. AND ITS SUBSIDIARIES, AND ANY
OTHER ENTITY ACQUIRED BY KUHLMAN CORPORATION OR ONE OF ITS
SUBSIDIARIES ON OR AFTER JANUARY 1, 1997, UNLESS THIS PLAN IS
SPECIFICALLY EXTENDED TO THE EMPLOYEES OF THE ENTITY.
(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
4
<PAGE>
Each Eligible Employee shall become a Participant on the Entry Date
coincident with or following completion of the following requirements:
Age: ( ) No age requirement.
(X) The attainment of age 18 (not to exceed age 21).
Service: ( ) No service requirement.
(X) For Employer Discretionary Contributions only --
The completion of 1/2 (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.
(X) For all other contributions -- The completion of
1/2 (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.
( ) 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 1,000 (not
to exceed 1,000) Hours of Service.
5
<PAGE>
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 1,000 (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.
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.
(X) Quarterly Entry. The first day of the Plan Year and the first day of
the fourth, seventh and tenth months of the Plan Year.
( ) 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
6
<PAGE>
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
required to furnish the Employee a written statement under Sections
6041(d) and 6051(a)(3) of the Code. Compensation must be determined
without regard to any rules under Section 3401(a) that limit the
remuneration included in wages based on the nature or location of the
employment or services performed (such as the exception for
agricultural labor in Section 3401(a)(2) of the Code). This definition
of Compensation shall exclude amounts paid or reimbursed by the
Employer for moving expenses incurred by an Employee, but only to the
extent that at the time of the payment it is reasonable to believe
that these amounts are deductible by the Employee under Section 217 of
the Code.
( ) Section 3401(a) wages. Compensation is defined as wages within the
meaning of Section 3401(a) of the Code for purposes of income tax
withholding at the source but determined without regard to any rules
that limit the remuneration included in wages based on the nature or
location of the employment or the services performed (such as the
exception for agricultural labor in Section 3401(a)(2) of the Code).
( ) Section 415 safe-harbor compensation. Compensation is defined as
wages, salaries, and fees for professional services and other amounts
received (without regard to whether or not an amount is paid in cash)
for personal services actually rendered in the course of employment
with the Employer to the extent that the amounts are includible in
gross income (including, but not limited to, commissions paid
salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses, fringe
benefits, and reimbursements or other expense allowances under a
nonaccountable plan (as described in Section 1.62-2(c)), and excluding
the following:
(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;
7
<PAGE>
(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 to the Participant during the following applicable
period:
(X) the portion of the Plan Year in which the Employee is a
Participant in the Plan.
( ) the Plan Year.
( ) the calendar year ending with or within the Plan Year.
(X) 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
( ) overtime
( ) commissions
( ) amounts in excess of $ [....]
8
<PAGE>
( ) [....]
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 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
9
<PAGE>
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
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).
10
<PAGE>
( ) 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:
( ) There shall be no early retirement provision in this Plan.
( ) Age [...].
(X) Age 55 and 5 Years of Service.
XI. EMPLOYER AND EMPLOYEE CONTRIBUTIONS
A. Types and allocation of Contributions
1. Employer Discretionary Contributions
( ) Not permitted.
(X) Permitted.
(X) 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
[....]%.
11
<PAGE>
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 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:
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<PAGE>
( ) 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:
( ) Death.
( ) Disability.
( ) Attainment of Early Retirement Age.
( ) Attainment of Normal Retirement Age.
( ) 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 15% 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):
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<PAGE>
___% 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.
A Participant may elect to commence Elective Deferrals
the next pay period following: JANUARY 1 AND JULY 1
(enter date or period -- at least once each calendar
year).
A Participant may modify the amount of Elective
Deferrals as of ANY DAY (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
(X) Not permitted.
( ) Permitted.
Participants shall be permitted to make Thrift
Contributions from [....]% (not less than 1) to
[....]% (not more than 10) of their total
aggregate Compensation.
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<PAGE>
A Participant may elect to commence Thrift
Contributions the next pay period following [....]
(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
[....] (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.
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
15
<PAGE>
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.
(X) The Employer shall or may (in the event that
the Matching Contribution amount is within
the discretion of the Employer) make Matching
Contributions to the Plan with respect to
(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).
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) -
( ) An amount or percentage fixed by
appropriate action of the Employer.
(X) 25% 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
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<PAGE>
[....]% 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 4% 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 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.
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( ) [....]% 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:
( ) Payroll period.
(X) Month.
( ) Quarter.
( ) 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.
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<PAGE>
( ) 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.
(X) The Employer shall or may (in the event
that the Qualified Matching Contribution
amount is within the discretion of the
Employer) make Qualified Matching
Contributions.
Qualified Matching Contributions will be made on
behalf of:
( ) All Participants who make Elective Deferrals.
(X) All Participants who are Non-Highly
Compensated Employees and who make Elective
Deferrals.
The amount of such Qualified Matching
Contributions made on behalf of each Participant
shall be (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 4%
of the Participant's Compensation.
7. Qualified Nonelective Contributions
( ) Not permitted.
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<PAGE>
(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.
(X) 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.
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.
(X) Used to reduce:
(X) 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
( ) Yes (X) No Elective Deferrals
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<PAGE>
( ) 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.
(X) 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.
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.
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<PAGE>
(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: (X) 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):
[ ] 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): ANY TERM CERTAIN
NONTRANSFERABLE ANNUITY CONTRACT OFFERED BY AN INSURANCE CARRIER, WITH
THE TERM NOT TO EXCEED THE LIFE EXPECTANCY OF THE PARTICIPANT, OR OF
THE PARTICIPANT AND HIS BENEFICIARY.
[Note: If the Plan is an amendment and restatement of an existing
Plan, optional forms of benefit protected under Section 411(d)(6) of
the Code may not be eliminated, unless permitted by IRS Regulations
Sections 1.401(a)-(4) and 1.411(d)-4].
XIII. VESTING SERVICE
In order to be credited with a year of Service for vesting purposes, a
Participant shall complete 1,000 (not to exceed 1,000) Hours of Service.
(Not applicable if elapsed time method of crediting service for vesting
purposes is elected).
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<PAGE>
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:
A. Employer Discretionary Contributions.
( ) 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.
(X) 20% (not less than 20%) vested for each year of Service,
beginning with the 1ST (not more than the 3rd) year of Service
until 100% vested.
( ) 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.
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<PAGE>
B. Matching Contributions.
( ) 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.
(X) 20% (not less than 20%) vested for each year of Service,
beginning with the 1ST (not more than the 3rd) year of Service
until 100% vested.
( ) 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.
C. Top Heavy Minimum Vesting Schedules.
One of the following schedules will be used for years when the Plan is
or is deemed to be Top-Heavy.
( ) 100% immediately vested after [....] (not to exceed 3) years of
Service.
(X) 20% vested after 2 years of Service, plus 20% 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
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<PAGE>
Loans (X) shall; ( ) shall not be permitted.
XVIII. TOP-HEAVY PROVISIONS
A. Top Heavy Status
( ) The provisions of Article XIII of the Plan shall always apply.
(X) The provisions of Article XIII of the Plan shall only apply in
Plan Years after 1983, during which the Plan is or becomes
Top-Heavy.
B. Minimum Allocations
If a Participant in this Plan who is a Non-Key Employee is covered
under another qualified plan maintained by the Employer, the minimum
Top Heavy allocation or benefit required under Section 416 of the Code
shall be provided to such Non-key Employee under:
( ) 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: 8%
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
25
<PAGE>
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:
( ) in accordance with Sections 6.4(e) - (j) as though the other
plan were a Master or Prototype Plan.
( ) by freezing or reducing Annual Additions in the other qualified
defined contribution plan.
( ) other:
(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.
( ) 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
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<PAGE>
Transfers pursuant to Section 10.3 of the Plan (X) shall; ( ) shall not be
permitted.
If permitted, indicate additional prior plan provisions, if applicable:
[....].
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.
XXIV. RELIANCE ON PLAN QUALIFICATION
The adopting Employer may not rely on an opinion letter issued by the
National Office of the Internal Revenue Service as evidence that the Plan
is qualified under Section 401 of the Code. In order to obtain reliance
with respect to plan qualification, the Employer must apply to the
appropriate key district office of the Internal Revenue Service for a
determination letter.
XXV. PROTOTYPE PLAN DOCUMENTS
This Adoption Agreement may be used only in conjunction with the Dreyfus
Prototype Defined Contribution Plan, Basic Plan Document No. 01, and the
Dreyfus Trust Agreement both as amended from time to time. In the event the
Sponsor amends the Basic Plan Document or this Adoption Agreement or
discontinues this type of plan, it will inform the Employer. The Sponsor,
The Dreyfus Corporation, is available to answer questions regarding the
intended meaning of any Plan provisions, adoption of the Plan and the
effect of an Opinion Letter at 144 Glenn Curtiss Boulevard, Uniondale, New
York 11556-0144 [(516) 338-3418].
27
<PAGE>
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: SCHWITZER U.S., INC.
Address: 6040 WEST 62ND STREET INDIANAPOLIS, IN 46278
B. Employer is a (X) corporation; ( ) S Corporation; ( ) partnership; ( )
sole proprietor; ( ) other: [....]
C. Employer's Tax ID Number: 35-1764399
D. Employer's fiscal year: JANUARY 1 - DECEMBER 31
E. Plan Name: SCHWITZER TAX REDUCTION INVESTMENT PLAN FOR CERTAIN
SALARIED AND EXEMPT EMPLOYEES
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 APRIL 1, 1989. The effective date of this
amended Plan is JANUARY 1, 1997.
G. The Trustee shall be:
(X) The Dreyfus Trust Company
<PAGE>
( ) 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):
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:
( ) 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.
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<PAGE>
( ) 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.
(X) 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:
( ) On the basis of actual hours for which an Employee is paid or
entitled to payment.
