As filed with the Securities and Exchange Commission on June 6, 1995.
Registration No. 33-59577
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
Registration Statement Under
the Securities Act of 1933
MISSISSIPPI CHEMICAL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
MISSISSIPPI 64-0292638
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
P.O. BOX 388
YAZOO CITY, MISSISSIPPI 39194
(Address of Principal Executive Offices)
MISSISSIPPI CHEMICAL CORPORATION THRIFT PLAN PLUS
AND
MISSISSIPPI PHOSPHATES CORPORATION 401(k) RETIREMENT PLAN
(Full Title of the Plans)
ROBERT E. JONES
VICE PRESIDENT AND GENERAL COUNSEL
MISSISSIPPI CHEMICAL CORPORATION
P.O. BOX 388
YAZOO CITY, MISSISSIPPI 39194
(Name and Address of Agent For Service)
(601) 746-4131
(Telephone number, including area code, of agent for service)
COPY TO:
FREDERICK W. AXLEY, P.C.
MCDERMOTT, WILL & EMERY
227 WEST MONROE STREET
CHICAGO, ILLINOIS 60606-5096
ITEM 8. EXHIBITS
Exhibit
Number Description of Exhibit
4.3(a) Mississippi Phosphates Corporation 401(k) Retirement Plan.
4.3(b) Mississippi Chemical Corporation Thrift Plan Plus.
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the undersigned registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Post-Effective Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Yazoo City, State of Mississippi, on the 1st
day of June, 1995.
MISSISSIPPI CHEMICAL CORPORATION
By: /s/ Charles O. Dunn
Charles O. Dunn
President, Chief Executive Officer and
Director (Principal Executive Officer)
Pursuant to the Securities Act of 1933, this Post-
Effective amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities indicated on the 1st day of June,
1995.
Signature Title
/s/ Charles O. Dunn President, Chief Executive
Office and Director
Charles O. Dunn (Principal Executive Officer)
/s/ William F. Hawkins Senior Vice President--Finance
William F. Hawkins and Administration (Principal
Financial Officer
and Principal Accounting
Officer)
* Chairman of the Board of
Coley L. Bailey Director
* Vice Chairman of the Board and
John Sharp Howie Director
* Director
John W. Anderson
* Director
Frank R. Burnside, Jr.
* Director
Robert P. Dixon
* Director
W. R. Dyess
* Director
Woods E. Eastland
* Director
G. David Jobe
* Director
George Penick
* Director
David M. Ratcliffe
* Director
Wayne Thames
*Pursuant to Power of Attorney
By
Robert E. Jones
Attorney-in-fact
EXHIBIT INDEX
Exhibit No. Description
4.3(a) Mississippi Phosphates Corporation 401(k) Retirement
Plan.
4.3(b) Mississippi Chemical Corporation Thrift Plan Plus.<PAGE>
<PAGE>
BPS&M
REGIONAL PROTOTYPE DEFINED CONTRIBUTION PLAN AND TRUST
BPS&M Defined Contribution Basic Plan Document #01
<PAGE>
TABLE OF CONTENTS
ARTICLE PAGE
1 DEFINITIONS
2 ELIGIBLE EMPLOYEES AND PARTICIPANTS
3 CONTRIBUTIONS TO THE PLAN
4 ALLOCATION OF TRUST FUNDS AND PARTICIPANTS' ACCOUNTS
5 WITHDRAWALS AND LOANS
6 RETIREMENT BENEFITS
7 DEATH AND DISABILITY BENEFITS
8 BENEFITS ON SEPARATION FROM SERVICE
9 PLAN ADMINISTRATION
10 THE TRUSTEE
11 AMENDMENT AND TERMINATION OF THE PLAN
12 CERTAIN PROVISIONS AFFECTING THE EMPLOYER
13 TOP HEAVY PLANS
14 PAIRED PLANS
15 MISCELLANEOUS PROVISIONS
<PAGE>
BPS&M
REGIONAL PROTOTYPE DEFINED CONTRIBUTION PLAN AND TRUST
Bryan, Pendleton, Swats & McAllister (otherwise known as "BPS&M"), in order
to assist Employers in adopting a defined contribution plan and trust which
is qualified, respectively, under Section 401(a) and Section 501(a) of the
Code and designed in compliance with the Tax Reform Act of 1986, Omnibus
Budget Reconciliation Act of 1986, Omnibus Budget Reconciliation Act of 1987,
the Technical and Miscellaneous Revenue Act of 1988, final regulations under
the Retirement Equity Act of 1984, and final regulations under Code sections
401(a), 401(k), and 411(d)(6), hereby establishes a prototype defined
contribution plan and trust to be known as the BPS&M REGIONAL PROTOTYPE
DEFINED CONTRIBUTION PLAN AND TRUST.
An Employer may adopt this regional prototype plan document as part of its
Plan by completing and signing an Adoption Agreement. However, such adoption
shall not be effective until also executed by the Trustee.
<PAGE>
ARTICLE 1
DEFINITIONS
The following terms when capitalized and used herein and in the Adoption
Agreements, unless the context clearly indicates otherwise, shall have the
meanings set forth hereinafter:
Section 1.01 "ACCOUNTS" shall mean all of the recordkeeping accounts to
which are allocated or credited a Participant's share of (i) contributions
made to the Plan, (ii) Forfeitures, and (iii) Income.
Section 1.02 "ADOPTING EMPLOYER" shall mean any person, business
organization or corporation affiliated with the Employer through complete or
partial ownership by the Employer or which is otherwise cooperating with the
Employer for purposes of establishing and maintaining a qualified plan, which
is authorized by the Employer to adopt the Plan, and which adopts the Plan by
executing the Adoption Agreement.
The term shall also include any person, business organization or
corporation into which the Adopting Employer may be merged or consolidated
or by which it may be succeeded.
Section 1.03 "ADOPTION AGREEMENT" shall mean the instrument by which the
Employer elects to establish or continue its Plan by adoption of this
prototype plan document.
Section 1.04 "ANNIVERSARY DATE" shall mean the day upon which a Plan Year
begins.
Section 1.05 "ANNUITY STARTING DATE" shall mean the first day of the first
period for which an amount is paid as an annuity or any other form.
Section 1.06 AVERAGE COMPENSATION" shall mean, with respect to a target
benefit pension plan, the average compensation set forth in Item 7 of the
Adoption Agreement. If pursuant to the election in Item 12 of the Adoption
Agreement a Participant is entitled to have an Employer Contribution made on
his behalf for the Plan Year of termination of Service, then for purposes of
determining Average Compensation, if the Participant's Compensation for the
Plan Year of termination is based on a period of less than twelve (12)
months, such Compensation shall be annualized.
Section 1.07 "BENEFICIARY" shall mean such person, persons or legal entity
as may be designated by a Participant to receive benefits hereunder after his
death, or the person, persons or legal entity designated to the Trustee to
receive benefits after the death of the Participant, or the personal or legal
representative of the Participant, all as herein described and provided.
Section 1.08 "BREAK IN SERVICE" shall mean (i) the period defined in
subsection (a) hereof for Plans which count Hours of Service pursuant to Item
6 of the Adoption Agreement and (ii) the period defined in subsection (b)
hereof for Plans which use the "elapsed time" method pursuant to Item 6 of
the Adoption Agreement.
(a) Hours Counting Method. A "Break in Service" shall mean a twelve (12)
consecutive month period during which an Employee does not complete
more than five hundred (500) Hours of Service. For purposes of
determining eligibility, the initial twelve (12) month period shall
<PAGE>
commence on the date the Employee first performs an Hour of Service,
and each subsequent twelve (12) month period shall be the Plan Year,
beginning with the Plan Year which commences prior to the end of the
initial twelve (12) month period. For purposes of computing a
Participant's nonforfeitable right to his accrued benefit, the twelve
(12) month period shall be the Plan Year. For purposes of this
section only, "Hours of Service" shall include Leaves of Absence in
addition to the Hours of Service specified in Section 1.31 hereof.
For Plan Years beginning after December 31, 1984, for purposes of
determining whether a Break in Service has occurred, Hours of Service
shall include any period in which an Employee is absent from work for
maternity or paternity reasons.
Hours of Service shall be credited for such maternity or paternity
absence from work as would normally have been credited to such
individual but for such absence or, if the Plan Administrator is
unable to determine the Hours of Service actually to be so credited,
then eight (8) Hours of Service per day shall be credited for such
absence; provided, however, that the total number of Hours of Service
to be credited by reason of any such absence for maternity or
paternity reasons shall not exceed five hundred and one (501) Hours of
Service during the computation period used to determine a Break in
Service. Such Hours of Service shall be credited in the computation
period used to determine a Break in Service in which the absence from
work begins if an Employee would be prevented from incurring a Break
in Service in such Plan Year because the period of absence is treated
as Hours of Service and, in any other case, in the immediately
following computation period.
(b) Elapsed Time Method. A "Break in Service" shall mean a "period of
severance" of at least twelve (12) consecutive months. A "period of
severance" is a continuous period of time during which the Employee is
not employed by the Employer. Such period begins on the date the
Employee retires, quits or is discharged, or if earlier, the twelve
(12) month anniversary of the date on which the Employee was otherwise
first absent from Service.
For Plan Years beginning after December 31, 1984, in the case of an
individual who is absent from work for maternity or paternity reasons,
the twelve (12)-consecutive month period beginning on the first
anniversary of the first date of such absence shall not constitute a
Break in Service.
(c) For purposes of this section, an absence from work for maternity or
paternity reasons means an absence
(1) by reason of the pregnancy of the individual,
(2) by reason of the birth of a child of the individual,
(3) by reason of the placement of a child with the individual in
connection with the adoption of such child by such individual,
or
(4) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
No credit for Hours of Service for absence for maternity or paternity
<PAGE>
reasons, however, shall be given hereunder unless an Employee
furnishes to the Plan Administrator such timely information as the
Plan Administrator may reasonably require to establish that the
absence from work is for a reason set forth in (1) through (4).
Section 1.09 "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
Section 1.10 "COMMITTEE" shall mean the committee, if any, appointed under
the provisions of Article 9 to carry out the day to day administrative
functions of the Plan.
Section 1.11 "COMPENSATION" shall mean a Participant's compensation as
determined pursuant to subsection (a) or subsection (b) hereof, whichever is
applicable, and subsection (c) hereof.
(a) The definition of "Compensation" in this subsection (a) shall apply
for periods commencing before the first day of the Plan Year
commencing after the Plan Year in which the Employer adopts the
Adoption Agreement incorporating the changes required by the Tax
Reform Act of 1986. This definition shall apply wherever it is used
in this Plan, except as provided in Sections 4.07 and 13.02(a) hereof.
"Compensation" shall mean a Participant's compensation actually paid
or accrued (as indicated in the Plan prior to the Adoption Agreement
incorporating the changes required by the Tax Reform Act of 1986)
within a Plan Year that is subject to tax under Section 3101(a) of the
Code without the dollar limitation of Section 3121(a)(1) thereof, as
defined and restricted with respect only to non-standardized plans in
Item 7 of the Adoption Agreement. Provided, however, (subject to the
preceding limitations) with respect to a Self-Employed Individual,
Compensation as used in the Plan shall mean Earned Income. Provided
further, however, the term "Compensation" shall include contributions
made to an employee benefit plan under Section 401(k), Section 403(b)
or Section 125 of the Code, but shall not include any other tax-
deferred or tax-exempt compensation.
(b) The definition of "Compensation" in this subsection (b) shall apply
for periods commencing on or after the first day of the Plan Year
commencing after the Plan Year in which the Employer adopts the
Adoption Agreement incorporating the changes required by the Tax
Reform Act of 1986. This definition shall apply wherever it is used
in this Plan, except as provided in Section 13.02(a) hereof. As
elected by the Employer in Item 7 of the Adoption Agreement,
"Compensation" shall mean each Participant's (i) W-2 Earnings as
defined in Section 4.07(e)(13) hereof or (ii) compensation as defined
in Section 4.07(e)(2)(ii) hereof and, except for purposes of Section
4.07(e)(2), as further restricted in Item 7 of the Adoption Agreement.
Provided, however, (subject to the preceding limitations) with respect
to a Self-Employed Individual, Compensation shall mean Earned Income.
Compensation pursuant to this subsection (b) shall include only that
compensation which is actually paid to the Participant during the
applicable period. In addition, for purposes of determining the
Average Deferral Percentage under Section 3.05 and the Average
Contribution Percentage under Section 3.06, the Plan Administrator may
in any Plan Year use such definition as is permitted pursuant to the
regulations under Code Section 414(s) which is more beneficial in
helping the Plan pass the tests in those Plan sections. Except as
provided elsewhere in the Plan, the applicable period shall be the
period elected by the Employer in Item 7 of the Adoption Agreement.
<PAGE>
If the Employer makes no election, the applicable period shall be the
Plan Year.
Notwithstanding the above, if elected by the Employer in Item 7(b) of
the Adoption Agreement, Compensation shall include:
(i) any amount which is contributed by the Employer with respect
to the applicable period pursuant to a salary reduction
agreement and which is not includible in the gross income of
the Employee under Section 125 (dealing with cafeteria plans),
402(a)(8) (dealing with elective deferrals under 401(k)
plans), 402(h) (dealing with simplified employee pensions) or
403(b) (dealing with tax sheltered annuities) of the Code;
(ii) compensation deferred under an eligible deferred compensation
plan within the meaning of Code Section 457(b) (dealing with
state and local governments and tax exempt organizations); and
(iii) employee contributions under governmental plans described in
Code Section 414(h)(2) that are picked up by the employing
unit.
(c) For Plan Years beginning on or after January 1, 1989, the annual
compensation of each Participant taken into account under the Plan for
any year shall not exceed $200,000, as adjusted by the Secretary at
the same time and in the same manner as under Section 415(d) of the
Code. In determining the compensation of a Participant for purposes
of this limitation, the rules of Section 414(q)(6) of the Code shall
apply, except in applying such rules, the term "family" shall include
only the Spouse of the Participant and any lineal descendants of the
Participant who have not attained age nineteen (19) before the close
of the year. If, as a result of the application of such rules the
adjusted $200,000 limitation is exceeded, then (except for purposes of
determining the portion of Compensation up to the integration break-
point if this Plan provides for permitted disparity), the limitation
shall be prorated among the affected individuals in proportion to each
such individual's Compensation as determined under this section prior
to the application of this limitation. The application of this
subsection (c) shall be subject to such rules as may be prescribed by
the Secretary of the Treasury.
Section 1.12 "CONTROLLED GROUP" shall mean, with respect to the Employer, a
controlled group of corporations (as defined in Code Section 414(b)), a group
of trades or businesses under common control (as defined in Code Section
414(c)), an affiliated service group (as defined in Code Section 414(m)), and
any other entity required to be aggregated with the Employer pursuant to Code
Section 414(o) and the regulations thereunder. All employees of members of a
Controlled Group shall be treated as employed by a single employer for
purposes of Sections 401, 410, 411, 415 and 416 of the Code.
Section 1.13 "COVERED COMPENSATION" shall mean, for a Plan Year, the
average (without indexing) of the contribution and benefit bases in effect
under Section 230 of the Social Security Act for each calendar year in the
thirty-five (35) year period ending with the last day of the calendar year in
which the employee attains (or will attain) the Social Security Retirement
Age. The determination of Covered Compensation for any year preceding the
year in which the Employee attains the Social Security Retirement Age shall
be made by assuming that there is no increase in the bases described in
Section 230 of the Social Security Act after the determination year and
<PAGE>
before the Social Security Retirement Age. A Participant's Covered
Compensation for a Plan Year before the thirty-five (35) year period ending
with the last day of the calendar year in which the Participant attains his
Social Security Retirement Age is the contribution and benefit base in effect
under section 230 of the Social Security Act at the beginning of the Plan
Year. A Participant's Covered Compensation for a Plan year after such
thirty-five (35) year period is the Participant's Covered Compensation for
the Plan Year during which the Participant attained Social Security
Retirement Age.
