SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 1
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended February 28, 1994 Commission File No. 1-8862
MARK IV INDUSTRIES, INC.
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(Exact name of Registrant as specified in its charter)
Delaware 23-1733979
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(State or other jurisdiction of (IRS employer Identification number)
incorporation or organization)
501 John James Audubon Pkwy., P.O. Box 810, Amherst, NY 14226-0810
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (716) 689-4972
Securities registered pursuant to Section 12(b) of the Act:
Name of exchange on
Title of Class which registered
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Common Stock, $.01 par value New York Stock Exchange
6-1/4% Convertible Subordinated
Debentures due February 15, 2007 New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of the Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X . No .
--- ---
The aggregate market value of the voting stock of the Registrant held by
non-affiliates of the Registrant based on the closing price of the Common
Stock on May 18, 1994 on the New York Stock Exchange was $564,880,881.
As of May 18, 1994, the number of outstanding shares of Registrant's
Common Stock, $.01 par value, was 42,743,594 shares.
Documents Incorporated By Reference
Portions of the Registrant's definitive proxy statement to be filed
pursuant to Regulation 14A not later than 120 days after the end of the fiscal
year are incorporated by reference into Part III.
PART IV
ITEM 14.EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
Page
(a) (1) Financial Statements
Report of Independent Accountants for
each of the three fiscal years in the
period ended February 28, 1994. . . . . . . . . . . . . . . . . . .27
Financial Statements:
Consolidated Balance Sheets at February 28, 1994 and 1993 . . . . .28
Consolidated Statements of Income for each of
the three fiscal years in the period ended
February 28, 1994 . . . . . . . . . . . . . . . . . . . . . . . .29
Consolidated Statements of Stockholders' Equity for
each of the three fiscal years in the period
ended February 28, 1994 . . . . . . . . . . . . . . . . . . . . .30
Consolidated Statements of Cash Flows
for each of the three fiscal years in
the period ended February 28, 1994. . . . . . . . . . . . . . . .31
Notes to Consolidated Financial Statements. . . . . . . . . . . . .32
(2) Financial Statement Schedules
Report of Independent Accountants
for each of the three fiscal years in the
period ended February 28, 1994. . . . . . . . . . . . . . . . . .58
Financial Statement Schedules:
V. Property, plant and equipment cost . . . . . . . . . . . . .59
VI. Accumulated depreciation and amortization
of property, plant and equipment. . . . . . . . . . . . . .60
VIII. Valuation and qualifying accounts. . . . . . . . . . . . . .61
X. Supplementary income statement information . . . . . . . . .62
All other schedules and statements have been omitted as the required
information is inapplicable or is presented in the financial
statements or notes thereto.
(b) Reports on Form 8-K
No reports on Form 8-K were required to be filed pertaining to
events occurring during the quarter ended February 28, 1994.
(c) Exhibits
2.1 Share Purchase Agreement dated April 29, 1993 among Mark IV
Industries, Inc., a Delaware Corporation, and its indirect
wholly-owned subsidiary, Dayco Italy, S.p.A., an Italian
Corporation, and Pirelli S.p.A., an Italian Corporation
(incorporated by reference to exhibit 2.1 to the Company's
Current Report on Form 8-K dated May 27, 1993, as filed on June
17, 1993). All schedules and other attachments to this exhibit,
as identified on the last page of the exhibit, have been
omitted.
3.1 Certificate of Incorporation, as amended (incorporated by
reference to Exhibit 28.1 to the Company's Registration
Statement No. 33-45215 on Form S-3, as filed with the SEC on
January 24, 1993).
4.1 Indenture dated as of March 15, 1989 between the Company and the
First National Bank of Boston, as Trustee (including the form of
13-3/8% Subordinated Debentures due March 15, 1999)
(incorporated by reference to Exhibit 4.10 to the Company's
Current Report on Form 8-K, dated May 23, 1989).
4.2 Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4.11 to Amendment No. 1 to the Registrant's Registration
Statement No. 33-41553 on Form S-3 dated August 6, 1991).
4.3 By-Laws of the Registrant (incorporated by reference to Exhibit
4.12 To Amendment No. 1 to the Registrant's Registration
Statement No. 33-41553 on Form S-3, dated August 6, 1991).
4.4 Conformed copy of the Indenture, dated as of February 13, 1992,
between Mark IV Industries, Inc. and Marine Midland Bank, N.A.,
including the form of 6-1/4% Convertible Subordinated Debentures
due February 15, 2007 (incorporated by reference to Exhibit 4.1
to the Company's Current Report on Form 8-K dated February 13,
1992).
4.5 Conformed copy of the Indenture, dated as of March 15, 1993,
between Mark IV Industries, Inc. and Citibank, N.A.; including
the form of Senior Subordinated Notes due April 1, 2003
(incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K dated March 29, 1993).
Executive Compensation Plans and Arrangements (10.1 -10.9)
10.1 Employment Agreements dated May 1, 1989 between the Company and
each of Sal Alfiero, Clement R. Arrison, Gerald S. Lippes,
William P. Montague, John J. Byrne and Frederic L. Cook
(incorporated by reference to Exhibit 10.27 to the Company's
Form 10-K for the fiscal year ended February 28, 1989).
10.2 Employment Agreement dated July 1, 1989 between the Company and
Richard L. Grenolds (incorporated by reference to Exhibit 10.33
to the Company's Form 10-Q for the fiscal quarter ended May 31,
1989).
10.3 Amendment and Restatement of Mark IV Industries, Inc. and
Subsidiaries Incentive Stock Option Plan, as of February 8, 1988
(incorporated by reference to Exhibit 10.13.1 to the Company's
Registration Statement No. 33-42307 on Form S-8 dated August 19,
1991).
10.4* Amendment and Restatement of the Mark IV Industries, Inc. and
Subsidiaries 1992 Incentive Stock Option Plan Effective March
30, 1994.
10.5* Amendment and Restatement of the Mark IV Industries, Inc. 1992
Restricted Stock Plan Effective March 30, 1994.
10.6 Mark IV Industries, Inc. Executive Bonus Plan (incorporated by
reference to Exhibit 10.8 to the Company's Annual Report on Form
10-K for the fiscal year ended February 28, 1991).
10.7 First Amendment and Restatement of the Mark IV Industries, Inc.
Enhanced Executive Incentive Plan (incorporated by reference to
Exhibit 10.16 to the Company's Annual Report on Form 10-K dated
February 29, 1992).
10.8* Third Amendment and Restatement of the Non-Qualified Plan of
Deferred Compensation of Mark IV Industries, Inc. Effective
September 1, 1993.
10.9* First Amendment and Restatement of the Non-Qualified Plan of
Deferred Compensation for Non-Employee Directors of Mark IV
Industries, Inc. Effective December 1, 1993.
Other Material Contract Exhibits
10.10 Revolving Credit Facility Agreement dated May 27, 1993, among
Mark IV Industries, Inc., a Delaware Corporation, Dayco Italy
S.p.A., an Italian Corporation, Bank of America National Trust
and Savings Association, Chemical Investment Bank Limited, and
Citibank, N.A. and Chase Manhattan Bank N.A., as co-agents for
various financial institutions that are signatories thereto
(incorporated by reference to the Company's Current Report on
Form 8-K dated May 27, 1993 as filed on June 17, 1993). All
schedules and other attachments to this exhibit, as identified
on page v of the exhibit, have been omitted.
10.11 Credit Agreement dated July 20, 1993 among Mark IV Industries,
Inc., and certain of its subsidiaries and Bank of America
National Trust and Savings Association, Continental Bank N.A.,
Citibank, N.A., The Bank of Nova Scotia, The Bank of New York,
The Chase Manhattan Bank, N.A., and certain other banks
(incorporated by reference to the Company's Current Report on
Form 8-K dated July 20, 1993 as filed on August 4, 1993). All
schedules and exhibits listed on page v of this exhibit have
been omitted.
10.12* Mark IV Savings & Retirement Plan Fourth Amendment and
Restatement Effective January 1, 1994.
11* Statement regarding computation of per share earnings.
21* Subsidiaries of the Registrant.
23* Consent of Independent Accountants.
99.1** Form 11-K Annual Report of Mark IV Savings & Retirement Plan
P for the year ended December 31, 1993.
______________________
* Filed herewith by direct transmission pursuant to the EDGAR program.
** The Cover Sheet, Index and Exhibit 23.1 of this Form 11-K are being filed
with this Amendment No.1 by direct transmission pursuant to the EDGAR
program. The Financial Statements and Schedules have been filed under
cover by Form SE.
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
MARK IV INDUSTRIES, INC.
By:/s/ Richard L. Grenolds
--------------------------
Richard L. Grenolds
Vice President and
Chief Accounting Officer
June 23, 1994
-------------
Date
Exhibit Index
2.1 Share Purchase Agreement dated April 29, 1993 among Mark IV
Industries, Inc., a Delaware Corporation, and its indirect
wholly-owned subsidiary, Dayco Italy, S.p.A., an Italian
Corporation, and Pirelli S.p.A., an Italian Corporation
(incorporated by reference to exhibit 2.1 to the Company's
Current Report on Form 8-K dated May 27, 1993, as filed on June
17, 1993). All schedules and other attachments to this exhibit,
as identified on the last page of the exhibit, have been
omitted.
3.1 Certificate of Incorporation, as amended (incorporated by
reference to Exhibit 28.1 to the Company's Registration
Statement No. 33-45215 on Form S-3, as filed with the SEC on
January 24, 1993).
4.1 Indenture dated as of March 15, 1989 between the Company and the
First National Bank of Boston, as Trustee (including the form of
13-3/8% Subordinated Debentures due March 15, 1999)
(incorporated by reference to Exhibit 4.10 to the Company's
Current Report on Form 8-K, dated May 23, 1989).
4.2 Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4.11 to Amendment No. 1 to the Registrant's Registration
Statement No. 33-41553 on Form S-3 dated August 6, 1991).
4.3 By-Laws of the Registrant (incorporated by reference to Exhibit
4.12 To Amendment No. 1 to the Registrant's Registration
Statement No. 33-41553 on Form S-3, dated August 6, 1991).
4.4 Conformed copy of the Indenture, dated as of February 13, 1992,
between Mark IV Industries, Inc. and Marine Midland Bank, N.A.,
including the form of 6-1/4% Convertible Subordinated Debentures
due February 15, 2007 (incorporated by reference to Exhibit 4.1
to the Company's Current Report on Form 8-K dated February 13,
1992).
4.5 Conformed copy of the Indenture, dated as of March 15, 1993,
between Mark IV Industries, Inc. and Citibank, N.A.; including
the form of Senior Subordinated Notes due April 1, 2003
(incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K dated March 29, 1993).
Executive Compensation Plans and Arrangements (10.1 -10.9)
10.1 Employment Agreements dated May 1, 1989 between the Company and
each of Sal Alfiero, Clement R. Arrison, Gerald S. Lippes,
William P. Montague, John J. Byrne and Frederic L. Cook
(incorporated by reference to Exhibit 10.27 to the Company's
Form 10-K for the fiscal year ended February 28, 1989).
10.2 Employment Agreement dated July 1, 1989 between the Company and
Richard L. Grenolds (incorporated by reference to Exhibit 10.33
to the Company's Form 10-Q for the fiscal quarter ended May 31,
1989).
10.3 Amendment and Restatement of Mark IV Industries, Inc. and
Subsidiaries Incentive Stock Option Plan, as of February 8, 1988
(incorporated by reference to Exhibit 10.13.1 to the Company's
Registration Statement No. 33-42307 on Form S-8 dated August 19,
1991).
10.4* Amendment and Restatement of the Mark IV Industries, Inc. and
Subsidiaries 1992 Incentive Stock Option Plan Effective March
30, 1994. Beginning on Page 67.
10.5* Amendment and Restatement of the Mark IV Industries, Inc. 1992
Restricted Stock Plan Effective March 30, 1994. Beginning on
Page 78.
10.6 Mark IV Industries, Inc. Executive Bonus Plan (incorporated by
reference to Exhibit 10.8 to the Company's Annual Report on Form
10-K for the fiscal year ended February 28, 1991).
10.7 First Amendment and Restatement of the Mark IV Industries, Inc.
Enhanced Executive Incentive Plan (incorporated by reference to
Exhibit 10.16 to the Company's Annual Report on Form 10-K dated
February 29, 1992).
10.8* Third Amendment and Restatement of the Non-Qualified Plan of
Deferred Compensation of Mark IV Industries, Inc. Effective
September 1, 1993. Beginning on Page 86.
10.9* First Amendment and Restatement of the Non-Qualified Plan of
Deferred Compensation for Non-Employee Directors of Mark IV
Industries, Inc. Effective December 1, 1993. Beginning on Page
125.
Other Material Contract Exhibits
10.10 Revolving Credit Facility Agreement dated May 27, 1993, among
Mark IV Industries, Inc., a Delaware Corporation, Dayco Italy
S.p.A., an Italian Corporation, Bank of America National Trust
and Savings Association, Chemical Investment Bank Limited, and
Citibank, N.A. and Chase Manhattan Bank N.A., as co-agents for
various financial institutions that are signatories thereto
(incorporated by reference to the Company's Current Report on
Form 8-K dated May 27, 1993 as filed on June 17, 1993). All
schedules and other attachments to this exhibit, as identified
on page v of the exhibit, have been omitted.
10.11 Credit Agreement dated July 20, 1993 among Mark IV Industries,
Inc., and certain of its subsidiaries and Bank of America
National Trust and Savings Association, Continental Bank N.A.,
Citibank, N.A., The Bank of Nova Scotia, The Bank of New York,
The Chase Manhattan Bank, N.A., and certain other banks
(incorporated by reference to the Company's Current Report on
Form 8-K dated July 20, 1993 as filed on August 4, 1993). All
schedules and exhibits listed on page v of this exhibit have
been omitted.
10.12* Mark IV Savings & Retirement Plan Fourth Amendment and
Restatement Effective January 1, 1994.
11* Statement regarding computation of per share earnings.
Beginning on Page 151.
21* Subsidiaries of the Registrant. Beginning on Page 153.
23* Consent of Independent Accountants. Beginning on Page 156.
99.1** Form 11-K Annual Report of Mark IV Savings & Retirement Plan
P for the year ended December 31, 1993.
______________________
* Filed herewith by direct transmission pursuant to the EDGAR program.
** The Cover Sheet, Index and Exhibit 23.1 of this Form 11-K are being filed
with this Amendment No.1 by direct transmission pursuant to the EDGAR
program. The Financial Statements and Schedules have been filed under
cover by Form SE.
MARK IV SAVINGS & RETIREMENT PLAN
______________________________
Fourth Amendment and Restatement
______________________________
Effective January 1, 1994
<PAGE>
TABLE OF CONTENTS
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. TOP HEAVY PROVISIONS. . . . . . . . . . . . . . . . . . . . . . 15
3. SERVICE, PARTICIPATION AND VESTING. . . . . . . . . . . . . . . 19
4. CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . 29
5. ACCOUNTS AND VALUATIONS . . . . . . . . . . . . . . . . . . . . 44
6. INVESTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7. AMOUNT AND TIME OF DISTRIBUTION OF RETIREMENT
INCOME . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
8. NORMAL AND OPTIONAL PAYMENT FORMS OF
RETIREMENT INCOME; DEATH BENEFITS. . . . . . . . . . . . . . . 58
9. OPERATION OF THE PLAN . . . . . . . . . . . . . . . . . . . . . 66
10. PLAN ADMINISTRATION AND THE RETIREMENT COMMITTEE. . . . . . . . 69
11. THE TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
12. AMENDMENT OF THE PLAN . . . . . . . . . . . . . . . . . . . . . 76
13. TERMINATION OF THE PLAN . . . . . . . . . . . . . . . . . . . . 77
14. MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . 79
<PAGE>
INTRODUCTION
Mark IV Savings & Retirement Plan
Recitals:
Mark IV Industries, Inc., a Delaware corporation, with offices at
501 John James Audubon Parkway, Amherst, New York ("Mark IV") is the parent of
certain direct and indirect wholly-owned subsidiaries that, prior to March 1,
1987, had established defined contribution pension plans, profit sharing
plans, 401(k) plans or both profit sharing and 401(k) plans for the benefit of
their respective employees.
Mark IV may, in the future, become the direct or indirect parent
of one or more additional wholly-owned subsidiaries that may have adopted one
or more defined contribution pension plans, profit sharing or 401(k) plans for
the benefit of their respective employees.
Effective March 1, 1987, Mark IV adopted a master profit
sharing/401(k) plan known as the "Mark IV Savings & Retirement Plan" (formerly
known as the "Mark IV Retirement Savings Plan") in order to centralize the
operation and administration of the profit sharing and 401(k) plans maintained
by its direct and indirect wholly owned subsidiaries and any future direct and
indirect wholly owned subsidiaries of Mark IV.
Mark IV amended the Mark IV Savings & Retirement Plan (hereinafter
the "Plan") following its adoption by instruments executed and effective as
follows:
Executed Effective
First Amendment July 10, 1989 March 1, 1987
Second Amendment December 27, 1990 January 1, 1990
Third Amendment and
Restatement December 16, 1993 January 1, 1993
Mark IV now desires to amend the Mark IV Savings & Retirement
Plan: (1) to permit Participants to invest up to twenty percent (20%) of the
amounts contributed to the Account which has been established for their
benefit under the Plan in common stock of Mark IV; (2) to permit Participants
to change the manner in which the amount allocated to the Account established
for their benefit under the Plan is allocated among the investment funds
provided for by the Plan once in each month; and (3) to delegate certain
authority to amend the Plan to the Retirement Committee appointed under the
terms of the Plan;
NOW, THEREFORE, in order to amend the Plan to carry into effect
the amendments to the Plan described above, Mark IV hereby adopts the
following as the Fourth Amendment and Restatement of the Plan effective
January 1, 1994.
ARTICLE I
1. DEFINITIONS
The following words and phrases when used in the Plan shall have
the following meanings, unless a different meaning is plainly required by the
context:
1.01 Account means the aggregate value of the account or accounts,
which are established and maintained by the Retirement Committee for each
Participant with respect to the Participant's interest in the Trust Fund,
including the aggregate value of any subaccounts established within such
account or accounts.
1.02 Accrued Benefit means, the value of a Participant's Account
determined as of the nearest succeeding Valuation Date with respect to amounts
contained in the Participant's Account which are attributable to (a) Elective
Contributions made pursuant to Section 4.01 hereof; (b) Matching Contributions
made pursuant to Section 4.02 hereof; (c) Discretionary Contributions made
pursuant to Section 4.03 hereof; and (d) After-Tax Contributions made pursuant
to Section 4.04 hereof. In addition, the amount of a Participant's Accrued
Benefit shall include the amount of Matching Contributions and/or
Discretionary Contributions, if any, allocated to the Account of a Participant
in accordance with the terms of the Adoption Agreement under which the
Participant is an Eligible Employee as of the end of the Plan Year in which
the Participant attains his Normal or Early Retirement Date, dies or suffers a
Total and Permanent Disability.
Notwithstanding the provisions of the preceding paragraph, for
purposes of determining the amount which a Participant may borrow from the
Plan pursuant to Section 6.04 hereof and for purposes of determining the
amount which may be withdrawn from the Plan by a Participant pursuant to
Section 4.10 hereof, the term "Accrued Benefit" shall mean the value of a
Participant's Account determined as of the nearest preceding Valuation Date.
1.03 Act means the Employee Retirement Income Security Act of 1974, as
amended.
1.04 Actual Deferral Percentage means the ratio, calculated separately
for each Participant for each Plan Year, of (a) the amount of Elective
Contributions made to the Plan on behalf of the Participant for the Plan Year
and actually contributed to the Trust on behalf of the Participant during the
Plan Year, to (b) the amount of the Participant's Compensation. For purposes
of determining the amount of the Actual Deferral Percentage of a Participant
that is a Highly Compensated Employee (but not for purposes of determining the
amount of the Actual Deferral Percentage of a Participant that is not a Highly
Compensated Employee) the amount of the Elective Contributions made to the
Plan on behalf of such Highly Compensated Employee Participant shall include
the amount, if any, of the Elective Contributions returned to the Participant
pursuant to the provisions of Section 4.06(b) hereof.
1.05 Actual Contribution Percentage means the ratio, calculated
separately for each Participant for each Plan Year, of (a) the sum of the
amount of Matching Contributions and After Tax Contributions made to the Plan
on behalf of the Participant for the Plan Year plus, if elected by the
Participating Company, the amount of Elective Contributions made on behalf of
the Participant for the Plan Year, to (b) the amount of the Participant's
Compensation; provided however, that, the amount of Elective Contributions
made by a Participant may not be included for purposes of determining the
amount of a Participant's Actual Contribution Percentage unless the overall
limit on Elective Contributions described in Section 4.07 hereof is not
violated when such Elective Contributions are included in making the
calculations required under Section 4.07 and when such Elective Contributions
are excluded in making the calculations required under Section 4.07. The
Actual Contribution Percentage shall not include Matching Contributions which
are forfeited in order to satisfy the provisions of Section 4.08 or because
such contributions are related to Elective Contributions which must be
distributed to Highly Compensated Employees pursuant to Section 4.07 hereof.
1.06 Adoption Agreement means an agreement adopted by Mark IV or
entered into between Mark IV and a Participating Company which defines the
group or class of Employees of the Participating Company that are eligible to
participate in this Plan, the amount of the contribution to be made by the
Participating Company on behalf of such group or class of Employees, if any,
and which sets forth any other provisions of this Plan which are applicable
only to the group or class of Employees of the Participating Company that are
eligible to participate in this Plan as described in such agreement.
Except as otherwise required by the context, for purposes of this
Plan Document and the Adoption Agreements which may be executed by Mark IV or
a Participating Company, the term "Adoption Agreement" shall be deemed to
refer to the Adoption Agreement under which an Employee is described as an
Eligible Employee. In addition to the above, as a result of the merger of the
Mark IV Industries, Inc. and Subsidiaries Master Defined Contribution Pension
Plan with and into the Mark IV Retirement Savings Plan with the Mark IV
Retirement Savings Plan (the surviving plan) now being known as the "Mark IV
Savings & Retirement Plan", the term "Adoption Agreement" as contained in this
Plan Document shall be deemed to include each Adoption Agreement which was in
effect with respect to the provisions of the Mark IV Retirement Savings Plan
and the Mark IV Industries, Inc. and Subsidiaries Master Defined Contribution
Pension Plan at any time prior to the date hereof.
1.07 Affiliated Company means with respect to Mark IV or any Subsidiary
Company:
(a) any other company which is included within a "controlled
group of corporations" as determined under Section 1563 of the Internal
Revenue Code of 1986 without regard to subsections (a)(4) and (e)(3)(C) of
said Section 1563;
(b) any other trades or businesses (whether or not incorporated)
which, based on principals similar to those defining a "controlled group of
corporations" for purposes of (a) above, are under common control;
(c) any corporation, trade or business which is a member of an
affiliated service group of which Mark IV or any Subsidiary Company is a
member as determined under Section 414(m) of the Internal Revenue Code; and
(d) any other corporation, business or trade which would be
considered an affiliated company with respect to Mark IV or any Subsidiary
Company under regulations promulgated under Section 414(o) of the Internal
Revenue Code.
1.08 After Tax Contribution means a contribution which may be made to
the Plan by a Participant in accordance with Section 4.04 hereof.
1.09 Anniversary Date means January 1 of each year.
1.10 Annuity Starting Date means the first day of the first period for
which an amount is payable as an annuity or any other form under this Plan.
1.11 Average Contribution Percentage means, with respect to Highly
Compensated Employees, the average of the Actual Contribution Percentages of
such Highly Compensated Employees and, with respect to Participants that are
not Highly Compensated Employees, the average of the Actual Contribution
Percentages of Participants that are not Highly Compensated Employees.
1.12 Average Deferral Percentage means, with respect to Participants
that are Highly Compensated Employees, the average of the Actual Deferral
Percentages of all Participants that are Highly Compensated Employees and,
with respect to Participants that are not Highly Compensated Employees, the
average of the Actual Deferral Percentages of all Participants that are not
Highly Compensated Employees.
1.13 Balanced Investment Fund means an unsegregated fund invested in a
diversified balance of bonds and common stocks.
1.14 Beneficiary or Beneficiaries means the person, persons or entity
that has been designated in writing by a Participant to receive the benefits
under this Plan payable upon the Participant's death. A Participant's
designation of a Beneficiary that is not his Spouse shall not be valid or
recognized by the Retirement Committee for purposes of this Plan unless (a)
the Participant's Spouse has consented in writing to such designation, (b) the
Participant's designation specifies the beneficiary to whom and/or, with
respect to a waiver of the Qualified Joint and Survivor Annuity form of
payment, the form in which such Participant's Retirement Income is to be paid
or the consent of the Participant's Spouse expressly permits designations by
the Participant without any requirement of further consent by the Spouse, (c)
such consent acknowledges the effect of such designation and (d) the consent
of such Spouse is witnessed by a Plan representative or a Notary Public.
Notwithstanding the foregoing, the consent of the Participant's Spouse shall
not be required if it is established to the satisfaction of the Retirement
Committee that such consent cannot be obtained because the Participant has no
Spouse or the Participant's Spouse cannot be located, or the Participant is
legally separated or has been abandoned by the Spouse (within the meaning of
applicable local law) and has a court order to such effect.
If, prior to a Participant's Annuity Staring Date, the Participant
marries or locates his Spouse after making a Beneficiary designation without
the written consent of such Spouse as provided above, such designation shall
not be valid or recognized by the Retirement Committee for purposes of this
Plan. If no such designation is in effect at the time of the death of the
Participant, or if no person so designated shall survive the Participant, the
Beneficiary shall be his Spouse, or if the deceased Participant has no
surviving Spouse, his estate.
1.15 Board means the Board of Directors of Mark IV.
1.16 Break in Service means a Plan Year during which an Eligible
Employee completes not more than 500 Hours of Service due to a termination of
employment with the Employer. A termination of employment shall not occur
upon an Eligible Employee's transfer from the employment of one Participating
Company to another Participating Company.