( ) On the basis of days worked. An Employee will be credited with
ten (10) Hours of Service for any day such Employee would be
credited with at least one (1) Hour of Service during the day
under the Plan.
( ) On the basis of weeks worked. An Employee will be credited with
forty-five (45) Hours of Service for any week such Employee would
be credited with at least one (1) Hour of Service during the week
under the Plan.
( ) On the basis of semi-monthly payroll periods. An Employee will
be credited with ninety-five (95) Hours of Service for any
semi-monthly payroll period such Employee would be credited with
at least one (1) Hour of Service under the Plan.
( ) On the basis of months worked. An Employee will be credited
with one hundred ninety (190) Hours of Service for any month such
Employee would be credited with at least one (1) Hour of Service
under the Plan.
(X) On the basis of elapsed time.
III. ELIGIBLE EMPLOYEES
All Employees shall be Eligible Employees, except:
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<PAGE>
(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): ANY INDIVIDUAL
WHO IS NOT A SALARIED EMPLOYEE REGULARLY EMPLOYED AT INDIANAPOLIS, IN
AND ASHEVILLE, NC OR AN EXEMPT EMPLOYEE AT GAINESVILLE, GA
(X) Employees of the following employers aggregated with the Employer
under Sections 414(b), (c), (m) or (o) of the Code: KUHLMAN
CORPORATION, COLEMAN CABLE SYSTEMS, INC. AND ITS SUBSIDIARIES, KUHLMAN
ELECTRIC CORP. AND ITS SUBSIDIARIES, COMMUNICATION CABLE, INC. AND
EMTEC PRODUCTS CORP.
(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:
4
<PAGE>
Age: ( ) No age requirement.
(X) The attainment of age 21 (not to exceed age 21).
Service: ( ) No service requirement.
( ) For Employer Discretionary Contributions only -- The
completion of [....] (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.
(X) For all other contributions -- The completion of 1/4
(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.
( ) 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.
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<PAGE>
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.
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.
(X) Quarterly Entry. The first day of the Plan Year and the first day of
the fourth, seventh and tenth months of the Plan Year.
( ) 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
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<PAGE>
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
required to furnish the Employee a written statement under Sections
6041(d) and 6051(a)(3) of the Code. Compensation must be determined
without regard to any rules under Section 3401(a) that limit the
remuneration included in wages based on the nature or location of the
employment or services performed (such as the exception for
agricultural labor in Section 3401(a)(2) of the Code). This definition
of Compensation shall exclude amounts paid or reimbursed by the
Employer for moving expenses incurred by an Employee, but only to the
extent that at the time of the payment it is reasonable to believe
that these amounts are deductible by the Employee under Section 217 of
the Code.
( ) Section 3401(a) wages. Compensation is defined as wages within the
meaning of Section 3401(a) of the Code for purposes of income tax
withholding at the source but determined without regard to any rules
that limit the remuneration included in wages based on the nature or
location of the employment or the services performed (such as the
exception for agricultural labor in Section 3401(a)(2) of the Code).
( ) Section 415 safe-harbor compensation. Compensation is defined as
wages, salaries, and fees for professional services and other amounts
received (without regard to whether or not an amount is paid in cash)
for personal services actually rendered in the course of employment
with the Employer to the extent that the amounts are includible in
gross income (including, but not limited to, commissions paid
salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses, fringe
benefits, and reimbursements or other expense allowances under a
nonaccountable plan (as described in Section 1.62-2(c)), and excluding
the following:
(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;
7
<PAGE>
(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 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.
(X) 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
( ) overtime
8
<PAGE>
( ) commissions
( ) amounts in excess of $ [....]
(X) AMOUNTS REALIZED FROM THE SALE, EXCHANGE OR OTHER DISPOSITION OF
STOCK ACQUIRED UNDER A QUALIFIED STOCK OPTION
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 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
9
<PAGE>
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
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.
10
<PAGE>
( ) 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
(X) Not permitted.
( ) 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%).
11
<PAGE>
Employer Discretionary Contributions ( ) shall; ( ) 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
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
12
<PAGE>
**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.
( ) 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.
2. Elective Deferrals
(X) Not permitted.
( ) Permitted.
A Participant may elect to have his or her Compensation reduced
by:
( ) 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 in excess of $[....] of Compensation [cannot
exceed the dollar limitation of Section 402(g) of the Code
for the calendar year].
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<PAGE>
( ) An amount not in excess of (Note: The percent for the
Highly Compensated Employee cannot exceed the percent for
the Non- Highly Compensated Employee):
( ) An amount not to exceed the dollar limitation of Section
402(g) of the Code for the calendar year.
___% 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.
A Participant may elect to commence Elective Deferrals the next
pay period following: [....] (enter date or period -- at least
once each calendar year).
A Participant may modify the amount of Elective Deferrals 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.
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. (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
14
<PAGE>
(X) Not permitted.
( ) Permitted.
Participants shall be permitted to make Thrift Contributions
from [....] % (not less than 1) to [....]% (not more than
10) of their total aggregate Compensation.
A Participant may elect to commence Thrift Contributions the
next pay period following [....] (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 [....] (enter date or
period -- at least once each calendar year).
4. Elective Deferrals and Thrift Contributions, combined ("Combined
Contributions")
( ) Not Permitted.
(X) Permitted.
A Participant may elect to make Combined Contributions which
do not exceed 15% 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: JANUARY 1, APRIL 1, JULY 1, OCTOBER 1
(enter date or period -- at least once each calendar year).
A Participant may modify his amount of Combined
Contributions as of JANUARY 1, APRIL 1, JULY 1, OCTOBER 1
(enter date or period -- at least once each calendar year).
A Participant ( ) may; (X) may not base Elective Deferrals
on cash bonuses that, at the Participant's election, may be
contributed to the CODA or received by the Participant in
cash. Such election shall be effective as of the next pay
period following [....] or as soon as administratively
feasible thereafter.
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<PAGE>
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 (X) 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 MARCH 1 (enter date no later than 2 1/2 months
after close of the Plan Year).
5. Matching Contributions
( ) Not permitted.
(X) Permitted.
(X) The Employer shall or may (in the event that the
Matching Contribution amount is within the discretion
of the Employer) make Matching Contributions to the
Plan with respect to (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).
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) -
16
<PAGE>
( ) An amount or percentage fixed by appropriate action
of the Employer.
(X) 50% 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
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: [...]
17
<PAGE>
(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:
( ) Payroll period.
(X) Month.
( ) Quarter.
( ) 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.
18
<PAGE>
( ) 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.
(X) The Employer shall or may (in the event that the
Qualified Matching Contribution amount is within the
discretion of the Employer) make Qualified Matching
Contributions.
Qualified Matching Contributions will be made on behalf of:
( ) All Participants who make Elective Deferrals.
(X) All Participants who are Non-Highly Compensated Employees
and who make Elective Deferrals.
The amount of such Qualified Matching Contributions made on
behalf of each Participant shall be (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.
19
<PAGE>
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.
(X) 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.
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.
(X) Used to reduce:
(X) any future Employer contributions.
( ) Plan expenses.
C. Contributions Not Limited by Net Profits
20
<PAGE>
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 ( ) No Employer Discretionary Contributions
( ) 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.
21
<PAGE>
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;
( ) Transfer Account, if any ( ) shall; (X) 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): (A) ONCE EACH PLAN YEAR,
A PARTICIPANT MAY MAKE A NON-HARDSHIP WITHDRAWAL OF ALL OR PART
(MINIMUM $1,000 AND NOT INCLUDING ANY PORTION OF ACCOUNT USED AS
SECURITY FOR A LOAN) OF THE PARTICIPANT'S THRIFT CONTRIBUTIONS,
ROLLOVER CONTRIBUTIONS OR MATCHING CONTRIBUTIONS, AND EARNINGS, IF
ANY. IN NO EVENT SHALL WITHDRAWALS FROM MATCHING CONTRIBUTIONS OR
EARNINGS THEREON BE PERMITTED UNTIL SUCH PARTICIPANT HAS COMPLETED AT
LEAST FIVE YEARS OF PARTICIPATION IN THE PLAN.
22
<PAGE>
(B) AN EMPLOYEE WHO WAS PARTICIPATING IN THIS PLAN PRIOR TO JULY 1,
1989 MAY ELECT ONE OF THE FOLLOWING FORMS OF AN IMMEDIATE ANNUITY IN
LIEU OF A LUMP SUM DISTRIBUTION: (I) QUALIFIED JOINT AND SURVIVOR
ANNUITY PROVIDING AN ANNUITY FOR THE LIFE OF THE PARTICIPANT WITH A
SURVIVOR ANNUITY FOR THE LIFE OF SUCH PARTICIPANT'S SPOUSE WHICH IS
NOT LESS THAN ONE-HALF, OR GREATER THAN, THE AMOUNT OF THE ANNUITY
PAYABLE DURING THE JOINT LIVES OF THE PARTICIPANT AND SUCH
PARTICIPANT'S SPOUSE. (II) ANNUITY CERTAIN AND LIFE PROVIDING AN
ANNUITY TO THE PARTICIPANT FOR A SPECIFIED NUMBER OF MONTHLY PAYMENTS,
AND THEREAFTER, PAYMENTS WILL CONTINUE FOR AS LONG AS THE PARTICIPANT
LIVES.
[Note: If the Plan is an amendment and restatement of an existing
Plan, optional forms of benefit protected under Section 411(d)(6) of
the Code may not be eliminated, unless permitted by IRS Regulations
Sections 1.401(a)-(4) and 1.411(d)-4].
XIII. VESTING SERVICE
In order to be credited with a year of Service for vesting purposes, a
Participant shall complete [....] (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
23
<PAGE>
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:
A. Employer Discretionary Contributions.
( ) 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.
( ) 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.
(X) Other: YEARS OF SERVICE VESTED %
2 40%
3 60%
4 80%
24
<PAGE>
5 100%
(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.