Section 1.14 "DISABILITY" shall, unless further restricted in Item 18(d) of
the Adoption Agreement, mean total and permanent incapacity of a Participant
to engage in any substantially gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or which has lasted or can be expected to last for a continuous period
of not less than twelve (12) months. In determining the existence of
Disability in Plan Years commencing before January 1, 1989, the Plan
Administrator may require written certification of disability from a
physician of its choosing and/or may allow receipt of Social Security or any
insured disability benefits to be conclusive evidence of total and permanent
disability. In determining the existence of Disability in Plan Years
commencing after December 31, 1988, the Plan Administrator shall require
medical evidence and/or shall allow receipt of Social Security or any insured
disability benefits to be conclusive evidence of total and permanent
disability, pursuant to its election in Item 18(e) of the Adoption Agreement.
Section 1.15 "EARNED INCOME" shall mean the net earnings from self-
employment in the trade or business with respect to which the Plan is
established, for which personal services of the individual are a material
income-producing factor. Net earnings shall be determined without regard to
items not included in gross income and the deductions allocable to such
items. Net earnings shall be determined with regard to the deduction allowed
to the Employer by Section 164(f) of the Code for taxable years beginning
after December 31, 1989. Net earnings shall be reduced by contributions by
the Employer to a qualified plan to the extent deductible under Section 404
of the Code. If applicable, a person's total Earned Income shall be subject
to the adjustments required by regulations under Code Section 414(s).
Section 1.16 "EFFECTIVE DATE" shall mean the date the Plan was established
by an Employer, as specified in Item 1(a) of the executed Adoption Agreement;
provided, however, that the term shall mean, for an Employee of an Adopting
Employer who adopts the Plan later than the date it was originally
established, the effective date of adoption of the Plan by such Employer.
The effective date of the most recent adoption or amendment shall be the date
indicated in Item 1(b) of the Adoption Agreement.
Section 1.17 "ELECTIVE DEFERRAL ACCOUNT" shall mean the account maintained
on behalf of a Participant to which shall be credited the Participant's
Elective Deferral Contributions and the Participant's share of the Income of
the Trust Fund allocable to this account.
Section 1.18 "ELECTIVE DEFERRAL CONTRIBUTIONS" shall mean the contributions
made by an Employer on an Employee's behalf pursuant to Section 3.01(a)
hereof.
Section 1.19 "EMPLOYEE" shall mean either (i) a person (other than an
independent contractor) who is receiving remuneration for personal services
rendered to, or labor performed for, the Employer (or who would be receiving
such remuneration except for a Leave of Absence), or (ii) a Leased Employee
<PAGE>
deemed to be an employee of the Employer as provided in Sections 414(n) or
(o) of the Code. In addition, if the Plan is a standardized plan, for
purposes of this section the "Employer" shall include all members of the
Controlled Group (regardless of whether any such employer is treated as
operating separate lines of business under Code section 414(r)); therefore,
in the case of a standardized plan each employer in the Controlled Group
shall be required to adopt the Plan.
Section 1.20 "EMPLOYEE ACCOUNT" shall mean the account maintained on behalf
of a Participant to which shall be credited the Participant's Employee
Contributions and the Participant's share of the Income of the Trust Fund
allocable to this account.
Section 1.21 "EMPLOYEE CONTRIBUTIONS" shall mean the contributions made by
the Employee pursuant to Section 3.03(a) hereof.
Section 1.22 "EMPLOYER" shall mean the entity executing the Adoption
Agreement as the Employer and each of those persons, business organizations
or corporations executing the Plan as an Adopting Employer, together with any
successor to all or a major portion of any said entity's property or
business, provided such successor Employer adopts the Plan by appropriate
resolution of its governing body.
Section 1.23 "EMPLOYER ACCOUNT" shall mean the account maintained on behalf
of a Participant to which shall be credited the Participant's share of any
Employer Contributions (and Forfeitures, if the Adoption Agreement provides
for the allocation of Forfeitures as an additional Employer Contribution) and
the Participant's share of the Income of the Trust Fund allocable to this
account.
Section 1.24 "EMPLOYER CONTRIBUTIONS" shall mean contributions made by an
Employer pursuant to Section 3.01(c) hereof.
Section 1.25 "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
Section 1.26 "EXCESS COMPENSATION" shall mean, for an integrated target
benefit pension plan, the amount of a Participant's Average Compensation in
excess of the level specified in Item 8 of the Adoption Agreement.
Section 1.27 "FAMILY MEMBER" shall mean an individual included in the
family of an Owner-Employee within the meaning of Section 267(c)(4) of the
Code.
Section 1.28 "FIDUCIARY" shall mean the Employer, the Plan Administrator
(and the Committee, if appointed pursuant to Section 9.01 hereof), the
Investment Manager, if any, and the Trustee, but only with respect to the
specific responsibilities for each described herein.
Section 1.29 "FORFEITURE" shall mean the portion of a Participant's
Employer Account and Matching Account which is forfeited under Section 5.01
or 8.03 hereof before full vesting occurs.
Section 1.30 "HIGHLY COMPENSATED EMPLOYEE" shall mean a person who is
either a "highly compensated active employee" as defined in subsection (a)
hereof or a "highly compensated former employee" as defined in subsection (b)
hereof.
(a) A "highly compensated active employee" is any Employee who performs
<PAGE>
service for the Employer during the determination year and who, during
the look-back year:
(1) received compensation from the Employer in excess of seventy-
five thousand dollars ($75,000) (as adjusted pursuant to
Section 415(d) of the Code);
(2) received compensation from the Employer in excess of fifty
thousand dollars ($50,000) (as adjusted pursuant to Section
415(d) of the Code) and was a member of the top-paid group for
such year; or
(3) was an officer of the Employer and received compensation
during such year that is greater than fifty percent (50%) of
the dollar limitation in effect under Section 415(b)(1)(A) of
the Code.
The term "highly compensated active employee" also includes:
(4) An Employee (i) who is described in the preceding sentence if
the term "determination year" is substituted for the term
"look-back year" and (ii) who is one of the one hundred (100)
Employees who received the most compensation from the Employer
during the determination year; and
(5) An Employee who is a five percent (5%) owner at any time
during the look-back year or the determination year.
If no officer has satisfied the compensation requirement of (3) above
during either a determination year or look-back year, the highest paid
officer for such year shall be treated as a Highly Compensated
Employee.
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the twelve (12)-month period immediately
preceding the determination year.
(b) A "highly compensated former employee" is any Employee who separated
from service (or was deemed to have separated) prior to the
determination year, performs no service for the Employer during the
determination year, and was a highly compensated active employee for
either the separation year or any determination year ending on or
after the Employee's fifty-fifth (55th) birthday.
If an Employee is, during a determination year or look-back year, a family
member of either a five percent (5%) owner who is an active or former
Employee or a Highly Compensated Employee who is one of the ten (10) most
highly compensated Employees ranked on the basis of compensation paid by the
Employer during such year, then the family member and five percent (5%) owner
or top-ten (10) Highly Compensated Employee shall be treated as a single
Employee receiving compensation and Plan contributions or benefits equal to
the sum of such compensation and contributions or benefits of the family
member and five (5%) percent owner or top-ten (10) Highly Compensated
Employee. For purposes of this section, family member includes the spouse,
lineal ascendants and descendants of the Employee or former Employee and the
spouses of such lineal ascendants and descendants.
The determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of Employees in the top-paid group,
<PAGE>
the top one hundred (100) Employees, the number of Employees treated as
officers and the compensation that is considered, will be made in accordance
with Section 414(q) of the Code and the regulations thereunder.
Section 1.31 "HOUR OF SERVICE" shall mean:
(a) each hour for which an Employee is paid, or entitled to payment, for
the performance of duties for the Employer. These hours shall be
credited to the Employee for the Plan Year in which the duties are
performed; and
(b) each hour for which an Employee is paid, or entitled to payment, by
the Employer on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of absence. No
more than five hundred and one (501) Hours of Service shall be
credited under this paragraph for any single continuous period
(whether or not such period occurs in a single Plan Year). Hours
under this paragraph shall be calculated and credited pursuant to
Section 2530.200b-2 of the Department of Labor Regulations, which are
incorporated herein by this reference; and
(c) each hour for which back pay, irrespective of mitigation of damages,
has been either awarded or agreed to by the Employer. These hours
shall be credited to the Employee for the Plan Year to which the award
or agreement pertains rather than the Plan Year in which the award,
agreement or payment is made. Hours shall not be credited under both
this and any of the preceding subsections of this section; provided,
however, that
(d) Hours of Service shall not be credited for payments made solely to
comply with workmen's or unemployment compensation or disability
insurance laws or as reimbursement for medical expenses.
Hours of Service shall be determined on the basis selected in Item 6 of the
Adoption Agreement.
Notwithstanding the foregoing, in the event the Plan uses the "elapsed
time" method pursuant to Item 6 of the Adoption Agreement, an "Hour of
Service" shall mean each hour for which an Employee is paid or entitled to
payment for the performance of duties for the Employer.
If the Employer is maintaining the plan of a predecessor employer, or if a
predecessor employer is either listed in Item 22 of the Adoption Agreement or
designated in writing by the Employer subsequent to the completion of the
Adoption Agreement, service with such predecessor employer shall be treated
as Service with the Employer.
Hours of Service shall be credited for employment with other members of a
Controlled Group of which the Employer is a member. Hours of Service shall
also be credited for any individual considered an Employee for purposes of
the Plan under Section 414(n) of the Code, or Section 414(o) of the Code and
the regulations thereunder.
Section 1.32 "INCOME" shall mean the net gain or loss of the Trust Fund
from investments, as reflected by interest payments, dividends, realized and
unrealized gains and losses on securities, other investment transactions, and
expenses paid from the Trust Fund which are not reimbursed by the Employer.
<PAGE>
In determining the Income of the Trust Fund for any period, assets shall be
valued on the basis of current fair market value.
Section 1.33 "INDIVIDUAL RETIREMENT ACCOUNT" shall mean a trust within the
meaning of Section 408(a) of the Code or an individual retirement annuity
under Section 408(b) of the Code.
Section 1.34 "INVESTMENT MANAGER" shall mean any Fiduciary, other than the
Trustee, who
(a) has the power to manage, acquire, or dispose of any asset of the Plan;
(b) (i) is registered as an investment advisor under the Investment
Advisers Act of 1940; (ii) is a bank, as defined in that Act; or (iii)
is an insurance company qualified to perform services described in
subsection (a) under the laws of more than one (1) state; and
(c) has acknowledged in writing that he is a Fiduciary with respect to the
Plan.
Section 1.35 "LEASED EMPLOYEE" shall mean any person (other than a common
law employee of the recipient Employer) who provides services for the
recipient Employer if the following conditions are met:
(a) such services are provided pursuant to an agreement between the
recipient Employer and a leasing organization,
(b) such person has performed services for the recipient Employer (or the
recipient Employer and a "related person" as that term is defined in
Section 414(n)(6) of the Code) on a substantially full-time basis for
a period of at least one (1) year, and
(c) such services are of a type historically performed, in the business
field of the recipient Employer, by employees.
Notwithstanding the foregoing, a Leased Employee shall not be considered an
Employee of the recipient Employer as to services performed after December
31, 1986 if:
(d) such person is covered by a money purchase pension plan providing:
(1) a nonintegrated employer contribution rate of at least ten
percent (10%) of compensation, as defined in Section 415(c)(3)
of the Code, but including amounts contributed pursuant to a
salary reduction agreement which are excludable from the
employee's gross income under a 401(k) plan, a cafeteria plan
pursuant to Code Section 125, a simplified employee pension
(SEP) pursuant to Code section 402(h) or a tax sheltered
annuity pursuant to Code section 403(b) of the Code,
(2) immediate participation, and
(3) full and immediate vesting; and
(e) Leased Employees do not constitute more than twenty percent (20%) of
the recipient's nonhighly compensated workforce.
For purposes of this Plan, contributions or benefits provided to a Leased
Employee by the leasing organization which are attributable to services
<PAGE>
performed for the recipient Employer shall be treated as provided by the
recipient Employer.
Section 1.36 "LEAVE OF ABSENCE" shall mean any unpaid absence authorized by
the Employer under the Employer's standard personnel practices; provided that
all persons under similar circumstances shall be treated alike in the
granting of such Leaves of Absence; and provided, further, that the
Participant returns within the period of authorized absence. An absence due
to service in the Armed Forces of the United States shall be considered a
Leave of Absence if the absence is caused by war or other emergency, or the
Employee is required to serve under the laws of conscription in time of
peace; and if, further, the Employee returns to Service within the period
during which his employment rights are protected by law. Individuals on
Leave of Absence shall be treated under the Plan as if they were Employees
according to the terms hereof.
Section 1.37 "LIFE INSURANCE COMPANY" shall mean a life insurance company
licensed to do business in a state in which the Employer also does business.
Section 1.38 "MATCHING ACCOUNT" shall mean the account maintained on behalf
of a Participant to which shall be credited the Participant's share of any
Matching Contributions (and Forfeitures, if the Adoption Agreement provides
for the allocation of Forfeitures as an additional Matching Contribution) and
the Participant's share of the Income of the Trust Fund allocable to this
account.
Section 1.39 "MATCHING CONTRIBUTIONS" shall mean the contributions made by
an Employer pursuant to Section 3.01(b) hereof.
Section 1.40 "NET PROFITS" shall mean current or accumulated earnings of
the Employer before Federal and State taxes and contributions to this and any
other qualified plans.
Section 1.41 "NON-HIGHLY COMPENSATED EMPLOYEE" shall mean an Employee of
the Employer who is neither a Highly Compensated Employee nor a family member
(pursuant to Section 414(q)(6)(B) of the Code).
Section 1.42 "NORMAL RETIREMENT AGE" shall mean the age or date set out in
Item 18(a) of the Adoption Agreement. However, the Normal Retirement Age
shall not exceed any mandatory retirement age imposed by the Employer on
Employees.
Section 1.43 "NORMAL RETIREMENT DATE" shall mean the first day of the
calendar month coincident with or next following the date on which the
Participant attains Normal Retirement Age.
Section 1.44 "OWNER-EMPLOYEE" shall mean an individual who is a sole
proprietor, or who is a partner owning more than ten percent (10%) of either
the capital or profits interest of the partnership.
Section 1.45 "PAIRED PLANS" shall mean (i) two (2) or more defined
contribution plans adopted by the Employer pursuant to Adoption Agreements
#004 through #006 under this prototype plan, the BPS&M Defined Contribution
Basic Plan Document #01, when paired under Article 14 hereof. Paired Plans
shall be standardized plans established by the Employer pursuant to Revenue
Procedure 89-13.
Section 1.46 "PARTICIPANT" shall mean an Employee participating in the Plan
in accordance with the provisions of Article 2 hereof.
<PAGE>
Section 1.47 "PLAN" shall mean the defined contribution plan established by
the Employer, incorporating this prototype plan document, which is BPS&M
Defined Contribution Basic Plan Document #01, the Adoption Agreement, and all
subsequent amendments to either.
Section 1.48 "PLAN ADMINISTRATOR" shall mean the Employer or other entity
or entities specified in Item 3 of the Adoption Agreement. For purposes of
this section, the Employer shall mean only the entity executing the Adoption
Agreement as the "Employer," and shall not include any organization executing
the Adoption Agreement as an "Adopting Employer."
Section 1.49 "PLAN YEAR" shall mean the twelve (12) consecutive month
period specified in Item 1(c) of the Adoption Agreement, and anniversaries
thereof. In unusual circumstances (such as the recent incorporation of the
Employer, a change of Plan Year or the establishment of the Plan as a
successor to a plan which was based on some period other than the current
Plan Year), the Plan Year may be shorter than twelve (12) months.