If an Eligible Employee who is absent from work for any period by
reason of:
(a) the pregnancy of such Eligible Employee;
(b) the birth of a child of such Eligible Employee;
(c) the placement of a child with such Eligible Employee in
connection with the adoption of such child by such Eligible Employee; or
(d) the need to care for such child for a period beginning
immediately following the birth or placement of such child with such Eligible
Employee; or
(e) an unpaid family leave which is protected under the
provisions of The Family and Medical Leave Act of 1993;
such Eligible Employee shall receive an Hour of Service for each Hour of
Service which the Eligible Employee would have been credited with during the
period of such absence had the Eligible Employee not been absent for purposes
of determining whether such Eligible Employee has incurred a Break-in-Service.
If the Retirement Committee is unable to determine the number of Hours of
Service which the Eligible Employee would have been credited with had such
Eligible Employee not been absent, such Eligible Employee shall be credited
with 8 Hours of Service per work day of such absence. Notwithstanding the
foregoing, an Eligible Employee shall not be credited with more than the
number of Hours of Service required to prevent such Eligible Employee from
incurring a Break in Service nor be credited with more than 501 Hours of
Service by reason of any absence described in this paragraph. The Hours of
Service credited under this paragraph shall be credited in the computation
period in which the absence begins if the crediting is necessary to prevent
the Eligible Employee from incurring a Break in Service in that computation
period or, in all other cases, in the following computation period. The
provisions of this paragraph shall be used solely for purposes of determining
whether an Eligible Employee has incurred a Break in Service for participation
and vesting purposes.
1.17 Code means the Internal Revenue Code of 1986, as amended.
1.18 Compensation means, except as otherwise provided by the terms of
the Adoption Agreement under which an Eligible Employee is a Participant, the
annual earnings of an Eligible Employee paid or payable by the Employer as
reported on the Eligible Employee's Federal income tax withholding statement
(Form W-2 or its subsequent equivalent) for the calendar year which ends with
or within the Plan Year including amounts contributed by the Employer on
behalf of such Eligible Employee pursuant to such Eligible Employee's election
to defer compensation under Section 4.01 hereof including amounts, if any,
contributed by the Eligible Employee to a Code Section 125 plan established by
an Affiliated Company but excluding (i) amounts reimbursed to an Eligible
Employee for auto expenses and moving expenses, (ii) amounts attributable to
the provision of life insurance on behalf of an Eligible Employee, (iii)
amounts attributable to severance and disability payments received by an
Eligible Employee, (iv) amounts attributable to directors fees received by an
Eligible Employee, (v) amounts attributable to an Eligible Employee's exercise
of stock options and (vi) except as set forth above, contributions made by the
Employer on behalf of the Eligible Employee to or under any form of employee
benefit program.
Notwithstanding the foregoing, effective March l, 1989, the
maximum amount of Compensation which may be taken into account for any purpose
under this Plan shall be $200,000 or such other amount as may be established
by the Secretary of the Treasury under Section 401(a)(17) of the Code and,
effective January 1, 1994, the maximum amount of Compensation which may be
taken into account for any purpose under this Plan shall be $150,000 or such
other amount as may be established by the Secretary of the Treasury under
Section 401(a)(17) of the Code.
For purposes of applying the limitation set forth in the preceding
paragraph, the Compensation (within the meaning set forth above) paid to an
individual that is five (5) percent owner of the Employer or a Highly
Compensated Employee that is one of the ten (10) most highly paid Employees of
the Employer shall be deemed to include the Compensation (within the meaning
set forth above) paid to the Spouse or any lineal descendant of such
individual; provided however, that in the case of a lineal descendant, such
lineal descendant has not attained age 19 and, if such limitation is exceeded,
the amount of the Compensation paid to such five (5) percent owner or such
Highly Compensated Employee shall be adjusted in accordance with regulations
of the Secretary of the Treasury under Section 401(a)(17) of the Code.
1.19 Discretionary Contribution means a contribution which may be made
to the Plan by a Participating Company for any Plan Year, the amount of which
contribution is determined by the Board of Directors of the Participating
Company.
1.20 Earliest Retirement Age means the earliest date on which, under
the Plan, the Participant could elect to receive Retirement Income.
1.21 Effective Date means March 1, 1987.
1.22 Elective Contribution means a contribution made to the Plan by a
Participating Company on behalf of a Participant that is employed by such
Participating Company and who has elected to defer a portion of his
Compensation as provided for in Section 4.01 hereof.
1.23 Eligible Employee means any person engaged in rendering personal
services to a Participating Company for wages as defined in Section 3121(a) of
the Code if such person is included within the group or classification of such
persons which are eligible to participate in this Plan as provided in the
Adoption Agreement executed by such Participating Company excluding leased
employees described in Section 414(n) of the Code; provided, however, that
notwithstanding the foregoing, any person that is classified as a "Part Time"
employee on the employment books and records of a Participating Company shall
not be an Eligible Employee" unless such person's classification on the books
and records of the Participating Company is changed from "Part Time" to "Full
Time".
1.24 Employee means any person engaged in rendering personal services
to the Employer for wages as defined in Section 3121(a) of the Code and
includes leased employees as described in Section 414(n) of the Code.
1.25 Employer means Mark IV and any Affiliated or Subsidiary Company
which has adopted the provisions of this Plan by executing an Adoption
Agreement which continues to be in effect. Any such company shall be a
"Participating Company".
With respect to any Participant, Employee or Eligible Employee,
the term "Employer" and the phrase "his Employer" shall be deemed to refer
solely to the Participating Company for whom such Participant or Employee
performs personal services for wages as defined in Code Section 3121(a).
1.26 Employment Commencement Date means the first day for which an
Employee is entitled to be credited with an "Hour of Service" for the
performance of duties for his Employer.
1.27 Growth Investment Fund means an unsegregated fund invested
primarily in common stocks of seasoned U.S. companies tending to have strong
market positions good financial strength and low sensitivity to changing
economic conditions.
1.28 Guaranteed Investment Fund means an unsegregated fund invested
primarily in guaranteed investment contracts issued by insurance companies or
bank investment contracts.
1.29 Highly Compensated Employee. "Highly Compensated Employee" means,
with respect to Plan Years beginning on or after January 1, 1991:
(a) In General. Subject to Section 1.29(b) below, an Employee,
at any time during the Plan Year:
(i) who owns five percent (5%) or more of Mark IV or any
Affiliated Company;
(ii) whose Compensation is in excess of $50,000 or such
greater amount as may be recognized for increases in the cost of living in
accordance with Code Section 415(d); or
(iii) who is an officer of Mark IV or any Affiliated Company
(but not more (including all Affiliated Companies) than the lesser of:
(A) fifty (50) Employees, or
(B) the greater of three (3) or ten percent (10%) of
all Employees of Mark IV and the Affiliated Companies shall be considered
officers for this purpose) and whose Compensation is in excess of $45,000, or
such greater amount as may be recognized for increases in the cost of living
in accordance with Code Section 415(d). In the event that no officer of Mark
IV or any Affiliated Company receives such amount of Compensation for a Plan
Year, the officer who receives the highest Compensation for the Plan Year
shall be included for the purposes of this Section.
(b) Special Rules.
(i) A former Employee who was a Highly Compensated
Employee (as defined herein) on his Severance Date or at any time on or after
his attainment of age fifty-five (55) shall continue to be considered to be a
Highly Compensated Employee.
(ii) An Employee who was not a Highly Compensated Employee
as described in Section 1.29(a)(i), (ii) or (iii) for the immediately
preceding Plan Year, but who is a Highly Compensated Employee as described in
one of those Sections for the current Plan Year, shall not be considered a
Highly Compensated Employee for the current Plan Year unless he is within the
group of the one hundred (100) most highly compensated Employees for the
current Plan Year.
(c) Special Treatment of Certain Family Members. If an Employee
is a member of the family of an Employee who owns five percent (5%) or more of
the Employer, or of a Highly Compensated Employee (as defined above) who is
within the group of the ten (10) most Highly Compensated Employees for a Plan
Year, such individual shall not be treated as a separate Employee, and any
Compensation paid to him (and any contribution on his behalf) shall be treated
as paid to (or contributed on behalf of) the five percent (5%) owner or the
Highly Compensated Employee. For purposes of this Section 1.29(c), "family"
shall mean the applicable Employee's Spouse, direct ascendants or descendants
and the spouse of such direct ascendants or descendants.
1.30 Hour of Service means each hour for which an Eligible Employee is
directly or indirectly paid or entitled to payment for the performance of
duties for an Employer. In addition, an "Hour of Service" means each hour for
which an Eligible Employee is directly or indirectly entitled to payment on
account of a period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to vacation,
holiday, illness, incapacity, disability, layoff, jury duty, military duty or
leave of absence. Notwithstanding the above, the hours required to be
credited to an Eligible Employee under the provisions of the preceding
sentence shall not include hours for which payment is made or due under a plan
maintained solely for the purpose of complying with applicable Workers'
Compensation laws, or Unemployment Compensation or disability insurance laws,
and no more than 501 hours shall be credited to an Eligible Employee on
account of any single continuous period during which the Eligible Employee
performs no duties. In addition, no hours shall be credited for a payment
which solely reimburses an Eligible Employee for medical or medically related
expenses incurred by the Eligible Employee.
An Hour of Service also means each hour for which back pay,
irrespective of mitigation of damages, has been either awarded or agreed to by
the Employer provided, however, that in no event shall the same hours be
credited under both this paragraph and the other paragraphs of this Section
1.30.
The computation period to which Hours of Service shall be credited
and the number of Hours of Service to be credited for reasons other than the
performance of duties shall be determined under Title 29, Subchapter C,
Section 2530.200b(b) and (c) of Code of Federal Regulations, which is hereby
incorporated by reference. Hours of Service shall be determined from records
maintained by the Employer.
1.31 Investment Fund means individually, each of the Guaranteed
Investment Fund, the Money Market Fund, the Short Term Investment Fund, the
Balanced Investment Fund, the S & P 500 Index Fund, the Growth Investment
Fund, the Mark IV Stock Fund and such other investment funds as may, from time
to time, be established by the Trust Committee as vehicles for the investment
of the amount allocated to a Participant's Account. The term "Investment
Funds" means each of the separate Investment Funds described above considered
collectively.
1.32 Key Employee means any Employee or the Beneficiary of any Employee
who, at any time during the Plan Year or any of the preceding four (4) Plans
Years of this Plan or, if applicable, any Predecessor Plan, is:
(a) an officer of Mark IV or an Affiliated Company (as the term
officer is defined within the meaning of the regulations under Code Section
416) having annual compensation from Mark IV or an Affiliated Company greater
than 150% of the amount in effect under Code Section 415(c)(l)(A) for such
Plan Year; provided that, for purposes of this Section l.32, the term
compensation shall be deemed to have the meaning contained in the regulations
under Code Section 415(d) and provided further that the total number of
officers as determined under this Section 1.32(a) shall not be greater than 50
Employees or, if less, the greater of 3 or 10% of the Employees of Mark IV and
Affiliated Companys.
(b) one of the ten Employees having annual compensation from
Mark IV or an Affiliated Company greater than the amount in effect under Code
Section 415(c)(l)(A) and owning both more than a l/2 percent interest and the
largest percentage ownership interests in all Affiliated Companies.
(c) a more than five percent owner of Mark IV or an Affiliated
Company.
(d) a more than one percent owner of Mark IV or an Affiliated
Company having annual compensation from Mark IV or the Affiliated Company of
more than $150,000.
(e) in determining ownership interests in Mark IV or an
Affiliated Company under Sections (b), (c) and (d) above, the constructive
ownership rules of Code Section 318 (or the principles of that Section in the
case of an unincorporated Employer) shall apply.
(f) in determining percentage ownership under Sections (c) and
(d) above, Participating Companies that would otherwise be aggregated under
Code Sections 414(b), (c) and (m) shall be treated as separate Participating
Companies; in determining whether an individual has Compensation of more than
$150,000, however, Compensation from each Participating Company required to be
aggregated under Code Sections 414(b), (c) and (m) shall be taken into
account.
1.33 Matching Contribution means a contribution which may be made to
the Plan by a Participating Company on behalf of a Participant that is
employed by such Participating Company and who has elected to defer a portion
of his Compensation as provided for in Section 4.01 hereof, the amount of
which contribution is proportional to the amount of Compensation deferred by
the Participant.
1.34 Mark IV Stock Fund means an unsegregated fund that invests
exclusively in common stock of Mark IV Industries, Inc.
1.35 Money Market Fund means an unsegregated fund that invests
exclusively in money market instruments and securities issued by the U.S.
Treasury and agencies of the U.S. Government.
1.36 Non-Key Employee shall mean any Employee who is not a Key
Employee.
1.37 Participant means any Eligible Employee that is described as a
Participant under the terms of the Adoption Agreement under which such
Employee is an Eligible Employee and any other Eligible Employee that has
satisfied the requirements for participation in this Plan as contained in the
provisions of the Plan Document as supplemented or modified by the Adoption
Agreement under which such Employee is an Eligible Employee.
1.38 Payroll Period means the time interval, whether weekly, bi-weekly,
monthly or otherwise, which has been established by a Participating Company as
the period of time which elapses between the dates that the Participating
Company issues checks to its Employees for services rendered which contain
payment of a portion of the total Compensation payable to the Employee.
1.39 Period of Severance means the period of time beginning on the day
following the Termination Date of an Eligible Employee and ending on the date
on which such Eligible Employee again performs an Hour of Service. Each
twelve consecutive month period contained within a Period of Severance shall
be deemed to be a "One Year Period of Severance".
1.40 Period of Service means the period of time beginning on an
Eligible Employee's Employment Commencement Date and ending on the Eligible
Employee's Termination Date; provided that, if the Termination Date of an
Eligible Employee is delayed as a result of the requirements of The Family
Medical Leave Act of 1993 or if the Termination Date of an Eligible Employee
is delayed for an additional twelve month period as provided in Section
1.54(b)(ii) hereof by reason of the pregnancy of such Eligible Employee, the
birth of a child of such Eligible Employee, the placement of a child with such
Eligible Employee in connection with the adoption of such child by such
Eligible Employee or the need to care for such child for a period beginning
immediately following the birth or placement of such child with such Eligible
Employee, such additional twelve month period shall not be deemed to
constitute a Period of Service or a Period of Severance for purposes of
determining the number of Years of Service completed by such Eligible
Employee.
1.41 Plan means the Mark IV Savings & Retirement Plan as set forth in
this instrument, as amended from time to time and including the terms of each
Adoption Agreement executed by each Participating Company which adopts the
Plan. Notwithstanding the foregoing, with respect to any Participant, the
term "Plan" shall mean only the provisions of this document as incorporated by
the Adoption Agreement under the terms of which such Participant is an
Eligible Employee and any other provisions contained in such Adoption
Agreement.
1.42 Plan Year means each twelve (12) consecutive month period
beginning on March 1 of each year through February 28, 1990 and the ten (10)
consecutive month period of March 1, 1990 through December 31, 1990.
Effective January 1, 1991, the term Plan Year shall mean the twelve (12)
consecutive month period beginning on January 1 of each year.
1.43 Predecessor Plan means a qualified profit sharing plan, a
qualified 401(k) plan, a qualified thrift plan, a qualified defined
contribution pension plan or a qualified plan which combines the attributes of
any of the above-described plans which plan was maintained by a Participating
Company prior to the adoption of this Plan for Employees of the Participating
Company the terms of which qualified profit sharing, thrift, 401(k), defined
contribution pension or combined plan have been incorporated into this Plan by
an Adoption Agreement. Any reference in this Plan or an Adoption Agreement to
the terms of the Predecessor Plan shall be deemed to refer to the terms of the
Predecessor Plan as constituted from time to time prior to the effective date
of the Adoption Agreement.
1.44 Qualified Joint and Survivor Annuity means (a) with respect to
married Participants, a form of payment which provides a life annuity to the
Participant providing equal monthly payments to the Participant over the life
of the Participant and, following the Participant's death, providing a
survivor annuity to the Participant's Spouse which provides equal monthly
payments to the Participant's Spouse over the life of the Participant's
Spouse, in an amount which (except as otherwise provided by the Adoption
Agreement under which such Participant is an Eligible Employee) equals 50% of
the monthly amount of the annuity which is payable during the joint lives of
the Participant and the Participant's Spouse; and (b) with respect to
unmarried Participants, a form of payment which provides a life annuity to the
Participant providing equal monthly payments to the Participant over the life
of the Participant with no further payments being made after the Participant's
death. The Qualified Joint and Survivor Annuity to which a Participant is
entitled under the terms of the Plan shall be provided by using the vested
portion of the Participant's Accrued Benefit to purchase an annuity contract
providing for an annuity in the form of a Qualified Joint and Survivor
Annuity. Such annuity contract shall be purchased from an insurance company
licensed to do business in the State of New York or the state in which the
Participating Company for whom the retiring Participant was employed is
located.
1.45 Qualified Preretirement Survivor Annuity means a form of payment
of death benefits which provides for payment of an annuity under which equal
monthly payments are made to the Participant's Spouse for the life of the
Participant's Spouse. The Qualified Preretirement Survivor Annuity to which a
Participant's Spouse is entitled under the terms of the Plan shall be
provided by using the vested portion of the Participant's Accrued Benefit to
purchase an annuity contract providing for an annuity in the form of a
Qualified Preretirement Survivor Annuity. Such annuity contract shall be
purchased from an insurance company licensed to do business in the State of
New York or the state in which the Participating Company for whom the retiring
Participant was employed is located.
The surviving Spouse of a Participant may direct that payment of
such annuity shall begin not later than the month in which the Participant
would have attained the Earliest Retirement Age under the Plan.
1.46 Retirement Committee means the committee appointed by the Board
pursuant to Article X.
1.47 Retirement Income means the amount of benefits which a Participant
is eligible to receive on his Normal, Early, Postponed, Disability Retirement
Date or his Termination Date as provided in the Adoption Agreement under
which such Participant is an Eligible Employee.
1.48 Severance Date means the date on which an Eligible Employee quits,
retires, is discharged, suffers a Total and Permanent Disability or dies.
1.49 Short Term Investment Fund means an unsegregated fund invested
primarily in short term U.S. Government and Agency Securities, generally with
a maturity of one to four years.
1.50 Spouse means the person who is married to a Participant on the
Annuity Starting Date; provided however, that, for purposes of determining
whether a Participant has a spouse who is entitled to payment of a Qualified
Pre-Retirement Survivor Annuity, the term "Spouse" shall mean the person who
is married to the Participant continuously for a one-year period ending on the
earlier of:
(a) the Participant's Annuity Starting Date, or
(b) the date of the Participant's death.
If a Participant marries within one-year before the Annuity Starting Date, and
the Participant and the Participant's spouse in such marriage have been
married for at least a one-year period ending on or before the date of the
Participant's death, such Participant and such spouse shall be treated as
having been married throughout the one-year period ending on the Participant's
Annuity Starting Date.
1.51 S & P 500 Index Fund means an unsegregated fund that invests in
all stocks included in the Standard & Poor's 500 Index in approximately the
same proportions as they are represented in the S & P 500 Index.
1.52 Subsidiary Company means any company other than an Affiliated
Company, in which Mark IV shall directly or indirectly hold or control at
least 10% of the capital stock. A Subsidiary Company may be either a domestic
subsidiary or foreign subsidiary.
1.53 Super Top Heavy Plan means that this Plan has been determined to
be such in accordance with the provisions of Section 2.02 of the Plan.
1.54 Termination Date means:
(a) in the case of an Eligible Employee whose Years of Service are
determined using the Hours of Service method contained in Section 3.02 hereof,
the date on which such Eligible Employee ceases to be an Employee for purposes
of the Plan, which date shall be the earlier of:
(i) The date the Eligible Employee quits, is discharged,
dies or retires; or
(ii) The date the Eligible Employee incurs a Break in
Service; and
(b) in the case of an Eligible Employee whose Years of Service
are determined using the Elapsed Time method contained in Section 3.03 hereof,
the date on which such Eligible Employee ceases to be an Employee for purposes
of the Plan, which date shall be the earlier of:
(i) the date the Eligible Employee quits, is discharged,
dies or retires, or
(ii) the date the Eligible Employee completes a period of
twelve months, in which the Employee is absent from employment with his
Employer for any reason; provided that, if the Eligible Employee is absent
within the first twelve months following such twelve month period on account
of the pregnancy of such Eligible Employee, the birth of a child of such
Eligible Employee, the placement of a child with such Eligible Employee in
connection with the adoption of such child by such Eligible Employee or the
need to care for such child for a period beginning immediately following the
birth or placement of such child with such Eligible Employee, the Termination
Date of such Eligible Employee shall be the date such Eligible Employee
completes an additional period of twelve months of absence beginning at the
end of the first twelve month period described above.
1.55 Top Heavy Plan means, that this Plan has been determined to be
such in accordance with the provisions of Section 2.02 of the Plan.
1.56 Top Heavy Plan Year means that, for a particular Plan Year, the
Plan is a Top Heavy Plan.
1.57 Trust Agreement means any trust agreement or agreements that may
be entered into between Mark IV and any trustee, to carry out the purposes of
the Plan, as the same may be amended from time to time.
1.58 Trustee means, with respect to each Trust Agreement, the trustee
appointed and acting in accordance with Article XI.
1.59 Trust Committee means the committee appointed by the Board
pursuant to Article XI.
1.60 Trust Fund or Fund means the cash and other investments held and
administered by the Trustee in accordance with the provisions of the Trust
Agreement and the Plan.
1.61 Valuation Date means the last day of each calendar month during
the Plan Year and such other dates deemed necessary by the Retirement
Committee upon which to value the Trust Fund.
1.62 Vesting Computation Period means the twelve consecutive month
period coinciding with the Plan Year.
In this Plan document, unless the context clearly requires
otherwise, the singular shall include the plural and the masculine gender
shall include the feminine. In addition, any reference to the Plan, the Mark
IV Retirement Savings Plan or the Mark IV Industries, Inc. and Subsidiaries
Master Defined Contribution Pension Plan in any Adoption Agreement which is
effective prior to the date of this Amendment and Restatement shall, unless
otherwise plainly required by the context thereof, shall be deemed to be a
reference to this Plan Document.
<PAGE>
ARTICLE II
2. TOP HEAVY PROVISIONS
2.01 Applicability. For any Top Heavy Plan Year, the special vesting
requirements of Code Section 416(b) as set forth in Section 3.07 of the Plan
and the special minimum benefit requirements of Code Section 416(c) as set
forth in Section 5.04 of the Plan shall apply.
2.02 Determination of Top Heavy Plan Status. This Plan shall be a Top
Heavy Plan in any Plan Year in which, as of the Determination Date, the
Present Value of Accrued Benefits of Key Employees under this Plan exceeds
sixty percent (60%) of the Present Value of Accrued Benefits of all Employees
under this Plan.
This Plan shall be a Super Top Heavy Plan for any Plan Year in
which as of the Determination Date, the Present Value of Accrued Benefits of
Key Employees under this Plan exceeds ninety percent (90%) of the Present
Value of Accrued Benefits of all Employees under this Plan.
If the Employer maintains any other qualified plan, this Plan
shall be a Top Heavy Plan or a Super Top Heavy Plan only if it is determined
to be so under the Required and Permissive Aggregation Group provisions set
forth in Section 2.05 below.
A Participant's Present Value of Accrued Benefit and/or Aggregate
Account balance shall not be taken into account for purposes of determining
whether this Plan is a Top Heavy Plan (or whether any Aggregation Group which
includes this Plan is a Top Heavy Group) if such Participant is a Non-Key
Employee and such Participant was a Key Employee for any prior Plan Year of
this Plan or, if applicable, for any prior plan year of a Predecessor Plan or
if such Participant has not performed any services for any Participating
Company maintaining the Plan at any time during the five (5) year period
ending on the Determination Date.
2.03 Determination Date means the last day of the preceding Plan Year,
or, in the case of the first Plan Year, the last day of such Plan Year.
2.04 Determination of Present Value of Accrued Benefit. In the case of
a defined contribution plan, a Participant's "Present Value of Accrued
Benefit" means the value of a Participant's Account as of the most recent
Valuation Date occurring within a twelve (12) month period ending on the
Determination Date adjusted for contributions due as of the Determination
Date. In the case of a plan not subject to the minimum funding requirements
of IRC Section 412, the contribution adjustment is the amount of any
contributions actually made after the valuation date but on or before the
Determination Date. However, in the first Plan Year of a defined contribution
plan, this adjustment shall reflect the amount of any contributions made after
the Determination Date that are allocated as of the first day of that first
Plan Year. In the case of a plan that is subject to the minimum funding
requirements under IRC Section 412, the account balance shall include
contributions that would be allocated as of a date not later than the
Determination Date, even though those amounts are not yet required to be
contributed. Also, the adjustment mentioned above shall reflect the amount of
any contribution actually made (or due to be made) after the valuation date
but before the expiration of the extended payment period in IRC Section
412(c)(10).
In the case of a defined benefit plan, a Participant's Present
Value of Accrued Benefit shall be determined as of the most recent actuarial
valuation date, which is the most recent Valuation Date within a twelve (12)
month period ending on the Determination Date. For the first Plan Year of
such defined benefit plan, the Participant's Present Value of Accrued Benefit
shall be determined as if (a) the Participant terminated service as of the
Determination Date; or (b) the Participant terminated service as of the
actuarial valuation date, but taking into account the estimated Present Value
of Accrued Benefits as of the Determination Date. For any other Plan Year of
a defined benefit plan, the Participant's Present Value of Accrued Benefit
shall be determined as if the Participant terminated service as of the
actuarial valuation date. For purposes of this Section 2.04, the actuarial
valuation date is the same date as the date used for computing the defined
benefit plan's minimum funding costs, regardless of whether a valuation is
performed for that Plan Year.