C. Top Heavy Minimum Vesting Schedules.
One of the following schedules will be used for years when the Plan is
or is deemed to be Top-Heavy.
( ) 100% immediately vested after (not to exceed 3) years of
Service.
( ) 20% vested after 2 years of Service, plus [....] vested (not
less than 20%) for each additional year of Service until 100%
vested.
(X) Other: YEARS OF SERVICE VESTED %
2 40%
3 60%
4 80%
5 100%
(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
25
<PAGE>
A. Top Heavy Status
( ) The provisions of Article XIII of the Plan shall always apply.
(X) The provisions of Article XIII of the Plan shall only apply in
Plan Years after 1983, during which the Plan is or becomes
Top-Heavy.
B. Minimum Allocations
If a Participant in this Plan who is a Non-Key Employee is covered
under another qualified plan maintained by the Employer, the minimum
Top Heavy allocation or benefit required under Section 416 of the Code
shall be provided to such Non-key Employee under:
(X) this Plan.
( ) the Employer's other qualified defined contribution plan.
( ) the Employer's qualified defined benefit plan.
C. Determination of Present Value
If the Employer maintains a defined benefit plan in addition to this
Plan, and such plan fails to specify the interest rate an mortality
table to be used for purposes of establishing present value to compute
the Top-Heavy Ratio, then the following assumptions shall be used: N/A
Interest Rate: [....]%
Mortality Table: [....]
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.
26
<PAGE>
(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:
( ) in accordance with Sections 6.4(e) - (j) as though the
other plan were a Master or Prototype Plan.
( ) by freezing or reducing Annual Additions in the other
qualified defined contribution plan.
( ) other:
(b) If a Participant is or has ever been a Participant in a qualified
defined benefit plan maintained by the Employer, the "1.0"
aggregate limitation of Section 415(e) of the Code shall be
satisfied by:
(X) freezing or reducing the rate of benefit accrual under the
qualified defined benefit plan.
( ) freezing or reducing the Annual Additions under this Plan
(or, if the Employer maintains more than one qualified
defined contribution plan, as indicated in (a) above).
( ) other:
XX. INVESTMENTS
( ) Participants ( ) shall; ( ) shall not be permitted to direct the
investment of their Accounts in the investment options selected by the
Employer or the Committee.
(X) 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:
[....].
27
<PAGE>
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.
XXIV. RELIANCE ON PLAN QUALIFICATION
The adopting Employer may not rely on an opinion letter issued by the
National Office of the Internal Revenue Service as evidence that the Plan
is qualified under Section 401 of the Code. In order to obtain reliance
with respect to plan qualification, the Employer must apply to the
appropriate key district office of the Internal Revenue Service for a
determination letter.
XXV. PROTOTYPE PLAN DOCUMENTS
This Adoption Agreement may be used only in conjunction with the Dreyfus
Prototype Defined Contribution Plan, Basic Plan Document No. 01, and the
Dreyfus Trust Agreement both as amended from time to time. In the event the
Sponsor amends the Basic Plan Document or this Adoption Agreement or
discontinues this type of plan, it will inform the Employer. The Sponsor,
The Dreyfus Corporation, is available to answer questions regarding the
intended meaning of any Plan provisions, adoption of the Plan and the
effect of an Opinion Letter at 144 Glenn Curtiss Boulevard, Uniondale, New
York 11556-0144 [(516) 338-3418].
28
<PAGE>
EXHIBIT 4.5
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: SCHWITZER U.S., INC.
Address: 6040 WEST 62ND STREET INDIANAPOLIS, IN 46278
B. Employer is a (X) corporation; ( ) S Corporation; ( ) partnership; ( )
sole proprietor; ( ) other: [....]
C. Employer's Tax ID Number: 35-1764399
D. Employer's fiscal year: JANUARY 1 - DECEMBER 31
E. Plan Name: SCHWITZER TAX REDUCTION INVESTMENT PLAN FOR ASHEVILLE
HOURLY AND CERTAIN NONEXEMPT EMPLOYEES
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, 1992. The effective date of this
amended Plan is JANUARY 1, 1997.
G. The Trustee shall be:
<PAGE>
(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):
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:
( ) 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.
2
<PAGE>
( ) 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.
(X) 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:
( ) On the basis of actual hours for which an Employee is paid or
entitled to payment.
( ) On the basis of days worked. An Employee will be credited with ten
(10) Hours of Service for any day such Employee would be credited with
at least one (1) Hour of Service during the day under the Plan.
( ) On the basis of weeks worked. An Employee will be credited with
forty-five (45) Hours of Service for any week such Employee would be
credited with at least one (1) Hour of Service during the week under
the Plan.
( ) On the basis of semi-monthly payroll periods. An Employee will be
credited with ninety-five (95) Hours of Service for any semi-monthly
payroll period such Employee would be credited with at least one (1)
Hour of Service under the Plan.
( ) On the basis of months worked. An Employee will be credited with one
hundred ninety (190) Hours of Service for any month such Employee
would be credited with at least one (1) Hour of Service under the
Plan.
(X) On the basis of elapsed time.
3
<PAGE>
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): ANY INDIVIDUAL
WHO IS NOT AN HOURLY PAID EMPLOYEE REGULARLY EMPLOYED AT THE
ASHEVILLE, NC AND ANY NONEXEMPT EMPLOYEE AT THE GAINESVILLE, GA
FACILITY
(X) Employees of the following employers aggregated with the Employer
under Sections 414(b), (c), (m) or (o) of the Code: KUHLMAN
CORPORATION, COLEMAN CABLE SYSTEMS, INC. AND ITS SUBSIDIARIES, KUHLMAN
ELECTRIC CORPORATION AND ITS SUBSIDIARIES, COMMUNICATION CABLE, INC.
AND EMTEC PRODUCTS CORPORATION.
(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.
4
<PAGE>
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: ( ) No age requirement.
(X) The attainment of age 21 (not to exceed age 21).
Service: ( ) No service requirement.
( ) For Employer Discretionary Contributions only -- The
completion of [....] (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.
(X) For all other contributions -- The completion of 1/4
(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.
( ) 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.
5
<PAGE>
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.
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.
(X) Quarterly Entry. The first day of the Plan Year and the first day of
the fourth, seventh and tenth months of the Plan Year.
( ) 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
6
<PAGE>
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
required to furnish the Employee a written statement under Sections
6041(d) and 6051(a)(3) of the Code. Compensation must be determined
without regard to any rules under Section 3401(a) that limit the
remuneration included in wages based on the nature or location of the
employment or services performed (such as the exception for
agricultural labor in Section 3401(a)(2) of the Code). This definition
of Compensation shall exclude amounts paid or reimbursed by the
Employer for moving expenses incurred by an Employee, but only to the
extent that at the time of the payment it is reasonable to believe
that these amounts are deductible by the Employee under Section 217 of
the Code.
( ) Section 3401(a) wages. Compensation is defined as wages within the
meaning of Section 3401(a) of the Code for purposes of income tax
withholding at the source but determined without regard to any rules
that limit the remuneration included in wages based on the nature or
location of the employment or the services performed (such as the
exception for agricultural labor in Section 3401(a)(2) of the Code).
( ) Section 415 safe-harbor compensation. Compensation is defined as
wages, salaries, and fees for professional services and other amounts
received (without regard to whether or not an amount is paid in cash)
for personal services actually rendered in the course of employment
with the Employer to the extent that the amounts are includible in
gross income (including, but not limited to, commissions paid
salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses, fringe
benefits, and reimbursements or other expense allowances under a
nonaccountable plan (as described in Section 1.62-2(c)), and excluding
the following:
7
<PAGE>
(a) Employer contributions to a plan of deferred compensation which
are not includible in the Employee's gross income for the taxable
year in which contributed, or Employer contributions under a
simplified employee pension plan described in Section 408(k), or
any distributions from a plan of deferred compensation regardless
of whether such amounts are includible in the gross income of the
Employee;
(b) Amounts realized from the exercise of a 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 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.
(X) 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.
8
<PAGE>
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
( ) overtime
( ) commissions
( ) amounts in excess of $ [....]
(X) AMOUNTS REALIZED FROM THE SALE, EXCHANGE OR
OTHER DISPOSITION OF STOCK ACQUIRED UNDER A
QUALIFIED STOCK OPTION
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).
9
<PAGE>
( ) 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 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.
10
<PAGE>
VIII. LIMITATION YEAR
Limitation Year shall mean the twelve (12) consecutive-month period:
(X) Identical to the Plan Year.
( ) Identical to the Employer's fiscal year ending with or
within the Plan Year of reference.
( ) As fixed by a resolution of the Board of Directors of the
Employer, or the Employer if no Board of Directors exists.
IX. NORMAL RETIREMENT AGE
Normal Retirement Age shall mean:
(X) Age 65 (not to exceed 65).
( ) Age [....] (not to exceed 65), or the [....] (not to exceed
the 5th) anniversary of the date the Participant commenced
participation in the Plan, if later.
X. EARLY RETIREMENT AGE
Early Retirement Age shall mean:
(X) There shall be no early retirement provision in this Plan.
( ) Age [....].
( ) Age [....] and [....] Years of Service.
XI. EMPLOYER AND EMPLOYEE CONTRIBUTIONS
A. Types and allocation of Contributions
1. Employer Discretionary Contributions
(X) Not permitted.
( ) Permitted.
11
<PAGE>
( ) 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; ( )
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 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.
12
<PAGE>
If the Integration Level is:
<TABLE>
<CAPTION>
The Applicable
more than but not more than Factor is
<S> <C> <C>
$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
</TABLE>
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.
( ) 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.
2. Elective Deferrals
(X) Not permitted.
( ) Permitted.
13
<PAGE>
A Participant may elect to have his or her
Compensation reduced by:
( ) 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 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.
A Participant may elect to commence Elective
Deferrals the next pay period following: [....]