Section 1.50 "POLICY" shall mean an individual life insurance policy or
annuity contract, or a combination thereof, issued by a Life Insurance
Company in accordance with the provisions of the Plan.
Section 1.51 "QUALIFIED JOINT AND SURVIVOR ANNUITY" shall mean an immediate
annuity for the life of the Participant with a survivor annuity for the life
of the Spouse of the Participant, as selected by the Employer in Item 19 of
the Adoption Agreement, which is not less than fifty percent (50%) of, nor
greater than, the amount of the annuity payable during the joint lives of the
Participant and the Participant's Spouse and which is the amount of benefit
which can be purchased with the Participant's Vested Account Balance. If no
election is made in Item 19 of the Adoption Agreement, then the percentage of
the survivor annuity under the Plan shall be fifty percent (50%).
Section 1.52 "QUALIFIED MATCHING ACCOUNT" shall mean the account maintained
on behalf of a Participant to which shall be credited the Participant's share
of any Qualified Matching Contributions and the Participant's share of the
Income of the Trust Fund allocable to this account.
Section 1.53 "QUALIFIED MATCHING CONTRIBUTIONS" shall mean the
contributions made by the Employer pursuant to Section 3.01(e) hereof.
Section 1.54 "QUALIFIED NON-ELECTIVE ACCOUNT" shall mean the account
maintained on behalf of a Participant to which shall be credited the
Participant's share of any Qualified Non-elective Contributions and the
Participant's share of the Income of the Trust Fund allocable to the account.
Section 1.55 "QUALIFIED NON-ELECTIVE CONTRIBUTIONS" shall mean the
contributions made by the Employer pursuant to Section 3.01(d) hereof.
Section 1.56 "QUALIFYING EMPLOYER SECURITIES" shall mean employer
securities which are stock or marketable obligations, such as bonds,
debentures, notes or certificates, or other evidence of indebtedness, as
defined in Section 407(d)(5) of ERISA.
Section 1.57 "RETIRED PARTICIPANT" shall mean a former Participant, other
than a Separated Participant, who has terminated his Service and who is
entitled to receive benefits provided by the Plan.
Section 1.58 "ROLLOVER ACCOUNT" shall mean the account maintained on behalf
of a Participant to which shall be credited the Participant's Rollover
<PAGE>
Contributions and the Participant's share of the Income of the Trust Fund
allocable to the account.
Section 1.59 "ROLLOVER CONTRIBUTIONS" shall mean the tax-free rollovers
made by a Participant pursuant to Section 3.03(c) hereof.
Section 1.60 "SELF-EMPLOYED INDIVIDUAL" shall mean an individual who has
Earned Income for the taxable year from the trade or business for which the
Plan is established; also, an individual who would have had Earned Income but
for the fact that the trade or business had no Net Profits for the taxable
year.
Section 1.61 "SEPARATED PARTICIPANT" shall mean a former Participant who
incurs a Break in Service, or whose Service is terminated for reasons other
than death, Disability or retirement.
Section 1.62 "SERVICE" shall mean employment of an Employee by the
Employer, and, unless the "elapsed time method is elected pursuant to Item 6
of the Adoption Agreement, shall be measured in Hours of Service. If the
"elapsed time" method is elected, Service shall be expressed in years and a
decimal fraction of a year based on completed days of Service, and all non-
successive periods of Service (including fractional years) shall be
aggregated. If any period of Service in excess of one (1) Year of Service is
required for eligibility pursuant to Item 5 of the Adoption Agreement, and if
an Employee has a Break in Service before satisfying such Service eligibility
requirement, Service before such Break in Service shall not be taken into
account for purposes of determining eligibility under the Plan.
In determining a Participant's Service under the Plan, employment with any
employers listed in Item 22 of the Adoption Agreement, or with any other
employers while such employers are members of a Controlled Group with the
Employer, shall be treated as employment with the Employer. However, this
provision shall not affect (i) the limitation of participation in the Plan to
Employees of the Employer and Adopting Employers and (ii) basing Compensation
only on compensation paid by an Adopting Employer.
Section 1.63 "SPONSOR" shall mean Bryan, Pendleton, Swats & McAllister
(otherwise known as "BPS&M"), the sponsor of this regional prototype plan.
Section 1.64 "SPOUSE" shall mean the person who is legally married to a
Participant or, if the Participant has been credited with at least one (1)
Hour of Service under the Plan on or after August 23, 1984, a former spouse
of the Participant if and to the extent such former spouse is to be treated
as a spouse or surviving spouse under a qualified domestic relations order
described in Section 414(p) of the Code.
Section 1.65 "TARGET ANNUAL RETIREMENT BENEFIT" shall mean, for a
Participant in a target benefit pension plan, an annuity commencing at his
Normal Retirement Age, and payable monthly on the first day of each month
thereafter during the lifetime of the Participant, in an amount equal to the
benefit established in Item 8 of the Adoption Agreement, which contributions
to the Plan are actuarially determined to provide if a Participant remains in
Service until the annuity commencement date.
Anything in the Plan to the contrary notwithstanding, no Participant shall
be entitled, merely because of the foregoing, to receive an annuity equal to
his Target Annual Retirement Benefit. The purpose of the Target Annual
Retirement Benefit is solely to determine the amount of Employer contribution
to be made to the Employer Account of each Participant; the actual retirement
<PAGE>
benefit for any Participant shall be that which can be provided from the
amount of his Employer Account.
Until such time as the Target Annual Retirement Benefit becomes definitely
determinable, an estimated Target Annual Retirement Benefit may be used in
lieu of the Target Annual Retirement Benefit for all purposes under the Plan.
The estimated Target Annual Retirement Benefit shall be the amount which the
Participant's Target Annual Retirement Benefit would be if such Participant's
Compensation for each Plan Year subsequent to the date of the estimation,
ending with the Plan Year during which the Participant would attain Normal
Retirement Age, were the same as the Participant's Compensation for the Plan
Year immediately preceding (or, if the date of the estimation is the last day
of a Plan Year, ending on) the date of the estimation.
Section 1.66 "TAXABLE WAGE BASE" shall mean at any time the maximum amount
of earnings which may be considered wages at such time under Section
3121(a)(1) of the Code.
Section 1.67 "TEFRA" shall mean the Tax Equity and Fiscal Responsibility
Act of 1982, as amended.
Section 1.68 "TRUST" shall mean the trust, incorporated into and forming a
part of the Plan, by which the Employer's contributions and contributions
from Participants shall be received, held, invested and disbursed to or for
the benefit of Participants and their Beneficiaries.
Section 1.69 "TRUSTEE" shall mean the individual, individuals, or financial
institution specified in Item 3 of the Adoption Agreement.
Section 1.70 "TRUST FUND" shall mean all assets held under the Plan by the
Trustee. The corpus or income of the Trust Fund shall not be diverted for
purposes other than the exclusive benefit of Participants, Retired or
Separated Participants and their Spouses and Beneficiaries.
Section 1.71 "VALUATION DATE" shall mean the day upon which a Plan Year
ends or such other date as of which assets are valued for purposes of an
interim valuation pursuant to the provisions of Section 4.09 hereof.
Section 1.72 "VESTED ACCOUNT BALANCE" shall mean the aggregate value of the
Participant's vested Accounts whether vested before or upon death, including
the proceeds of insurance contracts, if any, on the Participant's life.
Section 1.73 "VESTING SERVICE" shall mean (i) the period defined in
subsection (a) hereof for Plans which count Hours of Service pursuant to Item
6 of the Adoption Agreement and (ii) the period defined in subsection (b)
hereof for Plans which use the "elapsed time" method pursuant to Item 6 of
the Adoption Agreement, subject to subsection (c) and the other rules which
follow subsection (c).
(a) Hours Counting Method. "Vesting Service" shall mean the number of
Plan Years during which an Employee has at least one thousand (1,000)
Hours of Service, subject to the limitations set out in this section
and in Item 17 of the Adoption Agreement.
Subject to the limitations set out herein and in Item 11 of the
Adoption Agreement, a Participant shall receive credit for a full year
of Vesting Service with respect to a Plan Year which is of less than
twelve (12) months duration (as described in Section 1.49) if he
completes one thousand (1,000) Hours of Service during the twelve (12)
<PAGE>
month period which commences on the first day of such Plan Year.
(b) Elapsed Time Method. "Vesting Service" shall mean a one (1) year
period of Service. A "period of Service" shall mean the period
commencing on the Employee's date of commencement of employment, or
reemployment, as the case may be, with the Employer and ending on the
first day of the subsequent Break in Service.
(c) Special Rules.
(1) For Plan Years beginning on or before December 31, 1984,
however, the following periods of Service shall be disregarded
in computing a Participant's period of Vesting Service under
the Plan.
(i) Service after a Break in Service shall be disregarded
with respect to determining the vesting percentage
applicable to any benefit derived from contributions
made by the Employer before such Break in Service.
(ii) If the "Rule of Parity" is to apply to the Plan pursuant
to Item 17(d) of the Adoption Agreement, then Service
before a Break in Service shall be disregarded if the
Employee did not have a nonforfeitable right to any
portion of his Employer Account at the time of the Break
in Service, and if the number of consecutive Breaks in
Service equals or exceeds the Employee's number of years
of Vesting Service prior to such consecutive Breaks in
Service. The number of years of Vesting Service prior
to such consecutive Breaks in Service shall be deemed to
exclude any years of Vesting Service not required to be
taken into account by reason of any prior Break in
Service.
(2) For Plan Years beginning after December 31, 1984, however, the
following periods of Service shall be disregarded in computing
a Participant's period of Vesting Service under the Plan.
(i) Service after a period of five (5) or more consecutive
Breaks in Service shall be disregarded with respect to
determining the vesting percentage applicable to any
benefit derived from contributions made by the Employer
before such period.
(ii) If the "Rule of Parity" is to apply to the Plan pursuant
to Item 17(d) of the Adoption Agreement, then Service
before any period of consecutive Breaks in Service shall
be disregarded if the Employee does not have a
nonforfeitable right to any portion of his Accounts
attributable to Employer contributions before such
period of consecutive Breaks in Service, and if the
number of consecutive Breaks in Service equals or
exceeds the greater of (i) five (5) or (ii) the
Employee's aggregate number of years of Vesting Service
prior to such period of consecutive Breaks in Service.
The number of years of Vesting Service prior to such
period of consecutive Breaks in Service shall be deemed
to exclude any years of Vesting Service not required to
be taken into account by reason of any prior period of
<PAGE>
consecutive Breaks in Service.
This subsection (c)(2) shall have applicability only
prospectively for Plan Years beginning after December 31,
1984, and shall not be applied in Plan Years after this date
with respect to Plan Years beginning on or before this date
with the result of requiring an Employer to take into account
as Vesting Service any Service which was disregarded in
subsection (c)(1) hereof.
For all Plan Years, Service with a predecessor employer shall be
disregarded in computing a Participant's period of Vesting Service under the
Plan, unless the Employer is maintaining a tax-qualified plan of the
predecessor employer and/or the predecessor employer is either listed in Item
22 of the Adoption Agreement or is designated in writing by the Employer (or
the Employer otherwise elects to count Service with a predecessor employer in
Item 22 of the Adoption Agreement).
If this Plan is a continuation of a Plan which was in effect prior to
ERISA, then the provisions of the pre-ERISA plan with respect to (1) non-
continuous employment and (2) the measurement of periods of employment shall
continue to apply to Service prior to the date ERISA first applied to the
Plan if those provisions have been continuously and uniformly applied after
ERISA came into effect.
In the event a Participant becomes ineligible to participate because he is
no longer a member of an eligible class of employees, or an Employee who is
not a member of the eligible class of employees becomes a member of the
eligible class, employment in the ineligible class shall be treated as
Service for purposes of determining Vesting Service.
Section 1.74 "VOLUNTARY DEDUCTIBLE CONTRIBUTIONS" shall mean
contributions made by the Employee pursuant to Section 3.03(b) hereof.
Section 1.75 "VOLUNTARY DEDUCTIBLE CONTRIBUTIONS ACCOUNT" shall mean
the account maintained on behalf of a Participant to which shall be credited
the Participant's Voluntary Deductible Contributions and the Participant's
share of the Income of the Trust Fund allocable to this account.
Section 1.76 "YEAR OF SERVICE" shall mean (i) the period defined in
subsection (a) hereof for Plans which count Hours of Service pursuant to Item
6 of the Adoption Agreement and (ii) the period defined in subsection (b)
hereof for Plans which use the "elapsed time" method pursuant to Item 6 of
the Adoption Agreement.
(a) Hours Counting Method. A "Year of Service" shall mean a twelve (12)
consecutive month period during which an Employee completes at least
one thousand (1,000) Hours of Service.
For purposes of determining eligibility, the initial twelve (12) month
period shall commence on the date the Employee first performs an Hour
of Service, and each subsequent twelve (12) month period shall be the
Plan Year, beginning with the last Plan Year which commences prior to
the end of the initial twelve (12) month period, regardless of whether
or not the Employee is entitled to be credited with one thousand
(1,000) Hours of Service during the initial eligibility computation
period. If a Plan Year is a Plan Year of less than the twelve (12)
months duration described in Section 1.49 hereof, then the Employee
must be credited with one thousand (1,000) Hours of Service during the
<PAGE>
twelve (12) month period commencing on the first day of such short
Plan Year to be credited with a Year of Service. If less than one (1)
Year of Service is required for eligibility pursuant to Item 5 of the
Adoption Agreement, an Employee shall not be required to complete any
number of Hours of Service for purposes of eligibility.
Notwithstanding the foregoing, however, if any period of Service in
excess of one (1) Year of Service is required for eligibility pursuant
to Item 5 of the Adoption Agreement, then for purposes of determining
eligibility the initial twelve (12) month period shall commence on the
date the Employee first performs an Hour of Service, and each
subsequent twelve (12) month period shall commence on the anniversary
date of the date the Employee first performs an Hour of Service.
(b) Elapsed Time Method. A "Year of Service" shall mean a one (1) year
"period of Service." A "period of Service" shall mean the period
commencing on the Employee's date of commencement of employment, or
reemployment, as the case may be, with the Employer and ending on the
first day of the subsequent Break in Service. The Employee's date of
commencement of employment or reemployment is the first day the
Employee performs an Hour of Service.
(c) Accrual of Benefits. For purposes of determining the accrual of
benefits, the twelve (12) consecutive month period shall be the twelve
(12) consecutive month period beginning on the first day of the Plan
Year.
ARTICLE 2
ELIGIBLE EMPLOYEES AND PARTICIPANTS
Section 2.01 Eligibility. Each present and future Employee who is not
excluded from participation under Item 4 of the Adoption Agreement shall be
eligible to become a Participant as of the date on which he first meets all
of the eligibility requirements set forth in Item 5(a) of the Adoption
Agreement, provided he is then an Employee. However, no Employee shall be
eligible to become a Participant prior to the effective date of adoption of
the Plan by his Employer.
Section 2.02 Eligibility Determination. Within sixty (60) days prior to
the date on which an Employee shall, if he continues in Service with the
Employer, satisfy the eligibility and participation requirements set forth in
Item 5 of the Adoption Agreement, the Plan Administrator shall forward to the
Employee such application for participation as the Plan Administrator shall
require, if any, and shall notify him of the requirements to become a
Participant, if any. An Employee who does not apply for participation when
he first becomes eligible may apply for participation as of any succeeding
date he is eligible to begin participation. In such event, his participation
shall commence as of such succeeding date. Should any question arise as to
eligibility, the Plan Administrator shall, after any hearing requested by the
Employee concerned, decide such question, and such determination, if made in
good faith and in accordance with the terms of the Plan, shall be final.