The Accrued Benefit of a Participant (other than a Key Employee)
shall be determined under the method which is used for accrual purposes for
all plans of the Employee's Employer, or, if there is no such method, as if
such benefit accrued not more rapidly than the slowest rate permitted under
Code Section 411(b)(1)(C).
A Participant's Present Value of Accrued Benefit as of a
Determination Date shall be the sum of:
(a) the Present Value of a Participant's Accrued Benefit under
all defined contribution plans and/or defined benefit plans permitted or
required to be considered for determining if the Plan is Top Heavy in
accordance with Section 2.05 hereof;
(b) any distributions made from this Plan within the Plan Year
that includes the Determination Date or within the four (4) preceding Plan
Years of this Plan and, if applicable, any Plan distributions made during such
period from a Predecessor Plan, except that any distribution made after the
Valuation Date and prior to the Determination Date shall not be included as a
distribution for top heavy purposes to the extent that such distributions are
already included in the Participant's Present Value of Accrued Benefit as of
the Valuation Date. Any distribution otherwise includable shall not be
excluded merely because it was made prior to January 1, 1984;
(c) any Employee contributions, whether voluntary or mandatory;
provided, that amounts attributable to tax deductible employee contributions
shall not be considered a part of the Participant's Present Value of Accrued
Benefit;
(d) with respect to rollovers and plan-to-plan transfers which
are initiated by the Employee and made from a plan maintained by one employer
to a plan maintained by another employer:
(i) if this Plan is the plan from which the rollover or
plan-to-plan transfer is made, it shall consider such rollover or plan-to-plan
transfer as a distribution for the purposes of this Section 2.04.
(ii) if this Plan is the plan accepting such rollovers or
plan-to-plan transfers, it shall not consider such rollovers or plan-to-plan
transfers accepted after December 31, 1983 as part of the Participant's
Present Value of Accrued Benefits, but such rollovers or plan-to-plan
transfers accepted by a Predecessor Plan prior to January 1, 1984 shall be
considered as part of the Participant's Present Value of Accrued Benefits; and
(e) with respect to rollovers and plan-to-plan transfers which
are either not initiated by the Employee or made to a plan maintained by the
same employer:
(i) if this Plan is the Plan from which the rollover or
plan-to-plan transfer is made, it shall not be counted as a distribution for
purposes of this Paragraph.
(ii) if this Plan is the plan accepting such rollover or
plan-to-plan transfer, it shall consider such rollover or plan-to-plan
transfer as part of the Participant's Present Value of Accrued Benefit,
irrespective of the date on which such rollover or plan-to-plan transfer was
accepted.
For purposes of subparagraphs (d) and (e) above, all employers aggregated
under Code Sections 414(b), (c) or (m) are treated as the same employer and
all others are treated as "another employer".
2.05 Required and Permissive Aggregation Groups. The Present Value of
Accrued Benefits for each plan of the Employer in which a Key Employee is a
participant, and each other plan of the Employer which enables any plan in
which a Key Employee participates to meet the requirements of Code Sections
401(a)(4) or 410, shall be aggregated for purposes of determining whether any
such group of plans is a Top Heavy Group. Such group of plans shall be known
as a Required Aggregation Group. A Required Aggregation Group shall be a Top
Heavy Group in any Plan Year in which, as of the Determination Date, the
Present Value of Accrued Benefits of Key Employees in the Required Aggregation
Group exceeds sixty percent (60%) of the Present Value of Accrued Benefits for
all Employees in the Required Aggregation Group.
Each plan in a Required Aggregation Group will be considered a Top
Heavy Plan if the Required Aggregation Group is a Top Heavy Group. No plan in
a Required Aggregation Group will be considered a Top Heavy Plan if the
Required Aggregation Group is not a Top Heavy Group.
The Employer may aggregate the Present Value of Accrued Benefits
in any group of plans provided that the resulting group, taken as a whole,
continues to satisfy the provisions of Code Sections 401(a)(4) or 410. Such
group of Plans shall be known as a Permissive Aggregation Group. No plan in
the Permissive Aggregation Group will be considered a Top Heavy Plan if the
Permissive Aggregation Group is not a Top Heavy Group.
<PAGE>
ARTICLE III
3. SERVICE, PARTICIPATION AND VESTING
3.01 Service. Except as otherwise provided by the terms of the
Adoption Agreement under which an Employee is an Eligible Employee, the number
of Years of Service completed by an Eligible Employee for purposes of
determining (a) whether an Eligible Employee has satisfied the service
requirements, if any, for participation in the Plan, (b) the amount of an
Eligible Employee's vested interest in his Accrued Benefit, and (c) whether a
contribution is to be made to the Plan on behalf of an Eligible Employee
shall be determined in accordance with the provisions of Section 3.02 or
Section 3.03 hereof, whichever Section is specified by the Adoption Agreement
under which a Participant is an Eligible Employee.
3.02 Hours of Service Method. The number of Years of Service
completed by an Employee that is an Eligible Employee under the terms of an
Adoption Agreement which has specified that the Hours of Service method as
described in this Section 3.02 shall apply for purposes of determining the
number of Years of Service completed by such Eligible Employee shall be
determined as follows:
(a) Eligibility. Except to the extent otherwise provided by
the terms of the Adoption Agreement under which an Employee is an Eligible
Employee and except as otherwise provided by Section 3.04 hereof, the total
number of Years of Service completed by an Eligible Employee for purposes of
determining his eligibility to participate in the Plan shall be equal to the
total of the number of Years of Service completed by an Eligible Employee
under the terms of this Section 3.02(a).
(i) Employment After Effective Date of Adoption Agreement.
If the Employment Commencement Date of an Eligible Employee occurs on any date
on or after the effective date of the Adoption Agreement under which such
employee is an Eligible Employee, such Eligible Employee shall be deemed to
complete one Year of Service for purposes of determining his eligibility to
participate in the Plan if he completes at least l,000 Hours of Service during
the twelve consecutive month period beginning on his Employment Commencement
Date. Such Eligible Employee shall also be deemed to complete one Year of
Service for eligibility purposes for each Plan Year beginning with the first
Plan Year following the Plan Year which contains his Employment Commencement
Date if he completes at least l,000 Hours of Service during each such Plan
Year. The determination of whether an Eligible Employee has completed the
number of Hours of Service required to complete a Year of Service under this
Section 3.02(a)(i) shall be made at the end of the twelve consecutive month
period beginning on his Employment Commencement Date or the end of the Plan
Year, whichever is applicable.
(ii) Employment Before Effective Date of Adoption
Agreement. If the Employment Commencement Date of an Eligible Employee occurs
on any date which is prior to the effective date of the Adoption Agreement
under which such Employee is an Eligible Employee, the number of Years of
Service completed by such Eligible Employee for eligibility purposes prior to
the effective date of the Adoption Agreement under which such Employee is an
Eligible Employee shall be equal to the number of Years of Service, if any,
completed by such Eligible Employee under the terms of the Predecessor Plan
for purposes of determining such Eligible Employee's eligibility to
participate in the Predecessor Plan.
If the Plan Year of the Predecessor Plan under which an Eligible
Employee described in this Section 3.02(a)(ii) was eligible to participate
ends on any date other than the day immediately preceding the first day of the
first Plan Year beginning on or after effective date of the Adoption Agreement
under which such Employee is an Eligible Employee, such Eligible Employee
shall be deemed to complete one additional Year of Service for eligibility
purposes as of the effective date of the Adoption Agreement if such Eligible
Employee would have completed at least one Year of Service for eligibility
purposes as determined under the terms of the Predecessor Plan during the
twelve consecutive month period beginning on the later of the Eligible
Employee's Employment Commencement Date and the first day following the last
Plan Year of the Predecessor Plan.
The number of Years of Service which an Eligible Employee
described in this Section 3.02(a)(ii) shall be deemed to complete after the
effective date of the Adoption Agreement under which such Employee is an
Eligible Employee shall equal one Year of Service for each Plan Year during
which such Eligible Employee completes at least l,000 Hours of Service. The
determination of whether such an Eligible Employee has completed the required
number of Hours of Service for purposes of this Section 3.02(a)(ii) shall be
made at the end of the twelve consecutive month period beginning on the first
day following the last full plan year of the Predecessor Plan, the Eligible
Employee's Employment Commencement Date or the end of the Plan Year,
whichever is applicable.
(b) Vesting. Except to the extent otherwise provided by the
terms of the Adoption Agreement under which an Employee is an Eligible
Employee and except as otherwise provided by Section 3.04 hereof, the total
number of Years of Service completed by an Eligible Employee for purposes of
determining his vested interest in his Accrued Benefit under the Plan shall be
equal to the total number of Years of Service completed by an Eligible
Employee under the provisions of this Section 3.02(b).
(i) Employment After Effective Date of Adoption Agreement.
If the Employment Commencement Date of an Eligible Employee occurs on any date
on or after the effective date of the Adoption Agreement under which such
Employee is an Eligible Employee, such Eligible Employee shall be deemed to
complete one Year of Service for purposes of determining his vested interest
in his Accrued Benefit, for each Plan Year beginning with the first Plan Year
following his Employment Commencement Date in which he completes at least
l,000 Hours of Service. The determination of whether such an Eligible
Employee has completed the required number of Hours of Service for purposes of
this Section 3.02(b)(i) shall be made at the end of each Plan Year.
(ii) Employment Before Effective Date of Adoption
Agreement. If the Employment Commencement Date of an Eligible Employee occurs
on any date which is prior to the effective date of the Adoption Agreement
under which such Employee is an Eligible Employee, the total number of Years
of Service completed by such Eligible Employee prior to the effective date of
such Adoption Agreement for purposes of determining his vested interest in
his Accrued Benefit shall be equal to the number of Years of Service, if any,
completed by such Eligible Employee for vesting purposes under the terms of
the Predecessor Plan.
If the plan year of the Predecessor Plan under which an Eligible
Employee described in this Section 3.02(b)(ii) was eligible to participate
ends on any date other than the day immediately preceding the first day of the
first Plan Year beginning on or after the effective date of the Adoption
Agreement under which such Employee is an Eligible Employee, such Eligible
Employee shall be deemed to complete one additional Year of Service for
vesting purposes as of the effective date of the Adoption Agreement if such
Eligible Employee completes at least one Year of Service for vesting purposes
under the terms of the Predecessor Plan during the twelve consecutive month
period beginning on the first day following the last Plan Year of the
Predecessor Plan.
The number of Years of Service which an Eligible Employee
described in this Section 3.02(b)(ii) shall be deemed to complete after the
effective date of the Adoption Agreement under which such Employee is an
Eligible Employee shall equal one Year of Service for each Plan Year in which
such Eligible Employee completes at least l,000 Hours of Service. The
determination of whether such an Eligible Employee has completed the required
number of Hours of Service for purposes of this Section 3.02(b)(ii) shall be
made at the end of the twelve consecutive month period beginning on the first
day following the last full plan year of the Predecessor Plan or the end of
the Plan Year, whichever is applicable.
(c) Years of Service for Contributions. Except to the extent
otherwise provided by the terms of the Adoption Agreement under which an
Employee is an Eligible Employee, for each Plan Year beginning on or after the
effective date of the Adoption Agreement under which an Employee is an
Eligible Employee, each Eligible Employee that is a Participant in the Plan
under the terms of such Adoption Agreement shall be deemed to complete a Year
of Service as a result of which the Eligible Employee may be entitled to have
a contribution made to the Plan on his behalf by his Employer, if such
Eligible Employee completes at least l,000 Hours of Service as a Participant
during such Plan Year.
3.03 Elapsed Time Method. The number of Years of Service completed by
an Employee that is an Eligible Employee under the terms of an Adoption
Agreement which has specified that the Elapsed Time Method as described in
this Section 3.03 shall apply for purposes of determining the number of Years
of Service completed by such Eligible Employee shall be determined as follows:
(a) Eligibility. Except to the extent otherwise provided by the
terms of the Adoption Agreement under which an Employee is an Eligible
Employee and except as otherwise provided in Section 3.04 hereof, the total
number of Years of Service completed by an Eligible Employee for purposes of
determining his eligibility to participate in the Plan shall, subject to the
service spanning rules of Section 3.03(d) hereof, be equal to the total number
of Years of Service completed by an Eligible Employee under the terms of this
Section 3.03(a).
(i) Employment After Effective Date of Adoption Agreement.
If the Employment Commencement Date of an Eligible Employee occurs on any date
on or after the effective date of the Adoption Agreement under which such
Employee is an Eligible Employee, such Eligible Employee shall be deemed to
complete one Year of Service for purposes of determining his eligibility to
participate in the Plan for each aggregate period of twelve months that
elapses during such Eligible Employee's Period of Service. The determination
of whether an Eligible Employee has completed the Period of Service necessary
to complete a Year of Service for purposes of this Section 3.03(a)(i) shall be
made at the end of the twelve consecutive month period beginning on his
Employment Commencement Date and any anniversary thereof.
(ii) Employment Before Effective Date of Adoption
Agreement. If the Employment Commencement Date of an Eligible Employee occurs
on any date which is prior to the effective date of the Adoption Agreement
under which such Employee is an Eligible Employee, the number of Years of
Service completed by such Eligible Employee for eligibility purposes prior to
the effective date of the Adoption Agreement under which such Employee is an
Eligible Employee shall be equal to the number of Years of Service, if any,
completed by such Eligible Employee under the terms of the Predecessor Plan
for purposes of determining such Eligible Employee's eligibility to
participate in the Predecessor Plan.
If the Plan Year of the Predecessor Plan under which an Eligible
Employee described in this Section 3.03(a)(ii) was eligible to participate
ends on any date other than the date immediately preceding the first day of
the first Plan Year beginning on or after the effective date of the Adoption
Agreement under which such Employee is an Eligible Employee, such Eligible
Employee shall be deemed to complete one additional Year of Service for
eligibility purposes as of the effective date of the Adoption Agreement if
such Eligible Employee would have completed one Year of Service for
eligibility purposes as determined under the provisions of the Predecessor
Plan during the twelve consecutive month period beginning on the later of the
Eligible Employee's Employment Commencement Date and the first day following
the last Plan Year of the Predecessor Plan.
The number of Years of Service which an Eligible Employee
described in this Section 3.03(a)(ii) shall be deemed to complete after the
effective date of the Adoption Agreement under which such Employee is an
Eligible Employee shall equal one Year of Service for each aggregate period of
twelve months which elapses during the Period of Service attributable to such
Eligible Employee for the period beginning with the first Plan Year of this
Plan which begins on or after the effective date of the Adoption Agreement
under which such Employee is an Eligible Employee. The determination of
whether the Eligible Employee has completed a Year of Service for purposes of
this Section 3.03(a)(ii) shall be made at the end of the twelve consecutive
month period beginning on the first day following the last full plan year of
the Predecessor Plan, the Eligible Employee's Employment Commencement Date or
the end of the Plan Year, whichever is applicable.
(b) Vesting. Except to the extent otherwise provided by the
terms of the Adoption Agreement under which an Employee is an Eligible
Employee and except as otherwise provided by Section 3.04 hereof, the total
number of Years of Service completed by an Eligible Employee for purposes of
determining his vested interest in his Accrued Benefit under the Plan shall,
subject to the service spanning rules of Section 3.03(d) hereof, be equal to
the total number of Years of Service completed by an Eligible Employee under
the terms of this Section 3.03(b).
(i) Employment After Effective Date of Adoption Agreement.
If the Employment Commencement Date of an Eligible Employee occurs on any date
on or after the effective date of the Adoption Agreement under which such
Employee is an Eligible Employee, such Eligible Employee shall be deemed to
complete one Year of Service for purposes of determining his vested interest
in his Accrued Benefit under the Plan for each aggregate period of twelve
months that elapses during such Eligible Employee's Period of Service.
Subject to the provisions of Section 3.04(d) hereof, for purposes of this
Section 3.03(b)(i), nonsuccessive Periods of Service and any Period of Service
which is less than twelve months (whether or not consecutive) shall be
aggregated for purposes of determining whether an Eligible Employee has
completed the aggregate period of twelve months which is required to complete
one Year of Service for vesting purposes. The determination of whether an
Eligible Employee has completed the Period of Service necessary to complete a
Year of Service under this Section 3.03(b)(i) shall be made at the end of each
Plan Year.
(ii) Employment Before Effective Date of Adoption
Agreement. If the Employment Commencement Date of an Eligible Employee occurs
on any date which is prior to the effective date of the Adoption Agreement
under which such Employee is an Eligible Employee, the total number of Years
of Service completed by such Eligible Employee prior to the effective date of
such Adoption Agreement for purposes of determining his vested interest in
his Accrued Benefit shall be equal to the number of Years of Service, if any,
completed by such Eligible Employee for vesting purposes under the terms of
the Predecessor Plan.
If the plan year of the Predecessor Plan under which an Eligible
Employee described in this Section 3.03(b)(ii) was eligible to participate
ends on any date other than the day immediately preceding the first day of the
first Plan Year beginning on or after the effective date of the Adoption
Agreement under which such Employee is an Eligible Employee, such Eligible
Employee shall be deemed to complete one additional Year of Service for
vesting purposes as of the effective date of the Adoption Agreement if such
Eligible Employee would have completed one Year of Service for vesting
purposes as determined under the provisions of the Predecessor Plan under
which such Employee was an Eligible Employee during the twelve consecutive
month period beginning on the first day following the last Plan Year of the
Predecessor Plan.
The number of Years of Service which an Eligible Employee
described in this Section 3.03(b)(ii) shall be deemed to complete after the
first day of the first Plan Year beginning on or after the effective date of
the Adoption Agreement under which such Employee is an Eligible Employee shall
equal one Year of Service for each aggregate period of twelve months which
elapses during the Period of Service attributable to such Eligible Employee
for the period beginning with the first Plan Year of this Plan which begins on
or after the effective date of the Adoption Agreement under which such
Employee is an Eligible Employee. The determination of whether the Eligible
Employee has completed a Year of Service for purposes of this Section
3.03(b)(ii) shall be made at the end of the twelve consecutive month period
beginning on the first day following the last full plan year of the
Predecessor Plan, or the end of the Plan Year, whichever is applicable.
(c) Years of Service for Contributions. Except to the extent
otherwise provided by the terms of the Adoption Agreement under which an
Employee is an Eligible Employee, for each Plan Year beginning on or after the
effective date of the Adoption Agreement under which an Employee is an
Eligible Employee, each Eligible Employee that is a Participant in the Plan
under the terms of such Adoption Agreement shall be deemed to complete a Year
of Service as a result of which the Eligible Employee may be entitled to have
a contribution made to the Plan on his behalf by his Employer for each twelve
month period which elapses during the Period of Service attributable to such
Eligible Employee during such Plan Year.
(d) Service Spanning Rules. If an Eligible Employee incurs a
Termination Date and thereafter performs one Hour of Service within the twelve
month period which begins on his Termination Date, the number of months which
elapse between the Eligible Employee's Termination Date and the date he again
performs an Hour of Service for the Employer as an Eligible Employee shall be
aggregated with the number of months which elapse between the Eligible
Employee's Employment Commencement Date and his Termination Date for purposes
of determining the number of Years of Service completed by the Eligible
Employee for purposes of determining his eligibility to participate in the
Plan and the amount of his vested interest in his Accrued Benefit under the
Plan. In addition, if an Eligible Employee severs his employment relationship
with the Employer for any reason other than a quit, discharge, retirement or
death (his "Severance Date") and thereafter incurs a Termination Date by
reason of a quit, discharge, retirement or death within twelve months from his
Severance Date and (ii) such Eligible Employee is reemployed as an Eligible
Employee within twelve months of his Severance Date, the number of months
which elapse between the Eligible Employee's Termination Date and the date he
again performs an Hour of Service for the Employer as an Eligible Employee
shall be aggregated with all other months required to be aggregated under this
Section 3.03 for purposes of determining the number of Years of Service
completed by such Eligible Employee for purposes of determining his
eligibility to participate in the Plan and the amount of his vested interest
in his Accrued Benefit under the Plan.
3.04 Years of Service Included and Excluded. Except to the extent
otherwise provided by the Adoption Agreement under which an Employee is an
Eligible Employee, the number of Years of Service completed by an Eligible
Employee as determined under the applicable provisions of the Adoption
Agreement under which such Employee is an Eligible Employee, Section 3.02 or
Section 3.03 shall be adjusted to include or exclude certain Years of Service
in accordance with this Section 3.04.
(a) Years of Service Included for Eligibility and Vesting. For
purposes of determining whether an Eligible Employee is eligible to
participate in the Plan and for purposes of determining an Eligible Employee's
vested interest in his Accrued Benefit under the Plan, all Years of Service
completed by an Eligible Employee with the Employer or any Affiliated Company
for purposes of determining whether such Eligible Employee is eligible to
participate in the Plan and the amount of such Eligible Employee's vested
interest in his Accrued Benefit under the Plan as determined under the
provisions of the Adoption Agreement under which such Employee is an Eligible
Employee or Sections 3.02 or 3.03 hereof, whichever is applicable, shall be
taken into account.
(b) Years of Service Excluded for Eligibility and Vesting.
Years of Service completed by an Eligible Employee prior to the effective date
of the Adoption Agreement under which such Employee is an Eligible Employee
for purposes of determining such Eligible Employee's eligibility to
participate in the Predecessor Plan and the amount of such Eligible Employee's
vested interest in his Accrued Benefit under the Predecessor Plan shall not be
taken into account for such purposes under this Plan if such Years of Service
were not required to be taken into account for such purposes under the terms
of the Predecessor Plan whose terms are incorporated into the provisions of
this Plan under the Adoption Agreement under which such Employee is an
Eligible Employee.
(c) Years of Service Excluded for Vesting. For purposes of
determining an Eligible Employee's vested interest in his Accrued Benefit
under the Plan, Years of Service completed by an Eligible Employee during
which the Participating Company did not maintain the Plan or a Predecessor
Plan under the terms of which such Employee was an Eligible Employee shall not
be taken into account for purposes of this Plan. In addition, if an Eligible
Employee incurs a Termination Date and is thereafter rehired by the Employer
as an Eligible Employee, Years of Service completed by such Eligible Employee
prior to his Termination Date shall not be included in determining such
Eligible Employee's vested interest in his Accrued Benefit under the Plan if
such Eligible Employee fails to complete a Year of Service after his rehiring.
(d) Years of Service Excluded For Eligibility and Vesting. If
an Eligible Employee that has no vested interest in his Accrued Benefit under
the Plan on his Termination Date is rehired by the Employer, the number of
Years of Service completed by such Eligible Employee for purposes of
determining such Eligible Employee's eligibility to participate in the Plan
and his vested interest in his Accrued Benefit under the Plan shall not
include the number of Years of Service completed by such Eligible Employee
prior to his Termination Date if the number of consecutive Breaks in Service
incurred by such Eligible
Employee (in the case of an Eligible Employee whose Years of Service are
determined under the Hours of Service method) or if the number of consecutive
One Year Periods of Severance incurred by such Eligible Employee (in the case
of an Eligible Employee whose Years of Service are determined under the
Elapsed Time method) equals or exceeds the greater of five or the aggregate
number of Years of Service completed by such Eligible Employee prior to his
Termination Date.
(e) Special Rule for March 1, 1990 through December 31, 1990
Plan Year. Each Eligible Employee in the employ of the Employer on December
31, 1990 shall be deemed to complete (i) one additional Year of Service for
eligibility purposes as of December 31, 1990, if such Eligible Employee would
have completed one Year of Service for eligibility purposes as of February 28,
1991 under the provisions of the Adoption Agreement containing the provisions
of the Plan as applicable to such Eligible Employee; and (ii) one additional
Year of Service for vesting purposes if such Eligible Employee would have
completed a Year of Service as of February 28, 1991, under the terms of the
Adoption Agreement containing the provisions of the Plan as applicable to such
Eligible Employee.
3.05 Commencement of Participation. Each Employee who was a
participant in a Predecessor Plan on the day immediately preceding the date
the terms of such Predecessor Plan are incorporated into the provisions of
this Plan by an Adoption Agreement shall become a Participant in this Plan on
the effective date of such Adoption Agreement. Except as otherwise provided
in the Adoption Agreement under which an Employee is an Eligible Employee,
each Eligible Employee that was not a Participant in the Predecessor Plan
whose Employment Commencement Date occurs before the effective date of the
Adoption Agreement under which such Employee is an Eligible Employee shall
become a Participant in the Plan on the effective date of the Adoption
Agreement under which such Employee is an Eligible Employee.
Except as otherwise provided by the Adoption Agreement under which
an Employee is an Eligible Employee, each Eligible Employee whose Employment
Commencement Date occurs on or after the effective date of the Adoption
Agreement under which such Employee is an Eligible Employee shall become a
Participant in the Plan on the first day following the Eligible Employee's
Employment Commencement Date. The eligibility of an Employee to participate
in the Plan shall be determined by the Retirement Committee and such
determination shall be conclusive and binding on all persons.