(enter date or period -- at least once each calendar
year).
A Participant may modify the amount of Elective
Deferrals 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.
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).
14
<PAGE>
A Participant ( ) may; ( ) may not elect to
recharacterize Excess Contributions as Thrift
Contributions. (Note: Available only if Thrift
Contributions are permitted.)
Participants who elect to recharacterize Excess
Contributions for the preceding Plan Year as Thrift
Contributions must submit their elections in writing
to the Committee by [....] (enter date no later than
2 1/2 months after close of Plan Year).
3. Thrift Contributions
(X) Not permitted.
( ) Permitted.
Participants shall be permitted to make
Thrift Contributions from [....] % (not less
than 1) to [....]% (not more than 10) of
their total aggregate Compensation.
A Participant may elect to commence Thrift
Contributions the next pay period following
[....] (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 [....] (enter date or period -- at
least once each calendar year).
4. Elective Deferrals and Thrift Contributions, combined
("Combined Contributions")
( ) Not Permitted.
(X) Permitted.
A Participant may elect to make Combined
Contributions which do not exceed 15% 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:
JANUARY 1, APRIL 1, JULY 1, OCTOBER 1 (enter
date or period -- at least once each
calendar year).
15
<PAGE>
A Participant may modify his amount of
Combined Contributions as of JANUARY 1,
APRIL 1, JULY 1, OCTOBER 1 (enter date or
period -- at least once each calendar year).
A Participant ( ) may; (X) may not base
Elective Deferrals on cash bonuses that, at
the Participant's election, may be
contributed to the CODA or received by the
Participant in cash. Such election shall be
effective as of the next pay period
following [....] or as soon as
administratively feasible thereafter.
Participants who claim Excess Elective
Deferrals for the preceding calendar year
must submit their claims in writing to
the plan administrator by MARCH 1 (enter
date between March 1 and April 15).
A Participant (X) 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 MARCH 1 (enter date no later than 2 1/2
months after close of the Plan Year).
5. Matching Contributions
( ) Not permitted.
(X) Permitted.
(X) The Employer shall or may (in the
event that the Matching Contribution
amount is within the discretion of
the Employer) make Matching
Contributions to the Plan with
respect to (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:
16
<PAGE>
(X) All Participants who make
such contribution(s).
( ) All Participants who are
Non-Highly Compensated
Employees who make such
contribution(s).
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) -
( ) An amount or percentage
fixed by appropriate action
of the Employer.
(X) 50% 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.
17
<PAGE>
( ) [....]% of the first
[....]% of Compensation
contributed, plus [....]%
of the next [....]% of
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:
( ) Payroll period.
(X) Month.
( ) Quarter.
18
<PAGE>
( ) 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.
(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:
19
<PAGE>
( ) All Participants who make Elective
Deferrals.
(X) All Participants who are Non-Highly
Compensated Employees and who make
Elective Deferrals.
The amount of such Qualified Matching
Contributions made on behalf of each
Participant shall be (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.
(X) 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.
B. Forfeitures (Do not complete if 100% immediate vesting is
elected).
20
<PAGE>
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.
(X) Used to reduce:
(X) 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 ( ) No Employer
Discretionary
Contributions
( ) 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.
21
<PAGE>
(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.
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; ( ) Transfer Account, if any ( ) shall; (X) 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.
22
<PAGE>
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): ONCE EACH PLAN YEAR, A PARTICIPANT
MAY MAKE A NON-HARDSHIP WITHDRAWAL OF ALL OR PART (MINIMUM
$1,000 AND NOT INCLUDING ANY PORTION OF ACCOUNT USED AS
SECURITY FOR A LOAN) OF THE PARTICIPANT'S THRIFT
CONTRIBUTIONS, ROLLOVER CONTRIBUTIONS OR MATCHING
CONTRIBUTIONS, AND EARNINGS, IF ANY. IN NO EVENT SHALL
WITHDRAWALS FROM MATCHING CONTRIBUTIONS OR EARNINGS THEREON BE
PERMITTED UNTIL SUCH PARTICIPANT HAS COMPLETED AT LEAST FIVE
YEARS OF PARTICIPATION IN THE PLAN.
[Note: If the Plan is an amendment and restatement of an
existing Plan, optional forms of benefit protected under
Section 411(d)(6) of the Code may not be eliminated, unless
permitted by IRS Regulations Sections 1.401(a)-(4) and
1.411(d)-4].
XIII. VESTING SERVICE
In order to be credited with a year of Service for vesting purposes, a
Participant shall complete [....] (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
23
<PAGE>
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:
A. Employer Discretionary Contributions.
( ) 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.
( ) 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.
(X) Other: YEARS OF SERVICE VESTED %
2 40%
24
<PAGE>
3 60%
4 80%
5 100%
(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.
C. Top Heavy Minimum Vesting Schedules.
One of the following schedules will be used for years when the
Plan is or is deemed to be Top-Heavy.
( ) 100% immediately vested after (not to exceed 3)
years of Service.
( ) 20% vested after 2 years of Service, plus [....]
vested (not less than 20%) for each additional year
of Service until 100% vested.
(X) Other: YEARS OF SERVICE VESTED %
2 40%
3 60%
4 80%
5 100%
(Note: must be at least as favorable as either of the
two schedules ithis 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
25
<PAGE>
Loans (X) shall; ( ) shall not be permitted.
XVIII. TOP-HEAVY PROVISIONS
A. Top Heavy Status
( ) The provisions of Article XIII of the Plan shall
always apply.
(X) The provisions of Article XIII of the Plan shall only
apply in Plan Years after 1983, during which the Plan
is or becomes Top-Heavy.
B. Minimum Allocations
If a Participant in this Plan who is a Non-Key Employee is
covered under another qualified plan maintained by the
Employer, the minimum Top Heavy allocation or benefit required
under Section 416 of the Code shall be provided to such
Non-key Employee under:
(X) this Plan.
( ) the Employer's other qualified defined
contribution plan.
( ) the Employer's qualified defined benefit
plan.
C. Determination of Present Value
If the Employer maintains a defined benefit plan in addition
to this Plan, and such plan fails to specify the interest rate
an mortality table to be used for purposes of establishing
present value to compute the Top-Heavy Ratio, then the
following assumptions shall be used: N/A
Interest Rate: [....]%
Mortality Table: [....]
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
26
<PAGE>
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:
( ) in accordance with Sections 6.4(e) - (j)
as though the other plan were a Master or
Prototype Plan.
( ) by freezing or reducing Annual Additions
in the other qualified defined contribution
plan.
( ) other:
(b) If a Participant is or has ever been a Participant in
a qualified defined benefit plan maintained by the
Employer, the "1.0" aggregate limitation of Section
415(e) of the Code shall be satisfied by:
(X) freezing or reducing the rate of benefit
accrual under the qualified defined benefit
plan.
( ) freezing or reducing the Annual Additions
under this Plan (or, if the Employer
maintains more than one qualified defined
contribution plan, as indicated in (a)
above).
( ) other:
XX. INVESTMENTS
( ) Participants ( ) shall; ( ) shall not be permitted to direct
the investment of their Accounts in the investment options
selected by the Employer or the Committee.
(X) 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.
27
<PAGE>
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:
[....].
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.
XXIV. RELIANCE ON PLAN QUALIFICATION
The adopting Employer may not rely on an opinion letter issued by the
National Office of the Internal Revenue Service as evidence that the
Plan is qualified under Section 401 of the Code. In order to obtain
reliance with respect to plan qualification, the Employer must apply to
the appropriate key district office of the Internal Revenue Service for
a determination letter.
XXV. PROTOTYPE PLAN DOCUMENTS
This Adoption Agreement may be used only in conjunction with the
Dreyfus Prototype Defined Contribution Plan, Basic Plan Document No.
01, and the Dreyfus Trust Agreement both as amended from time to time.
In the event the Sponsor amends the Basic Plan Document or this
Adoption Agreement or discontinues this type of plan, it
28
<PAGE>
will inform the Employer. The Sponsor, The Dreyfus Corporation, is
available to answer questions regarding the intended meaning of any
Plan provisions, adoption of the Plan and the effect of an Opinion
Letter at 144 Glenn Curtiss Boulevard, Uniondale, New York 11556-0144
[(516) 338-3418].