Notwithstanding the foregoing, in no event shall a standardized plan
require any application for participation, except pursuant to Adoption
Agreement #005 in cases where Elective Deferral Contributions or Employee
Contributions are required for participation.
<PAGE>
Section 2.03 Participation. An Employee who meets the eligibility
requirements of Section 2.01 shall become a Participant on the date indicated
in Item 5(b) of the Adoption Agreement provided that he is still an Employee
on that date and has filed with the Plan Administrator such written
application as the Plan Administrator may require for participation in the
Plan, if any, in which he has agreed to abide by all the provisions thereof.
Once an Employee has become a Participant he shall continue to be a
Participant until his Service terminates or he incurs a Break in Service,
dies, sustains Disability, or retires. In the event that a Participant's
Service terminates or he incurs a Break in Service, dies, sustains
Disability, or retires in accordance with the provisions of the Plan, he
shall thereupon cease to be a Participant. If a Participant becomes a
Separated Participant because of a change in his classification of employment
to one (1) of the classes, if any, excluded in Item 4 of the Adoption
Agreement, he shall be granted benefits, if any, in accordance with Article 8
hereof; provided, however, that employment of the Separated Participant in
such an excluded class shall be deemed Service for eligibility and vesting
purposes.
Section 2.04 Participation Following Reemployment or Break in Service. A
former Participant whose Service has terminated, or who has incurred a Break
in Service, shall become a Participant immediately upon again being credited
with Service if such former Participant had a nonforfeitable right to all or
a portion of his Accounts attributable to contributions made by the Employer
pursuant to Section 3.01 at the time of such termination or break.
For Plan Years beginning on or before December 31, 1984, in Plans which
require an Employee to complete one thousand (1,000) Hours of Service in
order to have a Year of Service for eligibility purposes, a former
Participant or former Employee whose Service has terminated, or who has
incurred a Break in Service, but who did not have a nonforfeitable right to
any portion of his Accounts attributable to contributions made by the
Employer pursuant to Section 3.01 at the time of such termination or break
shall be considered a new Employee upon again being credited with Service,
for eligibility purposes (his Years of Service prior to the Break in Service
shall be disregarded), if the number of his consecutive Breaks in Service
equals or exceeds the aggregate number of his Years of Service before such
termination or break. If, in the case of a former Participant, such former
Participant's Years of Service before his termination or break exceed the
number of consecutive one (1) year Breaks in Service after such termination
or break, then such former Participant shall be eligible to participate
immediately. If, in the case of a former Employee, such former Employee had
satisfied the age and service requirements of the Plan but had terminated
prior to commencing participation in the Plan, then if such former Employee
returns to Service after the date he would have commenced participation (if
he had not terminated) but before incurring a one (1) year Break in Service,
he shall be eligible to participate immediately.
For Plan Years beginning after December 31, 1984, in Plans which require an
Employee to complete one thousand (1,000) Hours of Service in order to have a
Year of Service for eligibility purposes, a former Participant or former
Employee whose Service has terminated, or who has incurred a Break in
Service, but who did not have a nonforfeitable right to any portion of his
Accounts attributable to contributions made by the Employer pursuant to
Section 3.01 at the time of such break shall be considered a new Employee
upon again being credited with Service, for eligibility purposes (his Years
of Service prior to the Break in Service shall be disregarded), if the number
of his consecutive Breaks in Service equals or exceeds the greater of five
<PAGE>
(5) or the aggregate number of his Years of Service before such Breaks in
Service. If any Years of Service are not taken into account under this
paragraph, then such Years of Service shall not be taken into account in
applying this paragraph to a subsequent period of Breaks in Service. If, in
the case of a former Participant, such former Participant's number of
consecutive Breaks in Service do not equal or exceed the greater of five (5)
or the aggregate number of his Years of Service, then such former Participant
shall participate immediately upon again being credited with Service. If, in
the case of a former Employee, such former Employee had satisfied the age and
service requirements of the Plan but had terminated prior to commencing
participation in the Plan, then if such former Employee returns to Service
after the date he would have commenced participation (if he had not
terminated) but before incurring five (5) consecutive one (1) year Breaks in
Service, he shall be eligible to participate immediately. This paragraph
shall have applicability only prospectively for Plan Years beginning after
December 31, 1984, and shall not be applied in Plan Years after this date
with the result of requiring an Employer to take into account as Service for
eligibility any Service which was not taken into account in the preceding
paragraph.
Section 2.05 Participation Following Change in Classification. In the
event a Participant becomes ineligible to participate because he is no longer
a member of an eligible class of Employees, but he has not incurred a Break
in Service, such Employee shall participate immediately upon his return to an
eligible class of Employees. If such Participant incurs a Break in Service,
his eligibility to participate shall be determined as a former Participant
pursuant to Section 2.04 hereof.
In the event an Employee who is not a member of the eligible class of
Employees becomes a member of the eligible class, such Employee then shall
participate immediately if such Employee has satisfied the minimum age and
Service requirements and would have previously become a Participant had he
been in the eligible class. If such an Employee has not satisfied the
minimum age and Service requirements when he becomes a member of the eligible
class, he shall participate as provided in Section 2.03 hereof, and his
employment in the ineligible class shall be treated as Service in determining
his eligibility to participate.
ARTICLE 3
CONTRIBUTIONS TO THE PLAN
Section 3.01 Employer Contributions. Each Plan Year the Employer shall
make a contribution computed according to this Section 3.01 and Item 8 of the
Adoption Agreement. Contributions made pursuant to this Section 3.01 shall
be subject to the availability of sufficient Net Profits, if so required by
the election in Item 8 of the Adoption Agreement.
Contributions made pursuant to this Section 3.01 may be made in cash or in
other property acceptable to the Trustee; provided, however that Elective
Deferral Contributions shall only be made in cash.
Contributions made to the Plan by the Employer shall be made on the
condition that the contributions are deductible under Code Section 404.
The following types of Employer contributions may be elected by the
Employer if available in Item 8 of the Adoption Agreement:
<PAGE>
(a) Elective Deferral Contributions. If the Plan allows Elective Deferral
Contributions, the Employer shall contribute, on behalf of each
Participant, the amount, if any, elected by the Participant in lieu of
cash compensation as an Elective Deferral Contribution, pursuant to an
elective deferral agreement. Such Elective Deferral Contributions
shall be considered to be Employer contributions under the Plan and
shall be nonforfeitable when made.
A Participant shall make an election, or may change an election, by
entering into an elective deferral agreement with his Employer during
the time periods described in Item 8(a) of the Adoption Agreement. An
elective deferral agreement shall remain in effect until modified or
terminated.
A Participant, by written notice filed with the Employer at least
thirty (30) days in advance of the effective date of such notice (or
within such shorter notice period as may be acceptable to the
Employer) may elect to prospectively revoke such elective deferral
agreement. Such revocation shall become effective with the first pay
period beginning coincident with or next following the expiration of
the notice period and shall not have retroactive effect. In the event
of such revocation, a Participant may again enter into an elective
deferral agreement with his Employer on the date indicated in Item
8(a)(4) of the Adoption Agreement which follows such revocation.
The amount a Participant may elect to have made on his behalf as an
Elective Deferral Contribution shall be in accordance with Item 8(a)
of the Adoption Agreement, subject to the limitations of Sections 3.04
and 3.05 hereof.
The Plan Administrator may establish additional procedures for the
renewal, amendment, termination, or revocation of elective deferral
agreements which shall be uniform and nondiscriminatory. However, the
requirement of uniformity (but not nondiscrimination) may be
suspended, and such differences in procedure (provided such
differences are merely procedural) may be permitted between Highly
Compensated Employees and Non-highly Compensated Employees as are
necessary, proper or convenient in order to bring the Plan into
compliance with the nondiscrimination requirements of Section 3.05
hereof and thereby preserve, or assure the preservation of, the
qualified status of the Plan.
If the Plan Administrator shall determine that the Elective Deferral
Contributions would exceed the limitations of Section 3.04 hereof, the
Plan Administrator shall, before the end of the Plan Year following
the Plan Year during which such excess deferrals occur, distribute the
amount of such excess (and income allocable thereto) to the
Participant on whose behalf the contribution was made.
(b) Matching Contributions. The Employer shall contribute a Matching
Contribution based on a Participant's Elective Deferral Contributions
and/or Employee Contributions according to Item 8(b) of the Adoption
Agreement; provided, however, that the Employer shall not contribute
amounts which (i) would, if allocated to the Matching Accounts of
Highly Compensated Employees pursuant to Section 4.01(b), create
Excess Aggregate Contributions (as defined in Section 3.06) or (ii)
are attributable to contributions which pursuant to Sections 3.04,
3.05(c) or 3.06(d) are to be distributed to Employees.
<PAGE>
Any Employer which adopts any Adoption Agreement hereunder other than
Adoption Agreements #002 or #005, will no longer be allowed to make
Matching Contributions for periods following the date such Adoption
Agreement is adopted by the Employer. Matching Contributions for Plan
Years beginning after December 31, 1986, together with any Employee
Contributions, will be limited so as to meet the nondiscrimination
test of Section 401(m) of the Code.
(c) Employer Contributions.
(1) If the Plan is a profit sharing plan, then each Plan Year the
Employer shall make an Employer Contribution computed
according to Item 8 of the Adoption Agreement.
(2) If the plan is a money purchase pension plan or a target
benefit pension plan, then each Plan Year the Employer shall
make an Employer Contribution computed according to Item 8 of
the Adoption Agreement on behalf of Participants who completed
the required amount of Service during such Plan Year and who
are still in Service on the Valuation Date. Participants who
complete the required amount of Service during a Plan Year,
but who are no longer in Service on the Valuation Date at the
end of the Plan Year, shall be included in, or excluded from,
the computation for such Plan Year as specified in Item 12 of
the Adoption Agreement. Participants who die, become disabled
or retire during the Plan Year shall be included in or
excluded from the computation for such Plan Years according to
the election made by the Employer in Item 12 of the Adoption
Agreement.
(i) Required Service - Hours Counting Method. For purposes
of non-standardized plans and, for Plan Years commencing
prior to January 1, 1990, standardized plans, if the
Plan counts Hours of Service pursuant to Item 6 of the
Adoption Agreement then the Participant shall be
required to complete at least one thousand (1000) Hours
of Service during the Plan Year in order to have an
Employer Contribution made on his behalf. However, in
the event that a Plan Year is of less than twelve (12)
months' duration (as described in the second sentence of
Section 1.49), then the requirement for completion of
one thousand (1000) Hours of Service shall be reduced
pro rata, based on the length of such Plan Year.
For purposes of standardized plans for Plan Years
commencing after December 31, 1989, if the Plan counts
Hours of Service pursuant to Item 6 of the Adoption
Agreement then the Participant shall be required to
complete at least one (1) Hour of Service during the
Plan Year in order to have an Employer Contribution made
on his behalf.
(ii) Required Service - Elapsed Time Method. If the Plan
uses the "elapsed time" method pursuant to Item 6 of the
Adoption Agreement, then the Participant shall be
required to perform an Hour of Service during the Plan
Year in order to have an Employer Contribution made on
his behalf.
<PAGE>
For purposes of this Section 3.01, Employer
Contributions shall be calculated as if the Plan were
not Top Heavy. In the event that the Plan is a Top
Heavy Plan in a Plan Year, additional Employer
Contributions may be required pursuant to the provisions
of Section 13.03.
(d) Qualified Non-elective Contributions. The Employer shall contribute a
Qualified Non-elective Contribution computed according to Item 8(c) of
the Adoption Agreement. Qualified Non-elective Contributions must be
contributions that Participants may not elect to receive in cash until
distributed from the Plan, that are nonforfeitable when made, and that
are distributable only in accordance with the distribution provisions
that are applicable to Elective Deferrals and Qualified Matching
Contributions.
(e) Qualified Matching Contributions. The Employer shall contribute a
Qualified Matching Contribution based on a Non-Highly Compensated
Employee's Elective Deferral Contributions if so elected in Item 8(d)
of the Adoption Agreement. Qualified Matching Contributions shall be
subject to the distribution and nonforfeitability requirements under
Code Section 401(k) when made.
Notwithstanding the foregoing, if the Plan is a non-standardized plan, then
a Self-Employed Individual, an Owner-Employee or an Employee who is an
officer, shareholder or highly compensated individual may elect, except as
may otherwise be provided in this paragraph, not to participate in the Plan
in a Plan Year or, at his election, may direct the Employer not to
contribute on his behalf for a Plan Year, or to contribute for a Plan Year
a lesser portion than that to be contributed on behalf of other
Participants for the Plan Year according to the contribution and allocation
formulas of the Plan. However, as to contributions made to a plan
maintained by a partnership with respect to Plan Years beginning after
December 31, 1988, an arrangement shall not be allowed (other than a one-
time irrevocable election as described below) which directly or indirectly
permits individual partners to vary the amount of contributions made on
their behalf on a year-to-year basis, to the extent such an arrangement is
prohibited by regulations. A one-time irrevocable election made by an
Employee to have the Employer contribute a specified amount or percentage
of Compensation to the Plan for the duration of the Employee's employment
with the Employer shall be allowed if the election is made upon
commencement of employment or upon the Employee's first becoming eligible
under any Plan of the Employer. In addition, any individual's one-time
irrevocable election to participate or not to participate in the Plan, if
only partners participate, shall be allowed if such election is made on or
before the later of the first day of the first Plan Year beginning after
December 31, 1988, or March 31, 1989, without regard to whether the
election is made upon commencement of employment or upon the Employee's
first becoming eligible under any Plan of the Employer. Such an election
shall be in writing and shall be made in such form, and at such time, as
the Employer may require.
Section 3.02 Time of Payment. Except as may be otherwise provided in this
Section 3.02, contributions by the Employer with respect to any Plan Year
shall be made within the time provided by the Code for deduction of such
contributions. However, if the Plan is a money purchase pension plan or a
target benefit pension plan, then contributions by the Employer with respect
to any Plan Year may be made within the time provided by the Code or
regulations thereunder for compliance with minimum funding requirements, if
<PAGE>
later. In addition, Elective Deferral Contributions shall be paid to the
Trustee as soon as practicable, but no later than the earlier of (i) the last
day of the twelve (12) month period immediately following the Plan Year to
which the contribution relates or (ii) the date required by U.S. Department
of Labor regulations concerning the contribution to a trust of Elective
Deferral Contributions that are plan assets.
Section 3.03 Participant Contributions. Participant contributions may be
allowed on a voluntary basis, if elected in Item 9 of Adoption Agreement.
A separate account shall be established and maintained for each type of
Participant contribution. Contributions by a Participant shall be remitted
to the Trustee, and shall be credited to the account established therefor
and, together with all Income allocable to such account, shall vest
immediately. Participant contributions shall be permitted, unless otherwise
restricted herein or by law, at such time or times, and in such form and
manner, as may be uniformly and nondiscriminatorily established by the Plan
Administrator.
(a) Employee Contributions. If the Plan allows Employee Contributions,
the Employer shall contribute to the Employee Account on behalf of
each Participant the amount, if any, elected by the Participant as an
Employee Contribution. Employee Contributions shall be made on a non-
deductible basis and shall not be subject to any restrictions imposed
by Code Sections 72(o) and 219.
The contribution to be made as a result of such deduction from
Compensation shall be paid to the Trustee as soon as practicable, but
no later than the date required by U.S. Department of Labor
regulations concerning the contribution to a trust of Employee
Contributions that are plan assets. Such Employee Contributions shall
be nonforfeitable when made.
If pursuant to Item 9 of the Adoption Agreement Employee Contributions
are made pursuant to payroll deduction agreements, a Participant shall
make an election, or may change an election, by entering into a
payroll deduction agreement with his Employer during the time periods
described in Item 9 of the Adoption Agreement. A payroll deduction
agreement shall remain in effect until modified or terminated.