3.06 Vesting. Each Participant shall at all times have a 100% vested
interest in the portion of his Accrued Benefit, if any, attributable to the
Participant's After-Tax Contributions made by the Participant pursuant to
Section 4.04 hereof and in the portion of his Accrued Benefit, if any,
attributable to Elective Contributions made to the Plan on the Participant's
behalf pursuant to the Participant's election to defer compensation as
provided for in Section 4.01 hereof. In addition, each Participant shall have
a vested interest in (a) the portion of his Accrued Benefit, if any,
attributable to Matching Contributions made to the Plan on his behalf pursuant
to Section 4.02 hereof, (b) the portion of his Accrued Benefits, if any,
attributable to Discretionary Contributions made to the Plan on his behalf
pursuant to Section 4.03 hereof and the portion of his Accrued Benefit, if
any, which is attributable to the amount which was contained in the account
established for the Participant under the terms of the Mark IV Industries,
Inc. and Subsidiaries Master Defined Contribution Pension Plan (hereinafter
the "DC Pension Account") determined on the basis of the number of whole Years
of Service completed by such Participant and determined as of the end of any
Plan Year in accordance with the Schedule set forth in the Adoption Agreement
under which such Participant is an Eligible Employee, provided that, except as
otherwise provided in the Adoption Agreement under which a Participant is an
Eligible Employee, effective March l, 1989, each Participant in the employ of
the Employer shall have a vested interest in the portion of his Accrued
Benefit attributable to Matching Contributions made pursuant to Section 4.02
hereof, the portion of his Accrued Benefit attributable to Discretionary
Contributions made pursuant to Section 4.03 hereof and the portion, if any, of
the Participant's Accrued Benefit attributable to the Participant's DC Pension
Account determined as of the end of each Plan Year on the basis of his whole
Years of Service according to the following schedule:
Completed Years Percent
Of Service Vested
Less than 5 0%
5 100%
Notwithstanding the above schedule, a Participant shall become
fully and nonforfeitably vested in his Accrued Benefit upon his attainment of
his Normal Retirement Age provided that the Participant is then in the employ
of the Employer or an Affiliated Company. In addition, except as otherwise
provided by the terms of the Adoption Agreement under which a Participant is
an Eligible Employee, if a Participant dies or suffers a Total and Permanent
Disability prior to his retirement or other termination of employment, his
Accrued Benefit shall become fully and nonforfeitably vested. For purposes of
this Section 3.06, the term "Normal Retirement Age" shall mean the earlier of:
(a) the date a Participant attains the minimum age required, by
the Adoption Agreement under which such Participant is an Eligible Employee,
to be eligible to receive a Normal Retirement Income under the terms of such
Adoption Agreement; and
(b) the latest of:
(i) the date a Participant attains age 65; and
(ii) if a Participant commences participation within the
five (5) year period ending on the date such Participant would attain the
minimum age required, by the terms of the Adoption Agreement under which such
Participant is an Eligible Employee, to receive a Normal Retirement Income
under such Adoption Agreement, the fifth (5th) anniversary of the date the
Participant commences participation in the Plan.
For purposes of determining a Participant's vested interest in the
portion, if any, of his Accrued Benefit attributable to Employer Discretionary
Contributions, Employer Matching Contributions and the Participant's DC
Pension Account all Years of Service completed by a Participant for vesting
purposes with the Employer and any Affiliated Company shall be included.
3.07 Top Heavy Plan Year Vesting. During any Top Heavy Plan Year, the
vested interest of a Participant in (a) the portion of his Accrued Benefit
attributable to Matching Contributions made pursuant to Section 4.02 hereof
and (b) the portion of his Accrued Benefit attributable to Discretionary
Contributions made pursuant to Section 4.03 hereof and (c) the portion of his
Accrued Benefit, if any, attributable to his DC Pension Account shall be
determined in accordance with the following schedule:
Completed Years Percent
of Service Vested
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 100%
Notwithstanding the above, the amount of Participant's vested
interest in the portion of his Accrued Benefit attributable to Matching
Contributions, Discretionary Contributions and the Participant's DC Pension
Account in any Non-Top Heavy Plan Year or series of consecutive Non-Top Heavy
Plan Years subsequent to a Top Heavy Plan Year shall be determined in
accordance with Section 3.06 hereof, provided that the provisions of this
Section 3.07 shall again apply with respect to a Participant's total Accrued
Benefit attributable to Matching Contributions, Discretionary Contributions
and the Participant's DC Pension Account in any Top Heavy Plan Year subsequent
to such Non-Top Heavy Plan Years.
If the vesting schedule contained in this Section becomes
applicable, the vesting schedule shall be deemed to have been amended and the
provisions of Section 12.02 hereof shall apply to such amendment.
<PAGE>
ARTICLE IV
4. CONTRIBUTIONS
4.01 (a) Elective Contributions. Except as otherwise provided under
the terms of the Adoption Agreement under which a Participant is an Eligible
Employee and subject to the provisions of Sections 4.05, 4.06 and 4.07 hereof,
each Participant may elect to have a portion of his Compensation contributed
to the Plan on his behalf by his Employer in whole number multiples of 1% and
in an amount which is not less than l% and not greater than 15% of his
Compensation. The Participant shall make such election by filing a written
election form with the Retirement Committee containing such information as may
from time to time be required by the Retirement Committee, and specifying the
percentage of the Participant's Compensation which is to be contributed to the
Plan on his behalf by his Employer. The election provided for in this Section
4.01(a) shall become effective for the first Payroll Period of the Participant
beginning on or after the first day of the first calendar month which is at
least fifteen (15) days after the Participant's election form has been filed
with the Retirement Committee. Notwithstanding the above, the amount of the
Elective Contributions to the Plan on behalf of a Participant shall be subject
to adjustment due to the limitation on annual additions contained in Section
4.14 hereof.
(b) Effect of Election. If a Participant elects to have a
portion of his Compensation contributed to the Plan on his behalf in
accordance with Section 4.01(a) hereof, the percentage of the Participant's
Compensation which the Participant has elected to have contributed to the Plan
on his behalf, shall be withheld from the amount otherwise payable to the
Participant for each Payroll Period applicable to the Participant and the
Employer shall cause the amount so withheld to be contributed to the Plan on
behalf of the Participant. The Employer shall continue to withhold the amount
described in the preceding sentence from the Participant's Compensation for
each Payroll Period following the date on which the Participant's election
described in Section 4.01(a) hereof becomes effective, and shall continue to
withhold such amount until the Election made by the Participant in accordance
with Section 4.01(a) hereof is changed or revoked in accordance with Sections
4.01(c), (d) or (e) hereof.
(c) Participant Changes in Elective Contributions. A
Participant may change the amount of the Elective Contributions made to the
Plan on his behalf by filing a revised written election form with the
Retirement Committee which contains such information as may from time to time
be required by the Retirement Committee and which specifies the new percentage
of the Participant's Compensation which is to be contributed to the Plan on
his behalf. The new percentage of the Participant's Compensation which is to
be contributed to the Plan on his behalf shall be in whole number multiples of
1% and shall not be less than l% and not greater than 15% of the Participant's
Compensation. The change in the amount of the Elective Contributions to be
made on behalf of the Participant shall become effective for the first Payroll
Period of the Participant beginning on or after the first day of the first
calendar month which is at least fifteen (15) days after the Participant's
revised written election form has been filed with the Retirement Committee. A
Participant may not change the amount of the Elective Contributions to be made
to the Plan on his behalf more than four times during any Plan Year.
(d) Employer Changes in Elective Contributions. The Employer
may unilaterally reduce the amount of the Elective Contributions to be made to
the Plan on behalf of a Participant if the Employer determines that such
reduction is necessary to prevent the amount of the annual additions to the
Plan on behalf of such Participant from exceeding the amount described in
Section 4.14 hereof or to insure that the overall limit on Elective
Contributions contained in Section 4.07 hereof is not exceeded, or to insure
that the maximum amount of Elective Contributions permitted under Section 4.06
hereof is not exceeded as the result of participation in the Plan or plans of
the Affiliated Companies.
(e) Termination of Elective Contributions. Notwithstanding the
limit on changes in the amount of a Participant's Elective Contribution
contained in Section 4.01(c) hereof, a Participant may, at any time, terminate
his election to have Elective Contributions made to the Plan on his behalf by
filing a written notice with the Retirement Committee which states that the
Employer is to cease making any Elective Contributions to the Plan on behalf
of the Participant. Such termination shall become effective for the first
Payroll Period of the Participant beginning on or after the first day of the
first calendar month which is at least fifteen (15) days following the date
the Participant files such notice of termination with the Retirement
Committee.
If a Participant terminates his election to have Elective
Contributions made to the Plan on his behalf as provided in the preceding
paragraph, such Participant may elect to have Elective Contributions made to
the Plan on his behalf again by filing a written election form with the
Retirement Committee in accordance with the provisions of Section 4.01(a)
hereof; provided that an election by a Participant to have Elective
Contributions made to the Plan on his behalf after Elective Contributions on
behalf of such Participant have terminated shall be deemed to be a change in
the amount of such Participant's Elective Contribution which is subject to the
limitation on the number of changes which may be made in the amount of the
Elective Contribution made on behalf of a Participant for any Plan Year as
contained in Section 4.01(c) hereof.
4.02 Matching Contributions. Except as otherwise provided under the
terms of the Adoption Agreement under which a Participant is an Eligible
Employee, for each Plan Year and not later than the time prescribed by law for
filing of the federal income tax return of a Participating Company for the
fiscal year of the Participating Company containing the last day of such Plan
Year, the Participating Company may, with respect to such Plan Year, make a
Matching Contribution on behalf of each Participant on whose behalf the
Participating Company has made an Elective Contribution in accordance with
Section 4.01 hereof. The amount of such Matching Contribution and the amount
of the Participant's vested interest in such Matching Contribution shall be
determined under the terms of the Adoption Agreement under which the
Participant is an Eligible Employee. Notwithstanding the above, the amount of
the Matching Contributions made to the Plan on behalf of a Participant shall
be subject to adjustment due to the limitation on annual additions contained
in Section 4.14 hereof.
4.03 Discretionary Contributions by the Employer. In addition to the
Matching Contributions provided for in Section 4.02 hereof and except as
otherwise provided by the terms of the Adoption Agreement under which a
Participant is an Eligible Employee, for each Plan Year, the Participating
Company may, with respect to such Plan Year, make a Discretionary Contribution
to the Trust Fund and, in the case of Participants that, prior to January 1,
1993, were participants in the Mark IV Industries, Inc. and Subsidiaries
Master Defined Contribution Pension Plan, the Participating Company by whom
any such Participant was employed on December 31, 1992 (or any successor in
interest to such Participating Company) shall make a Discretionary
Contribution to the Trust Fund on behalf of such Participant provided that
such Participant was employed by such Participating Company for such Plan Year
and provided that such Participant otherwise satisfies the requirements for
receipt of such contribution as established by the Adoption Agreement under
which such Participant is an Eligible Employee. The amount of such
Discretionary Contribution shall be determined by resolution of the Board of
Directors of the Participating Company and shall be announced to Participants
that are employed by the Participating Company; provided that, the amount of
the Discretionary Contribution which is to be made to the Trust Fund on behalf
of a Participant that was a participant in the Mark IV Industries, Inc. and
Subsidiaries Master Defined Contribution Pension Plan on December 31, 1992,
shall, provided such Participant is otherwise eligible to have a Discretionary
Contribution made to the Plan on his behalf, and unless otherwise changed by
resolution of the Board of Directors of Mark IV, be equal to the same
percentage of the Participant's Compensation as would have been contributed to
the Mark IV Industries, Inc. and Subsidiaries Master Defined Contribution
Pension Plan had such plan continued in full force and effect, as determined
by the provisions of the Adoption Agreement under which such Participant is an
Eligible Employee. Notwithstanding the above, the amount of the Discretionary
Contribution of the Participating Company for any fiscal year shall be
subject to adjustment due to the limitation on annual additions contained in
Section 4.14 hereof.
4.04 (a) After Tax Contributions. In addition to the Matching
Contributions and Discretionary Contributions provided for in Sections 4.02
and 4.03 hereof and except as otherwise provided under the terms of the
Adoption Agreement under which a Participant is an Eligible Employee, each
Eligible Employee that becomes a Participant may contribute to the Trust Fund
in each Plan Year during which he is a Participant any amount as he may
determine; provided that, in no event shall the amount of After Tax
Contributions made to the Plan by a Participant under this Section 4.04 for
any Plan Year exceed 10% of such Participant's Compensation for such Plan
Year. The amount of such Contribution shall be determined by the Participant's
written application to the Retirement Committee.
(b) Withdrawal of After Tax Contributions A Participant may
withdraw all or part of his Account, including any earnings thereon, to the
extent of the amount attributable to the Participant's After Tax Contributions
by filing a written request for such withdrawal with the Retirement Committee
at least fifteen (15) days prior to the date on which the Participant intends
to withdraw such After Tax Contributions. Notwithstanding the foregoing, no
more than two (2) such withdrawals may be made by a Participant in any Plan
Year. The amount of any After Tax Contributions withdrawn by the Participant
shall be paid to the Participant in the form of a Qualified Joint and Survivor
Annuity as described in Section 8.02(a) hereof unless the Participant, and if
applicable, the Participant's Spouse waive the payment of a Qualified Joint
and Survivor Annuity in accordance with the provisions of Section 8.02(b)
hereof.
4.05 (a) Maximum Amount of Contributions. Notwithstanding any
provision of the Plan to the contrary, the total amount of Elective
Contributions, Matching Contributions and Discretionary Contributions made to
the Plan by the Employer for any fiscal year shall not exceed fifteen percent
(15%) of the total compensation otherwise paid or accrued by the Employer to
all Participants in the Plan during such fiscal year, or, if greater, the
maximum amount which is deductible by the Employer under Section 404 of the
Code. In no event shall any contributions (other than After Tax
Contributions) be made to the Plan to the extent any such contributions are
not deductible, under Section 4.04 of the Code.
(b) Adjustment For Excessive Contributions. If the total amount
of Elective Contributions, Matching Contributions and Discretionary
Contributions made to the Plan by the Employer exceeds the amount described in
Section 4.05(a) hereof, the Retirement Committee shall reduce the amount of
the Elective Contributions made on behalf of Participants to the extent
necessary to satisfy the limitation imposed by Section 4.05(a) hereof. Such
reduction shall be made by first reducing the amount of the Elective
Contribution made to the Plan on behalf of each Participant in the same
proportion that the Elective Contribution made on behalf of a Participant
bears to the total amount of the Elective Contributions made to the Plan on
behalf of all Participants. The amount by which a Participant's Elective
Contribution is reduced shall be returned to the Participant.
In addition, the Retirement Committee shall have the right at any
time during the Plan Year to adjust the amount of the Elective Contributions
to be made for each Participant for the remainder of the Plan Year to the
extent necessary to satisfy the limitation contained in Section 4.05(a)
hereof. Any such adjustment shall be in the same proportion that the Elective
Contribution made on behalf of each Participant bears to the total amount of
Elective Contributions made on behalf of all Participants for such Plan Year.
In the event that, following the return of all Elective
Contributions to Participants that made Elective Contributions for a Plan
Year, the amount of the Matching Contributions and Discretionary Contributions
made to the Plan for such Plan Year exceeds the amount described in Section
4.05(a), the Retirement Committee shall reduce the amount of the Matching
Contributions made on behalf of Participants to the extent necessary to
satisfy the limitation imposed by Section 4.05(a) hereof. Such reduction
shall be made by reducing the amount of the Matching Contributions made to the
Plan on behalf of each Participant in the same proportion that the amount of
the Matching Contribution made to the Plan on behalf of a Participant bears to
the total amount of Matching Contributions made to the Plan on behalf of all
Participants. The amount by which the Matching Contributions made to a
Participant are reduced shall be returned to the Employer.
In the event that, following the return of all Elective
Contributions and Matching Contributions made to the Plan for a Plan Year, the
amount of the Discretionary Contributions made to the Plan for such Plan Year
exceeds the amount described in Section 4.05(a), the Retirement Committee
shall reduce the amount of the Discretionary Contributions made on behalf of
Participants to the extent necessary to satisfy the limitation imposed by
Section 4.05(a) hereof. Such reduction shall be made by reducing the amount
of Discretionary Contributions made to the Plan on behalf of each Participant
in the same proportion that the amount of the Discretionary Contributions made
to the Plan on behalf of a Participant bears to the total amount of
Discretionary Contributions made to the Plan on behalf of all Participants.
The amount by which the Discretionary Contributions made to a Participant are
reduced shall be returned to the Employer.
4.06 (a) Maximum Amount of Elective Contributions. Notwithstanding
anything to the contrary contained in Section 4.01, the total amount of
Elective Contributions made to the Plan on behalf of a Participant for any
calendar year shall not exceed $7,000 or such other amount as may be
established by the Secretary of the Treasury under Section 402(g) of the Code.
(b) Adjustment for Excessive Elective Contributions. If the
total amount of Elective Contributions made to the Plan on behalf of a
Participant exceeds the amount described in Section 4.06(a) hereof (such
Elective Contributions, to the extent they exceed the limitation imposed by
Section 4.06(a) hereof being hereinafter referred to as "Excessive Elective
Contributions"), the Retirement Committee shall reduce the amount of the
Elective Contributions made on behalf of the Participant to the extent
necessary to satisfy the limitation imposed by Section 4.06(a) hereof if the
Participant files a written claim for such reduction with the Retirement
Committee not later than March 1 of any year. Excessive Elective
Contributions may be returned within the same Plan Year if the Participant or
the Committee designates such distribution as an Excessive Elective
Contribution and the distribution is made after the date the Plan received the
Excessive Elective Contribution and the Plan designated the distribution as an
Excessive Elective Contribution. In the absence of a designation by the
Participant, the Retirement Committee shall make such a designation on behalf
of the Participant with respect to Excessive Elective Contributions made under
the Plan and all Plans of the Affiliated Companies. The claim to be filed by
the Participant with the Retirement Committee under this Section 4.06(b) shall
contain a statement by the Participant of the amount to be distributed to the
Participant and shall further state that if such amount is not distributed to
the Participant, the total of the amount deferred by the Participant under all
plans or arrangements described in Sections 401(k), 408(k) or 403(b) of the
Code will exceed the limit imposed on the Participant by Section 402(g) of the
Code. The Participating Company shall cause such reduction to be made by
distributing to the Participant the amount stated by the Participant's claim
(together with any income and minus any loss attributable to the amounts
contributed by the Participant in excess of the amount described in Section
4.06(a) hereof) prior to April 15 of the year following the end of the Plan
Year for which the Participant has made a claim.
4.07 (a) Overall Limitation On Elective Contributions.
Notwithstanding anything to the contrary contained in the Plan, for each Plan
Year, the Average Deferral Percentage of Highly Compensated Employees shall
not exceed the greater of:
(i) the Average Deferral Percentage of Participants that
are not Highly Compensated Employees multiplied by 1.25; and
(ii) the Average Deferral Percentage of Participants that
are not Highly Compensated Employees multiplied by 2.0 provided that the
Average Deferral Percentage of Highly Compensated Employees does not exceed
the Average Deferral Percentage of Participants that are not Highly
Compensated Employees by more than two (2) percentage points.
Notwithstanding the foregoing, Section 4.07(a)(ii) shall not be applicable if
and to the extent that regulations of the Secretary of the Treasury provide
that it cannot apply.
(b) Adjustment for Excessive Elective Deferrals. If, for any
Plan Year, the Average Deferral Percentage of Highly Compensated Employees
exceeds the Average Deferral Percentage of Participants that are not Highly
Compensated Employees by more than the greater of Section 4.07(a) (i) and (ii)
above, the Actual Deferral Percentage of Highly Compensated Employees shall be
reduced in descending order of magnitude of the Actual Deferral Percentages of
Highly Compensated Employees in accordance with Section 401(k)(8) of the Code
until the Average Deferral Percentage of Highly Compensated Employees does not
exceed the Average Deferral Percentage of Participants that are not Highly
Compensated Employees by more than the greater of the amounts described in
Section 4.07(a)(i) and (ii) hereof. Such reduction shall be made by
distributing to the applicable Highly Compensated Employees, the amount of the
Elective Contributions which must be distributed to such Highly Compensated
Employees in order to reduce the Actual Deferral Percentages of such Highly
Compensated Employees to the level required by the preceding sentence together
with the income attributable to such Elective Contributions. Such Elective
Contributions together with the income attributable to such Elective
Contributions shall be distributed to the applicable Highly Compensated
Employees as soon as practicable following the end of the Plan Year in which
the overall limitation on Elective Contributions contained in Section 4.07(a)
hereof is not satisfied, but in no event later than the end of the Plan Year
following the Plan Year in which the overall limitation on Elective
Contributions contained in Section 4.07(a) hereof is not satisfied. If there
has been a net investment loss with respect to such Elective Contributions,
the amount of the Elective Contributions to be distributed in accordance with
this Section 4.07(b) shall not be reduced except to the extent permitted by
Section 401(k)(8) of the Code or the regulations thereunder.
(c) Credit For Elective Contributions Otherwise Distributed. The
amount of Elective Contributions to be distributed to any Highly Compensated
Employee in accordance with Section 4.07(b) hereof shall be reduced by the
amount of Elective Contributions, if any, distributed to the Highly
Compensated Employee in accordance with Section 4.06(b) hereof.
4.08 (a) Overall Limitation On Matching Contributions.
Notwithstanding anything to the contrary contained in the Plan, for each Plan
Year, the Average Contribution Percentage of Highly Compensated Employees
shall not exceed the greater of:
(i) the Average Contribution Percentage of Participants
that are not Highly Compensated Employees multiplied by 1.25; and
(ii) the Average Contribution Percentage of Participants
that are not Highly Compensated Employees multiplied by 2.0 provided that the
Average Contribution Percentage of Highly Compensated Employees does not
exceed the Average Contribution Percentage of Participants that are not Highly
Compensated Employees by more than two (2) percentage points.
(b) Adjustment For Excessive Matching Contributions. If, for any
Plan Year, the Average Contribution Percentage of Highly Compensated Employees
exceeds the Average Contribution Percentage of Participants that are not
Highly Compensated Employees by more than the greater of Section 4.08(a)(i)
and (ii) above, the Actual Contribution Percentage of Highly Compensated
Employees shall be reduced in descending order of magnitude of the Actual
Contribution Percentages of Highly Compensated Employees in accordance with
Section 401(m)(6) of the Code until the Average Contribution Percentage of
Highly Compensated Employees does not exceed the Average Contribution
Percentage of Participants that are not Highly Compensated Employees by more
than the greater of the amounts described in 4.08(a)(i) and (ii) hereof. Such
reduction shall be made by distributing to the applicable Highly Compensated
Employees, the amount of After Tax Contributions, if any, together with the
income thereon and thereafter by distributing the amount of any nonforfeitable
Matching Contributions together with the income thereon to the applicable
Highly Compensated Employees and finally by forfeiting the amount of Matching
Contributions attributable to the applicable Highly Compensated Employees to
the extent such Matching Contributions are forfeitable but only to the extent
such distributions and forfeitures are necessary in order to reduce the Actual
Contribution Percentage of such Highly Compensated Employees to the level
required by the preceding sentence. Such After Tax Contributions and Matching
Contributions together with the income attributable to such After Tax
Contributions shall be distributed to the applicable Highly Compensated
Employees as soon as practicable following the end of the Plan Year in which
the overall limitation on Matching Contributions contained in Section 4.08(a)
hereof is not satisfied, but in no event later than the end of the Plan Year
following the Plan Year in which the overall limitation on Matching
Contributions contained in Section 4.08(a) hereof is not satisfied. If there
has been a net investment loss with respect to such After Tax Contributions or
Matching Contributions, the amount of such After Tax Contributions or Matching
Contributions to be distributed shall not be reduced except to the extent
permitted by Section 401(m)(6) of the Code or the regulations thereunder.
(c) Restrictions to Prevent Multiple Use of the Alternative
Limitation. Notwithstanding the foregoing provisions of this Section 4.08, if
one or more Highly Compensated Employees is subject to Section 4.07 and 4.08
of the Plan (or similar provisions of retirement plans of Affiliated
Companies) and the sum of (i) the Average Deferral Percentage of Highly
Compensated Employees and (ii) the Average Contribution Percentage of Highly
Compensated Employees exceeds the sum of (x) 1.25 multiplied by the greater of
(A) the Average Deferral Percentage of all Employees other than Highly
Compensated Employees and (B) the Average Contribution Percentage of all
Employees other than Highly Compensated Employees and (y) the sum of (A) the
lesser of the Actual Deferral Percentage and the Actual Contribution
Percentage of all Employees other than Highly compensated Employees and (B)
two percent (2%), the Average Contribution Percentage of Highly Compensated
Employees will be reduced, in the same manner as described in Section 4.08(b)
above so that the limit imposed by this Section 4.08(c) is not exceeded.
4.09 Determination of Contributions. Each Participating Company shall
determine the amount of any Discretionary Contribution to be made to the Trust
Fund pursuant to Section 4.03 hereof. The Participating Company's
determination with respect to the amount of such Discretionary Contribution
shall be binding on all Participants, the Retirement Committee, and the
Employer. Such determination shall be final and conclusive.
4.10 Financial Hardship Withdrawals. In the case of financial
hardship, a Participant may make written request to the Retirement Committee
to withdraw that portion of his Accrued Benefit which is attributable to
Elective Contributions made pursuant to Section 4.01 hereof; provided that, in
no event may any earnings attributable to Elective Contributions allocated to
a Participant's Account after December 31, 1986 be withdrawn by the
Participant under the provisions of this Section 4.10. No such request shall
be granted by the Retirement Committee unless the Retirement Committee shall,
using uniform and nondiscriminatory standards and based on all relevant facts
and circumstances, determine that the Participant has an immediate and heavy
financial need, that the distribution requested by the Participant is
necessary to satisfy that immediate and heavy financial need and the need
cannot be satisfied from the other available resources of the Participant.
"Financial Hardship" shall include illness or disability of the Employee or
his dependents, the purchase, preservation of improvement of a home in which
such Employee resides, the education of a dependant of the Employee or
similar financial emergency or necessity. The Retirement Committee may
(unless it has actual knowledge to the contrary) rely on the Participant's
written representations that the immediate and heavy financial need of the
Participant cannot be relieved through other financial resources of the
Participant.
4.11 No Rights or Interest Reserved by Employer. Except as otherwise
provided below, in no event shall the principal or income of the Trust Fund be
paid to or revert to a Participating Company, or be used for any purpose
whatsoever other than the exclusive benefit of the Participants or their
Beneficiaries (including the reasonable and necessary expenses of the Plan and
Trust). Notwithstanding the above, in the case of a contribution which is
made by a Participating Company by a mistake of fact, such contribution shall
be returned to the Participating Company within one year after the payment of
said contribution if the Participating Company so requests and if such return
is allowed by law. If the Participating Company makes a contribution, the
deductibility of which is not allowed under Code Section 404 then, to the
extent the deduction is disallowed, the contribution shall be returned to the
Participating Company within one year after the disallowance of the deduction
if the Participating Company so requests and if such return is allowed by law.