29
<PAGE>
EXHIBIT 4.6
DREYFUS PROTOTYPE
BASIC PLAN DOCUMENT NO. 01
DREYFUS PROTOTYPE DEFINED CONTRIBUTION PLAN
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <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".................................................... 1
1.10 "Beneficiary" or "Beneficiaries"..................................................... 2
1.11 "Board of Directors" ................................................................ 2
1.12 "CODA"............................................................................... 2
1.13 "Code"............................................................................... 2
1.14 "Committee".......................................................................... 2
1.15 "Compensation"....................................................................... 2
1.16 "Contribution Percentage"............................................................ 3
1.17 "Contribution Percentage Amounts".................................................... 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"................................................................. 4
1.23 "Eligible Employee".................................................................. 5
1.24 "Eligibility Year(s) of Service"..................................................... 5
1.25 "Employee"........................................................................... 6
1.26 "Employer"........................................................................... 6
1.27 "Employment Commencement Date"....................................................... 6
1.28 "Entry Date"......................................................................... 6
1.29 "Excess Aggregate Contributions"..................................................... 7
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
i
<PAGE>
1.40 "Normal Retirement Age".............................................................. 10
1.41 "Owner-Employee"..................................................................... 11
1.42 "Participant"........................................................................ 11
1.43 "Participating Employer"............................................................. 11
1.44 "Period of Severance"................................................................ 11
1.45 "Plan"............................................................................... 11
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" ................................................................... 12
1.52 "S-Corporation"...................................................................... 12
1.53 "Self-Employed Individual"........................................................... 12
1.54 "Service"............................................................................ 13
1.55 "Service Break"...................................................................... 13
1.56 "Severance from Service Date"........................................................ 14
1.57 Shareholder-Employee"................................................................ 14
1.58 "Sponsor"............................................................................ 14
1.59 "Taxable Wage Base".................................................................. 14
1.60 "Thrift Contributions"............................................................... 14
1.61 "Total and Permanent Disability"..................................................... 14
1.62 "Trustee" or "Custodian"............................................................. 14
1.63 "Trust Agreement" or "Custodial Agreement"........................................... 15
1.64 "Valuation Date"..................................................................... 15
1.65 "Voluntary Contributions"............................................................ 15
PARTICIPATION.......................................................................................... 15
2.1 Membership........................................................................... 15
2.2 Excluded Employees................................................................... 15
2.3 Reemployment......................................................................... 16
2.4 Change in Employment Status.......................................................... 16
2.5 Limitations on Participation of Owner-Employees...................................... 16
CONTRIBUTIONS AND CREDITS TO MONEY PURCHASE PLANS...................................................... 17
3.1 Employer Contributions............................................................... 18
3.2 Forfeitures.......................................................................... 18
3.3 Credit to Participants............................................................... 18
CONTRIBUTIONS AND CREDITS TO PROFIT SHARING PLANS...................................................... 21
4.1 Limits on Employer Contributions..................................................... 21
4.2 Forfeitures.......................................................................... 21
4.3 Employer Discretionary Contributions................................................. 21
4.4 401(k) Cash or Deferred Arrangements ("CODA")/Thrift
Contributions........................................................................ 24
4.5 Maximum Amount of Elective Deferrals................................................. 28
ii
<PAGE>
4.6 Average Actual Deferral Percentage Tests............................................. 28
4.7 Average Contribution Percentage Tests................................................ 33
4.8 Non-Hardship Withdrawals............................................................. 37
4.9 Distribution on Account of Financial Hardship........................................ 38
4.10 Special Distribution Rules........................................................... 40
CONTRIBUTIONS AND CREDITS TO TARGET BENEFIT PLANS...................................................... 41
CONTRIBUTION AND ALLOCATION LIMITS..................................................................... 41
6.1 Timing of Contributions.............................................................. 41
6.2 Deductibility of Contributions....................................................... 41
6.3 Return of Employer Contributions..................................................... 41
6.4 Limitation on Allocations............................................................ 42
6.5 Separate Accounts.................................................................... 51
6.6 Valuation............................................................................ 51
6.7 Segregation of Former Participant's Account.......................................... 52
VESTING .............................................................................................. 52
7.1 Vested Interest...................................................................... 52
7.2 Vesting of a Participant............................................................. 53
7.3 Amendment of Vesting Provisions...................................................... 53
7.4 Forfeitures.......................................................................... 54
BENEFITS ON RETIREMENT AND SEPARATION FROM SERVICE..................................................... 55
8.1 Commencement of Benefits............................................................. 55
8.2 Automatic Annuity Requirements....................................................... 57
8.3 Profit Sharing Plans: Exception from Automatic Annuity
Requirements......................................................................... 61
8.4 Transitional Rules Applicable to Joint and Survivor Annuities........................ 62
8.5 Required Payment of Benefits......................................................... 64
8.6 Available Forms of Distribution...................................................... 70
8.7 Certain Distributions................................................................ 71
8.8 Forfeitures.......................................................................... 71
DEATH BENEFITS......................................................................................... 71
9.1 Payment to Beneficiary............................................................... 71
9.2 Method of Payment.................................................................... 72
PARTICIPANT CONTRIBUTIONS; ROLLOVERS................................................................... 72
10.1 Voluntary Contributions.............................................................. 72
10.2 Voluntary Tax-Deductible Contributions............................................... 73
10.3 Transfers From Other Trusts.......................................................... 73
INSURANCE POLICIES..................................................................................... 74
11.1 Policy Procurement................................................................... 74
11.2 Rules and Regulations................................................................ 74
11.3 Transfer of Policies................................................................. 75
11.4 Payment Upon Death................................................................... 76
11.5 Plan Provisions Control.............................................................. 76
LOANS .............................................................................................. 76
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<PAGE>
12.1 Loans to Participants................................................................ 76
12.2 Provisions to be Applied in a Uniform and Nondiscriminatory
Manner............................................................................... 78
12.3 Satisfaction of Loan................................................................. 78
12.4 Loans to Owner-Employees or Shareholder-Employees.................................... 78
TOP-HEAVY PROVISIONS................................................................................... 79
13.1 Definitions.......................................................................... 79
13.2 Vesting Schedules.................................................................... 82
13.3 Minimum Allocation................................................................... 83
13.4 Adjustment to Defined Benefit Fraction and Defined Contribution
Fraction under section 6.4........................................................... 84
THE COMMITTEE.......................................................................................... 84
14.1 Creation of a Committee.............................................................. 84
14.2 Committee Action..................................................................... 84
14.3 Authorized Signatory................................................................. 84
14.4 Powers and Duties.................................................................... 85
14.5 Nondiscrimination.................................................................... 85
14.6 Records and Reports.................................................................. 85
14.7 Reliance on Professional Advice...................................................... 85
14.8 Payment of Expenses.................................................................. 85
14.9 Limitation of Liability.............................................................. 85
14.10 Payment Certification to Trustee..................................................... 86
14.11 Claims Procedure..................................................................... 86
GENERAL PROVISIONS..................................................................................... 87
15.1 No Right of Continued Employment..................................................... 87
15.2 Nonalienation of Interest............................................................ 87
15.3 Incompetence of Participants and Beneficiaries....................................... 87
15.4 Unclaimed Benefits................................................................... 87
15.5 Separate Employer Trusts Maintained.................................................. 88
15.6 Governing Law........................................................................ 88
15.7 Severability......................................................................... 88
15.8 Gender and Number.................................................................... 88
15.9 Titles and Headings.................................................................. 88
15.10 Failure of Employer's Plan to Qualify................................................ 88
15.11 Exclusive Benefit.................................................................... 89
15.12 Action by Employer................................................................... 89
AMENDMENT AND TERMINATION.............................................................................. 89
16.1 Amendment............................................................................ 89
16.2 Termination and Partial Termination.................................................. 90
16.3 Plan Merger and Consolidation or Transfer of Plan Assets............................. 90
16.4 Amended and Restated Plans........................................................... 91
16.5 Participating Employers.............................................................. 91
PAIRED PLAN PROVISIONS................................................................................. 92
iv
<PAGE>
17.1 Compliance With Section 415(e) of the Code........................................... 92
17.2 Adjustment of Combined Plan Fractions Under Section 415 of the
Code for Top-Heavy Ratio in Excess of Ninety Percent (90%)........................... 92
17.3 Top-Heavy Minimum Benefits and Contributions......................................... 93
17.4 Integration of Paired Plans.......................................................... 93
</TABLE>
v
<PAGE>
DREYFUS PROTOTYPE DEFINED CONTRIBUTION PLAN
BASIC PLAN DOCUMENT NO. 01
ARTICLE I.
DEFINITIONS
1.1 "Account" shall mean any one of the accounts maintained by the
Committee for each Participant in accordance with Section 6.5.
1.2 "Act" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
1.3 "Actual Deferral Percentage" shall mean the ratio (expressed as a
percentage) of Elective Deferrals (including Excess Elective
Deferrals), Qualified Matching Contributions, and Qualified 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.
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.
<PAGE>
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.
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
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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 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
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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.
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).
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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 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
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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.
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
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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.
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.
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If no officer has satisfied the compensation requirement of (iii) above
during either a determination year or look-back year, the highest paid
officer for such year shall be treated as a Highly Compensated
Employee.
For this purpose, the determination year shall be the Plan Year, and
the look-back year shall be the twelve (12) month period immediately
preceding the determination year unless the Employer has elected to use
the calendar year ending with or within the determination year as the
look-back year for purposes of its employee benefit plans. If the
Employer has so elected to use such calendar year as the look-back year
for its employee benefit plans, the determination year shall be the
"lag period," if any, by which the applicable determination year
extends beyond such calendar year.
A highly compensated former employee includes any Employee who
terminated employment (or was deemed to have terminated) prior to the
determination year, performs no service for the Employer or any
Affiliated Employer during the determination year, and was a highly
compensated active employee for either the separation year or any
determination year ending on or after the Employee's 55th birthday.
If an Employee is, during a determination year or look-back year, a
Family Member of either a five percent (5%) owner who is an active or
former Employee or a Highly Compensated Employee who is one of the 10
most Highly Compensated Employees of the Employer or any Affiliated
Employer during such year, then the Family Member and the five percent
(5%) owner or top-10 Highly Compensated Employee shall be aggregated.
The Family Member and five percent (5%) owner or top-10 Highly
Compensated Employee shall be treated as a single Employee receiving
Compensation and Plan contributions equal to the sum of Compensation
and contributions of the Family Member and five percent (5%) owner or
top-10 Highly Compensated Employee.
The determination of who is a Highly Compensated Employee, including
the determinations of the number and identify of employees in top-paid
group, the top 100 employees, the number of employees treated as
officers and the compensation 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
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rendered by him to the Employer (regardless of whether the
Employee shall have ceased to be an Employee) due to vacation,
holiday, illness, incapacity (including disability), layoff,
jury duty, military duty or leave of absence. No more than
five hundred and one (501) Hours of Service shall be credited
pursuant to this subparagraph (b) on account of any single
continuous period during which an Employee renders no services
to the Employer (whether or not such period occurs in a single
computation period). Hours under this paragraph will be
calculated and credited pursuant to section 2530.200b-2 of the
Department of Labor Regulations which are incorporated herein
by this reference; and
(c) Each hour for which back pay, without regard to mitigation of
damages, has been awarded or agreed to by the Employer. The
same Hours of Service shall not be credited both under
subparagraph (a) or subparagraph (b), whichever shall be
applicable, and also under this subparagraph (c). The hours
will be credited to the Employee for the computation period or
periods to which the award or agreement pertains rather than
the computation period in which the award, agreement or
payment is made.