A Participant, by written notice filed with the Employer at least
thirty (30) days in advance of the effective date of such notice (or
within such shorter notice period as may be acceptable to the
Employer) may elect to prospectively revoke such payroll deduction
agreement. Such revocation shall become effective with the first pay
period beginning coincident with or next following the expiration of
the notice period and shall not have retroactive effect. In the event
of such revocation, a Participant may again enter into a payroll
deduction agreement with his Employer at such time as a new
Participant may make an initial election pursuant to Item 9 of the
Adoption Agreement.
The Plan Administrator may establish additional procedures for the
renewal, amendment, termination, or revocation of payroll deduction
agreements and other types of Employee Contribution elections which
shall be uniform and nondiscriminatory. However, the requirement of
uniformity (but not nondiscrimination) may be suspended, and such
differences in procedure (provided such differences are merely
procedural) may be permitted between Highly Compensated Employees and
<PAGE>
Non-highly Compensated Employees as are necessary, proper and
convenient in order to bring the Plan into compliance with the
nondiscrimination requirements of Section 3.06 hereof and thereby
preserve, or assure the preservation of, the qualified status of the
Plan.
Any Employer which adopts any Adoption Agreement hereunder other than
Adoption Agreements #002 and #005, will no longer be allowed to accept
Employee Contributions for Plan Years beginning after the Plan Year in
which such Adoption Agreement is adopted by the Employer. Employee
Contributions for Plan Years beginning after December 31, 1986,
together with any Matching Contributions, will be limited so as to
meet the nondiscrimination test of Section 401(m) of the Code.
(b) Voluntary Deductible Contributions. The Plan Administrator will not
accept Voluntary Deductible Contributions which are made for taxable
years beginning after December 31, 1986. Voluntary Deductible
Contributions made prior to that date will be maintained in the
Voluntary Deductible Contributions Account which will be
nonforfeitable at all times. That account will share in the Income of
the Trust in the same manner as described in Section 4.03 of the Plan.
No part of the Voluntary Deductible Contributions Account will be used
to purchase life insurance. Subject to Section 6.03, Qualified Joint
and Survivor Annuity requirements (if applicable), the Participant may
withdraw any part of the Voluntary Deductible Contribution Account by
making a written application to the Plan Administrator.
(c) Rollovers. Rollover Contributions by a Participant to the Plan,
including rollovers of accumulated deductible employee contributions
as defined in Section 72(o)(5) of the Code, distributed pursuant to
Sections 402(a)(5), 402(a)(7) and 403(a)(4) of the Code from other
pension, profit sharing or stock bonus plans qualified under Section
401(a) of the Code or pursuant to Section 408(d)(3) of the Code from
Individual Retirement Accounts which have been established as conduits
for such other plan distributions, if allowed by Item 9(b) of the
Adoption Agreement, shall be allowed in cash or other property
acceptable to the Trustee; provided, however, that no portion of any
such Rollover Contribution may be attributable to nondeductible
employee contributions. Rollover Contributions shall be made to the
Rollover Account. Amounts in a Participant's Rollover Account may be
withdrawn at any time as a lump sum, or may be combined with other
benefits due under the Plan and paid in any form which may be allowed
for the payment of such other benefits.
Such rollovers shall be considered neither in determining the maximum
addition which may be made to the Participant's Accounts under Section
4.07 hereof nor as contributions by the Employer under Sections 3.01
or 13.03 hereof.
Section 3.04 Limit on Elective Deferrals. No Participant shall be
permitted to have "Elective Deferrals" made under this Plan, or any other
qualified plan maintained by the Employer, during any taxable year, in excess
of the dollar limitation contained in Section 402(g) of the Code in effect at
the beginning of such taxable year. For purposes of this Section 3.04,
"Elective Deferrals" shall include any employer contributions made to the
plan at the election of the Participant, in lieu of cash compensation, and
shall include contributions made pursuant to a salary reduction agreement or
other deferral mechanism. With respect to any taxable year, a Participant's
Elective Deferral is the sum of all employer contributions made on behalf of
<PAGE>
such Participant pursuant to an election to defer under any qualified cash or
deferred arrangement as described in Code Section 401(k), any simplified
employee pension cash or deferred arrangement as described in Code Section
402(h)(l)(B), any eligible deferred compensation plan under Code Section 457,
any plan as described under Code Section 501(c)(18), and any employer
contributions made on the behalf of a Participant for the purchase of an
annuity contract under Code Section 403(b) pursuant to a salary reduction
agreement.
A Participant may assign to this Plan any "Excess Elective Deferrals" made
during a taxable year of the Participant by notifying the Plan Administrator
on or before the date specified in Item 8(a) of the Adoption Agreement of the
amount of the Excess Elective Deferrals to be assigned to the Plan.
Notwithstanding any other provision of the Plan, Excess Elective Deferrals,
plus any Income allocable thereto, shall be distributed no later than April
15 to any Participant to whose account Excess Elective Deferrals were
assigned for the preceding year and who claims Excess Elective Deferrals for
such taxable year.
"Excess Elective Deferrals" shall mean those Elective Deferrals that are
includible in a Participant's gross income under Section 402(g) of the Code
to the extent such Participant's Elective Deferrals for a taxable year exceed
the dollar limitation under such Code section. Excess Elective Deferrals
shall be treated as Annual Additions, as defined in Section 4.07, under the
Plan.
Excess Elective Deferrals shall be adjusted for any Income up to the date
of distribution. The Income allocable to Excess Elective Deferrals is the
sum of: (i) Income allocable to the Participant's Elective Deferral Account
for the taxable year multiplied by a fraction, the numerator of which is such
Participant's Excess Elective Deferrals for the year and the denominator of
which is the Participant's account balance attributable to Elective Deferrals
without regard to any Income occurring during such taxable year; and (ii) ten
percent (10%) of the amount determined under (i) multiplied by the number of
whole calendar months between the end of the Participant's taxable year and
the date of distribution, counting the month of distribution if distribution
occurs after the fifteenth (15th) of such month.
Section 3.05 Special Discrimination Requirements for Elective Deferral
Contributions (including Qualified Non-elective Contributions and Qualified
Matching Contributions).
(a) Average Deferral Percentage Test. The Average Deferral Percentage
(hereinafter "ADP") for eligible Employees who are Highly Compensated
Employees for each Plan Year and the ADP for eligible Employees who
are Non-highly Compensated Employees for the same Plan Year must
satisfy one of the following tests:
(1) The ADP for eligible Employees who are Highly Compensated
Employees for the Plan Year shall not exceed the ADP for
eligible Employees who are Non-highly Compensated Employees
for the same Plan Year multiplied by one and twenty-five
hundredths (1.25); or
(2) The ADP for eligible Employees who are Highly Compensated
Employees for the Plan Year shall not exceed the ADP for
eligible Employees who are Non-highly Compensated Employees
for the same Plan Year multiplied by two (2), provided that
<PAGE>
the ADP for eligible Employees who are Highly Compensated
Employees does not exceed the ADP for eligible Employees who
are Non-highly Compensated Employees by more than two (2)
percentage points.
"Average Deferral Percentage" shall mean, for a specified group of
eligible Employees for a Plan year, the average of the ratios
(calculated separately for each eligible Employee in such group) of
(i) the amount of Employer contributions actually paid over to the
trust on behalf of such eligible Employee for the Plan Year to (ii)
the eligible Employee's Compensation for such Plan Year (whether or
not the Employee was a Participant for the entire Plan Year).
Notwithstanding the preceding sentence, for Plan Years commencing
prior to the later of January 1, 1992 and the date that is sixty (60)
days after the publication of final regulations the Compensation used
in determining, the Average Deferral Percentage shall be limited to
Compensation received by the Employee for the period in which he is a
Participant, if this method is elected by the Employer in Item 7 of
the Adoption Agreement. Employer contributions on behalf of any
eligible Employee shall include: (1) any Elective Deferral
Contributions made pursuant to the eligible Employee's deferral
election, including Excess Elective Deferrals, but excluding Elective
Deferral Contributions that are taken into account in the Contribution
Percentage test under Section 3.06 (provided the ADP test is satisfied
both with and without exclusion of these Elective Deferral
Contributions); and (2) Qualified Non-elective Contributions and
Qualified Matching Contributions. For purposes of computing Average
Deferral Percentages, a person shall be treated as an eligible
Employee on whose behalf no Elective Deferral Contributions are made
if he would be a Participant, but for the failure to make Elective
Deferral Contributions.
(b) Special Rules.
(1) The ADP for any eligible Employee who is a Highly Compensated
Employee for the Plan Year and who is eligible to have
Elective Deferral Contributions (and Qualified Non-elective
Contributions or Qualified Matching Contributions, or both, if
treated as Elective Deferrals for purposes of the ADP test)
allocated to his Accounts under two (2) or more arrangements
described in Section 401(k) of the Code, that are maintained
by the Employer, shall be determined as if such Elective
Deferral Contributions (and, if applicable, such Qualified
Non-elective Contributions or Qualified Matching
Contributions, or both) were made under a single arrangement.
If a Highly Compensated Employee participates in two (2) or
more cash or deferred arrangements that have different Plan
Years, all cash or deferred arrangements ending with or within
the same calendar year shall be treated as a single
arrangement.
(2) In the event that this Plan satisfies the requirements of
Sections 401(k), 401(a)(4), or 410(b) of the Code only if
aggregated with one or more other plans, or if one or more
other plans satisfy the requirements of such sections of the
Code only if aggregated with this Plan, then this section
shall be applied by determining the ADP of Employees as if all
such plans were a single plan. For Plan Years beginning after
December 31, 1989, plans may be aggregated in order to satisfy
<PAGE>
Section 401(k) of the Code only if they have the same Plan
Year.
(3) For purposes of determining the ADP of an eligible Employee
who is a five percent (5%) owner or one of the ten (10) most
highly-paid Highly Compensated Employees, the Elective
Deferral Contributions (and Qualified Non-elective
Contributions or Qualified Matching Contributions, or both, if
treated as Elective Deferral Contributions for purposes of the
ADP test) and Compensation of such eligible Employee shall
include the Elective Deferral Contributions (and, if
applicable, Qualified Non-elective Contributions and Qualified
Matching Contributions, or both) and Compensation for the Plan
Year of family members (as defined in section 414(q)(6) of the
Code). Family members, with respect to such Highly
Compensated Employees, shall be disregarded as separate
Employees in determining the ADP both for eligible Employees
who are Non-highly Compensated Employees and for eligible
Employees who are Highly Compensated Employees.
(4) For purposes of determining the ADP test, Elective Deferral
Contributions, Qualified Non-elective Contributions and
Qualified Matching Contributions must be made before the last
day of the twelve (12)-month period immediately following the
Plan Year to which contributions relate.
(5) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ADP test and the amount of Qualified Non-
elective Contributions or Qualified Matching Contributions, or
both, used in such test.
(6) The determination and treatment of the ADP amounts of any
eligible Employee shall satisfy such other requirements as may
be prescribed by the Secretary of the Treasury.
(c) Distribution of Excess Contributions. Notwithstanding any other
provision of this Plan, Excess Contributions, plus any Income
allocable thereto, shall be distributed no later than the last day of
each Plan Year to Participants to whose accounts such Excess
Contributions were allocated for the preceding Plan Year. If such
excess amounts are distributed more than two and one-half (2-1/2)
months after the last day of the Plan Year in which such excess
amounts arose, a ten (10) percent excise tax will be imposed on the
Employer maintaining the Plan with respect to such amounts. Such
distributions shall be made to Highly Compensated Employees on the
basis of the respective portions of the Excess Contributions
attributable to each of such employees. Excess Contributions shall be
allocated to Participants who are subject to the family member
aggregation rules of Section 414(q)(6) of the Code in the manner
prescribed by the regulations.
"Excess Contributions" shall mean, with respect to any Plan Year, the
excess of:
(1) The aggregate amount of Employer contributions actually taken
into account in computing the ADP of Highly Compensated
Employees for such Plan Year, over
(2) The maximum amount of such contributions permitted by the ADP
<PAGE>
test (determined by reducing contributions made on behalf of
Highly Compensated Employees in order of the ADPs, beginning
with the highest of such percentages).
Excess Contributions shall be treated as Annual Additions, as defined
in Section 4.07, under the Plan.
(d) Determination of Income. Excess Contributions shall be adjusted for
any Income up to the date of distribution. The Income allocable to
Excess Contributions is the sum of:
(1) Income allocable to the Participant's Elective Deferral
Account (and, if applicable, the Qualified Non-elective
Account or the Qualified Matching Account or both) for the
Plan Year multiplied by a fraction, the numerator of which is
such Participant's Excess Contributions for the year and the
denominator of which is the Participant's account balance
attributable to Elective Deferral Contributions (and Qualified
Non-elective Contributions or Qualified Matching
Contributions, or both, if any of such contributions are
included in the ADP test) without regard to any Income
occurring during such Plan Year; and
(2) ten (10) percent of the amount determined under (1) multiplied
by the number of whole calendar months between the end of the
Plan Year and the date of distribution, counting the month of
distribution if distribution occurs after the fifteenth (15th)
of such month.
(e) Accounting for Excess Contributions. Excess Contributions shall be
distributed from the Participant's Elective Deferral Account and
Qualified Matching Account (if applicable) in proportion to the
Participant's Elective Deferral Contributions and Qualified Matching
Contributions (to the extent used in the ADP test) for the Plan Year.
Excess Contributions shall be distributed from the Participant's
Qualified Non-elective Account only to the extent that such Excess
Contributions exceed the balance in the Participant's Elective
Deferral Account and Qualified Matching Account.
Section 3.06 Special Discrimination Requirements for Employee
Contributions and Matching Contributions (including Qualified Non-elective
Contributions and Qualified Matching Contributions used in the ACP test).
(a) Average Contribution Percentage Test. The Average Contribution
Percentage (hereinafter "ACP") for eligible Employees who are Highly
Compensated Employees for each Plan Year and the ACP for eligible
Employees who are Non-highly Compensated Employees for the same Plan
Year must satisfy one of the following tests:
(1) The ACP for eligible Employees who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP for
eligible Employees who are Non-highly Compensated Employees
for the same Plan Year multiplied by one and twenty-five
hundredths (1.25); or
(2) The ACP for eligible Employees who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP for
eligible Employees who are Non-highly Compensated Employees
for the same Plan Year multiplied by two (2), provided that
<PAGE>
the ACP for eligible Employees who are Highly Compensated
Employees does not exceed the ACP for eligible Employees who
are Non-highly Compensated Employees by more than two (2)
percentage points.
(b) Special Rules.
(1) Multiple Use: If one or more Highly Compensated Employees
participate in both a cash or deferred arrangement and a Plan
subject to the ACP test maintained by the Employer and the sum
of the ADP and ACP of those Highly Compensated Employees
subject to either or both tests exceeds the Aggregate Limit,
then the ACP of those Highly Compensated Employees who also
participate in a cash or deferred arrangement will be reduced
(beginning with such Highly Compensated Employee whose ACP is
the highest) so that the limit is not exceeded. The amount by
which each Highly Compensated Employee's Contribution
Percentage Amounts is reduced shall be treated as an Excess
Aggregate Contribution. The ADP and ACP of the Highly
Compensated Employees are determined after any corrections
required to meet the ADP and ACP tests. Multiple use does not
occur if each of the ADP and ACP of the Highly Compensated
Employees do not exceed 1.25 multiplied by the ADP and ACP,
respectively, of the Non-highly Compensated Employees.
(2) For purposes of this section, the Contribution Percentage for
any eligible Employee who is a Highly Compensated Employee and
who is eligible to have Contribution Percentage Amounts
allocated to his account under two (2) or more plans described
in Section 401(a) of the Code, or arrangements described in
Section 401(k) of the Code that are maintained by the
Employer, shall be determined as if the total of such
Contribution Percentage Amounts was made under each plan. If
a Highly Compensated Employee participates in two (2) or more
cash or deferred arrangements that have different Plan Years,
all cash or deferred arrangements ending with or within the
same calendar year shall be treated as a single arrangement.