If the initial qualification of the Plan under Code Section 401(a) is denied,
all contributions made by a Participating Company during the period of the
initial disqualification shall be returned to the Participating Company within
one year after the date of such denial if the Participating Company so
requests and if such return is allowed by law.
4.12 Eligibility for and Allocation of Contributions. The terms of the
Adoption Agreement under which a Participant is an Eligible Employee shall
determine (a) whether a Participant is eligible to receive an allocation of
(i) Discretionary Contributions under Section 4.03 or (ii) Matching
Contributions under Section 4.02, (b) the time at which Discretionary
Contributions and Matching Contributions, if any, are to be allocated to the
Account of a Participant; and (c) the formula at which Discretionary
Contributions and Matching Contributions, if any, are to be allocated among
the Accounts of the Participants in the Plan.
4.13 Adjustment of Employer Contributions. Except as otherwise
provided under the terms of the Adoption Agreement under which a Participant
is an Eligible Employee, the portion of a Participant's Account that is
forfeited pursuant to Sections 4.16 and 4.17 hereof shall be applied as a
credit toward any Elective Contributions, Matching Contributions and
Discretionary Contributions to be made by the Participating Company for the
current or succeeding fiscal years.
4.14 Overall Limitation on Contributions and Benefits. For each
Limitation Year beginning after December 31, 1982, the annual addition to a
Participant's Account shall not exceed the lesser of $30,000.00 (or, if
greater, one-fourth (l/4) of the dollar limitation for defined benefit pension
plans as contained in Code Section 415(b)(l)(A)) or twenty-five percent (25%)
of the compensation actually paid or made available to the Participant by the
Employer for the Limitation Year. If necessary to limit the annual addition
to a Participant's Account, excess Employee after-tax contributions, if any,
will be repaid first, then Excessive Elective Contributions (and such returned
amounts shall be disregarded for purposes of Section 4.06, 4.07 and 4.08) and
then the contributions of the Participating Company with respect to such
Participant will be reduced to the extent necessary to reduce the annual
addition to the prescribed amount. If the Participating Company fails to
reduce its contribution pursuant to the preceding sentence and the annual
addition to a Participant's Account exceeds the above maximum limitation, the
Retirement Committee shall consider the excess contribution of the
Participating Company as a contribution carry-over to the next Plan Year (and
succeeding Plan Years, as necessary), hold said excess contribution
unallocated in a suspense account and use it to reduce contributions of the
Participating Company for the next Plan Year (and succeeding Plan Years, as
necessary), at which time it shall be allocated to the Accounts of the
Participants before any contributions of the Participating Company, which
would constitute annual additions, may be made to the Plan. In the event the
Participating Company shall make an excess contribution under a mistake of
fact, such excess contribution may be returned to the Participating Company
pursuant to Section 4.11 hereof.
For purposes of this Section 4.14, compensation with respect to
any Limitation Year shall mean compensation as defined in Section 1.415-
2(d)(11)(ii) of the regulations promulgated under Section 415(c)(3) of the
Code. In addition, the dollar limitation in effect as of the last day of the
Limitation Year shall be the dollar limitation used for the entire Limitation
Year. For purposes of this Section 4.14 and Code Section 415 and the
regulations thereunder, the Limitation Year with respect to the Employer shall
be the Plan Year.
The term "annual addition" for each Limitation Year means the sum
of:
(a) Employer contributions, whether made as Elective
Contributions, Matching Contributions or Discretionary Contributions;
(b) forfeitures;
(c) After Tax Contributions of the Eligible Employee;
(d) for Limitation Years beginning after March 31, 1984, any
amount allocated to a separate account established by the Participating
Company on behalf of the Participant pursuant to the terms of a defined
benefit plan to provide for the payment of benefits for sickness, accident,
hospitalization and medical expenses of retired employees, their spouse and
dependents; and
(e) any contribution paid or accrued after December 31, 1985, to
a separate account established on behalf of a Key Employee as defined in Code
Section 419A(d)(3) pursuant to the terms of a plan of a Participating Company
through which the Participating Company provides payment for medical benefits
as defined in Code Section 213(d) to such Key Employee after his retirement.
Medical benefits as defined in Code Section 213(d) may include medical
benefits such as the diagnosis, cure, mitigation, treatment or prevention of
disease, or for the purpose of affecting any structure or function of the
body, or for transportation which is primarily for and essential to the
provision of such medical care or for insurance (including amounts paid as
premiums under Part B of Title XVIII of the Social Security Act) which covers
such medical care.
Contributions of a Participating Company shall be considered as
annual additions to the Participant's Accounts in the Limitation Year with
respect to which such contributions are allocated, even though such
contributions are actually paid over to the Trustee in a later year. In
addition, contributions which are distributed pursuant to Sections 4.07 or
4.08 shall be deemed to be Annual Additions even though such contributions are
distributed.
For each Limitation Year beginning after December 31, 1982, in any
case in which an individual is at any time a Participant in both a defined
benefit plan and a defined contribution plan maintained by a Participating
Company, the sum of the defined benefit plan fraction and the defined
contribution plan fraction for the Limitation Year shall not exceed l.0.
The defined benefit plan fraction for any Limitation Year is a
fraction (a) the numerator of which is the projected annual benefit of the
Participant under the Plan (determined as of the close of such Limitation
Year), and (b) the denominator of which is the lesser of:
(a) l.25 times $90,000.00 or the dollar limitation in effect
under Code Section 415(b)(l)(A) for such year as adjusted in accordance with
regulations prescribed by the Secretary of the Treasury or his delegate
pursuant to Code Section 415(d); or
(b) l.4 times 100% of the Participant's average compensation for
his high 3 consecutive calendar years of service with the Employer.
For purposes of the above mentioned fraction, a Participant's
projected annual benefit means the annual benefit to which he would be
entitled under the terms of the defined benefit plan in which he is a
participant on the assumptions that he continues employment until his normal
retirement age as defined in such plan, that his compensation continues at the
same rate as in effect in the Limitation Year under consideration until the
date of such normal retirement age and that all other relevant factors used to
determine benefits under the defined benefit plan remain constant as of the
current Limitation Year for all future Limitation Years.
The defined contribution plan fraction for any such Limitation
Year is a fraction (a) the numerator of which is the sum of the annual
additions to the Participant's Account as of the close of such Limitation Year
and (b) the denominator of which is the sum, for the current Limitation Year
and each prior Limitation Year a Participant has service with the Employer, of
the lesser of the following amounts:
(a) 1.25 times the dollar limitation in effect under Code
Section 415(c)(l)(A) for the applicable Limitation Year as adjusted in
accordance with regulations prescribed by the Secretary of the Treasury or his
delegate pursuant to Code Section 415(d) without regard to any adjustments
prescribed by Code Section 415(c)(6); or
(b) 1.4 times 25% of the compensation actually paid or made
available to the Participant by his Employer for the applicable Limitation
Year.
For purposes of determining the defined contribution plan fraction
with respect to Limitation Years beginning before January 1, 1976, the amount
taken into account as the numerator of the defined contribution plan fraction
shall not exceed the amount taken into account as the denominator of the
defined contribution plan fraction. In addition, the sum of the Employee's
contributions for all years beginning before January 1, 1976, in which the
Employee was an active Participant minus ten percent (10%) of the Employee's
aggregate compensation for all such years, multiplied by a fraction equal to l
divided by the number of years beginning before January 1, 1976, during which
the Employee was an active Participant in a Predecessor Plan shall be used in
place of the amount of an Employee's contributions in excess of six percent
(6%) of his compensation for such year for purposes of determining the amount
of such Employee's annual addition for such year. Employee contributions made
on or after October 2, 1973, shall be taken into account for purposes of the
preceding sentence only to the extent that the amount of such contributions
does not exceed the maximum amount of contributions permissible under a
Predecessor Plan as in effect on October 2, 1973.
If a Participant was a Participant in one or more defined
contribution plans maintained by the Employer which were in existence on July
1, 1982, the numerator of the defined contribution plan fraction will be
adjusted if the sum of that fraction and the defined benefit plan fraction
would otherwise exceed 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 1.0 times (b) the denominator of the defined contribution plan
fraction, will be permanently subtracted from the numerator of that fraction.
The adjustment is calculated using the fractions as they would be computed as
of the end of the last Limitation Year beginning before January 1, 1983. This
adjustment also will be made if at the end of the last Limitation Year
beginning before January 1, 1984, the sum of the fractions exceeds 1.0 because
of accruals or additions that were made before the limitations of this Section
4.14 became effective to any plans of the Employer in existence on July 1,
1982.
Notwithstanding the foregoing, in any Super Top Heavy Plan Year,
or in any Top Heavy Plan Year in which the minimum allocation provided for in
Section 5.04 for Non-Key Employee Participants described in Section 5.04 is
not equal to at least the lesser of 4% of the Compensation of such Non-Key
Employee Participants or an amount equal to the percentage of Compensation of
such Non-Key Employee Participants described in Section 5.04(b)(ii), 1.0 shall
be substituted for 1.25 in the above described computations of the defined
benefit plan fraction and the defined contribution plan fraction. The
provisions of the preceding sentence shall not apply with respect to the
computation of the defined benefit plan fraction and the defined contribution
plan fraction with respect to any Participant if there are no Employer
contributions, forfeitures or voluntary contributions allocated to such
individual and/or no accruals for such individual under the defined benefit
plan.
At the election of the Committee, for any Limitation Year ending
after December 31, 1982, the amount taken into account for the denominator of
the defined contribution plan fraction with respect to each Participant for
all Limitation Years ending before January 1, 1983, shall be equal to the
product of (a) and (b) where:
(a) is equal to the denominator of the defined contribution plan
fraction for the Limitation Year ending in 1982 determined in accordance with
the law in effect for that Limitation Year, and
(b) is equal to a fraction, the numerator of which is the lesser
of:
(i) $51,875.00, or
(ii) 1.4 multiplied by 25% of the compensation of the
Participant for the Limitation Year ending in 1981, and the denominator of
which is the lesser of:
(i) $41,500.00, or
(ii) 25% of the compensation of the Participant for the
Limitation Year ending in 1981.
In the case of any Super Top Heavy Plan Year or any Top Heavy Plan
Year in which the minimum allocation provided for in Section 5.04 for Non-Key
Employee Participants is not equal to at least the lesser of 4% of the
Compensation of such Non-Key Employee Participants or an amount equal to the
percentage of Compensation of such Non-Key Employee Participants described in
Section 5.04, $41,500.00 shall be substituted for $51,875.00 for purposes of
determining the numerator of the foregoing fraction. The provisions of the
preceding sentence shall not apply with respect to any Participant if there
are no Employer contributions, forfeitures or voluntary contributions
allocated to such individual and/or no accruals for such individual under the
defined benefit plan.
For any Participant covered by both a defined benefit plan and a
defined contribution plan maintained by the Employer, the rate of benefit
accrual by such Participant in the defined benefit plan will be reduced to
the extent necessary to prevent the sum of the above fractions, computed as of
the close of the Limitation Year, from exceeding 1.0.
In any case in which an individual is a participant in more than
one defined contribution plan of the Employer, all such defined contribution
plans, terminated or not, shall, for purposes of these limitations, be
considered as one plan. In any case in which an individual is a Participant
in more than one defined benefit plan of the Employer, all such defined
benefit plans shall, for purposes of these limitations, be considered as one
plan. In addition, all employees of all corporations which are members of a
controlled group (within the meaning of Code Section 1563(a) without regard to
Code Section 1563(a)(4) and Section 1563(e)(3)(c)), which group includes the
Employer as a member, shall be considered as employed by a single employer.
However, for purposes of the preceding sentence, a fifty percent (50%) control
test applies.
4.15 Rollovers. With the permission of the Retirement Committee and
without regard to any aforementioned limit, the Plan may receive any amounts
attributable to contributions made on behalf of a Participant under the terms
of a Predecessor Plan or any other qualified plan by a direct transfer from
the trustee of such Predecessor Plan or other qualified plan or any amounts
theretofore received by a Participant from a qualified plan which are eligible
for tax free rollover treatment, either directly within 60 days after such
receipt or through the medium of an individual retirement account, provided
that such individual retirement account contains no assets other than those
attributable to employer contributions under qualified plans. Notwithstanding
the preceding sentence, the Plan shall not receive any amounts theretofore
received by a Participant from a qualified plan under which the Participant
was an employee within the meaning of Code Section 401(c)(l) at the time
contributions were made on his behalf under such qualified plan. This Section
4.15 applies to amounts received by a Participant and transferred in
accordance with Code Section 402(a)(5), Section 403(a)(4), Section
408(d)(3)(A)(ii) or Section 409(b)(3)(C).
4.16 Forfeitures. The unvested portion of the Account of a Participant
that has incurred his Termination Date shall be maintained in a suspense
account until applied as a credit to Employer contributions pursuant to
Section 4.13 hereof or until reinstated into the Participant's Account in
accordance with the provisions of this Section 4.16. Such suspense account
shall be for accounting purposes only and shall not require a segregation of
assets to such account and shall not share in the gains, losses, income or
expenses of the Trust Fund. For purposes of Section 5.03, the amount of
assets necessary to maintain the suspense account shall be deemed an expense
chargeable to the Trust Fund. The Retirement Committee shall maintain records
so that each former Participant's share of the suspense account is clearly
identifiable.
If a Participant has incurred his Termination Date and received a
distribution of his vested interest in his Accrued Benefit as provided for in
Section 7.05, his share of the suspense account shall be applied as a credit
to the Elective Contributions, Matching Contributions or Discretionary
Contributions to be made by the Participating Company for whom such
Participant was employed at the end of the Plan Year in which he incurs a
Break in Service (in the case of a Participant whose Years of Service are
determined using the Hours of Service method described in Section 3.02) and at
the end of the Plan Year in which he incurs a One Year Period of Severance (in
the case of a Participant whose Years of Service are determined using the
Elapsed Time method described in Section 3.03). If the terminated Participant
returns to the employ of the Employer as an Eligible Employee before he has
incurred five (5) consecutive Breaks in Service (in the case of a Participant
whose Years of Service are determined using the Hours of Service method
described in Section 3.02) or before he has incurred five (5) consecutive One
Year Periods of Severance (in the case of a Participant whose Years of Service
are determined using the Elapsed Time method described in Section 3.03) and he
repays to the Plan the full amount of the distribution on or before the
earlier of five (5) years after the date the Employee is subsequently re-
employed or the date he would have incurred five (5) consecutive Breaks in
Service or five (5) consecutive One Year Periods of Severance, whichever is
applicable, the beginning balance in his Account upon reparticipation in the
Plan shall consist of the repayment and the amount previously forfeited. The
amount previously forfeited shall be restored from any unallocated forfeitures
or, if none, by the Participating Company for whom such Participant is
employed making a contribution to the Plan.
4.17 Forfeiture of Unclaimed Benefits. If the address of a
Participant is not made known to the Retirement Committee within two years
after the date on which distribution of the Participant's Retirement Income
may first be made and the Retirement Committee is unable to locate the
Participant or any individual who would receive a distribution under the Plan
upon the death of a Participant pursuant to Article VIII of the Plan, any
benefit payable under the Plan to such Participant shall be deemed to be
forfeited and shall be used as a credit to contributions of the Employer
pursuant to Section 4.13 hereof for the Plan Year next following the year in
which the forfeiture occurs. In addition, in the event that any Retirement
Income checks that are distributed to a Participant pursuant to this Plan
remain uncashed for a period of two years, the amount represented by any such
check shall be deemed to be forfeited and shall be used as a credit to
Employer contributions pursuant to Section 4.13 hereof for the Plan Year next
following the year in which the forfeiture occurs.
Notwithstanding the foregoing, if the Participant, or the Spouse
or Beneficiary of a Participant whose Retirement Income has been forfeited
pursuant to this Section 4.17 makes a valid claim for any amount that has been
forfeited, the amount forfeited shall be reinstated.
4.18 Predecessor Plan Assets. With the permission of the Retirement
Committee and without regard to any aforementioned limit, the Trustee may
receive the assets of any Predecessor Plan and invest such assets in any
manner in which he is authorized to invest the assets of this Plan.
<PAGE>
ARTICLE V
5. ACCOUNTS AND VALUATIONS
5.01 (a) Participant's Accounts. The Retirement Committee shall
establish and maintain such separate Accounts in the name of each Participant
as the Retirement Committee deems reasonable, necessary or advisable,
including, but not limited to, an Elective Contribution Account, a Matching
Contribution Account, a Discretionary Contribution Account, an After Tax
Contribution Account, a DC Pension Account and a Rollover Contribution
Account.
(b) Elective Contribution Account. The Retirement Committee
shall credit a Participant's Elective Contribution Account with the amount of
Elective Contributions made to the Plan on behalf of such Participant and the
net earnings of the Trust Fund attributable to the amount contained in such
Elective Contribution Account and shall charge such Elective Contribution
Account with the net losses of the Trust Fund,the outstanding principal
balance of any loans made to the Participant to the extent such loans are
attributable to the Participant's Elective Contribution Account and the
distributions from the Trust Fund, if any, attributable to such Elective
Contribution Account.
(c) Matching Contribution Account. The Retirement Committee
shall credit a Participant's Matching Contribution Account with the amount of
Matching Contributions made to the Plan on behalf of such Participant and the
net earnings of the Trust Fund attributable to the amount contained in such
Matching Contribution Account and shall charge such Matching Contribution
Account with forfeitures, the net losses of the Trust Fund, the outstanding
principal balance of any loans made to the Participant to the extent such
loans are attributable to the Participant's Matching Contribution Account and
distributions from the Trust Fund, if any, attributable to such Matching
Contribution Account.
(d) Discretionary Contribution Account. The Retirement
Committee shall credit a Participant's Discretionary Contribution Account with
the amount of Discretionary Contributions made to the Plan on behalf of such
Participant and the net earnings of the Trust Fund attributable to the amount
contained in such Discretionary Contribution Account and shall charge such
Discretionary Contribution Account with forfeitures, the net losses of the
Trust Fund, the outstanding principal balance of any loans made to the
Participant to the extent such loans are attributable to the Participant's
Discretionary Contribution Account and distributions from the Trust Fund, if
any, attributable to such Discretionary Contribution Account.
(e) After Tax Contribution Account. The Retirement Committee
shall credit a Participant's After Tax Contribution Account with the amount,
if any, of After Tax Contributions made to the Plan by such Participant and
the net earnings of the Trust Fund attributable to the amount contained in
such After Tax Contribution Account and shall charge such After Tax
Contribution Account with the net losses of the Trust Fund and distributions
from the Trust Fund, if any, attributable to such After Tax Contribution
Account.
(f) DC Pension Account. The Retirement Committee shall
credit a Participant's DC Pension Contribution Account with (i) in the case of
a Participant that, on December 31, 1992, was a participant in the Mark IV
Industries, Inc. and Subsidiaries Master Defined Contribution Pension Plan, an
amount equal to the value of such Participant's Account in the Mark IV
Industries, Inc. and Subsidiaries Master Defined Contribution Pension Plan on
December 31, 1992; (ii) in the case of a Participant that, after December 31,
1992, was a participant in any defined contribution pension plan that, by
virtue of the provisions of an Adoption Agreement, becomes a part of this
Plan, an amount equal to the value of such Participant's account in such
defined contribution pension plan immediately prior to the date such
Participant becomes a Participant in this Plan; and (iii) all such other
amounts as may be required by law together with the net earnings of the Trust
Fund attributable to the amount contained in such DC Pension Account and the
Retirement Committee shall charge such DC Pension Account with the net losses
of the Trust Fund and distributions from the Trust Fund, if any, attributable
to such DC Pension Account.
(g) Rollover Contribution Account. In the event that the Plan
accepts a direct transfer of assets from the Trustee appointed under the terms
of another qualified plan or a rollover pursuant to Section 4.15 hereof, the
Retirement Committee shall establish and maintain a separate Account in the
name of the Participant on whose behalf the direct transfer of assets or
rollover was received to which the Retirement Committee shall credit or charge
the amount attributable to the receipt of a rollover of funds on the
Participant's behalf or the portion of the assets directly transferred to the
Trust Fund from the trustee appointed under the terms of another qualified
plan which are attributable to the Participant and the net earnings or net
losses of the Trust Fund and the distributions from the Trust Fund on his
behalf attributable to the Participant's rollover funds and amounts
attributable to a direct transfer of assets made to the Trust Fund on behalf
of such Participant.
(h) Subaccounts. The Retirement Committee shall establish
Subaccounts within each of the Participant's Accounts described in this
Section 5.01 to reflect the Participant's allocation of amounts held in such
Accounts among each Investment Fund. Such Accounts and Subaccounts shall be
for accounting purposes only and shall not require a segregation of assets to
each such Account or Subaccount.
5.02 Allocation of Contributions. The Retirement Committee shall
allocate contributions made to the Plan on behalf of a Participant as follows:
(a) Elective Contributions. The amount of Elective
Contributions made to the Plan on behalf of a Participant in accordance with
Section 4.01 hereof, if any, shall be allocated to the Elective Contribution
Account established for such Participant.
(b) Matching Contributions. The amount of Matching
Contributions made to the Plan on behalf of a Participant in accordance with
Section 4.02 hereof, if any, shall be allocated to the Matching Contribution
Account established for such Participant in accordance with the terms of the
Adoption Agreement under which such Participant is an Eligible Employee.
(c) Discretionary Contributions. The amount of Discretionary
Contributions made to the Plan on behalf of a Participant in accordance with
Section 4.03 hereof, if any, shall be allocated to the Discretionary
Contribution Account established for such Participant in accordance with the
provisions of the Adoption Agreement under which such Participant is an
Eligible Employee.
(d) After Tax Contributions. The amount of After Tax
Contributions made to the Plan by a Participant in accordance with Section
4.04 hereof, if any, shall be allocated to the After Tax Contribution Account
established for such Participant as soon as practicable after any such After
Tax Contributions have been made by the Participant.
(e) Rollover Contributions. The amount of any assets directly
transferred to the Plan on behalf of a Participant from a trustee appointed
under the terms of another qualified plan and the amount of any assets
transferred to the Plan on behalf of a Participant as a result of a rollover
of funds as provided for in Section 4.15 hereof shall be allocated to the
Rollover Contribution Account established on behalf of such Participant as
soon as practicable following the receipt by the Trustee of such assets.
5.03 Valuation of Trust Fund. As of each Valuation Date, the Trustee
shall determine the net worth of the assets of the Trust Fund that have not
been allocated to an Investment Fund by a Participant as a whole and report
such value to the Retirement Committee in writing. In determining such net
worth, the Trustee shall value the assets of the Trust Fund that have not been
allocated to an Investment Fund by a Participant at their fair market value as
of such Valuation Date and shall deduct all fees and expenses chargeable to
the Trust Fund and all fees and expenses incidental to the operation of the
Plan not paid for by the Employer to the extent such fees and expenses are
attributable to assets of the Trust Fund that have not been allocated to an
Investment Fund by a Participant. Such valuation shall not include any
contributions made by a Participating Company as of such Valuation Date. The
Retirement Committee shall then adjust the net credit balance in the Accounts
of all Participants that have not directed that the assets held in their
Account be invested in an Investment Fund upward or downward, pro rata, so
that the total of such net credit balances will equal such net worth of the
assets of the Trust Fund that have not been allocated to an Investment Fund by
a Participant as of such Valuation Date. Finally, the Retirement Committee
shall add to the Account of each Participant that has not directed that the
assets in his Account be held in an Investment Fund, the portion, if any, of
the contribution made by a Participating Company as of such Valuation Date to
which he is entitled pursuant to Sections 4.01, 4.02, 4.03 and 4.04 hereof.
Except as otherwise provided under the terms of the Adoption
Agreement under which a Participant is an Eligible Employee, effective July 1,
1988, as of each Valuation Date, the Trustee shall determine the net worth of
the assets in each separate Investment Fund and in the Trust Fund and report
such values to the Retirement Committee in writing. In determining such net
worth, the Trustee shall value the assets of each Investment Fund and the
Trust Fund at their fair market value as of such Valuation Date and shall
deduct all fees and expenses chargeable to the Trust Fund and all fees and
expenses incidental to the operation of the Plan and not paid for by the
Employer to the extent such fees and expenses are attributable to assets of
the Trust Fund that have been allocated to an Investment Fund at the direction
of a Participant. Such valuation shall not include any contribution made by a
Participating Company as of such Valuation Date. The Retirement Committee
shall then adjust the net credit balance of all Participants in each
Investment Fund upwards or downwards, pro rata, so that the total of such net
credit balances of all Participants in each Investment Fund will equal the net
worth of the applicable Investment Fund as of such Valuation Date. Finally,
the Retirement Committee shall add to the Account of each Participant, the
portion, if any, of the contribution made by his Employer as of such Valuation
Date to which he is entitled pursuant to Sections 4.01, 4.02, 4.03 and 4.04
hereof.
5.04 Minimum Allocations In Top Heavy Plan Years. Notwithstanding
anything to the contrary contained in the Plan, in any Top Heavy Plan Year,
each Participant, including Participants not otherwise entitled to share in
the Discretionary Contributions made to the Plan by the Employer, shall be
entitled to share in the Contributions made to the Plan by the Employer if
such Participant is in the employ of the Employer on the last day of the Plan
Year and if such Participant is not a Participant under the terms of an
Adoption Agreement providing for Mandatory Contributions.
The amount to be allocated to the Account of each Participant
shall be equal to the lesser of (i) 3% of the Compensation of such
Participant, or (ii) that percentage of the Compensation of the Participant
which equals the largest of the percentages of Compensation which would, but
for this Section 5.04, be obtained for each Participant by allocating
contributions to the Plan in accordance with Section 5.01 hereof and including
Participants described in this Section 5.04 with respect to the allocation of
Discretionary Contributions. A Participating Company may, in its discretion,
increase its contribution pursuant to Section 4.03 hereof to the extent
necessary to provide the allocations described in this Section 4.04 to the
Participants described in the preceding sentence. For purposes of this
Section, any amount not contributed by the Employer for the fiscal year due to
the limitation on annual additions contained in Section 4.14 hereof shall be
deemed to have been contributed for purposes of making the above allocation.