Hours of Service will be credited for employment with an
Affiliated Employer. Hours of Service will also be credited
for employment with a predecessor employer if the Employer
maintains the plan of such predecessor or the Employer so
elects in the Adoption Agreement.
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.
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Hours of Service shall be credited on the basis of actual
hours worked unless another method has been specified in the
Adoption Agreement. Hours of Service shall not be counted if
the elapsed time method is specified in the Adoption
Agreement, except to determine an Employee's Employment
Commencement Date or Re-Employment Commencement Date.
1.36 "Integration Level" shall mean the Taxable Wage Base or such lesser
amount elected by the Employer in the Adoption Agreement.
1.37 "Matching Contribution" shall mean Employer contributions made to this
Plan or any other defined contribution plan by reason of Thrift
Contributions or Elective Deferrals under this Plan.
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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(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.
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.
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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 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).
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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.
(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
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(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
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.
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(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
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
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(a) A former Participant will become a Participant immediately
upon returning to the employ of the Employer if such former
Participant had a nonforfeitable right to all or a portion of
the account balance derived from Employer contributions at the
time of termination from service.
(b) A former Participant who did not have a nonforfeitable right
to any portion of the account balance derived from Employer
contributions at the time of termination from service will be
considered a new Employee, for eligibility purposes, if the
number of consecutive one (1) year Service Breaks equal or
exceed the greater of five (5) or the aggregate number of
years of Service before such Service Breaks. If such former
Participant's years of Service before termination from service
may not be disregarded pursuant to the preceding sentence,
such former Participant shall participate immediately upon
reemployment.
(c) Any former Employee who was never a Participant and is
reemployed as an Employee will be eligible to participate
subject to the provisions of Section 2.1.
2.4 Change in Employment Status
In the event that a Participant who was credited with a year of Service
for the preceding Plan Year, at the request of the Employer, enters
directly into the employ of any other business entity, such Participant
shall be deemed to be an Active Participant. If such Participant
returns to the employ of the Employer or becomes eligible for benefits
pursuant to Articles VIII or IX, without interruption of employment
with the Employer or other business entity, he shall be deemed not to
have had a Service Break for such period. However, if such Participant
does not immediately return to the employ of the Employer upon his
termination of employment with such other business entity or upon
recall by the Employer, he shall be deemed to have terminated his
employment for all purposes of the Plan as of the Anniversary Date
following the date of transfer.
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
16
<PAGE>
trades or businesses must be included in a plan which
satisfies sections 401(a) and (d) of the Code and which
provides contributions and benefits not less favorable than
provided for Owner-Employees under this Plan.
(c) If an individual is covered as an Owner-Employee under the
plans of two or more trades or businesses which are not
controlled and the individual controls a trade or business,
then the contributions or benefits of the employees under the
plan of the trades or businesses which are controlled must be
as favorable as those provided for him under the most
favorable plan of the trade or business which is not
controlled.
For purposes of the preceding paragraphs, an Owner-Employee,
or two or more Owner-Employees, will be considered to control
a trade or business if the Owner-Employee, or two or more
Owner-Employees together:
(1) own the entire interest in an unincorporated trade or
business, or
(2) in the case of a partnership, own more than fifty
percent (50%) of either the capital 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
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Unless otherwise specified in the Adoption Agreement, any forfeitures
which occur will reduce Employer contributions for the next Plan Year.
If the Adoption Agreement specifies that forfeitures are to be
allocated to the Accounts of other Participants, the Plan shall
continue to be designed to qualify as a money purchase pension plan for
purposes of sections 401(a), 402, 412 and 417 of the Code.
3.3 Credit to Participants
(a) If the Plan is not integrated with Social Security, the
Employer's contribution (as specified in the Adoption
Agreement) for any Plan Year (and any forfeitures, if
forfeitures are allocated to Active Participants in accordance
with Section 3.2) shall be allocated to the Regular Account of
each Active Participant in the ratio in which each Active
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.
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<PAGE>
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.
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
19
<PAGE>
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.
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)
20
<PAGE>
4.1 Limits on Employer Contributions
Employer contributions for each Plan Year (including, if applicable,
Elective Deferrals) shall be determined in accordance with the Adoption
Agreement, but shall not exceed the maximum amount which shall
constitute an allowable deduction under section 404(a) of the Code.
Unless otherwise specified in the Adoption Agreement, Employer
contributions may only be made out of Net Profits. If the Adoption
Agreement provides that one or more Employer contributions may be made
without regard to Net Profits, the Plan shall continue to be designed
to qualify as a profit sharing plan for purposes of 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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<PAGE>
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.
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
22
<PAGE>
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 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
23
<PAGE>
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.
(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
24
<PAGE>
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 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
25
<PAGE>
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
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
26
<PAGE>
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 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
27
<PAGE>
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.
(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;
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or
(2) The Average Actual Deferral Percentage for Eligible
Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Average Actual
Deferral Percentage for Eligible Participants who are
Non-Highly Compensated Employees for the Plan Year
multiplied by 2.0, provided that the Average Actual
Deferral Percentage for Eligible Participants who are
Highly Compensated Employees does not exceed the
Average Actual Deferral Percentage for Eligible
Participants who are Non-Highly Compensated Employees
by more than two (2) percentage points.
(b) Special Rules.
(1) The Actual Deferral Percentage for
any Participant who is a Highly
Compensated Employee for the Plan
Year and who is eligible to have
Elective Deferrals (and, if
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
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<PAGE>
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 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
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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 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
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Contribution Account only to the
extent that such Excess
Contributions exceed the
Participant's account balance
attributable to Elective Deferrals
and Qualified Matching
Contributions.
(d) Recharacterization of Excess Contributions.
If the Plan provides for Thrift
Contributions by Participants and if
permitted in the Adoption Agreement, each
Participant to whom Excess Contributions are
allocable may elect, in lieu of distribution
under Section 4.6(c) above, that all or a
portion of such Excess Contributions be
recharacterized as Thrift Contributions no
later than the later of (i) 2 1/2months
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 received them in
cash. Recharacterized Excess Contributions
shall remain
32
<PAGE>
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 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
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<PAGE>
(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 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
34
<PAGE>
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 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.
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<PAGE>
(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 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
36
<PAGE>
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 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
37
<PAGE>
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.
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;
38
<PAGE>
(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
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
39
<PAGE>
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:
(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.
40
<PAGE>
ARTICLE V.
CONTRIBUTIONS AND CREDITS TO TARGET BENEFIT PLANS
[All provisions regarding target benefit plan
contributions are in the Adoption Agreement
for Dreyfus Standardized Prototype Target
Benefit Plan No. 01004].
ARTICLE VI.
CONTRIBUTION AND ALLOCATION LIMITS
6.1 Timing of Contributions
Contributions under Sections 3.1, 4.1, 4.4(3), 4.4(4), 4.4(5) and 5.1
shall be made no later than the time prescribed by law (including any
extensions thereof) for filing the Employer's federal income tax return
for the Plan Year for which they are made.
6.2 Deductibility of Contributions
All contributions made by an Employer shall be conditioned upon their
deductibility by the Employer for income tax purposes; provided,
however, that no contributions shall be returned to an Employer except
as provided in Section 6.3.
6.3 Return of Employer Contributions
Notwithstanding any other provision of this Plan, contributions made by
an Employer may be returned to such Employer if:
(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
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<PAGE>
qualification within the time prescribed by law for filing the
Employer's return for the taxable year in which the Plan was
adopted or such later date as the Secretary of the Treasury
may prescribe, the Plan received an adverse determination, and
the contribution is returned to the Employer within one year
after the date of the adverse determination.
Employer contributions may be returned even if such contributions have
been allocated to a Participant's Account which is fully or partially
nonforfeitable and it is necessary to adjust said Account to reflect
the return of the Employer contributions. The amount which may be
returned to the Employer is the excess of the amount contributed over
the amount that would have been contributed had there not occurred the
circumstances causing the excess. Earnings attributable to the excess
contribution may not be returned to the Employer, but losses thereto
shall reduce the amount to be so returned. Furthermore, if the
withdrawal of the amount attributable to the excess contribution would
cause the balance of the individual Account of any Participant to be
reduced to less than the balance which would have been in the Account
had the excess amount not been contributed, then the amount to be
returned to the Employer shall be limited to avoid such reduction.
6.4 Limitation on Allocations:
(a) If the Participant does not participate in, and has never
participated in another qualified plan or a welfare benefit
fund, as defined in section 419(e) 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.
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(d) If, pursuant to Subsection (c) above or as a result of the
allocation of forfeitures, there is an Excess Amount with
respect to a Participant for a Limitation Year, such Excess
Amount shall be disposed of as follows:
(1) First, any 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 the other
qualified
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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,
(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
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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 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.
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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 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
46
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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).
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
47
<PAGE>
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,
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
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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.
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
49
<PAGE>
Year must begin on a date within the Limitation Year
in which the amendment is made.
(8) "Master or Prototype Plan" shall mean a plan the form
of which is the subject of a favorable opinion letter
from the Internal Revenue Service.
(9) "Maximum Permissible Amount" shall mean the lesser
of:
(A) thirty-thousand dollars ($30,000) (or, if
greater, one-fourth (1/4th) of the defined
benefit dollar limitation set forth in
section 415(b)(1) of the Code as in effect
for the Limitation Year), or
(B) twenty-five percent (25%) of the
Participant's Compensation for the
Limitation Year.
The compensation limitation referred to in paragraph
(B) above shall not apply to any contribution for
medical benefits (within the meaning of section
401(h) or section 419A(f)(2) of the Code) which is
otherwise treated as an Annual Addition under section
415(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
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<PAGE>
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),
(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
51
<PAGE>
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, 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
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<PAGE>
Except in the case of Plans subject to full and immediate vesting, a
Participant's vested amount shall be calculated by multiplying his
Regular Account balance, 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.