(3) In the event that this Plan satisfies the requirements of
Sections 401(m), 401(a)(4) or 410(b) of the Code only if
aggregated with one or more other plans, or if one or more
other plans satisfy the requirements of such sections of the
Code only if aggregated with this Plan, then this section
shall be applied by determining the Contribution Percentage of
Employees as if all such plans were a single plan. For Plan
Years beginning after December 31, 1989, plans may be
aggregated in order to satisfy Section 401(m) of the Code only
if they have the same Plan Year.
(4) For purposes of determining the Contribution Percentage of an
eligible Employee who is a five-percent (5%) owner or one of
the ten (10) most highly-paid Highly Compensated Employees,
the Contribution Percentage Amounts and Compensation of such
eligible Employee shall include the Contribution Percentage
Amounts and Compensation for the Plan Year of family members
(as defined in Section 414(q)(6) of the Code). Family
members, with respect to Highly Compensated Employees, shall
be disregarded as separate employees in determining the
Contribution Percentage both for eligible Employees who are
<PAGE>
Non-highly Compensated Employees and for eligible Employees
who are Highly Compensated Employees.
(5) For purposes of the ACP test, Employee Contributions are
considered to have been made in the Plan Year in which
contributed to the Trust. Payment by the Employee to an agent
of the Plan shall be treated as a contribution to the Trust at
the time of payment to the agent if the funds so paid are
transmitted to the Trust within a reasonable period after the
payment to the agent. Matching Contributions, Qualified
Matching Contributions and Qualified Non-elective
Contributions will be considered made for a Plan Year if made
no later than the end of the twelve (12)-month period
beginning on the day after the close of the Plan Year and
designated for such Plan Year.
(6) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ACP test and the amount of Qualified Non-
elective Contributions or Qualified Matching Contributions, or
both, used in such test.
(7) The determination and treatment of the Contribution Percentage
of any eligible Employee shall satisfy such other requirements
as may be prescribed by the Secretary of the Treasury.
(c) Definitions.
(1) "Aggregate Limit" shall mean the sum of (i) one hundred
twenty-five percent (125%) of the greater of the ADP of the
Non-highly Compensated Employees for the Plan Year or the ACP
of Non-highly Compensated Employees under the Plan subject to
Code Section 401(m) for the Plan Year beginning with or within
the Plan Year and (ii) the lesser of two hundred percent
(200%) or two (2) plus the lesser of such ADP or ACP.
Notwithstanding the foregoing, the determination of the
aggregate limit shall be subject to such further rules and
regulations as may be prescribed by the Secretary of the
Treasury.
(2) "Average Contribution Percentage" shall mean the average of
the Contribution Percentages of the eligible Employees in a
group.
(3) "Contribution Percentage" shall mean the ratio (expressed as a
percentage) of the eligible Employee's Contribution Percentage
Amounts to the eligible Employee's Compensation for the Plan
Year (whether or not the Employee was a Participant for the
entire Plan Year).
Notwithstanding the preceding sentence, for Plan Years
commencing prior to the later of January 1, 1992 and the date
that is sixty (60) days after the publication of final
regulations, the Compensation used in determining the
Contribution Percentage shall be limited to Compensation
received by the Employee for the period in which he is a
Participant, if so elected by the Employer in Item 7 of the
Adoption Agreement.
(4) "Contribution Percentage Amounts" shall mean the sum of the
<PAGE>
Employee Contributions, Matching Contributions, and Qualified
Matching Contributions (to the extent not taken into account
for purposes of the ADP test) made under the Plan on behalf of
the Participant for the Plan Year. Such Contribution
Percentage Amounts shall include Forfeitures of Excess
Aggregate Contributions or Matching Contributions allocated to
the Participant's account which shall be taken into account in
the year in which such Forfeiture is allocated. The Employer
may include Qualified Non-elective Contributions in the
Contribution Percentage Amounts, subject to such requirements
as may be prescribed by the Secretary of the Treasury. The
Employer also may use Elective Deferral Contributions in the
Contribution Percentage Amounts so long as the ADP test is met
before the Elective Deferrals are used in the ACP test and
continues to be met following the exclusion of those Elective
Deferral Contributions that are used to meet the ACP test,
subject to such requirements as may be prescribed by the
Secretary of the Treasury.
(5) "Eligible Employee" shall mean any Employee who is eligible to
make an Employee Contribution, or an Elective Deferral
Contribution (if the Employer takes such contributions into
account in the calculation of the Contribution Percentage), or
to receive a Matching Contribution (including Forfeitures) or
a Qualified Matching Contribution. If an Employee
Contribution is required as a condition of participation in
the Plan, any Employee who would be a Participant in the Plan
if such Employee made such a contribution shall be treated as
an eligible Employee on behalf of whom no Employee
Contributions are made.
(6) "Matching Contribution" for purposes of this section shall
mean an employer contribution made to this or any other
defined contribution plan on behalf of a Participant on
account of an employee contribution made by such Participant,
or on account of a participant's Elective Deferral, under a
plan maintained by the Employer.
(d) Distribution of Excess Aggregate Contributions. Notwithstanding any
other provision of this Plan, Excess Aggregate Contributions, plus any
Income allocable thereto, shall be forfeited, if forfeitable, or if
not forfeitable, distributed no later than the last day of each Plan
Year to Participants to whose accounts such Excess Aggregate
Contributions were allocated for the preceding Plan Year. Excess
Aggregate Contributions shall be allocated to Participants who are
subject to the family member aggregation rules of section 414(q)(6) of
the Code in the manner prescribed by the regulations. If such Excess
Aggregate Contributions are distributed more than two and one-half (2-
1/2) months after the last day of the Plan Year in which such excess
amounts arose, a ten percent (10%) excise tax will be imposed on the
Employer maintaining the Plan with respect to those amounts. Excess
Aggregate Contributions shall be treated as Annual Additions, as
defined in Section 4.07, under the Plan.
"Excess Aggregate Contributions" shall mean, with respect to any Plan
Year, the excess of:
(1) The aggregate Contribution Percentage Amounts taken into
account in computing the numerator of the Contribution
<PAGE>
Percentage actually made on behalf of Highly Compensated
Employees for such Plan Year, over
(2) The maximum Contribution Percentage Amounts permitted by the
ACP test (determined by reducing contributions made on behalf
of Highly Compensated Employees in order of their Contribution
Percentages beginning with the highest of such percentages).
Such determination shall be made after first determining Excess
Elective Deferrals pursuant to Section 3.04 and then determining
Excess Contributions pursuant to Section 3.05.
(e) Determination of Income. Excess Aggregate Contributions shall be
adjusted for any Income up to the date of distribution. The Income
allocable to Excess Aggregate Contributions is the sum of: (i) Income
allocable to the Participant's Employee Contribution Account, Matching
Contribution Account (if any, and if all amounts therein are not used
in the ADP test) and, if applicable, Qualified Non-elective
Contribution Account and Elective Deferral Account for the Plan Year
multiplied by a fraction, the numerator of which is such Participant's
Excess Aggregate Contributions for the year and the denominator of
which is the Participant's account balance(s) attributable to
Contribution Percentage Amounts without regard to any Income occurring
during such Plan Year; and (ii) ten percent (10%) of the amount
determined under (i) multiplied by the number of whole calendar months
between the end of the Plan Year and the date of distribution,
counting the month of distribution if distribution occurs after the
fifteenth (15th) of such month.
(f) Forfeitures of Excess Aggregate Contributions. Forfeitures of Excess
Aggregate Contributions will be applied to reduce Matching
Contributions.
(g) Accounting for Excess Aggregate Contributions. Excess Aggregate
Contributions shall be forfeited, if forfeitable, or distributed on a
pro-rata basis from the Participant's Employee Account, Matching
Account, and Qualified Matching Account (and, if applicable, the
Participant's Qualified Non-elective Account or Elective Deferral
Account, or both).
Section 3.07 Responsibility of Trustee. The Trustee shall have no
responsibility for determining whether any Participant or Employer con-
tribution has been validly authorized or is in an amount permitted by this
article nor whether any Employer contribution is paid within the time
permitted for its deduction as an expense for such Employer.
Section 3.08 Contributions to Target Benefit Plans. If the Plan is a
target benefit pension plan, then the provisions set out in this section
shall apply in addition to the provisions set out in Section 3.01 above.
The Employer's Contribution for each Plan Year with respect to a
Participant for whom a contribution is required shall be that amount which,
if paid on the date as of which the calculation is made and on the
anniversary of such date commencing prior to the Participant's attainment of
his Normal Retirement Age, and if invested at the pre-retirement interest
rate specified in Item 8 of the Adoption Agreement until the end of the Plan
Year during which the Participant attains his Normal Retirement Age, and if
added to the accumulated value (as of the date of the calculation) of
contributions assumed to have been made with respect to prior Plan Years and
<PAGE>
similarly invested, would purchase the Target Annual Retirement Benefit,
where the value of the Target Annual Retirement Benefit as of the end of the
Plan Year during which the Participant attains his Normal Retirement Age is
based on the mortality table and the post-retirement interest rate specified
in Item 8 of the Adoption Agreement.
For purposes of determining Employer Contributions under this Section 3.08
for Plan Years commencing prior to the Plan Year in which the Participant
attains Normal Retirement Age, a contribution in the year in which the
Participant attains Normal Retirement Age will be assumed or not assumed
based on the provisions of Item 12 of the Adoption Agreement, the presumption
that the Participant will terminate employment on his Normal Retirement Date,
and the presumption of a forty (40) hour work week.
In the event that a change in the Compensation of a Participant or in the
actuarial assumptions used in the Plan causes the Participant's Target Annual
Retirement Benefit to differ from that in the last preceding Plan Year, the
increase or decrease in the Employer's Contribution on behalf of such
Participant shall be the amount which, if contributed on the date as of which
the calculation is made and on each anniversary of such date until the end of
the Plan Year during which the Participant attains his Normal Retirement Age,
would accumulate to the value (computed as described in the immediately
preceding paragraph) of the increase or decrease in the Target Annual
Retirement Benefit. If a former Participant reenters the Plan following a
Break in Service, the Employer shall annually contribute an Employer
Contribution on behalf of such Participant an amount which equals (i) the
amount it was contributing on behalf of such Participant prior to the Break
in Service, plus (ii) the amount attributable to changes in the Target Annual
Retirement Benefit due to changes in Compensation and actuarial assumptions
used in the Plan following such Break in Service.
Employer Contributions shall be determined under the individual level
premium funding method using the following factor tables unless a mortality
table other than the UP-1984 Mortality Table is elected in Item 8 of the
Adoption Agreement, in which case the "Assumed Price of One Dollar ($1.00) of
Monthly Benefit" shall be based on the mortality table elected:
ACCUMULATION OF ONE DOLLAR ($1.00) PER YEAR
Number Pre-Retirement Interest Rate
of Years 5% 5 1/2% 6%
1 1.050 1.055 1.060
2 2.153 2.168 2.184
3 3.310 3.342 3.375
4 4.526 4.581 4.637
5 5.802 5.888 5.975
6 7.142 7.267 7.394
7 8.549 8.722 8.897
8 10.027 10.256 10.491
9 11.578 11.875 12.181
10 13.207 13.583 13.972
11 14.917 15.386 15.870
12 16.713 17.287 17.882
13 18.599 19.293 20.015
14 20.579 21.409 22.276
15 22.657 23.641 24.673
16 24.840 25.996 27.213
17 27.132 28.481 29.906
<PAGE>
18 29.539 31.103 32.760
19 32.066 33.868 35.786
20 34.719 36.786 38.993
21 37.505 39.864 42.392
22 40.430 43.112 45.996
23 43.502 46.538 49.816
24 46.727 50.153 53.865
25 50.113 53.966 58.156
26 53.669 57.989 62.706
27 57.403 62.234 67.528
28 61.323 66.711 72.640
29 65.439 71.435 78.058
30 69.761 76.419 83.802
31 74.299 81.677 89.890
32 79.064 87.225 96.343
33 84.067 93.077 103.184
34 89.320 99.251 110.435
35 94.836 105.765 118.121
36 100.628 112.637 126.268
37 106.710 119.887 134.904
38 113.095 127.536 144.058
39 119.800 135.606 153.762
40 126.840 144.119 164.048
41 134.232 153.100 174.951
42 141.993 162.576 186.508
43 150.143 172.573 198.758
44 158.700 183.119 211.744
45 167.685 194.246 225.508
46 177.119 205.984 240.099
47 187.025 218.368 255.565
48 197.427 231.434 271.958
49 208.348 245.217 289.336
50 219.815 259.759 307.756
51 231.856 275.101 327.281
52 244.499 291.287 347.978
53 257.774 308.363 369.917
54 271.713 326.377 393.172
55 286.348 345.383 417.822
56 301.716 365.434 443.952
57 317.851 386.588 471.649
58 334.794 408.906 501.008
59 352.584 432.450 532.128
60 371.263 457.290 565.116
ASSUMED PRICE OF ONE DOLLAR ($1.00) OF MONTHLY BENEFIT
Normal
Retirement Post-Retirement Interest Rate
Age 5% 5 1/2% 6%
55 154.431 147.407 140.927
56 151.244 144.407 138.291
57 147.997 141.554 135.592
58 144.696 138.540 132.833
59 141.347 135.475 130.021
60 137.948 132.354 127.150
61 134.503 129.183 124.227
62 131.020 125.970 121.256
63 127.509 122.721 118.246
64 123.979 119.448 115.207
<PAGE>
65 120.436 116.156 112.143
66 116.895 112.858 109.066
67 113.363 109.567 105.990
68 109.853 106.279 102.912
69 106.334 102.982 99.818
70 102.800 99.661 96.694
71 99.254 96.323 93.547
72 95.704 92.972 90.381
73 92.155 89.616 87.203
74 88.627 86.271 84.030
75 85.129 82.949 80.871
76 81.673 79.659 77.738
77 78.272 76.416 74.642
78 74.939 73.233 71.599
79 71.657 70.091 68.589
80 68.433 67.000 65.624
81 65.281 63.973 62.714
82 62.214 61.022 59.874
83 59.228 58.144 57.099
84 56.312 55.330 54.382
Notwithstanding the provisions of the first paragraph of Section 6.01
hereof, for Plan Years commencing prior to January 1, 1988 the Employer shall
not make contributions on behalf of a Participant under this section after
the Plan Year in which the Participant attains his Normal Retirement Age,
except for contributions required under Section 13.03 hereof in Plan Years in
which the Plan is a Top Heavy Plan. However, for Plan Years commencing after
December 31, 1987, or such later date as the Employer may elect, the Employer
shall make contributions on behalf of a Participant under this section after
the Plan Year in which the Participant attains his Normal Retirement Age if
so elected pursuant to Item 8 of the Adoption Agreement.
If pursuant to Item 12 of the Adoption Agreement a Participant is entitled
to have an Employer Contribution made on his behalf for the Plan Year in
which he terminates Service, the amount of such Employer Contribution shall
be reduced on a pro-rata basis for the number of calendar months during such
Plan Year beginning with the first calendar month in which the Participant
terminates Service and each calendar month thereafter.
ARTICLE 4
ALLOCATION OF TRUST FUNDS AND PARTICIPANTS' ACCOUNTS
Section 4.01 Allocation of Employer Contributions. Except as may be
otherwise provided herein, on each Valuation Date, other than an interim
valuation date specified pursuant to Section 4.09 hereof, Employer
contributions shall be allocated as specified in Items 11 and 12 of the
Adoption Agreement.
(a) Elective Deferral Contributions. As of each Valuation Date (including
interim valuation dates specified pursuant to Section 4.09 hereof) the
Elective Deferral Contributions with respect to a Participant for the
period since the preceding Valuation Date shall be credited to the
Participant's Elective Deferral Account.