5.05 Allocation Does Not Vest Any Interest. The fact that an amount is
credited to the Account of a Participant shall not vest in such Participant or
any Beneficiary any right, title or interest in the assets of the Trust Fund
except at the time or times and upon the terms and conditions herein provided.
<PAGE>
ARTICLE VI
6. INVESTMENTS
6.01 Investment Policy. In determining its investments hereunder, the
Trustee or any duly appointed Investment Manager shall consider the short and
long range needs of the Plan communicated to them by the Committee. Benefits
may be provided through any combination of investment media designed to
provide the requisite liquidity, growth and security appropriate to this Plan.
6.02 Investment Media. Benefits required for Participants may be
provided through any investment media offered by any legal reserve life
insurance company authorized to do business in New York State, as the
Committee may select, or through the purchase of shares in any regulated
investment company as defined in Code Section 851(a), or through investment in
any common trust fund of any bank or trust company authorized to do business
in New York State, or through any investment proper and appropriate to be made
by the Trustee in accordance with the trust agreement executed pursuant hereto
or through any combination of such investment media.
6.03 (a) Investment Direction. Except as otherwise provided under
the terms of the Adoption Agreement under which a Participant is an Eligible
Employee, effective July 1, 1988, each Participant shall have the right and
responsibility to direct the Retirement Committee to direct the Trustee to
invest the assets credited to the Participant's Account among any one or more
of the Investment Funds available under the Plan. If a Participant fails to
designate any Investment Fund for the investment of the amounts held by the
Trustee for his benefit under the Plan, the Retirement Committee, in its sole
discretion, may direct the Trustee to invest all the amounts held by the
Trustee for the benefit of such Participant in one or more of the Investment
Funds in such percentages as are determined by the Retirement Committee in its
sole discretion. The Retirement Committee shall provide written confirmation
to a Participant of the consummation of any investment directions made by the
Participant.
(b) Allocation to Investment Funds. Prior to the time an
Employee becomes a Participant, the Retirement Committee shall furnish each
Participant with a form upon which the Participant shall designate the
percentage of the amounts held for his benefit by the Trustee and the
percentage of any future contributions allocable to the Participant's Account
under the Plan to be allocated to each of the Investment Funds. The amount
held in each Participant's Account and any future contributions allocable to
the Participant under the Plan shall be allocated among the Investment Funds
in accordance with the Participant's designation. Allocations among
Investment Funds shall only be permitted in whole multiples of five percent
(5%).
(c) Special Rules Applicable to Investment in Mark IV Stock
Fund. Notwithstanding anything to the contrary contained in this Plan, prior
to April 1, 1994, in no event shall any Participant be permitted to direct
that more than ten percent (10%) of the total amount of contributions made to
the Plan on his behalf for any Plan Year including After Tax Contributions,
Discretionary Contributions, Elective Contributions and Matching
Contributions, be invested in the Mark IV Stock Fund. Effective April 1,
1994, notwithstanding anything to the contrary contained in this Plan, in no
event shall any Participant be permitted to direct that more than twenty
percent (20%) of the total amount of contributions made to the Plan on his
behalf for any Plan Year including After Tax contributions, Discretionary
Contributions, Elective Contributions and Matching Contributions, be invested
in the Mark IV Stock Fund. All cash dividends attributable to common stock of
Mark IV Industries, Inc. allocated to the portion of the Participant's Account
which is invested in the Mark IV Stock Fund shall be re-invested in common
stock of Mark IV Industries, Inc. All stock dividends attributable to common
stock of Mark IV Industries, Inc. held by the Trustee for the benefit of the
Account of any Participant shall, unless otherwise required in connection with
the ordinary course administration of the Accounts and investment directions
of any Participant, be retained by the Trustee in common stock of Mark IV
Industries, Inc. and allocated to the Accounts of those Participants on whose
behalf the Trustee holds shares of Common Stock of Mark IV Industries, Inc.
with respect to which such stock dividend has been paid.
(d) Voting of Shares. All shares of common stock of Mark IV
Industries, Inc. allocated to the portion of a Participant's Account which is
invested in the Mark IV Stock Fund shall be voted by the Trustee in accordance
with the written instruction of that Participant. The Retirement Committee
shall take such action as may reasonably be necessary to distribute
shareholder vote canvas cards and proxy solicitation materials to each
Participant in the Plan with respect to whom the Trustee holds shares of
common stock of Mark IV Industries, Inc. for the benefit of such Participant's
Account. In the event that a Participant whose Account under the Plan is
invested in common stock of Mark IV Industries, Inc. fails to return such
shareholder vote canvas card to the Trustee within the time specified for the
return of such shareholder vote canvas card, or, in the event the Participant
otherwise fails to specify (other than elected abstentions) the manner in
which all or any portion of the shares of common stock of Mark IV Industries,
Inc. held for the benefit of such Participant's Account are to be voted, (such
shares of common stock of Mark IV Industries, Inc. being hereinafter referred
to as "Unvoted Shares") the Trustee shall vote such Unvoted Shares in the same
proportion, for or against each issue submitted to the shareholders of Mark IV
for a vote, as the vote of the shares of common stock of Mark IV held by the
Trustee with respect to which the Trustee has received written instructions
from Participants as to the manner in which such shares of common stock of
Mark IV are to be voted. Votes representing fractional shares of stock shall
be voted in the same manner, and for and against each issue, as the applicable
vote directed by a Participant with respect to whole shares of common stock of
Mark IV Industries, Inc. held by the Trustee for the benefit of such
Participant's Account.
(e) Purchases, Sales and Resales of Common Stock of Mark IV
Industries, Inc. The Trust Committee may direct that any common stock of Mark
IV Industries, Inc. required to be purchased, sold or resold for the Account
of a Participant under the Plan shall be purchased, sold or resold by the
Trustee to any person, including Mark IV, provided that any such purchases
from or sales to any disqualified person, including Mark IV will be made at no
less than the fair market value of such common stock and no commission is
charged with respect to any such purchase or sale. For purposes of this
Section, the fair market value of common stock of Mark IV Industries, Inc.
shall equal the average of the highest and the lowest prices reported for
common stock of Mark IV Industries, Inc. by the New York Stock Exchange on the
trading day immediately preceding such purchase or sale. Any purchase, sale
or resale of common stock of Mark IV Industries, Inc. to a disqualified
person, including Mark IV, shall be made in compliance with Section 408(e) of
ERISA and the Regulations promulgated thereunder.
(f) Tenders of Shares. In the event a tender or exchange offer
is made for all or any shares of common stock Mark IV Industries, Inc., the
Retirement Committee shall take any action reasonably necessary to promptly
furnish to the Participants with respect to whose Accounts the Trustee holds
shares of common stock of Mark IV Industries, Inc., copies of all materials
relating to such tender or exchange offer, together with a form requesting
information as to the manner in which to respond with respect to the shares of
common stock of Mark IV Industries, Inc. (including fractional shares)
attributable to such Participant's Account.
Upon delivery to the Trustee of written instructions of a
Participant with respect to the tendering of shares of common stock of Mark IV
Industries, Inc. held by the Trustee for the benefit of such Participant's
Account, the Trustee shall promptly tender such shares of common stock of Mark
IV Industries, Inc. held by the Trustee for the benefit of such Participant's
Account to the extent instructed by such Participant. In the event that a
Participant fails, for any reason, to deliver written instructions to the
Trustee with respect to the tendering of shares of common stock of Mark IV
Industries, Inc. held by the Trustee for the benefit of such Participant's
Account, the Trustee shall not tender any shares of common stock of Mark IV
Industries, Inc. with respect to which the Trustee has not received written
instructions concerning the tendering of such shares.
Any securities received by the Trustee as a result of the
tendering of shares of common stock of Mark IV Industries, Inc. shall be held
by the Trustee for the benefit of the Account of the Participant for whose
Account the Trustee has tendered the shares of common stock of Mark IV
Industries, Inc. until such time as the Trustee receives written instructions
concerning the disposition of such securities from the Participant, the
Retirement Committee or the Trust Committee. Any cash received by the Trustee
as a result of tendering of shares of common stock of Mark IV Industries, Inc.
shall be invested by the Trustee in any investments which the Trustee deems
appropriate until such time as the Trustee receives written instructions from
the Participant, the Retirement Committee or the Trust Committee concerning
the disposition of the portion of the Participant's Account attributable to
shares of common stock of the Mark IV Industries, Inc. tendered by the
Trustee.
(g) Changes in Allocation. Except as otherwise provided herein
and in Section 6.03(h) hereof, each Participant may change the percentage at
which the amount allocated to his Account under the Plan and the percentage at
which future contributions or forfeitures attributable to the Participant are
to be allocated among the Investment Funds not more than four (4) times during
each Plan Year. Notwithstanding the foregoing, effective April 1, 1994, each
Participant may change the percentage at which the amount allocated to his
Account under the Plan and the percentage at which future contributions or
forfeitures are to be allocated among the Investment Funds once (but not more
than once) in each calendar month. The Participant may change the manner in
which the amount credited to his Account is allocated among Investment Funds
by providing written notice to the Retirement Committee specifying the change
to be made in the percentages at which his Account is allocated among the
Investment Funds at least fifteen (15) days prior to the date the Participant
desires to change such allocation. The change in the percentages at which the
amounts allocated to the Participant's Account and the amount of future
contributions and forfeitures to be allocated to the Participant's Account are
allocated among the Investment Funds shall become effective on the first day
of the first calendar month which is at least fifteen (15) days following the
date the Retirement Committee receives notice from a Participant requesting a
change in the percentages at which his Account and any future contributions or
forfeitures attributable to the Participant are to be allocated among the
Investment Funds. No change in any allocation made by a Participant shall be
made unless the Participant gives written notice to the Retirement Committee
directing such change as provided for in this Section 6.03(g).
(h) Limits on Transfer from Guaranteed Investment Fund.
Notwithstanding anything to the contrary contained in Section 6.03(g) hereof,
a Participant shall not be entitled or permitted to direct the Retirement
Committee to direct the Trustee to reallocate any portion of the Participant's
Account which is allocated to the Guaranteed Investment fund to either the
Short Term Investment Fund or the Money Market Fund unless the portion of the
Participant's Account which is allocated to the Guaranteed Investment Fund and
which the Participant desires to reallocate among either the Short Term
Investment Fund or the Money Market Fund is first reallocated to any of the
Investment Funds other than the Short Term Investment Fund and the Money
Market Fund and held in such Investment Funds for a period of at least ninety
(90) days.
(i) Trustee Discretion. Notwithstanding any directions from
a Participant for the allocation of assets in the Participant's Account as
provided in this Section 6.03, the Trustee shall have the right to hold,
uninvested or invested in short-term fixed income investments, any funds
intended for investment or reinvestment as otherwise provided in this Section
from time to time as the Trustee, in its sole discretion, determines
advisable."
6.04 Loans to Participants. Upon the application of any Participant,
the Retirement Committee shall direct the Trustee to make a loan to such
Participant, provided all the following conditions are satisfied:
(a) The Retirement Committee, in accordance with a uniform and
non-discriminatory policy, approves such loan to such Participant;
(b) The Participant is in the active employment of the Employer
or an Affiliated Company or is otherwise a "party in interest" as defined in
ERISA and has a vested interest in his Accrued Benefit under the Plan;
(c) The principal amount of any loan to a Participant shall be
withdrawn from the Participant's Account. Such withdrawals of the principal
amount of a Participant's loan shall be made from the Investment Fund or
Investment Fund among which the Participant's Account has been allocated in
proportion to the percentage of the Participant's Account which has been
invested in each such Investment Fund.
(d) The total amount of any loan or loans from this Plan to any
Participant shall not be more than fifty percent (50%) of the amount of such
Participant's vested interest in his Accrued Benefit determined in accordance
with the provisions of the Plan and the total amount of any loan or loans to
any Participant from this Plan and any other qualified employer plans as
defined in IRC Section 72(p)(3) shall not be more than the lesser of:
(i) $50,000 reduced by the amount, if any, by which the
highest outstanding balance of loans from the Plan to the Participant during
the one year period ending on the day before the loan is made exceeds the
outstanding balance of loans from the Plan to the Participant on the day the
loan is made; or
(ii) one-half of the total of such Participant's
nonforfeitable interest in his accrued benefits under such plans or
$10,000.00, whichever is greater.
(e) All loans to Plan Participants granted under this Section
6.04 shall bear a reasonable rate of interest, considering each loan to be an
investment of the Investment Fund and taking into account such additional
facts as the term of the loan, the security for the loan and the rate charged
by other lenders for similar loans in the area at the time the loan is made.
Every Participant who requests a loan pursuant to this Section 6.04 shall
receive a clear statement of the charges involved in such loan transaction.
This statement shall include the dollar amount of the loan and annual rate of
finance charge;
(f) The term of each such loan shall not exceed five (5) years;
provided, however, if the proceeds of such loan are to be used by the
Participant to acquire, construct, reconstruct or substantially rehabilitate
any dwelling unit which, within a reasonable time, is to be used as a
principal residence of the Participant or a member of his family, then the
term of such loan shall be as the Retirement Committee and the Participant
shall mutually agree pursuant to a uniform, nondiscriminatory policy, taking
into account the term allowed by other lenders for similar loans in the area
at the time the loan is made;
(g) Each loan shall be supported by collateral consisting of
that portion of the Participant's Accrued Benefit that equals the outstanding
principal balance of the loan plus any interest that may accrue thereon as may
be evidenced in documentation that the Committee may require.
(h) Repayment of any loan granted under this Section 6.04 shall
be pursuant to an arrangement, established when the loan is made and setting
forth the manner in which said loan shall be repaid; provided, however, any
such arrangement for repayment of such loan shall provide for substantially
level amortization of such loan with payments no less frequently than
quarterly. Each Participant shall have the right to prepay any portion of the
principal balance due. Notwithstanding the foregoing, effective for any loans
made on or after January 1, 1993, the full amount of any outstanding principal
and interest on a loan made to a Participant whose employment with the
Employer (and any Affiliated Company) has been terminated and the full amount
of any outstanding principal and interest on a loan made to an individual that
is a party in interest, shall be due and payable ten (10) days following the
date the Participant's employment is terminated or ten (10) days following the
termination of an individual's status as a party-in-interest. In addition,
the full amount of any outstanding principal and interest on any loan shall
become immediately due and payable in the event that the individual to whom
the loam has been made begins any proceeding or action or has any proceeding
or action begun against him which arises under the terms of any bankruptcy,
insolvency, liquidation, dissolution or other similar act or law of any
jurisdiction.
The Retirement Committee may require the Employer to withhold the
amount of the Participant's required payments from his salary. The Employer
shall remit the amount of any loan repayment to the Trustee, who shall credit
the Participant's Account with the amount of such loan repayment, allocate the
amount of any such repayment among the Investment Funds in the same proportion
that contributions made on behalf of the Participant are allocated among the
Investment Funds and apply the loan repayment in reduction of the outstanding
loan balance.
(i) The written consent of the Participant's spouse shall be
required as a condition of the making of such loan.
In the event that a Participant does not repay any loan within the
required time period, the Retirement Committee may deduct the total amount of
such loan or any portion thereof from any payment or distribution from the
Trust Fund to which such Participant or his beneficiary or beneficiaries may
be entitled except that the Committee shall delay enforcement on default of a
loan in case of an active employee to the extent that such amounts are not
otherwise distributable under Section 401(k) of the Code until such times as
the amounts are distributable under the Code.
ARTICLE VII
7. AMOUNT AND TIME OF DISTRIBUTION OF RETIREMENT INCOME
7.01 Normal Retirement Date. The Normal Retirement Date of a
Participant shall be determined under the provisions of the Adoption Agreement
under which such Participant is an Eligible Employee. Except as otherwise
provided by the terms of the Adoption Agreement under which a Participant is
an Eligible Employee, a Participant that terminates his employment with the
Employer after he has attained his Normal Retirement Date shall be eligible to
receive payment of his Normal Retirement Income. The amount of a
Participant's Normal Retirement Income shall equal the Participant's Accrued
Benefit determined as of his Normal Retirement Date and such Normal Retirement
Income shall be paid to the Participant in the manner provided for in Article
VIII hereof beginning at the time provided for payment of such Normal
Retirement Income in the Adoption Agreement under which the Participant is an
Eligible Employee.
7.02 Postponed Retirement Date. If a Participant continues to be
employed after attainment of his Normal Retirement Date, such Participant
shall not be entitled to receive payment of his Normal Retirement Income until
he actually retires. The last day on which such Participant is employed after
his Normal Retirement Date shall be the Participant's Postponed Retirement
Date. Except as otherwise provided by the terms of the Adoption Agreement
under which a Participant is an Eligible Employee, a Participant that attains
his Postponed Retirement Date shall be eligible to receive payment of his
Postponed Retirement Income. The amount of a Participant's Postponed
Retirement Income shall equal the Participant's Accrued Benefit determined as
of his Postponed Retirement Date and such Postponed Retirement Income shall be
paid to the Participant in the manner provided for in Article VIII hereof
beginning at the time provided for payment of such Postponed Retirement Income
in the Adoption Agreement under which the Participant is an Eligible Employee.
7.03 Early Retirement Date. The Early Retirement Date of a Participant
shall be determined under the provisions of the Adoption Agreement under which
such Participant is an Eligible Employee. Except as otherwise provided by the
terms of the Adoption Agreement under which a Participant is an Eligible
Employee, a Participant that terminates his employment with the Employer after
he has attained his Early Retirement Date shall be eligible to receive payment
of his Early Retirement Income. The amount of a Participant's Early
Retirement Income shall equal the Participant's Accrued Benefit determined as
of the date provided for payment of such Early Retirement Income under the
terms of the Adoption Agreement under which the Participant is an Eligible
Employee and such Early Retirement Income shall be paid to the Participant in
the manner provided for in Article VIII hereof beginning at the time provided
for payment of such Early Retirement Income in the Adoption Agreement under
which the Participant is an Eligible Employee.
7.04 Disability Retirement Date. Except as otherwise provided by the
terms of the Adoption Agreement under which a Participant is an Eligible
Employee, a Participant that incurs a Severance Date by reason of his
suffering from a Total and Permanent Disability, shall be eligible to receive
payment of his Disability Retirement Income. The amount of a Participant's
Disability Retirement Income shall equal the Participants Accrued Benefit
determined as of the Participant's Severance Date and such Disability
Retirement Income shall be paid to the Participant in the manner provided for
in Article VIII hereof beginning at the time provided for payment of such
Disability Retirement Income in the Adoption Agreement under which the
Participant is an Eligible Employee.
7.05 Termination Date. Except as otherwise provided by the terms of
the Adoption Agreement under which a Participant is an Eligible Employee, if a
Participant that has a vested interest in his Accrued Benefit incurs a
Termination Date other than by reason of his death, his suffering from a Total
and Permanent Disability or his retirement on his Normal, Early or Postponed
Retirement Date, the Retirement Committee shall direct the Trustee to
distribute a Termination of Employment Income to such Participant as soon as
practicable following the receipt by the Retirement Committee of a request for
payment of his Termination of Employment Income. All Termination of
Employment Income shall be paid to the Participant in accordance with Article
VIII hereof. Except as otherwise provided under the Adoption Agreement under
which a Participant is an Eligible Employee, the amount of such Termination
of Employment Income shall equal the Participant's vested interest in his
Accrued Benefit determined as of his Termination Date.
7.06 Time for Distribution of Retirement Benefits.
(a) Unless otherwise elected by a Participant and except as
otherwise provided in this Section 7.06, payment of benefits under this Plan
to or with respect to a Participant shall begin not later than sixty (60) days
after the last day of the Plan Year in which the latest of the following dates
occurs:
(i) The date the Participant attains age sixty-five (65);
(ii) the earlier of (A) the day on which the tenth
anniversary of the day an Employee became a Participant in the Plan occurs or
(B) the day on which the tenth anniversary of the day the Employee became a
Participant in the Predecessor Plan occurs; or
(iii) the date the Participant incurs his Termination Date.
(b) Notwithstanding any provision of the Plan to the contrary,
effective on and after January 1, 1989, a Participant's entire interest under
the Plan shall be distributed to him not later than April 1 of the calendar
year following the calendar year in which the Participant attains age seventy
and one-half (70 1/2).
(c) The requirements of Section 7.06(b) will be deemed to be
satisfied if (i) the Participant's entire interest under the Plan is
distributed beginning no later than April 1 of the calendar year following the
calendar year in which the Participant attains age seventy and one-half (70
1/2) and (ii) the period of time over which such Participant's entire interest
under the Plan is distributed does not exceed the life of the Participant or
the joint lives of the Participant and his Designated Beneficiary or a period
certain equal to the life expectancy of the Participant or the joint and last
survivor life expectancy of the Participant and his Designated Beneficiary.
If elected by the Participant or, if applicable, the Participant's Designated
Beneficiary, the life expectancies of the Participant and his Spouse may be
recalculated according to regulations prescribed by the Secretary of the
Treasury or his delegate.
(d) If distribution of a Participant's interest in the Plan has
begun as provided in Section 7.06(c) above and the Participant dies before his
entire interest in the Plan has been distributed, following such Participant's
death, the remaining portion of such Participant's interest under the Plan
shall be distributed at least as rapidly as the method of distribution in
effect under Section 7.06(c) above as of the date of the Participant's death.
(e) If a Participant dies before the distribution of his
interest under the Plan has begun, the Participant's entire interest under the
Plan shall be distributed within five (5) years after the date of the
Participant's death. The requirement of the preceding sentence shall be
deemed to be satisfied if (i) the Participant's entire interest under the Plan
is distributed to the Participant's Designated Beneficiary over a period of
time not longer than the life of the Participant's Designated Beneficiary or a
period certain not longer than the life expectancy of the Participant's
Designated Beneficiary; and (ii) the distribution of such Participant's
interest under the Plan begins not later than one year from the date of the
Participant's death or such later date as may be prescribed by regulations of
the Secretary of the Treasury or his delegate. For purposes of the preceding
sentence, if the Designated Beneficiary of the Participant is the
Participant's Spouse, distribution of such Participant's interest in the Plan
shall not be required to begin earlier than the date the Participant would
have attained age seventy and one-half (70 1/2) and if the Participant's
spouse dies before distribution of such Participant's interest in the Plan has
begun, this Section 7.06(e) shall be applied as if the Participant's spouse
were the Participant. For purposes of this Section 7.06(e), the Participant,
or, if applicable, the Participant's Designated Beneficiary may elect the
period of time over which distribution of the Participant's interest in the
Plan after the Participant's death must be made.
(f) If a Participant dies before distribution of his interest
under the Plan has begun and the Participant or, if applicable, the
Participant's Designated Beneficiary, does not elect the period of time over
which distribution of the Participant's interest is to be made in the event of
the Participant's death before distribution of his interest under the Plan has
begun, the Participant's interest under the Plan shall be distributed to the
Participant's Designated Beneficiary over a period of time equal to the life
of the Participant's Designated Beneficiary.
(g) Notwithstanding anything to the contrary contained in this
Section 7.06, the amount which shall be distributed to a Participant shall not
be less than an amount determined in accordance with such regulations as the
Secretary of the Treasury may prescribe under Section 401(a)(9) of the Code.
In addition, no distributions under this Plan shall be made pursuant to any
optional form of distribution contained in the Plan which would fail to
satisfy such regulations as may be prescribed by the Secretary of the Treasury
under Section 401(a)(9) of the Code. The mandatory commencement and period of
distribution to a Participant and/or to a Beneficiary pursuant to this Section
7.06 shall not apply, provided that, prior to January 1, 1984, the Participant
made a written designation providing for the commencement of distributions at
a later date under a method of distribution which satisfies the provisions of
Code Section 401(a)(9) as in effect prior to the enactment of the Tax Equity
and Fiscal Responsibility Act of 1982 and provided that any distributions made
pursuant to such designation are made in accordance with applicable
regulations which may be prescribed by the Secretary of the Treasury or his
delegate.
(h) For purposes of this Section 7.06, the term "Designated
Beneficiary" means any individual designated as a Beneficiary by a Participant
in accordance with and consistent with such regulations as may be prescribed
by the Secretary of the Treasury.
7.07 Mandatory Distribution of Retirement Income. Notwithstanding
anything to the contrary contained in this Plan Document or any Adoption
Agreement, if for any reason, a Participant with a vested interest in his
Accrued Benefit is not in the active employment of Mark IV or any Affiliated
Company on the date the Participant attains age 65, the Retirement Committee
shall direct the Trustee to distribute such Participant's Accrued Benefit to
the Participant in the form required by Article VIII hereof as soon as
practicable following the date the Participant attains age 65.
<PAGE>
ARTICLE VIII
8. NORMAL AND OPTIONAL PAYMENT FORMS OF RETIREMENT INCOME; DEATH BENEFITS
8.01 Normal Form of Payment. Except as otherwise provided under the
terms of the Adoption Agreement under which a Participant is an Eligible
Employee and except as otherwise required by Section 8.02 hereof, if a
Participant has a vested interest in his Accrued Benefit, the normal form of
payment of such Participant's Retirement Income shall be a lump sum payment
provided that, if the present value of the Participant's vested interest in
his Accrued Benefit exceeds $3,500, the Accrued Benefit of the Participant
shall not be distributed to the Participant in one lump sum payment prior to
the date the Participant attains age 65 without the written consent of the
Participant and, if the Participant is married, the Participant's Spouse. If
Retirement Income is payable to a Participant in accordance with Article VII
hereof prior to the date such Participant attains age 65, and the present
value of the Participant's vested interest in his Accrued Benefit exceeds
$3,500, distribution of the Participant's Accrued Benefit shall not begin any
time prior to the date the Participant attains age 65 unless the Participant
and, if the Participant is married on the date distribution to the Participant
is scheduled to begin, the Participant's Spouse, consent to such distribution
in accordance with the provisions of this Section 8.01. For purposes of this
Section, the consent of a Participant and, if applicable, the consent of a
Participant's Spouse, shall not be valid unless such consent is in writing,
and the Participant and the Participant's Spouse receive a written explanation
of the Participant's right to defer the receipt of such distribution, the
material features of the form in which such Participant's Accrued Benefit is
to be paid and a written statement of the relative values of the optional
forms available for payment of such Accrued Benefit or the interest rates used
to calculate such optional forms at least thirty (30) but not more than ninety
(90) days prior to the date distribution of the Participant's Accrued Benefit
is scheduled to begin.