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
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<PAGE>
amendment becomes effective; or (3) sixty (60) days after the
Participant is issued written notice of the amendment by the Employer
or Committee.
7.4 Forfeitures
(a) If a Participant terminates employment with the Employer and
the value of the Participant's vested account balance derived
from Employer and Employee contributions (other than
accumulated deductible employee contributions) is not greater
than $3,500, the Employee shall receive a distribution of the
value of the entire vested portion of such account balance,
and the nonvested portion will be treated as a forfeiture. For
purposes of this Section 7.4, if the value of a Participant's
vested account balance is zero, the Participant shall be
deemed to have received a distribution of such vested account
balance. A Participant's vested account balance shall not
include Voluntary Tax-Deductible Contributions for Plan Years
beginning before January 1, 1989.
(b) If a Participant terminates employment with the Employer, and
elects (with his or her spouse's 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.
(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,
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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 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
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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.
(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
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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 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
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(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 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,
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including the proceeds of insurance contracts, if
any, on the Participant's life. The provisions of
this Section 8.2 shall apply to a Participant who is
vested in amounts attributable to employer
contributions, employee contributions (or both) at
the time of death or distribution.
(b) Notice Requirements
Qualified Joint and Survivor Annuity. In the case of a
Qualified Joint and Survivor Annuity as described above, the
Committee shall provide each Participant within the period
beginning ninety (90) days before and ending thirty (30) days
before the Annuity Starting Date a written explanation of: (i)
the terms and conditions of a Qualified Joint and Survivor
Annuity; (ii) the Participant's right to make and the effect
of an election to waive the Qualified Joint and Survivor
Annuity form of benefit; (iii) the rights of a Participant's
Spouse; (iv) the right to make, and the effect of, a
revocation of a previous election to waive the Qualified Joint
and Survivor Annuity; and (v) the right, if any, to defer the
commencement of benefits.
Qualified Pre-Retirement Survivor Annuity. In the case of a
Qualified Pre-Retirement Survivor Annuity as described above,
the Committee shall provide each Participant with a written
explanation of the Qualified Pre-Retirement Survivor Annuity
in such terms and in such manner as would be comparable to the
explanation provided for meeting the requirements applicable
to explaining a Qualified Joint and Survivor Annuity within
whichever of the following periods ends last:
(i) The period beginning on the first day of the Plan
Year in which the Participant attains age thirty-two
(32) and ending with the close of the Plan Year
preceding the Plan Year in which the Participant
attains age thirty-five (35).
(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
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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.
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.
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8.4 Transitional Rules Applicable to Joint and Survivor Annuities
(a) Any living Participant not receiving benefits on August 23,
1984, who would otherwise not receive the benefits prescribed
by Section 8.2 must be give the opportunity to elect to have
Section 8.2 apply if such Participant is credited with at
least one (1) Hour of Service under this Plan or a predecessor
plan in a Plan Year beginning on or after January 1, 1976, and
such Participant had at least ten (10) years of Service when
he or she terminated employment.
(b) Any living Participant not receiving benefits on August 23,
1984, who was credited with at least one (1) Hour of Service
under this Plan or a predecessor Plan on or after September 2,
1974, and who is not otherwise credited with any Service in a
Plan Year beginning on or after January 1, 1976, must be given
the opportunity to have his or her benefits paid in the manner
set forth in paragraph (d) below.
(c) The respective opportunities to elect (as described in
paragraphs (a) and (b) above) must be afforded to the
appropriate Participants during the period commencing on
August 23, 1984, and ending on the date benefits would
otherwise commence to said Participants.
(d) Any Participant who has elected pursuant to paragraph (b)
above and any Participant who does not 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;
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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 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;
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(B) the first day of the one hundred
twentieth (120th) month beginning
before the Participant reaches his
Normal Retirement Age; or
(C) the date on which the Participant
begins participation.
8.5 Required Payment of Benefits
(a) General Rule. Except as otherwise provided in Section 8.2, the
requirements of this Section shall apply to any distribution
of a Participant's account balance and will take precedence
over any inconsistent provisions of the Plan. Unless otherwise
specified, the provisions of this Section shall apply to
calendar years beginning after December 31, 1984.
All distributions required under this Section 8.5 shall be
determined and made in accordance with the Income Tax
Regulations under section 401(a)(9) of the Code, including the
minimum distribution incidental benefit requirement of section
1.401(a)(9)-2 of the regulations.
(b) Limits on Distribution Periods. Distributions, if not made in
a single-sum, may only be made over one of the following
periods (or a combination thereof): (1) the life of the
Participant; (2) the life of the Participant and a Designated
Beneficiary; (3) a period certain not extending beyond the
life expectancy of the Participant; or (4) a period certain
not extending beyond the joint and last survivor expectancy of
the Participant and a Designated Beneficiary.
Any annuity contract purchased and distributed to a
Participant or his Beneficiary shall comply with the
requirements of this Plan, and shall be made and endorsed as
nontransferable.
(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.
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(ii) For calendar years beginning before January 1, 1989,
if the Participant's spouse is not the designated
Beneficiary, the method of distribution selected must
assure that at least fifty percent (50%) of the
present value of the amount available for
distribution is paid within the life expectancy of
the Participant.
(iii) For calendar years beginning after December 31, 1988,
the amount to be distributed each year, beginning
with distributions for the first distribution
calendar year shall not be less than the quotient
obtained by dividing the Participant's benefit by the
lesser of (1) the applicable life expectancy or (2)
if the Participant's spouse is not the Designated
Beneficiary, the applicable divisor determined from
the table set forth in Q&A-4 of section 1.401
(a)(9)-2 of the Income Tax Regulations. Distributions
after the death of the Participant shall be
distributed using the applicable life expectancy in
paragraph (c)(i) above as the 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
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the life expectancy of the Designated
Beneficiary commencing on or before December
31 of the calendar year immediately
following the calendar year in which the
Participant died.
(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.
(e) Definitions. For purposes of this Section 8.5, the following
terms shall have the following meanings:
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(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 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
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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.
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
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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.
(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.
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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 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.
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(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
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
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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
(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.
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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 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
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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.
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.
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(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
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
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vest in the transferee all right, title and interest thereto,
free and clear of the Trust. If the Participant declines to
purchase such policy, the Trustee shall, upon instructions
from the Committee, liquidate the policy for its cash
surrender value; transfer the policy to the Participant as a
distribution of benefits; or if the Participant has terminated
employment with the Employer other than by reason of
retirement, death or disability, place the policy on a paid-up
basis. The Committee may direct the Trustee to designate
itself, if not so designated, as Beneficiary under such policy
for the period prior to the date on which it is liquidated.
(c) Subject to the Qualified Joint and Survivor Annuity Rules of
Section 8.2, the contracts on a Participant's life will be
converted to cash or an annuity or distributed to the
Participant upon commencement of benefits.
11.4 Payment Upon Death
Subject to the Qualified Pre-Retirement Survivor Annuity Rules of
Section 8.2, all death benefits payable under any policy held on behalf
of a deceased Participant shall be paid to his Beneficiary. Such
benefits may, as the Committee shall determine, be paid either to the
Trust Fund, in which case the cash proceeds thereof shall be included
as part of vested account balance of such Participant and distributed
accordingly, or directly by the insurance company to the Beneficiary
pursuant to the settlement option in effect at the time of the
Participant's death. In the absence of such election, the 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:
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(a) Shall not exceed the lesser of:
(1) fifty thousand dollars ($50,000) reduced by the
excess, if any, of (i) the highest outstanding
balance of loans from the Plan during the one (1)
year period ending on the day before the date on
which such loan was made, over (ii) the outstanding
balance of loans from the Plan on the date such loan
was made, or
(2) 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 consent shall be required if the
account balance is used for renegotiation, extension, renewal or other
revision of the loan.
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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).
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
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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.
(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%).
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(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 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
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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.
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.
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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.
(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
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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
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
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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
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
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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.
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.
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ARTICLE XV.
GENERAL PROVISIONS
15.1 No Right of Continued Employment
No Employee or Participant shall have any right or claim to any benefit
under the Plan except in accordance with the provisions of the Plan.
The adoption of the Plan shall not be construed as creating any
contract of employment between the Employer and any Employee or
otherwise conferring upon any Employee or other person any legal right
to continuation of employment, nor as limiting or qualifying the right
of the Employer to discharge any Employee without regard to the effect
that such discharge might have upon his rights under the Plan.
15.2 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
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reasonable and diligent search for the Participant before any benefit
is segregated. If a benefit is forfeited because the Participant or
Beneficiary cannot be found, such benefit will be reinstated if a claim
is made by the Participant or Beneficiary.
15.5 Separate Employer Trusts Maintained
Except as provided in Section 16.5, the Plan of each Employer which
adopts this Prototype Plan and corresponding Trust Agreement as part of
its Plan shall be administered separately from those of any other
Employer.
15.6 Governing Law
The Plan shall be administered, construed and enforced to the state
wherein the Trustee maintains its principal place of business, except
to the extent preempted by the Act.
15.7 Severability
Should any provision of the Plan or rules and regulations adopted
thereunder be deemed or held to be unlawful or invalid for any reason,
such fact shall not adversely affect the other provisions unless such
invalidity shall 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.
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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.
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.
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(c) Notwithstanding anything in this Plan to the contrary, no
amendment shall:
(1) Increase the responsibility of the Trustee without
the Trustee's written consent;
(2) Have the effect of decreasing a Participant's account
balance or eliminating an optional form of benefit
with respect to accrued benefits, except to the
extent permitted by section 412(c)(8) of the Code;
(3) In the case of an Employee who is a Participant as of
the later of the date such amendment is adopted or
the date it becomes effective, decrease the
nonforfeitable percentage (determined as of such
date) of such Employee's right to his
Employer-derived account balance below his
non-forfeitable percentage computed under the Plan
without regard to such amendment;
(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
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
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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.