(b) Matching Contributions. As of each Valuation Date (including interim
valuation dates if elected in Item 8(b)(iii) of the Adoption
Agreement), there shall be credited to the Matching Account of each
<PAGE>
eligible Participant his allocable share of the Matching Contribution
as provided in Item 8(b) of the Adoption Agreement. The determination
of which Participants are eligible to share in the Matching
Contribution shall be in accordance with Item 8(b) of the Adoption
Agreement.
(c) Employer Contributions.
(1) If the Plan is a profit sharing plan, then any Employer
Contributions (and Forfeitures, if to be allocated in the same
manner as Employer Contributions pursuant to Item 8 of the
Adoption Agreement) to the Plan for the Plan Year ending on
such Valuation Date shall be allocated to the Employer Account
of each Participant who completed the required amount of
Service during the Plan Year and who is still in Service on
the Valuation Date. Participants who complete the required
amount of Service during a Plan Year but who are no longer in
Service on the Valuation Date at the end of the Plan Year,
shall be included in or excluded from the allocation on such
Valuation Date according to the election made by the Employer
in Item 12 of the Adoption Agreement. Participants who die,
become disabled or retire during the Plan Year shall be
included in or excluded from the allocation on the Valuation
Date at the end of the Plan Year according to the election
made by the Employer in Item 12 of the Adoption Agreement.
(i) Required Service - Hours Counting Method. For purposes
of non-standardized plans and, for Plan Years commencing
prior to January 1, 1990, standardized plans, if the
Plan counts Hours of Service pursuant to Item 6 of the
Adoption Agreement then the Participant shall be
required to complete at least one thousand (1000) Hours
of Service during the Plan Year in order to have an
Employer Contribution made on his behalf. However, in
the event that a Plan Year is of less than twelve (12)
months duration (as described in Section 1.49), then the
requirement for completion of one thousand (1,000) Hours
of Service shall be reduced pro rata, based on the
length of such Plan Year.
For purposes of standardized plans for Plan Years
commencing after December 31, 1989, if the Plan counts
Hours of Service pursuant to Item 6 of the Adoption
Agreement then the participant shall be required to
complete at least one (1) Hour of Service during the
Plan Year in order to have an Employer Contribution made
on his behalf.
(ii) Required Service - Elapsed Time Method. If the Plan
uses the "elapsed time" method pursuant to Item 6 of the
Adoption Agreement, then the Participant shall be
required to perform an Hour of Service during the Plan
Year in order to have an Employer Contribution made on
his behalf.
(2) If the Plan is a money purchase pension plan or a target
benefit pension plan, then any Employer Contributions (and, as
to money purchase pension plans, Forfeitures, if to be
allocated in the same manner as Employer Contributions
<PAGE>
pursuant to Item 8 of the Adoption Agreement) to the Plan for
the Plan Year ending on such Valuation Date shall be allocated
on the same basis as the computation described in the
provisions of Section 3.01 and in Item 8 of the Adoption
Agreement.
(3) If the Plan is a profit sharing plan integrated with Social
Security, then for Plan Years commencing after December 31,
1988, the allocation of Employer Contributions (and
Forfeitures, if to be allocated in the same manner as Employer
contributions pursuant to Item 8 of the Adoption Agreement)
shall be made as follows:
(i) First, Employer Contributions (and Forfeitures, if to be
allocated) shall be allocated to each eligible
Participant in the proportion which the sum of his
Compensation and his Compensation in excess of the
integration break-point selected in Item 11(b)(1) of the
Adoption Agreement bears to the total sum of the
Compensation and the Compensation in excess of said
integration break-point, paid to all eligible
Participants; provided, however, that no Employee shall
receive under this stage of the allocation a higher
percentage of the sum of his Compensation and his excess
Compensation than the percentage specified in Item
11(b)(2) of the Adoption Agreement.
(ii) Second, the remaining amount to be allocated shall be
allocated to each eligible Participant in the proportion
which his Compensation bears to the total Compensation
of all eligible Participants.
If the Plan is a profit sharing plan not integrated with
Social Security, then for Plan Years commencing after December
31, 1988 the allocation of Employer contributions (and
Forfeitures, if to be allocated in the same manner as Employer
contributions pursuant to Item 8 of the Adoption Agreement)
shall be performed as described in Item 11(a) of the Adoption
Agreement.
(4) If the Plan is a profit sharing plan or a money purchase
pension plan (other than a target benefit plan) integrated
with Social Security, and if an Employee's entry date for
participation in the Plan is not the Anniversary Date, then
the integration break-point with respect to the Participant's
Compensation selected in the Adoption Agreement shall, if so
indicated by the Employer in its Adoption Agreement, be
prorated in the ratio that the length of the Participant's
participation in the Plan that Plan Year bears to the length
of that entire Plan Year; proration of the integration break-
point shall not be made for Participants whose Service
terminates during the Plan Year. If a Plan Year is of less
than twelve (12) months' duration, then the integration break-
point for the Plan Year shall be prorated in the ratio which
the number of full months in the Plan Year bears to twelve
(12).
(d) Qualified Non-elective Contributions. As of each Valuation Date,
there shall be credited to the Qualified Non-elective Account of each
<PAGE>
eligible Participant (as provided in Item 8(c) of the Adoption
Agreement) his allocable share of the Qualified Non-elective
Contributions for the Plan Year.
(e) Qualified Matching Contributions. As of each Valuation Date, there
shall be credited to the Qualified Matching Account of each eligible
Participant his allocable share of the Qualified Matching Contribution
as provided in Item 8(d) of the Adoption Agreement. The determination
of which Participants are eligible to share in the Qualified Matching
Contribution shall be in accordance with Item 8(d) of the Adoption
Agreement.
(f) Special Sub-accounts. For Plan Years beginning before January 1,
1985, if a Participant incurs a Break in Service, or for Plan Years
beginning after December 31, 1984, if a Participant incurs five (5)
consecutive Breaks in Service, but later accrues benefits related to
Employer Contributions or Matching Contributions, then separate
bookkeeping subaccounts shall be established under the Employer
Account and Matching Account, as applicable, with respect to the
Participant's pre-break and post-break benefits related to Employer
Contributions and Matching Contributions.
Section 4.02 Forfeitures. If the Plan is a profit sharing plan or a money
purchase pension plan, Forfeitures becoming available for allocation under
the terms of Sections 5.01 and 8.03 hereof shall be re-allocated or applied
in the same manner as Employer Contributions described in the provisions of
Section 4.01 hereof or, alternatively, shall be used to reduce Employer
contributions for the Plan Year, as selected in Item 8 of the Adoption
Agreement.
If the Plan is a target benefit pension plan, Forfeitures becoming
available under the terms of Section 5.01 and 8.03 shall be credited against
Employer Contributions otherwise due as described in the provisions of that
section concerning such pension plans. Forfeitures arising under target
benefit pension plans shall only be used to reduce the contributions of the
Employer which adopted this Plan, subject to Section 4.08 hereof.
Section 4.03Allocation of Income. On each Valuation Date (including
interim valuation dates specified pursuant to Section 4.09 hereof), the
Income to the Trust Fund during the period since the immediately preceding
Valuation Date shall be computed and shall be allocated to the Accounts of
all Participants on the Valuation Date. Each of such Participant's accounts
shall share in this allocation of Income in the proportion that the balance
in such accounts bears to the total of the balances in the accounts of all
such Participants. For purposes of this section, the balance in an account
shall mean:
(a) the value of the account as of the preceding Valuation Date,
plus (b) one-half (1/2) of the amount of Employee Contributions and
Elective Deferral Contributions contributed to the account
since the preceding Valuation Date (except as otherwise
provided in Item 9 of the Adoption Agreement or as provided if
an alternative method is selected as otherwise allowed in this
Section 4.03)
minus (c) any withdrawals (including benefit payments, Forfeitures and
payments as described in Section 4.05 hereof, including
amounts used to pay insurance premiums) since the preceding
<PAGE>
Valuation Date,
but not less than zero (0). Alternatively, if approved by the Plan
Administrator, Income may be allocated in any equitable, uniform and
nondiscriminatory manner which is selected for the purpose of recognizing the
timing of contributions, withdrawals, distributions, transfers, Participant
or Employer directed investments or other temporal events affecting account
value as adjustments to account balances.
For purposes of this section only, the term "Participants" shall include
Separated Participants, Retired Participants and Employees who have account
balances but who would not be considered to be Participants because they made
no contributions to the Plan. The accounts on which this allocation of
Income is based shall not include amounts segregated pursuant to Sections
4.11 and 6.03(a) hereof or Item 9 of the Adoption Agreement, nor the value of
any insurance policies held in the Trust Fund.
Section 4.04No Vested Rights to Assets. The fact that allocations shall be
made and credited to the Accounts of a Participant shall not vest in such
Participant any right, title or interest in any assets of the Trust, except
at the time or times and upon the terms and conditions expressly set forth in
the Plan.
Section 4.05 Payments. Each Participant's Accounts shall be charged with
any payments made by the Trustee to or for the account of such Participant or
any Beneficiary of such Participant.
Section 4.06 Adjustment to Accounts. As soon as practicable after each
Valuation Date, the value of each of the Participant's accounts shall be
determined by the Plan Administrator (or its agent). Each account shall be
equal to the value of such account as of the last Valuation Date,
(a) plus (as applicable to such account) any credit or allocation of
contributions, any allocation of Forfeitures, any allocation of
Income, and any account credits from insurance contracts, since the
last Valuation Date,
(b) minus (as applicable to such account) any payment (including insurance
contract premiums paid or accrued), withdrawal or Forfeiture from the
account since the last Valuation Date.
Section 4.07 Limitation on Allocations
(a) (1) If the Participant does not participate in, and has never
participated in, another qualified plan or a welfare benefit
fund, as defined in Section 419(e) of the Code, maintained by
the Employer, or an individual medical account, as defined in
Section 415(l)(2) of the Code, maintained by the Employer,
which provides an Annual Addition, the amount of Annual
Additions which may be credited to the Participant's Accounts
for any Limitation Year shall not exceed the lesser of the
Maximum Permissible Amount or any other limitation contained
in this Plan. If the Employer contribution that would
otherwise be contributed or allocated to the Participant's
Accounts would cause the Annual Additions for the Limitation
Year to exceed the Maximum Permissible Amount, the amount
contributed or allocated shall be reduced so that the Annual
Additions for the Limitation Year shall equal the Maximum
Permissible Amount. If the Plan provides for the allocation
<PAGE>
of Forfeitures in the same manner as Employer Contributions or
Matching Contributions, then the amount reflecting this
reduction shall be allocated and reallocated to other
Participant accounts in accordance with the Plan formula for
allocating Employer contributions and Forfeitures to the
extent that such allocations do not cause the Annual Additions
to any such Participants' accounts to exceed the lesser of the
Maximum Permissible Amount or any other limitation provided in
the Plan.
(2) Prior to determining the Participant's actual Compensation for
the Limitation Year, the Employer may determine the Maximum
Permissible Amount for a Participant on the basis of a
reasonable estimation of the Participant's Compensation for
the Limitation Year, uniformly determined for all Participants
similarly situated.
(3) As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for the
Limitation Year shall be determined on the basis of the
Participant's actual Compensation for the Limitation Year.
(4) If, as a result of a reasonable error in estimating the
Participant's actual Compensation, the allocation of
Forfeitures or other facts and circumstances allowed by
regulation, there is an Excess Amount, then such excess shall
be disposed of as follows:
(i) any Employee Contributions, to the extent they would
reduce the Excess Amount, shall be returned to the
Participant (the consent of the Participant or the
Participant's Spouse shall not be required to make this
distribution);
(ii) if after the application of paragraph (i) an Excess
Amount still exists, and the Participant is covered by
the Plan at the end of the Limitation Year, then any
remaining Excess Amount in the Participant's Accounts
shall be used to reduce Employer contributions
(including any allocation of Forfeitures) for such
Participant in the next Limitation Year, and each
succeeding Limitation Year if necessary;
(iii) if after the application of paragraph (i) an Excess
Amount still exists, and the Participant is not covered
by the Plan at the end of a Limitation Year, then the
Excess Amount shall be held unallocated in a suspense
account which shall be applied to reduce future Employer
contributions (including any allocation of Forfeitures)
for all remaining Participants in the next Limitation
Year, and each succeeding Limitation Year if necessary;
and
(iv) if a suspense account is in existence at any time during
a Limitation Year pursuant to this section, then it
shall not participate in the allocation of the Trust's
investment gains and losses. If a suspense account is
in existence at any time during a particular Limitation
Year, all amounts in the suspense account must be
<PAGE>
allocated and reallocated to Participants' accounts
before any employer contributions or any employee
contributions may be made to the plan for that
Limitation Year. Excess amounts may not be distributed
to Participants or former Participants.
(b) (1) This subsection applies if, in addition to this Plan, the
Participant is covered under another qualified defined
contribution Regional Prototype Plan maintained by the
Employer, a welfare benefit fund, as defined in Section 419(e)
of the Code, maintained by the Employer, or an individual
medical account, as defined in Section 415(1)(2) of the Code,
maintained by the Employer, which provides an Annual Addition,
during any Limitation Year. The Annual Additions which may be
credited to a Participant's Accounts under this Plan for any
such Limitation Year shall not exceed the Maximum Permissible
Amount reduced by the Annual Additions credited to a
Participant's accounts under the other plans and welfare
benefit funds for the same Limitation Year. If the Annual
Additions with respect to the Participant under other defined
contribution plans and welfare benefit funds maintained by the
Employer are less than the Maximum Permissible Amount and the
Employer contribution that would otherwise be contributed or
allocated to the Participant's Account under this Plan would
cause the Annual Additions for the Limitation Year to exceed
this limitation, then the amount contributed or allocated
shall be reduced so that the Annual Additions under all such
plans and funds for the Limitation Year shall equal the
Maximum Permissible Amount. If the Plan provides for the
allocation of Forfeitures in the same manner as Employer
Contributions or Matching Contributions, then the amount
reflecting this reduction shall be allocated and reallocated
to other Participant Accounts in accordance with the Plan
formula for allocating Employer contributions and Forfeitures
to the extent that such allocations do not cause the Annual
Additions to any such Participants' Accounts to exceed the
lesser of the Maximum Permissible Amount or any other
limitation provided in the Plan. If the Annual Additions with
respect to the Participant under other defined contribution
plans and welfare benefit funds in the aggregate are equal to
or greater than the Maximum Permissible Amount, then no amount
shall be contributed or allocated to the Participant's
Accounts under this Plan for the Limitation Year.
(2) Prior to determining the Participant's actual Compensation for
the Limitation Year, the Employer may determine the Maximum
Permissible Amount for a Participant in the manner described
in subsection 4.07(a)(2) hereof.
(3) As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for the
Limitation Year shall be determined on the basis of the
Participant's actual Compensation for the Limitation Year.
(4) If, pursuant to subsection 4.07(b)(3) or as a result of the
allocation of Forfeitures, a Participant's Annual Additions
under this Plan and such other plans would result in an Excess
Amount for a Limitation Year, the Excess Amount shall be
deemed to consist of the Annual Additions last allocated;
<PAGE>
except that Annual Additions attributable to a welfare benefit
fund or individual medical account shall be deemed to have
been allocated first regardless of the actual allocation date.
(5) If an Excess Amount was allocated to a Participant on an
allocation date of this Plan which coincides with an
allocation date of another plan, the Excess Amount attributed
to this Plan shall be the product of
(i) the total Excess Amount allocated as of such date, times
(ii) the ratio of (i) the Annual Additions allocated to the
Participant for the Limitation Year as of such date
under this Plan to (ii) the total Annual Additions
allocated to the Participant for the Limitation Year as
of such date under this and all the other qualified
Regional Prototype defined contribution plans.