8.02 (a) Qualified Joint And Survivor Annuity. If the Adoption
Agreement under which a Participant is an Eligible Employee provides for
payment of Retirement Income in the form of a life annuity and if the
Participant is married and has elected to receive his Retirement Income in the
form of a life annuity, the normal form for payment of such Participant's
Retirement Income shall be a Qualified Joint and Survivor Annuity as described
in Section 1.44 hereof. In addition, the Qualified Joint and Survivor Annuity
form of payment described in Section 1.44 hereof shall be the Normal Form of
Payment with respect to amounts, if any, in Participant Accounts attributable
to the Mark IV Industries, Inc. and Subsidiaries Master Defined Contribution
Pension Plan which were merged into this Plan effective January 1, 1993.
(b) Waiver of Normal Form and Election. If the normal form of
payment of a Participant's Normal Retirement Income is the Qualified Joint and
Survivor Annuity, such Participant may elect at any time during the
Applicable Election Period to waive the requirement that his Retirement Income
be paid in the form of a Qualified Joint and Survivor Annuity and may revoke
any such election at any time during the Applicable Election Period.
The election to waive the requirement that Retirement Income be
paid in the form of a Qualified Joint and Survivor Annuity shall not take
effect unless during the Applicable Election Period (a) the Participant's
Spouse consents in writing to such election, (b) the Participant's election
specifies the Beneficiary to whom and/or the form in which such Participant's
Retirement Income is to be paid or the consent of the Participant's Spouse
expressly permits designations by the Participant without any requirement of
further consent, (c) the Spouse's consent acknowledges the effect of such
election, the alternate beneficiary and alternate form of payment, if any, and
(d) such consent is witnessed by a Plan representative or a notary public.
Notwithstanding the provisions of the preceding sentence, if it is
established to the satisfaction of the Retirement Committee that the
Participant has no Spouse, or such Participant's Spouse cannot be located, or
if the Participant is legally separated or has been abandoned by the Spouse
(in accordance with local law) and has a court order to such effect, such
Participant may elect to waive payment of his Retirement Income in the normal
form without the consent of his Spouse, provided that such election shall be
rendered invalid if such Participant marries or locates his Spouse after
making such an election but prior to the Annuity Starting Date. Any consent
by a Spouse under the preceding sentence shall be effective only with respect
to such Spouse.
The Retirement Committee shall provide to each Participant not
less than 30 nor more than 90 days before the Participant's Annuity Starting
Date (and consistent with such regulations as the Secretary of the Treasury
may prescribe) a written explanation of the terms and conditions of the
Qualified Joint and Survivor Annuity form of payment of Retirement Income, the
Participant's right to make, and the effect of, an election to waive the
Qualified Joint and Survivor Annuity form of payment of Retirement Income, the
rights of the Participant's Spouse with respect to the Participant's election
to waive payment of his Retirement Income in the Qualified Joint and Survivor
Annuity form and the Participant's right to revoke an election to waive
payment of Retirement Income in the Qualified Joint and Survivor Annuity form
and the effect of such revocation and, on and after January 1, 1989, a
general description of the eligibility conditions and other material features
of the optional forms of benefit and sufficient additional information to
explain the relative values of the optional forms of benefits.
Notwithstanding the foregoing, 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 is given, provided that: (a) 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 (b) the Participant, after receiving the notice,
affirmatively elects a distribution.
For purposes of this Section 8.02 the term "Applicable Election
Period" means the 90-day period ending on the Annuity Starting Date.
If a Participant had at least 1 Hour of Service on or after
September 2, 1974 under the terms of a Predecessor Plan whose terms are
incorporated into this Plan by an Adoption Agreement under which such
Participant is an Eligible Employee and such Participant terminated his
employment before the first day of the first Plan Year of the Predecessor Plan
beginning on or after January 1, 1976, and such Participant does not complete
at least one Hour of Service under such Predecessor Plan or this Plan on or
after August 23, 1984, such Participant may elect to have the Qualified Joint
and Survivor Annuity rules of such Predecessor Plan as in effect on August 22,
1984 apply with respect to such Participant's Accrued Benefit provided that
such Participant has not reached his Annuity Starting Date.
8.03 Temporary Non-Payment of Retirement Income. If a Participant
fails to submit such information as may reasonably be required by the
Retirement Committee before the due date for his first Retirement Income
payment, the Retirement Committee shall not authorize payment of such
Retirement Income until the Participant furnishes such information including
but not limited to information with respect to his marital status and the age
of his spouse, if any. When the amount of such Retirement Income payments can
properly be determined by the Retirement Committee, payment may be authorized
retroactively to the due date for the Participant's first Retirement Income
payment.
8.04 Optional Forms of Payment. Subject to the provisions of Sections
8.01 and 8.02 hereof and the provisions of the Adoption Agreement under which
a Participant is an Eligible Employee, the forms for payment of benefits
described in this Section 8.04 shall be available to each Participant. The
optional forms for payment of Retirement Income are as follows:
(a) Straight Life Annuity means a form of payment under which
equal monthly Retirement Income payments are made to the Participant during
his lifetime, with no further payments from the Plan on his behalf after
death.
Payment of Retirement Income in this form shall be made by using
the Participant's Accrued Benefit to purchase an annuity contract from any
insurance company licensed to do business within the State of New York or the
state in which the Participating Company for whom the retiring Participant was
employed is located which contract provides for payment of a Retirement Income
in the form of the Straight Life Annuity. A Participant that elects to
receive payment of his Retirement Income in this form of payment shall not be
permitted to receive payment of any portion of his Accrued Benefit in shares
of common stock of Mark IV.
(b) Contingent Annuitant Option means a form of payment under
which reduced Retirement Income payments are made to the Participant in equal
monthly installments during his lifetime, with a survivor annuity providing
for equal monthly payments from the Plan on his death equal to 50%, 66 2/3%,
75% or 100% of the monthly payments previously payable to the Participant to
be continued to and for the lifetime of a person whom he designates as his
Beneficiary when he elected this option.
If a Participant shall elect the Contingent Annuitant Option and
he or his designated Beneficiary shall die before it becomes effective, which
shall be on the earlier of the due date of the first benefit payment to the
Participant or the Participant's Normal Retirement Date, such election of the
Contingent Annuitant Option shall be revoked automatically.
If the Participant shall elect the Contingent Annuitant Option and
it shall become effective, his Retirement Income payments thereafter shall not
be changed by reason of the death of his Beneficiary during his own lifetime.
Payment of Retirement Income in this form shall be made by using
the Participant's Accrued Benefit to purchase an annuity contract from any
insurance company licensed to do business within the State of New York or the
state in which the Participating Company for whom the retiring Participant was
employed is located which contract provides for payment of a Retirement Income
in the form of the Contingent Annuitant Option elected by the Participant. A
Participant that elects to receive payment of his Retirement Income in this
form of payment shall not be permitted to receive payment of any portion of
his Accrued Benefit in shares of common stock of Mark IV.
(c) Ten Year Certain and Life Option means a form of payment
under which reduced Retirement Income payments are made to the Participant in
equal monthly installments during his lifetime, with the provision that if the
Participant's death occurs before he has received 120 monthly payments the
value of the remaining number of such payments shall be paid to the person he
designated as his Beneficiary.
Payment of Retirement Income in this form shall be made by using
the Participant's Accrued Benefit to purchase an annuity contract from any
insurance company licensed to do business within the State of New York or the
state in which the Participating Company for whom the retiring Participant was
employed is located which contract provides for payment of a Retirement Income
in the Ten Year Certain and Life Option form. A Participant that elects to
receive payment of his Retirement Income in this form of payment shall not be
permitted to receive payment of any portion of his Accrued Benefit in shares
of common stock of Mark IV.
(d) Social Security Adjustment Option means a form of payment
which is available only with respect to Retirement Income payments to a
Participant on his Early Retirement Date under which amounts payable to the
Participant and beginning before the earliest date on which he first could
elect to receive old-age benefits under the Federal Social Security Act, are
increased until such date and decreased during his lifetime thereafter. The
amount of increase and decrease, when considered together with the
Participant's expected old-age Social Security payments at the earliest date
on which he could begin to receive such payments, shall result, insofar as is
practicable, in a constant total income during his lifetime.
Payment of Retirement Income in this form shall be made using the
Participant's Accrued Benefit to purchase an annuity contract from an
insurance company licensed to do business within the State of New York or the
state in which the Participating Company for whom the retiring Participant is
located, which contract provides for payment of Retirement Income in the
Social Security Adjustment Option form. A Participant that elects to receive
payment of his Retirement Income in this form of payment shall not be
permitted to receive payment of any portion of his Accrued Benefit in shares
of common stock of Mark IV.
(e) Lump Sum Option means a form of payment in which the
Participant's Accrued Benefit is paid to the Participant in one lump sum
payment. Notwithstanding the foregoing, a Participant that elects to receive
payment of his Accrued Benefit in one lump sum payment may elect to have the
portion of his Accrued Benefit attributable to common stock of Mark IV
Industries, Inc. paid to him in common stock of Mark IV Industries, Inc.;
provided that, if the Participant elects to receive payment of his Accrued
Benefit in the form of a lump sum payment of cash and common stock of Mark IV
Industries, Inc., the value of any fractional shares allocated to the
Participant's Account shall be distributed to the Participant in cash. In no
event shall a lump sum distribution be made under this Plan without the
written consent of the Participant, or if the Participant is married, without
the written consent of the Participant and his spouse if the Participant's
Accrued Benefit exceeds $3,500.00 (or any lessor amount as may, by regulations
of the Secretary of the Treasury, be established as the maximum amount that
may be paid out without such consent).
(f) Installment Option means a form of payment in which the
Participant's Accrued Benefit is paid to the Participant in substantially
equal monthly, quarterly or semi-annual installments as elected by the
Participant over the following periods or, if sooner, until the amount of the
Participant's Account has been fully distributed:
(i) the life of the Participant;
(ii) the joint lives of the Participant and his designated
Beneficiary;
(iii) a period certain not longer than the joint life and
survivor life expectancies of the Participant and his Designated Beneficiary.
A Participant that elects to receive payment of his Retirement Income in this
form of payment shall not be permitted to receive payment of any portion of
his Accrued Benefit in shares of common stock of Mark IV.
The undistributed amount of the Accrued Benefit of a Participant
whose Retirement Income is being paid in the Installment Option form provided
by this Section 8.04(f) shall be credited with the earnings, appreciations,
losses and expenses attributable to his Account.
8.05 (a) Benefits Payable on the Death of a Married Participant
Before his Annuity Starting Date. If a married Participant with a vested
interest in his Accrued Benefit dies before his Annuity Starting Date, (i) the
portion of such Participant's Accrued Benefit, if any, which is attributable
to amounts which were held for the Participant's benefit under the terms of
the Mark IV Industries, Inc. and Subsidiaries Master Defined Contribution
Pension Plan as of December 31, 1992 shall, except as otherwise elected by the
Participant in accordance with Section 8.05(b) hereof be paid to the
Participant's Spouse in the form of a Qualified Preretirement Survivor Annuity
form of payment described in Section 1.45 hereof; provided that, upon written
request of the Participant's Spouse, such portion of the Participant's Accrued
Benefit may be paid to the Participant's Spouse in one lump sum payment as
provided for in Section 8.04(e) hereof; and (ii) the portion of the
Participant's Accrued Benefit which is not attributable to amounts held for
the Participant's benefit under the terms of the Mark IV Industries, Inc. and
Subsidiaries Master Defined Contribution Pension Plan shall, except as
otherwise elected by the Participant in accordance with Section 8.05(b)
hereof, be paid to the Participant's Spouse in the lump sum form of payment
provided by Section 8.04(e) as soon as practicable after the date of the
Participant's death.
(b) Election of Alternative Form of Death Benefit. Except as
otherwise provided under the terms of the Adoption Agreement under which a
Participant is an Eligible Employee, a Participant may elect that, upon his
death prior to his Annuity Starting Date, the amount of his Accrued Benefit
determined as of the date of his death shall be paid to a Beneficiary other
than his Spouse or in a form other than one lump sum payment or a Qualified
Preretirement Survivor Annuity as the case may be. Such election shall not be
valid unless (a) the Participant's Spouse consents in writing to payment of
such Accrued Benefit to a Beneficiary other than the Participant's Spouse or
over a period other than the life of the Participant's Spouse, (b) the
Participant's election specifies the Beneficiary to whom and/or the form in
which the amount of the Participant's Accrued Benefit as of the date of his
death is to be paid or the consent of the Participant's Spouse expressly
permits designations by the Participant without any requirement of further
consent by the Spouse; (c) the consent of the Participant's Spouse
acknowledges the effect of such designation and (d) the consent of the
Participant's Spouse is witnessed by a Plan Representative or a Notary Public.
The consent of a Participant's Spouse as described in this Section shall not
be required if the Participant cannot locate his Spouse provided that, if a
married Participant that has designated a Beneficiary other than his Spouse to
receive the benefits upon his death prior to this Annuity Starting Date and
such Participant subsequently locates his Spouse, such prior designation shall
be invalid and the death benefits payable on behalf of such Participant shall
be paid in accordance with the provisions of Section 8.05(a) hereof.
(c) Benefits Payable on the Death of a Married Participant after
Commencement of Retirement Income. Upon the death of a married Participant
who has theretofore retired, become disabled or otherwise terminated
employment and who has begun to receive payment of his Retirement Income, the
Trustee shall continue to distribute the balance, if any, of the Participant's
Account that has not theretofore been distributed, to the Beneficiary
designated by the Participant or, if none, to the Participant's Spouse or, if
neither, to the Participant's estate in the manner provided for by the form of
payment elected by the Participant.
8.06 (a) Benefits Payable on Death of Unmarried Participants Before
Annuity Starting Date. Upon the death of an unmarried Participant with a
vested interest in his Accrued Benefit before his Annuity Starting Date, the
amount of his Accrued Benefit shall be paid to his Beneficiary, or, if none,
to his estate.
(b) Benefits Payable on Death of Unmarried Participant's After
Annuity Starting Date. Upon the death of an unmarried Participant who has
theretofore retired, become disabled or otherwise terminated employment and
who has begun to receive payment of his Retirement Income, the Trustee shall
continue to distribute the balance, if any, of the Participant's Account, if
any, that has not theretofore been distributed to the Beneficiary designated
by the Participant or, if none, to the Participant's estate in the manner
provided for by the form of payment elected by the Participant.
8.07 Distribution of Small Amounts. Notwithstanding anything to the
contrary contained in this Plan, the Retirement Committee may direct that the
value of a Participant's Accrued Benefit shall be paid to such Participant or,
if applicable, to his Beneficiary in one lump sum in full satisfaction and
release of all further rights of the Participant, his Spouse and his
Beneficiary to receive any benefits under this Plan at any time prior to the
date on which such Participant is entitled to a distribution of his Accrued
Benefit without the consent of such Participant or his Spouse if the value of
such Accrued Benefit is less than $3,500.
8.08 Optional Rollover Distribution. Effective January 1, 1993,
each Participant that is entitled to receive a distribution of his Accrued
Benefit hereunder may (unless distribution of his Accrued Benefit is required
by Section 7.06 hereof) elect to have the entire amount of his Accrued Benefit
or any portion thereof paid directly to 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
403(a) of the Code or a qualified trust described in Section 401(a) of the
Code. The Retirement Committee shall provide the Participant a written
explanation of the Participant's right to elect to make the direct rollover
described in this Section and the withholding tax consequences of not making
such election as soon as practicable following the date the Participant
becomes entitled to make such distribution. Notwithstanding the foregoing,
the Retirement Committee shall not be permitted to cause the Participant's
Accrued Benefit to be paid to more than individual retirement account,
individual retirement annuity, annuity plan or qualified trust.
8.09 General Limitation. Anything in this Article VIII to the contrary
notwithstanding, no method of distribution shall be made under a normal or
optional payments form of Retirement Income which would result in the payment
of 50% or more of the Participant's Accrued Benefit to a Beneficiary other
than the Participant's Spouse.
<PAGE>
ARTICLE IX
9. OPERATION OF THE PLAN
9.01 Administrator. The Administrator of the Plan is the Retirement
Committee.
9.02 Named Fiduciaries. The named fiduciaries, who shall have
authority to control and manage the operation and administration of the Plan,
are as follows:
(a) Mark IV shall have the sole right to appoint and remove from
office the members of the Retirement Committee and the Trust Committee, the
Trustee, and any investment manager or insurance company, and to amend or
terminate the Plan;
(b) the Retirement Committee, which shall have the authority and
duties specified in Article X hereof;
(c) the Trust Committee, which shall have the authority and
duties specified in the Plan and Trust Agreement.
9.03 Actions of Fiduciaries. Any fiduciary with respect to the Plan
may serve in more than one fiduciary capacity with respect to the Plan; may
employ one or more persons to render advice with regard to or carry out any
responsibility that such fiduciary has under the Plan; and may rely upon any
direction, information or action of any other fiduciary, acting within the
scope of its responsibilities under the Plan, as being proper under the Plan.
9.04 Procedure for Plan Operation.
(a) Each Participating Company shall adopt the provisions of
this Plan by executing an Adoption Agreement with Mark IV. The right to amend
or terminate this Plan and the right to appoint fiduciaries to carry out the
operation and administration of the Plan shall be the exclusive responsibility
of Mark IV. Notwithstanding the foregoing, each Participating Company may
amend the terms of the Adoption Agreement to which such Participating Company
is a party or withdraw from participation in the Plan by amending the terms of
the Adoption Agreement to which such Participating Company is a party provided
that Mark IV consents to such amendment and executes an amended Adoption
Agreement. The procedures for amending and terminating the Plan and for
appointing such fiduciaries are set forth in Articles X through XIII.
(b) The responsibilities of the Retirement Committee, the Trust
Committee and the Trustee for the operation and administration of the Plan are
allocated among them by virtue of the several Articles of this Plan and the
Trust Agreement wherein their respective duties are specified.
(c) Each fiduciary shall have only the authority and duties as
are specifically given to it under this Plan, shall be responsible for the
proper exercise of its own authority and duties, and shall not be responsible
for any act or failure to act of any other fiduciary.
(d) The basis upon which payments are to be made to the Plan and
from the Plan are set forth in Articles III through VIII.
9.05 Assets in Trust. Except as otherwise permitted under the Plan,
all assets of the Plan shall be held in one or more trusts and shall be
available for payment of the Accrued Benefit of all Participants in the Plan.
The Trustees of each such Trust shall, upon acceptance of such office, have
exclusive authority and discretion to manage and control the assets of the
Plan held in such trust, subject to the terms of the Plan and of the Trust
Agreement relating to the trust.
9.06 Liability Among Co-Fiduciaries.
(a) Except for any liability which he may have under the Act, a
fiduciary shall not be liable for the breach of a fiduciary duty or
responsibility by another fiduciary of the Plan except in the following
circumstances:
(i) He 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) By his failure to comply with the general fiduciary
standards in the administration of his specific responsibilities which give
rise to his status as a fiduciary, he has enabled such other fiduciary to
commit a breach; or
(iii) He has knowledge of a breach by such other fiduciary
and he does not undertake reasonable efforts under the circumstances to remedy
the breach.
(b) In the event that there are two or more persons serving as
Trustee under the Trust Agreement, each shall use reasonable care to prevent a
co-Trustee from committing a breach of fiduciary responsibility and they shall
jointly manage and control assets of the Plan, except that in the event of an
allocation of responsibilities, obligations or duties, a Trustee to whom such
responsibilities, obligations or duties have not been allocated shall not be
liable to any person by reason of this paragraph, either individually or as a
Trustee, for any loss resulting to the Plan arising from the acts or omissions
on the part of the Trustee to whom such responsibilities, obligations or
duties have been allocated.
(c) To the extent that fiduciary responsibilities are
specifically allocated by a named fiduciary, or pursuant to the express terms
hereof, to any person or persons, then such named fiduciary shall not be
liable for any act or omission of such person in carrying out such
responsibility except to the extent that the named fiduciary violated general
fiduciary standards (i) with respect to such allocation or designation, (ii)
with respect to the establishment or implementation of the procedure for
making such an allocation or designation, or (iii) in continuing the
allocation or designation, or the named fiduciary would otherwise be liable in
accordance with general principals of fiduciary liability under the Act and
otherwise.
(d) No Trustee shall be liable for following instructions of the
Retirement Committee given pursuant to authority given to the Retirement
Committee under the Plan.
(e) No fiduciary shall be liable with respect to any breach of
fiduciary duty if such breach was committed before he became a fiduciary or
after he ceased to be a fiduciary.
(f) To the extent that this Plan complies with the provisions of
Section 404(c) of ERISA, neither the Participant, Beneficiary, Alternate
Beneficiary, fiduciary, Retirement Committee, Trust Committee or Trustee shall
be liable for any loss (and with respect to a fiduciary, any breach) with
respect to any Account resulting from the Participant's or the Beneficiary's
exercise of control over the assets of such Account.
9.07 Investment Manager.
If an "investment manager", as defined below, is appointed to
manage (including the power to acquire and dispose of) all or any part of the
Fund, then the Trustee shall have no fiduciary liability for the acts or
omissions of such investment manager or be under any obligation to invest or
otherwise manage that portion of the Fund which is subject to the management
of such investment manager. For purposes of this Plan, "Investment Manager"
shall mean any fiduciary other than a "named fiduciary" (including the
Trustee) of this Plan and Trust who has the power to manage, acquire, or
dispose of any portion of the Fund, is registered as an investment adviser
under the Investment Advisors Act of 1940, is a bank as defined in that Act,
or is an insurance company qualified to manage, acquire or dispose of any
portion of the Fund; and who has acknowledged in writing that it is a
fiduciary with respect to the Plan. If an investment manager is appointed,
written notice thereof shall be given to the Trustee.
9.08 Legal Process. The Administrator of the Plan shall be the agent
of the Plan to receive service of legal process.
9.09 Expenses. The reasonable expenses incident to the operation of
the Plan, including but not limited to fees for professional, legal or
accounting services, Trustees fees, Investment Advisor Fees, Investment
Manager fees and the cost of such other technical or clerical assistance as
may be required, shall be paid out of the Fund, to the extent not paid for by
the Employer.
ARTICLE X
10. PLAN ADMINISTRATION AND THE RETIREMENT COMMITTEE
10.01 Appointment and Removal of Retirement Committee. The
administration of the Plan shall be vested in a Retirement Committee of three
(3) or more persons who shall be appointed by the Board, and may include
persons who are not Participants in the Plan. A person appointed a member of
the Retirement Committee shall signify his acceptance in writing. The Board
may remove or replace any member of the Retirement Committee at any time in
its sole discretion and any Retirement Committee member may resign by
delivering his written resignation to the Board, which resignation shall
become effective upon its delivery or at any later date specified therein. If
at any time there shall be a vacancy in the membership of the Retirement
Committee, the remaining member or members of the Retirement Committee shall
continue to act until such vacancy is filled by action of the Board. In the
event that a Retirement Committee is not appointed, the Board of Directors of
Mark IV shall constitute the Retirement Committee. Notwithstanding the
foregoing, the Board may appoint separate Retirement Committees to administer
the provisions of the Plan with respect to a Participating Company.
10.02 Action by Retirement Committee. The Retirement Committee shall
hold meetings upon such notice, at such place or places, and at such times as
its members may from time to time determine. A majority of its members at the
time in office shall constitute a quorum for the transaction of business. All
action taken by the Retirement Committee at any meeting shall be by vote of
the majority of its members present at such meeting, except that the
Retirement Committee also may act without a meeting by a consent signed by a
majority of its members. Any member of the Retirement Committee who is a
Participant in the Plan shall not vote on any question relating exclusively to
himself. In addition, Subject to the terms of the Plan, the Retirement
Committee may from time to time accept actuarial tables and adopt such
additional by-laws, rules and regulations as it shall deem appropriate for
the administration of the Plan and for the conduct and transaction of its
business and affairs.
10.03 Powers. The Retirement Committee shall have such powers as may be
necessary to discharge its duties under the Plan, including the complete and
discretionary power and authority:
(a) to interpret and construe the Plan, to determine all
questions with regard to Employment, eligibility, Years of Service,
Participation, Compensation, Retirement Income, and such factual matters as
date of birth and martial status, and similarly related matters for the
purpose of the Plan. The Retirement Committee's determination of all
questions arising under the Plan shall be conclusive upon all Participants,
the Board, each Participating Company, Mark IV, the Trustee and the other
interested parties;
(b) to prescribe procedures to be followed by Participants and
Beneficiaries filing applications for benefits;
(c) to prepare and distribute to Participants information
explaining the Plan;
(d) to appoint or employ individuals to assist in the
administration of the Plan and any other agents it deems advisable, including
legal, accounting and actuarial counsel;
(e) to instruct the Trustee to make benefit payments pursuant to
the Plan;
(f) to receive and review the periodic valuation of the Plan
made by the Actuary;
(g) to receive and review reports of disbursements from the
Trust Fund made by the Trustee;
(h) to receive and review the periodic audit of the Plan made by
a Certified Public Accountant. The Retirement Committee shall have no power
to add to, subtract from or modify any of the terms of the Plan, or to change
or add to any benefits provided by the Plan, or to waive or fail to apply any
requirements for eligibility for a benefit under the Plan; and
(i) to direct the Trustee to invest the assets of the Trust or
such part thereof as it may designate among the Investment Funds selected by
the Participants.