(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.
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(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.
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
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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.
(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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EXHIBIT 4.7
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 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
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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
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
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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
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.
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(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 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:
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(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 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.
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(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 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
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vote shares of Employer Stock credited to a Participant's
account for which it has not received instructions from the
Participant. The Trustee shall not be obligated to solicit a
response from Participants from whom it has not received
instructions. The Trustee shall vote shares of Employer Stock
not credited to Participants' accounts in the same proportion
on each issue as it votes those shares credited to
Participants' accounts for which it received voting
instructions from Participants.
(g) In the event of a tender or exchange offer for any Employer
Stock held in the Trust Fund, the Trustee shall use its best
efforts to distribute or cause to be distributed to each
affected Participant in a timely manner all information and
materials that are distributed to the stockholders of the
issuer of the Employer Stock in connection with the offer and
directions as to how the Participant may instruct the Trustee
whether or not to tender or exchange the Employer Stock
credited to the Participant's account (both vested and
non-vested). Alternatively, the Trustee may agree that the
notification of Participants and distribution of the
information, materials and directions described above are to
be effected by the Employer or its designee. In such event,
the Employer shall provide the Trustee with a copy of all
information, materials and directions provided to Participants
and shall certify to the Trustee that the information,
materials and directions have been mailed or otherwise sent to
each affected Participant. The Trustee, in its discretion, may
prepare or amend any instruction form sent to Participants.
Instructions shall be returnable to the Trustee or its
designee. Each Participant shall be entitled to direct the
Trustee to tender or exchange shares (including fractional
interest in shares) of Employer Stock credited to such
Participant's account (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
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of Employer Stock credited to Participants' accounts. A
Participant who has instructed the Trustee to tender or
exchange shares of Employer Stock credited to such
Participant's account may, at any time prior to the expiration
of the offer or any earlier date set by the Trustee, instruct
the Trustee to withdraw a specified number of shares from the
offer. A Participant shall not be limited as to the number of
instructions that the Participant may give to the Trustee. If
a Participant instructs the Trustee to tender or exchange
shares of Employer Stock credited to the Participant's
account, the Trustee shall credit to each account of such
Participant from which the shares were taken the consideration
received by the Trustee for the shares of Employer Stock
tendered or exchanged from that account. Pending receipt of
Committee Directions or, to the extent provided in Section
2.1.2 of the Trust Agreement, instructions from the
Participant as to the investment 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
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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 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
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Trust Company shall not serve as, and shall not be deemed to be, a co-trustee
under any circumstances.
Section 3.1.3. Subject to the limitations set forth in Section 3.1.2 herein,
in the event that more than one individual Trustee has been designated in
the Adoption Agreement, the action of such individual Trustees shall be
determined by vote of the majority of such individual Trustees; provided,
however, that any one of such individual Trustees may execute any applications
for insurance or annuity contracts provided for herein and documents necessary
for the exercise of ownership rights thereunder and may perform other such
ministerial acts; and further provided, that the Trustees may enter into an
agreement allocating among themselves specific responsibilities, obligations
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
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
14
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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
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.
15
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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 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
16
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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.
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.
17
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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.
18
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EXHIBIT 5.1
[LETTERHEAD OF RUDNICK & WOLFE]
August 6, 1997
The Board of Directors
Kuhlman Corporation
3 Skidaway Village Square
Savannah, Georgia 31411
Gentlemen:
We have examined the registration statement to be filed with the
Securities and Exchange Commission on or about August 6, 1997 for registration
under the Securities Act of 1933, as amended, of (i) 300,000 additional shares
of common stock, par value $1.00 per share (including related Preferred Stock
Purchase Rights) ("Common Stock"), of Kuhlman Corporation (the "Company")
reserved for issuance upon the exercise of options granted and to be granted
pursuant to the Kuhlman Corporation 1994 Stock Option Plan (the "Option Plan");
(ii) an indeterminate amount of interests to be offered and sold pursuant to the
Communication Cable, Inc. Employees' Savings Plus Plan, the Coleman Cable
Systems, Inc. 401(k) Plan, the Schwitzer Tax Reduction Investment Plan for
Certain Salaried and Exempt Employees, and the Schwitzer Tax Reduction
Investment Plan for Asheville Hourly and Certain Nonexempt Employees
(collectively, the "401(k) Plans"); and (iii) 100,000 shares of Common Stock
that may be acquired by the 401(k) Plans for their participants. We have
examined pertinent corporate documents and records of the Company, including its
Certificate of Incorporation and its By-Laws, and we have made such other
examinations as we have deemed necessary or appropriate as a basis for the
opinion hereinafter expressed. We express no opinion herein or otherwise with
respect to shares of Common Stock, if any, purchased by the 401(k) Plans on the
open market.
On the basis of the foregoing, we are of the opinion that:
1. The issuance of the aforesaid 300,000 shares of Common Stock
to be offered by the Company pursuant to the Option Plan has
been duly authorized, and, when issued and sold upon the terms
and conditions set forth in the Option Plan and in the award
agreements executed thereunder, such shares will be legally
issued, fully paid and non-assessable.
2. The issuance of the aforesaid 100,000 shares of Common Stock
to be offered by the Company pursuant to the 401(k) Plans has
been duly authorized, and, when issued and sold upon the terms
and conditions set forth in the 401(k) Plans, such shares will
be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
registration statement.
Very truly yours,
RUDNICK & WOLFE
By: /s/ Dorian R. Williams
Dorian R. Williams, a partner
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we consent to the incorporation by
reference in this Registration Statement on Form S-8 of Kuhlman Corporation of
(i) our reports, each dated May 21, 1997, appearing respectively in the Annual
Report on Form 11-K of the Schwitzer Tax Reduction Investment Plan for Certain
Salaried and Exempt Employees and the Annual Report on Form 11-K of the
Schwitzer Tax Reduction Investment Plan for Asheville Hourly and Certain
Nonexempt Employees, each for the year ended December 31, 1996; and (ii) 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.
/s/ Arthur Andersen LLP
Louisville, Kentucky
August 5, 1997
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of Kuhlman Corporation of our reports dated June 16, 1997
and April 30, 1997 appearing in the Annual Report on Form 11-K of the Coleman
Cable Systems, Inc. 401(k) Plan for the fiscal year ended December 31, 1996 and
the six months ended December 31, 1995, and to all references to our firm
included in this registration statement.
/s/ Walsh Cenko & Haynes, P.C.
Walsh Cenko & Haynes, P.C.
Bloomfield Hills, Michigan
July 30, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of Kuhlman Corporation of our report dated May 2, 1997
appearing in the Annual Report on Form 11-K of the Communication Cable Inc.
Employees' Savings Plus Plan for the year ended October 31, 1996 and the
two months ended December 31, 1996, and to all references to our firm included
in this Registration Statement.
/s/ Batchelor, Tillery & Roberts, LLP
Raleigh, North Carolina
August 5, 1997
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Kuhlman Corporation on Form S-8 of our report dated February 3,
1997 on our audit of the combined financial statements of Kysor Transportation
Products Group as of December 31, 1996 and for the year then ended, which report
is included in Amendment No. 1 to Form 8-K/A.
/s/ Coopers & Lybrand L.L.P.
Detroit, Michigan
August 6, 1997
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being a
director or officer, or both, of KUHLMAN CORPORATION, a Delaware corporation
(the "Company"), does hereby constitute and appoint ROBERT S. JEPSON, JR.,
CURTIS G. ANDERSON, VERNON J. NAGEL, AND RICHARD A. WALKER, with full power to
each of them to act alone, as the true and lawful attorneys and agents of the
undersigned, with full power of substitution and resubstitution to each of said
attorneys to execute, file or deliver any and all instruments and to do all acts
and things which said attorneys and agents deem advisable to enable the Company
to comply with the Securities Act of 1933, as amended, and any requirements or
regulations of the Securities and Exchange Commission in respect thereof, in
connection with the registration under said Securities Act of shares of common
stock of the Company subject to the Kuhlman Corporation 1994 Stock Option Plan,
the Communication Cable, Inc. Employees' Savings Plus Plan, the Coleman Cable
Systems, Inc. 401(k) Plan, the Schwitzer Tax Reduction Investment Plan for
Certain Salaried and Exempt Employees, and the Schwitzer Tax Reduction
Investment Plan for Asheville Hourly and Certain Nonexempt Employees, including
specifically, but without limitation of the general authority hereby granted,
the power and authority to sign his name as a director or officer or both, of
the Company, as indicated below opposite his signature, to the registration
statement, and any amendment, post-effective amendment, supplement or papers
supplemental thereto, to be filed with respect to said shares of common stock;
and each of the undersigned does hereby fully ratify and confirm all that said
attorneys and agents, or any of them, or the substitute of any of them, shall do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has subscribed these
presents, this 24th day of April, 1997.
<TABLE>
<CAPTION>
<S> <C>
/s/ Robert S. Jepson, Jr. /s/ Alexander W. Dreyfoos, Jr.
Robert S. Jepson, Jr., Chairman of the Alexander W. Dreyfoos, Jr., Director
Board and Chief Executive Officer
(Principal Executive Officer) and Director
/s/ Vernon J. Nagel /s/ William M. Kearns, Jr.
Vernon J. Nagel, Executive Vice President William M. Kearns, Jr., Director
of Finance, Chief Financial Officer and
Treasurer (Principal Financial and
Accounting Office)
/s/ Curtis G. Anderson /s/ George J. Michel, Jr.
Curtis G. Anderson, President, Chief George J. Michel, Jr., Director
Operating Officer and Director
/s/ William E. Burch /s/ General H. Norman Schwarzkopf
William E. Burch, Director General H. Norman Schwarzkopf,
Director
/s/ Steve Cenko
Steve Cenko, Director
/s/ Gary G. Dillon
Gary G. Dillon, Director
</TABLE>