10.04 Information from Participants; Unclaimed Funds. Each Participant
shall be required to furnish to the Retirement Committee, on the form
prescribed by it, such personal data, affidavits, authorizations to obtain
information, and other information as such Committee may deem appropriate for
the proper administration of the Plan.
In addition, each Participant shall keep the Committee informed of his
current address and the current address of his Spouse, or Beneficiaries.
Neither the Employer, the Retirement Committee, the Trust Committee, nor the
Trustee shall be obligated to search for the whereabouts of any person.
If the location of a Participant is not made known to the Retirement
Committee within two (2) years after the date on which distribution of the
Participant's benefits may first be made and the Retirement Committee is
unable to locate the Participant or any individual who would receive a
distribution under the Plan upon the death of the Participant pursuant to
Article VIII of the Plan, any benefit payable under the Plan to such
Participant shall be deemed to be forfeited. As of the end of the Plan Year
in which an amount is forfeited pursuant to this Section, the amount which is
forfeited shall be allocated among the accounts of the Participants in this
Plan in the same ratio that the value of each Participant's Account bears to
the total value of all Accounts of all Participants in this Plan.
Notwithstanding the foregoing, if the Participant, Spouse or Beneficiary makes
a valid claim for any amount that has been so forfeited, the forfeited
benefits shall be reinstated.
10.05 Records. The Retirement Committee shall prepare, or cause to be
prepared, such periodic reports to the U.S. Labor Department, the Internal
Revenue Service and the Pension Benefit Guaranty Corporation as may be
required pursuant to the Act. The Retirement Committee shall report to the
Board annually with respect to its operations for the preceding year.
10.06 Authority to Act. The Retirement Committee may authorize one or
more of its members, officers or agents to sign on its behalf any of its
instructions, directions, notifications, or communications to the Trustee, and
the Trustee may conclusively rely thereon and the information contained
therein.
10.07 Liability for Acts. No member of the Retirement Committee shall
be personally liable for any error of omission or commission unless such error
results from his own gross negligence, willful misconduct, or lack of good
faith, nor shall any member of the Retirement Committee be personally liable
for any act of gross negligence, willful misconduct, or lack of good faith of
any other member or members of such Committee.
10.08 Compensation and Expenses. Unless authorized by the Board, a
member or officer of the Retirement Committee shall not be compensated for his
service, but shall be reimbursed for reasonable expenses incident to the
performance of such service.
10.09 Indemnity. In the event and to the extent not insured against by
any insurance company pursuant to provisions of any applicable insurance
policy, the Retirement Committee and the individual members thereof shall be
indemnified by Mark IV against any and all liabilities arising by reason of
any act or failure to act made in good faith pursuant to the provisions of the
Plan, including expenses reasonably incurred in the defense of any claim
relating thereto.
10.10 Denied Claims. If any application for payment of a benefit under
the Plan shall be denied, the Retirement Committee shall notify the claimant
within a reasonable time of such denial setting forth the specific reason
thereof in a manner calculated to be understood by the Participant and
affording such claimant a reasonable opportunity for a full and fair review of
the decision denying his claim. Notice of such denial shall also set forth,
such additional information as may be relevant to denial of the claim, an
explanation of the claims review procedure and advice that such claimant may
request the opportunity to review pertinent plan documents and submit a
statement of issues and comments.
Within sixty (60) days following advice of denial of his claim,
upon request made by any claimant for a review of such denial, the Retirement
Committee shall take appropriate steps to review its decision in light of any
further information or comments submitted by such claimant. The Retirement
Committee shall be empowered to hold a hearing at which such claimant shall be
entitled to present the basis of his claim for review and at which he may be
represented by counsel.
The Retirement Committee shall render a decision within sixty (60)
days after claimant's request for review (which may be extended to 120 days if
circumstances so require) and shall advise claimant in writing of its decision
on such review, specifying its reasons and identifying appropriate provisions
of the Plan.
<PAGE>
ARTICLE XI
11. THE TRUST
11.01 Trust Agreement. Mark IV and, to the extent necessary, each
Participating Company shall enter into a Trust Agreement with a Trustee
selected by it in its sole discretion, and the Trustee shall receive the
contributions to the Trust Fund made by the Employer pursuant to the Plan and
shall hold, invest, reinvest, and distribute such fund in accordance with the
terms and provisions of the Trust Agreement and of the Plan. Mark IV will
determine the forms and terms of such Trust Agreement and may modify such
Trust Agreement from time to time to accomplish the purpose of this Plan and
may, in its sole discretion, revoke any Trust and select any successor
Trustee. The Trust Agreement may provide that the Trust Fund thereunder may
be used to fund the Plan and other qualified plans maintained by the Company
or by any other company which meet the requirements of Section 401(a) of the
Code.
11.02 Trust Committee. The Board shall establish a Trust Committee
which shall act in certain matters relating to administration of the Trust
Fund held by the Trustee, subject to the provisions of this Article and the
Trust Agreement. Such Trust Committee shall consist of three (3) or more
persons appointed by the Board, and may include persons who are members of the
Retirement Committee or who are not Participants in the Plan. A person
appointed a member of the Trust Committee shall signify his acceptance in
writing. The Board may remove or replace any member of the Trust Committee at
any time in its sole discretion, and any Trust Committee member may resign by
delivering his written resignation to the Board, which resignation shall
become effective upon its delivery or at a later date specified therein. If
at any time there shall be a vacancy in the membership of the Trust Committee,
the remaining members thereof shall continue to act until such vacancy is
filled by action of the Board. In the event that a Trust Committee is not
appointed, the Board of Directors of Mark IV shall constitute the Trust
Committee.
11.03 Action by Trust Committee. The Trust Committee shall hold
meetings upon such notice, at such place or places, and at such time as its
members from time to time determine. A majority of its members at the time in
office shall constitute a quorum for the transaction of business. All action
taken by the Trust Committee at any meeting shall be by vote of the majority
of its members present at such meeting. The Trust Committee also may act
without a meeting by a consent signed by a majority of its members. In
addition, subject to the terms of the Plan and Trust Agreement, the Trust
Committee may from time to time adopt such additional by-laws, rules and
regulations of uniform and non-discriminatory application as it shall deem
appropriate for the conduct and transaction of its business and affairs.
11.04 Powers. The Trust Committee shall have such powers as may be
necessary to discharge its duties under the Plan, including the power:
(a) to establish the investment policy of the Plan, subject to
such written instructions as may from time to time be issued by the Board of
Directors of the Company, and to give instructions to the Trustee, and take
such other steps as may be necessary or proper, to effectuate such investment
policy, including but not limited to the appointment of one or more Investment
Managers to manage all or part of the Trust Fund;
(b) to direct the Trustee to use the Trust, or such part thereof
as it may designate, to purchase insurance policies or annuity contracts or
any combination of the foregoing from any insurance company approved by the
Board;
(c) to require from the Trustee written accountings, and such
other information as the Trust Committee may request from time to time, in
accordance with the Trust Agreement;
(d) to receive and review periodic accountings of the Trustee;
(e) to request reports and information from the Trustee;
(f) to determine from time to time the allocation of
contributions and assets held under the Plan between or among one or more
trusts and one or more insurance companies and to direct the transfer of
assets between or among such trusts and insurance companies;
(g) to direct that any insurance company transfer insurance
reserves between separate investment accounts and amounts invested as part of
general investment accounts and to consult with any such insurance company on
investment policies;
(h) Subject to the approval of the Board, to establish with such
companies as the Trust Committee may appoint from time to time, one or more
Investment Funds for the investment of amounts allocated to a Participant's
Account and to engage any independent investment manager or managers and such
other professional advisors as it may deem necessary or desirable to aid in
the management and administration of the Trust Fund.
11.05 Records. The Trust Committee shall keep accurate records and
minutes of its proceedings and actions, and shall report showing to the Board
annually in reasonable detail the results of operation of the Trust for the
preceding year.
11.06 Compensation and Expenses. Unless authorized by the Board, a
member or officer of the Trust Committee shall not be compensated for his
service, but shall be reimbursed for any reasonable expenses incident to the
performance of such service.
11.07 Liability. Except as may otherwise be required by law, no member
of the Trust Committee shall be liable for any error of omission or commission
unless such error results from his own gross negligence, willful misconduct,
or lack of good faith, nor shall any member of the Trust Committee be liable
for any act of gross negligence, willful misconduct, or lack of good faith of
any other member or members of such committee.
11.08 Authority to Act. The Trust Committee may authorize one or more
of its members, officers or agents to sign on its behalf any of its
instructions, directions, notification or communications to others, and such
other persons may conclusively rely thereon and on the information contained
therein.
11.09 Indemnity. In the event and to the extent not insured against by
any insurance company pursuant to provisions of any applicable insurance
policy, the Trust Committee and the individual members thereof shall be
indemnified by Mark IV against any and all liabilities arising by reason of
any act or failure to act made in good faith pursuant to the provisions of the
Plan, including expenses reasonably incurred in the defense of any claim
relating thereto.
11.10 Insufficiency of Trust Fund. The Employer shall not be liable in
any manner to any Participant or Beneficiary if the Trust Fund shall be
insufficient to provide for the payment of all benefits. Such benefits are to
be payable only from the Trust Fund and only to the extent of the assets of
such Fund. Any person having any claim under the Plan shall look solely to
the Trust Fund for payment or satisfaction thereof.
<PAGE>
ARTICLE XII
12. AMENDMENT OF THE PLAN
12.01 Right to Amend. Mark IV reserves the right through the action of
its Board of Directors, at any time and from time to time, subject to the
limitations hereinafter provided, to amend in whole or in part any or all
provisions of the Plan. The Retirement Committee may amend the Plan without
consent of the Board, if such amendment is necessary to maintain the continued
tax qualification of the Plan, or if necessary to carry out its duties under
Article X, except no amendment should be executed by the Retirement Committee
without the consent of the Board, if such amendment would significantly
increase or decrease the cost of the Plan to Mark IV. Each amendment of the
Plan shall be in writing, and shall become effective on the date specified
therein.
12.02 Amendment of Vesting Schedule. If the vesting schedule contained
in Section 3.06 hereof is amended, each Participant's vested percentage in his
Accrued Benefit, determined as of the later of the date the amendment is
adopted or the date the amendment is effective, shall not be less than such
Participant's vested percentage in his Accrued Benefit computed under the Plan
on such date without regard to such amendment. The above sentence shall only
apply to Employees who are Participants on the date the amendment is adopted
or the date the amendment is effective, whichever is later. In addition, each
Participant having not less than 5 Years of Service or, effective March 1,
1989, not less than 3 Years of Service as of the expiration of the election
period set forth below is permitted to irrevocably elect, within the election
period, to have his vested percentage in his Accrued Benefit computed under
the Plan without regard to such amendment; provided, however, no election
shall be provided to any such Participant whose non-forfeitable percentage
under the Plan, as amended, at any time cannot be less than such percentage
determined without regard to such amendment. If a Participant fails to make
such election, then such Participant shall be subject to the new vesting
schedule. The election period shall commence on the date the Plan amendment
is adopted and shall end on the latest of the following dates:
(a) The date sixty (60) days after the date the Plan amendment
is adopted;
(b) The date sixty (60) days after the effective date of the
amendment;
(c) The date sixty (60) days after the Participant is issued
written notice of the amendment by the Retirement Committee.
12.03 Restrictions on Amendment. No amendment of the Plan may be made
which shall either deprive any Participant or Beneficiary of any part of such
Participant's Accrued Benefit under a Predecessor Plan or any part of such
Participant's Accrued Benefit as constituted at the time of such amendment nor
shall such amendment result in the reversion to an Employer of any part of the
Trust Fund contrary to the provisions of the Plan.
ARTICLE XIII
13. TERMINATION OF THE PLAN
13.01 Events Constituting Termination.
(a) It is expressly declared to be the desire and intention of
Mark IV and each Participating Company to continue the Plan and Trust in
existence for an indefinite period of time. However, circumstances not now
anticipated or foreseeable may arise in the future, as a result of which Mark
IV or a Participating Company may deem it to be impracticable or unwise to
continue the Plan and the Trust established hereunder, and Mark IV and each
Participating Company therefore reserve the right to terminate the Plan
(insofar as it affects its Employees) at any time. Such termination shall be
effected by a written instrument of termination executed by such Employer. A
copy of such instrument shall be delivered to the Trustee, to each other
Employer and to the Retirement and Trust Committees.
(b) With respect to any Employer, its adjudication of bankruptcy
or insolvency by any court of competent jurisdiction other than in the course
of a proceeding under Chapter XI of the Bankruptcy Laws; its making of a
general assignment for the benefit of creditors; its dissolution, merger,
consolidation, other reorganization or discontinuance of business, unless the
Plan is continued by a Successor Company; or its complete discontinuance of
contributions, shall operate to terminate the Plan with respect to such
Employer.
(c) Subject to applicable requirements of notice to the Pension
Benefit Guaranty Corporation, governing termination of employee pension
benefit plans, the Retirement Committee shall direct the Trustee to segregate
the assets of the Trust Fund allocable to a terminating Employer, for payment
of benefits in accordance with the provisions of this Article.
13.02 Partial Termination. Upon a partial termination of the Plan with
respect to a group of Participants, the Retirement Committee shall determine
the proportionate interests of the Participants affected by such partial
termination. After such proportionate interests have been determined, the
Retirement Committee shall direct the Trustee to segregate the assets of the
Trust Fund allocable to such group of Participants, for payment of benefits in
accordance with the provisions of this Article.
13.03 Allocation of Assets. Upon termination of the Plan under Section
13.01, or upon a complete discontinuance of contributions under Article IV
hereof, each Participant shall become fully and non-forfeitably vested in his
Accrued Benefit. Upon a partial termination of the Plan under Section 13.02,
only those Participants covered under the portion of the Plan which is deemed
to have terminated shall become fully and nonforfeitably vested in their
Accrued Benefit.
13.04 Manner of Distribution. Subject to the foregoing provisions of
this Article XIII, any distribution after termination of the Plan may be
made, in whole or in part, to the extent that no discrimination results, in
cash, securities or other assets in kind (based on their fair market value as
of the date of distribution), or in nontransferable annuity contracts, as the
Retirement Committee in its discretion shall determine.
13.05 Merger. In the case of any merger or consolidation with, or
transfer of assets or liabilities to, any other plan after September 2, 1974,
each Participant in the Plan must (if the Plan then terminated) receive a
benefit immediately after the merger, consolidation or transfer which is equal
to or greater than the benefit he would have been entitled to receive
immediately before the merger, consolidation or transfer (if the Plan had then
terminated).
13.06 Internal Revenue Service Approval for Distribution.
Notwithstanding any provisions of the Plan or of the Trust Agreement to the
contrary, no person shall have any right or claim to any asset of the Trust
Fund before the Internal Revenue Service shall determine that the proposed
distribution of assets under this Article does not result in the
discrimination prohibited by Section 401(a)(4) of the Code.
<PAGE>
ARTICLE XIV
14. MISCELLANEOUS PROVISIONS
14.01 No Assignment of Benefit. Except with respect to a Qualified
Domestic Relations Order described in Section 14.02 no benefit under the Plan,
nor any other interest hereunder of any Participant, Beneficiary or Contingent
Annuitant, shall be assignable, transferable or subject to sale, mortgage,
pledge, hypothecation, communication, anticipation, garnishment, attachment,
execution, or levy of any kind, and the Trustee shall not recognize any
attempt to assign, transfer, sell, mortgage, pledge, hypothecate, commute or
anticipate the same, except to the extent required by law.
14.02 Qualified Domestic Relations Order.
(a) The provisions of this Section shall be effective on and
after the Effective Date except that in the case of a Domestic Relations Order
(hereinafter defined) entered before such date, the Retirement Committee shall
treat such order as a Qualified Domestic Relations Order (hereinafter defined)
if the Retirement Committee is paying benefits pursuant to such order on such
date, and, in its sole discretion may treat any other such order entered into
before the Effective Date as a Qualified Domestic Relations Order even if such
order does not meet the requirements for a Qualified Domestic Relations Order.
(b) "Qualified Domestic Relations Order" means a judgment,
decree or order (including approval of a property settlement agreement) which
relates to the provision of child support, alimony payments, or marital
property rights of a spouse, former spouse, child, or other dependent of a
Participant and is made pursuant to a State domestic relations law, (a
"Domestic Relations Order") and which satisfies the following requirements:
(i) creates or recognizes the existence of an Alternate
Payee's right to, or assigns to an Alternate Payee the right to receive all or
a portion of the benefits payable with respect to a Participant under the
Plan;
(ii) specifies the name and the last known mailing address
(if any) of the Participant and the name and mailing address of each Alternate
Payee (hereinafter defined) covered by the order;
(iii) specifies the amount of percentage of the
Participant's benefits to be paid by the Plan to each such Alternate Payee, or
the manner in which such amount or percentage is to be determined;
(iv) specifies the number of payments or period to which
such order applies;
(v) specifies each plan to which such order applies;
(vi) does not require a plan to provide any type or form of
benefit, or any options not otherwise provided under the plan, provided,
however, such order may require payment before a Participant has separated
from service if it directs payment of benefits to an Alternate Payee:
(A) on or after the date on which the Participant
attains (or would have attained) the Earliest Retirement Age as defined in
Section 1.20 except that if this Plan is a defined contribution plan, Earliest
Retirement Age means the date which is 10 years before Normal Retirement Age;
(B) as if the Participant had retired on the date on
which such payment is to begin under such order (but taking into account only
the value of the Participant's Account as of such date); and
(C) In any form in which such benefits may be paid
under the Plan to the Participant (other than in the form of a joint and
survivor annuity with respect to the Alternate Payee and his or her subsequent
spouse);
(vii) does not require the plan to provide increased
benefits (determined on the basis of actuarial value), and
(viii) does not require the payment of benefits to an
Alternate Payee which are required to be paid to another Alternate Payee under
another order previously determined to be a Qualified Domestic Relations
Order.
(c) The term "Alternate Payee" means any spouse, former spouse,
child or other dependent of a Participant who is recognized by a Domestic
Relations Order as having a right to receive all, or a portion of, the
benefits payable under a plan with respect to such Participant.
(d) In the case of any domestic relations order received by the
Plan the Retirement Committee shall promptly notify the Participant and any
other Alternate Payee of the receipt of such order and of the Plan's
procedures for determining the qualified status of domestic relations orders,
and within a reasonable period after receipt of such order, the Retirement
Committee shall determine whether such order is a Qualified Domestic Relations
Order and notify the Participant and each Alternate Payee of such
determination.
(e) During any period in which the issue of whether a Domestic
Relations Order or a Qualified Domestic Relations Order is being determined,
the Retirement Committee shall segregate in a separate account in the Plan or
in an escrow account the amounts which would have been payable to the
Alternate Payee during such period if the order had been determined to be a
Qualified Domestic Relations Order.
(f) If within 18 months the order is determined to be a
Qualified Domestic Relations Order, the Retirement Committee shall pay the
segregated amounts (plus any interest earned thereon) to the person or persons
entitled thereto. If within 18 months it is determined that the order is not
a Qualified Domestic Relations Order, or the issue as to whether such order is
a Qualified Domestic Relations Order is not resolved, the Retirement Committee
shall pay the segregated amounts (plus any interest earned thereon) to the
person or persons who would have been entitled to such amounts if there had
been no order. Any determination that an order is a Qualified Domestic
Relations Order which is made after the close of the 18-month period shall be
applied prospectively only.
14.03 No Implied Rights to Employment. Neither this Plan, the payment
of contributions by the Employer to the Trust Fund, nor the payment of any
benefits pursuant to the Plan shall be construed to create any obligation upon
the Employer to continue to make contributions to the Plan or to give any
present or future employee any right to continue employment.
14.04 Return of Contributions to Employer. The Plan is created for the
exclusive benefit of Participants, their Beneficiaries, and Contingent
Annuitants. Except as provided in subparagraphs (a) and (b) below, at no time
prior to the satisfaction of all liabilities under the Plan with respect to
Participants and their Beneficiaries shall any contributions to the Plan by an
Employer or any assets of the Trust Fund ever revert to or be used by such
Employer.
(a) In the case of a contribution that is made by an Employer by
a mistake of fact, such Employer may direct the return to it of such
contribution within one year after the payment of the contribution.
(b) Contributions by an Employer are conditioned upon initial
qualification of the Plan under Section 401(a) of the Code and the
deductibility of each such contribution under Section 404 of the Code, and an
Employer may direct the return to it of any contribution (to the extent
disallowed) within one year after the disallowance.
14.05 Plan Assets, Merger or Transfer. There shall be no merger or
consolidation with, or transfer of assets or liabilities of the Plan to, any
other plan unless each Participant in the Plan would, if the Plan terminated
after such merger, consolidation, or transfer of assets or liabilities,
receive a benefit immediately thereafter equal to or greater than the benefit
that he would have been entitled to receive immediately before such merger,
consolidation or transfer if the Plan had then terminated.
14.06 Liability for Acts. Except as may otherwise be required by law,
neither the Employer nor the Trustee, nor any of their directors, officers,
employees or agents, nor any member of the Retirement Committee or the Trust
Committee, if any, appointed under the Plan, shall be liable for any error,
omission or commission unless such error results from his gross negligence,
willful misconduct or lack of good faith, nor shall any such person be liable
for any act of gross negligence, willful misconduct or lack of good faith of
any other such person or other person acting under the Plan.
14.07 Payment of Benefits.
Payment of any benefit for the lifetime of a person shall cease
with the last payment due on or before the date of his death.
If the Retirement Committee determines that a person entitled to
receive any benefit payment is under a legal disability or is incapacitated in
any way so as to be unable to manage his financial affairs the Retirement
Committee may direct the Trustee to make payment to his legal representative
or to make payments to his legal representative or to a relative or other
person for his benefit, or to apply the payment for the benefit of such person
in such manner as the Retirement Committee considers advisable. Any payment
of a benefit in accordance with the provisions of this subparagraph shall be a
complete discharge of any liability to make such payment.
14.08 Effectuation of Intent. In the event it should become impossible
for Mark IV, the Retirement Committee, or the Trust Committee to perform any
act required by the Plan, the Company or either committee may perform such
other act as it in good faith determines will most nearly carry out the intent
and purpose of the Plan.
14.09 Headings. The headings of Articles and Paragraphs of this Plan
are for convenience of reference only, and in case of any conflict between any
such headings and the text of this Plan, the text shall govern.
14.10 Copy of Plan. An executed copy of the Plan shall be available for
inspection by any Employee or other person entitled to benefits under the Plan
at reasonable times at the office of the Employer.
14.11 Governing Law. Except as otherwise required by law, the Plan and
all matters arising thereunder shall be governed by the laws of the State of
New York.
<PAGE>
IN WITNESS WHEREOF, the Mark IV has caused this instrument to be
executed by its officers thereunto duly authorized on the 17th day of June,
1994.
MARK IV INDUSTRIES, INC.
By: /s/ Frederic L. Cook
---------------------
Frederic L. Cook
Sr. Vice President - Administration
EXHIBIT 99.1
FORM 11-K
FOR ANNUAL REPORTS OF EMPLOYEE STOCK PURCHASE, SAVINGS
AND SIMILAR PLANS PURSUANT TO SECTION 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
[ X ] ANNUAL REPORT PURSUANT TO SECTION 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934 (FEE REQUIRED)
For the fiscal year ended December 31, 1993
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 (NO FEE REQUIRED)
For the transition period from ________________________ to ___________________
Commission file number _________________________
MARK IV SAVINGS AND RETIREMENT PLAN
(Full title of the Plan)
MARK IV INDUSTRIES, INC.
(Name of issuer of the Securities held
Pursuant to the Plan)
P.O. Box 810
Amherst, New York 14226-0810
(Address of principal executive office
of the issuer)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this annual report to be signed on its behalf by the undersigned
hereunto duly authorized.
Mark IV Savings and Retirement Plan
(Name of Plan)
BY: /s/ William P. Montague
------------------------
William P. Montague
Member, Mark IV Industries, Inc.
Retirement Committee
June 21, 1994
-------------
Date
MARK IV SAVINGS AND RETIREMENT PLAN
INDEX
Page No.
I. FINANCIAL INFORMATION
Report of Independent Accountants . . . . . . . . . . . . 1 P
Statements of Net Assets Available for
Plan Benefits as of December 31, 1993 . . . . . . . . . 2 P
Statements of Net Assets Available for
Plan Benefits as of December 31, 1992 . . . . . . . . . 3 P
Statements of Changes in Net Assets Available for Plan
Benefits for the Year ended December 31, 1993 . . . . . 4 P
Statements of Changes in Net Assets Available for Plan
Benefits for the Year ended December 31, 1992 . . . . . . 5 P
Statements of Changes in Net Assets Available for Plan
Benefits for the year ended December 31, 1991 . . . . . 6 P
Notes to Financial Statements . . . . . . . . . . . . . . 7 P
II. FINANCIAL STATEMENT SCHEDULES
Schedule 27a - Assets Held for Investment at
December 31, 1993 . . . . . . . . . . . . . . . . . . . 15 P
III. EXHIBITS
Exhibit Index . . . . . . . . . . . . . . . . . . . . . . 17 P
Exhibit 23.1 Consent of Independent Accountants . . . . . . 18 *
P Filed with this Form 11-K Annual Report (Exhibit 99.1 to Form 10-K)
under cover of Form SE.
* Filed with this Form 11-K Annual Report (Exhibit 99.1 to Form 10-K) by
direct transmission pursuant to the EDGAR Program.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Mark IV Industries, Inc. on form S-8 of our report dated June 21, 1994, on our
audits of the financial statements of the Mark IV Savings and Retirement Plan
as of December 31, 1993 and 1992 and for the years ended December 31, 1993,
1992 and 1991, which report is included in this Annual Report on Form 11-K, as
an Exhibit to Form 10-K.
COOPERS & LYBRAND
Rochester, New York
Date: June 21, 1994