(6) Any Excess Amount attributed to this Plan shall be disposed of
in the manner described in subsection 4.07(a)(4).
(c) If the Participant is covered under another qualified defined
contribution plan maintained by the Employer which is not a Regional
Prototype Plan, Annual Additions which may be credited to the
Participant's Account under this Plan for any Limitation Year shall be
limited in accordance with subsections 4.07(b)(1) through 4.07(b)(6)
as though the other plan were a Regional Prototype Plan unless the
Employer provides other limitations in Item 21 of the Adoption
Agreement.
(d) If the Employer maintains, or at any time maintained, a qualified
defined benefit plan covering any Participant in this Plan, the sum of
the Participant's Defined Benefit Fraction and Defined Contribution
Fraction shall not exceed one (1.0) in any Limitation Year. The
Annual Additions which may be credited to the Participant's account
under the Plan for any Limitation Year shall be limited in accordance
with Item 21 of the Adoption Agreement.
(e) For purposes of this section and Articles 13 and 14 hereof, together
with Items 20 and 21 of the Adoption Agreement, the following terms
shall be defined as follows:
(1) "Annual Additions" shall mean the sum of the following amounts
credited to a Participant's Account for the Limitation Year:
(i) Employer contributions;
(ii) Employee Contributions; and
(iii) Forfeitures.
In addition, amounts allocated after March 31, 1984, to an
individual medical account, as defined in Section 415(l)(2) of
the Code, which is a part of a pension or annuity plan
maintained by the Employer shall be treated as Annual
Additions to a qualified defined contribution plan.
Furthermore, amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years ending after
such date, which are attributable to post-retirement medical
<PAGE>
benefits allocated to the separate account of a Key Employee,
as that term is defined in Section 13.02(c) hereof, and
pursuant to Section 419A(d)(3) of the Code under a welfare
benefit fund, as defined in Section 419(e) of the Code,
maintained by the Employer shall be treated as Annual
Additions to a qualified defined contribution plan.
For this purpose, any Excess Amount applied under subsections
(a)(4) and (b)(6) in the Limitation Year to reduce Employer
contributions shall be considered Annual Additions for such
Limitation Year.
(2) "Compensation" shall mean compensation as defined in (i) or
(ii), as elected in Item 7 of the Adoption Agreement.
(i) If Item 7(a)(1) is elected in the Adoption Agreement,
Compensation shall mean W-2 Earnings.
(ii) If Item 7(a)(2) is elected, Compensation shall mean a
Participant's earned income, wages, salaries, and fees
for professional services and other amounts received for
personal services actually rendered in the course of
employment with the Employer maintaining the Plan
(including, but not limited to, commissions paid
salesmen, compensation for services on the basis of a
percentage of profits, commissions on insurance
premiums, tips and bonuses, fringe benefits,
reimbursements, and expense allowances), and excluding
the following:
(A) Employer contributions to a plan of deferred
compensation which are not includible in the
Employee's gross income for the taxable year in
which contributed, or Employer contributions under
a simplified employee pension plan to the extent
such contributions are deductible by the Employee,
or any distributions from a plan of deferred
compensation;
(B) amounts realized from the exercise of a non-
qualified stock option, or when restricted stock
(or property) held by the Employee either becomes
freely transferable or is no longer subject to a
substantial risk of forfeiture;
(C) amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified
stock option; and
(D) other amounts which received special tax benefits,
or contributions made by the Employer (whether or
not under a salary reduction agreement) towards
the purchase of an annuity described in Section
403(b) of the Code (whether or not the amounts are
actually excludable from the gross income of the
Employee).
For purposes of applying the limitations of this article,
Compensation for a Limitation Year is the Compensation
<PAGE>
actually paid or includible in gross income during such year.
(3) "Defined Benefit Fraction" shall mean a fraction, the
numerator of which is the sum of the Participant's projected
annual benefits under all the defined benefit plans (whether
or not terminated) maintained by the Employer, and the
denominator of which is the lesser of one hundred twenty-five
percent (125%) of the dollar limitation determined for the
Limitation Year under Section 415(b) and (d) of the Code or
one hundred forty percent (140%) of the highest average
Compensation which may be taken into account under Section
415(b)(1)(B) with respect to an individual under the plan,
including any adjustments under Section 415(b) of the Code.
Notwithstanding the above, if the Participant was a
Participant as of the first day of the first Limitation Year
beginning after December 31, 1986, in one (1) or more defined
benefit plans maintained by the Employer which were in
existence on May 6, 1986, the denominator of this fraction
shall not be less than one hundred twenty-five percent (125%)
of the sum of the annual benefits under such plans which the
Participant had accrued as of the close of the last Limitation
Year beginning before January 1, 1987, disregarding any
changes in the terms and conditions of the Plan after May 5,
1986. The preceding sentence applies only if the defined
benefit plans individually and in the aggregate satisfied the
requirements of Code Section 415 for all Limitation Years
beginning before January 1, 1987.
(4) "Defined Contribution Dollar Limitation" shall mean $30,000 or
if greater, one-fourth of the defined benefit dollar
limitation set forth in Section 415(b)(1) of the Code as in
effect for the Limitation Year.
(5) "Defined Contribution Fraction" shall mean a fraction, the
numerator of which is the sum of the Annual Additions to the
Participant's Accounts under all the defined contribution
plans (whether or not terminated) maintained by the Employer
for the current and all prior Limitation Years, (including the
Annual Additions attributable to the Participant's
nondeductible Employee contributions to all defined benefit
plans, whether or not terminated, maintained by the Employer,
and the Annual Additions attributable to all welfare benefits
funds, as defined in Section 419(e) of the Code, and
individual medical accounts, as defined in Section 415(1)(2)
of the Code, maintained by the Employer), and the denominator
of which is the sum of the maximum aggregate amounts for the
current and all prior Limitation Years of service with the
Employer (regardless of whether a defined contribution plan
was maintained by the Employer). For purposes hereof, the
maximum aggregate amount in any Limitation Year is the lesser
of one hundred twenty-five percent (125%) of the dollar
limitation determined under sections 415(b) and (d) of the
Code in effect under Section 415(c)(1)(A) of the Code or
thirty-five percent (35%) of the Participant's Compensation
for such year.
If the Employee was a Participant as of the end of the first
day of the first Limitation Year beginning after December 31,
<PAGE>
1986, in one (1) or more defined contribution plans maintained
by the Employer which were in existence on May 6, 1986, the
numerator of this fraction shall be adjusted if the sum of
this fraction and the Defined Benefit Fraction would otherwise
exceed one (1.0) under the terms of this Plan. Under the
adjustment, an amount equal to the product of (i) the excess
of the sum of the fractions over one (1.0) times (ii) the
denominator of this fraction, shall be permanently subtracted
from the numerator of this fraction. The adjustment is
calculated using the fractions as they would be computed as of
the end of the last Limitation Year beginning before January
1, 1987, and disregarding any changes in the terms and
conditions of the Plan made after May 5, 1986, but using the
Code Section 415 limitation applicable to the first Limitation
Year beginning on or after January 1, 1987.
The Annual Addition for any Limitation Year beginning before
January 1, 1987, shall not be recomputed to treat all Employee
contributions as Annual Additions.
(6) "Employer" shall mean the Employer that adopts this Plan, and
all members of a Controlled Group (within the meaning of that
term as modified by Section 415(h) of the Code) of which the
Employer is a member.
(7) "Excess Amount" shall mean the excess of the Participant's
Annual Additions for the Limitation Year over the Maximum
Permissible Amount.
(8) "Highest Average Compensation" shall mean the average
Compensation for the three (3) consecutive Years of Service
with the Employer that produces the highest average. A Year
of Service with the Employer is the twelve (12) consecutive
month period defined in Section 1.75 or, in another qualified
defined contribution plan being considered hereunder, that
twelve (12) consecutive month period defined therein for
purposes of determining the accrual of benefits. For purposes
of any qualified defined benefit pension plan being considered
hereunder, a Year of Service shall mean the twelve (12)
consecutive month period defined therein for purposes of
determining the accrual of benefits.
(9) "Limitation Year" shall mean a calendar year, or the twelve
(12) consecutive month period ending on the date elected by
the Employer in Item 1(d) of the Adoption Agreement. All
qualified plans maintained by the Employer must use the same
Limitation Year. If the Limitation Year is amended to a
different twelve (12) consecutive month period, then the new
Limitation Year shall begin on a date within the Limitation
Year in which the amendment is made.
(10) "Maximum Permissible Amount" shall mean the maximum Annual
Addition that may be contributed or allocated to a
Participant's Account under the Plan for any Limitation Year
and shall not exceed the lesser of:
(i) the Defined Contribution Dollar Limitation, or
(ii) twenty-five percent (25%) of the Participant's
<PAGE>
Compensation for the Limitation Year.
The Compensation limitation referred to in (ii) shall not
apply to any contribution for medical benefits (within the
meaning of Section 401(h) or Section 419A(f)(2) of the Code)
which is otherwise treated as an Annual Addition under section
415(l)(1) or 419A(d)(2) of the Code.
If a short Limitation Year is created because of an amendment
changing the Limitation Year to a different twelve (12)
consecutive month period, then the Maximum Permissible Amount
shall not exceed the Defined Contribution Dollar Limitation
multiplied by the following fraction:
number of months in the short Limitation Year
---------------------------------------------
twelve (12)
(11) "Projected Annual Benefit" shall mean the annual retirement
benefit (adjusted to an actuarially equivalent straight life
annuity if such benefit is expressed in a form other than a
straight life annuity or Qualified Joint and Survivor Annuity)
to which the Participant would be entitled under the terms of
the plan assuming:
(i) the Participant shall continue employment until Normal
Retirement Age under the plan (or current age, if
later), and
(ii) the Participant's Compensation for the current
Limitation Year and all other relevant factors used to
determine benefits under the plan shall remain constant
for all future Limitation Years.
(12) "Regional Prototype Plan" shall mean a plan the form of which
is the subject of a favorable notification letter from the
Internal Revenue Service.
(13) "W-2 Earnings" shall be defined in accordance with (i) or
(ii), as determined by the Plan Administrator on a uniform
basis.
(i) shall mean wages as defined in Code Section 3121(a), for
purposes of calculating social security taxes, but
determined without regard to the wage base limitation in
Code Section 3121(a)(1), the special rules in Code
Section 3121(v) (applicable to certain elective contri-
butions and nonqualified deferred compensation), any
rules that limit covered employment based on the type or
location of an employee's employer, and any rules that
limit the remuneration included in wages based on
familial relationship or based on the nature or location
of the employment or the services performed (such as the
exceptions to the definition of employment in Code
Section 3121(b)(1) through (20)).
(ii) shall mean wages as defined in Code Section 3401(a) for
purposes of income tax withholding at the source but
determined without regard to any rules that limit the
<PAGE>
remuneration included in wages based on the nature or
location of the employment or the services performed
(such as the exception for agricultural labor in Code
Section 3401(a)(2)).
Section 4.08 Controlled Group and Affiliated Employer Contributions and
Forfeitures. In the event that two (2) or more members of a Controlled Group
establish a Plan by adopting this Plan, each member of the Controlled Group
shall or shall not be considered to be a separate Employer for purposes of
allocating Employer contributions and Forfeitures, as provided in Item 24 of
the Adoption Agreements; provided, however, that a single Trust Fund may be
used for the investment of the funds of the Plan.
If an Adopting Employer is affiliated with another Adopting Employer only
for purposes of sponsoring this Plan, but such are not members of a
Controlled Group, then for purposes of allocating Employer contributions and
Forfeitures, such Employers shall be considered to be separate Employers;
provided, however, that a single Trust Fund may be used for the investment of
the funds of the Plan.
Section 4.09 Interim Valuations. Notwithstanding anything to the contrary
expressed or implied herein, the Plan Administrator may direct a special
Valuation Date. Such special Valuation Date shall be deemed equivalent to a
regular Valuation Date. Interim valuations, if any, shall be made on a
nondiscriminatory and uniform basis.
Section 4.10 Insurance Premiums on Separated Participants. In the event
that the Trustee, as directed by the Plan Administrator, pays insurance
premiums during a Plan Year on behalf of a Participant who subsequently
terminates his Service during such Plan Year, and at the following Valuation
Date the Separated Participant's Employer Account includes less than the
amount of the insurance premiums paid, then the amount of such deficiency
shall be allocated to the Employer Account of the Separated Participant.
This special allocation shall be made from Employer contribution or from
Forfeitures for the Plan Year, or from both, and only the remainder of such
Employer contribution or Forfeitures shall be allocated pursuant to the terms
of Sections 4.01 and 4.02 hereof.
Section 4.11 Election of Segregated Account. In its sole discretion, the
Plan Administrator may make available to all Participants, on a uniform and
non-discriminatory basis, a segregated account election.
Subject to approval by the Plan Administrator, any Participant may elect to
have his Accounts invested in a segregated account. Such segregated account
shall remain a part of the Trust Fund, but shall be separately invested in
certificates of deposit, money market certificates, collective investment
trusts, other short-term debt security instruments or any other investments
acceptable to the Trustee, with all investment income on such investments
credited to the segregated account and all disbursements to, or on behalf of,
the Participant charged thereto.
A Participant may make the election provided for under this section only
once; such election shall become effective on the first (1st) day of the Plan
Year immediately following the date of the election, shall be irrevocable for
a five (5) year period unless a revocation is permitted by the Trustee and
shall be effective for all contributions made or allocated on behalf of the
Participant during the term of the election. The Participant's election
shall be effective for the entire amount of any of his Accounts with respect
to which the election is made.
<PAGE>
The form and manner of such election shall be prescribed by the Plan
Administrator.
Section 4.12 Nondiscrimination Fail-Safe Provision. Notwithstanding
anything to the contrary expressed or implied herein, the allocation to
Highly Compensated Employees in any Plan Year shall not exceed the maximum
amount allowed pursuant to Code Section 401(a)(4) and Code Section
401(a)(26).
ARTICLE 5
WITHDRAWALS AND LOANS
Section 5.01 In-Service Withdrawals. Withdrawals shall be permitted under
a Plan if, and to the extent, elected by an Employer in Item 14 of the
Adoption Agreement and subject to the provisions of this section. All
requirements imposed by the Adoption Agreement as completed, and all
decisions made by the Employer pursuant thereto, shall be applied in a
uniform and nondiscriminatory manner. Subject to any restrictions set forth
in the Adoption Agreement, withdrawals shall be made at such time or times,
and in such form and manner, as uniformly and non-discriminatorily
established by the Employer.
In-service withdrawals shall be subject to the spousal consent requirements
of Sections 6.03(c) and 7.02(c) hereof, which consent shall be obtained
within ninety (90) days prior to the date of the withdrawal. Notwithstanding
the foregoing, however, if the special rule for certain profit sharing plan
Participants set forth in Sections 6.03(d) and 7.02(c)(3) hereof applies to a
Participant, then such spousal consent requirement shall not apply to that
Participant.
(a) Withdrawals of Contributions Made by the Employer.
(1) If the Plan is a profit sharing plan, and if withdrawals from
a Participant's Employer Account or Matching Account are
permitted under the Adoption Agreement, then, unless a
withdrawal therefrom is permitted in the case of hardship, a
withdrawal from such account by an Employee shall be limited
to contributions which have been allocated to such account for
two (2) years; provided, however, that if the Employee is
either age fifty-nine and one-half (59-1/2) or has been a
Participant for five (5) or more years, then this preceding
two (2) year limitation on withdrawals shall not apply; and
further provided, however, that in no event shall a withdrawal
of amounts in excess of a Participant's vested interest in
such account be permitted hereunder.
If pursuant to the Adoption Agreement an amount is permitted
to be withdrawn due to hardship, then, unless a written
definition of hardship adopted by the Employer is attached to
the Adoption Agreement, the definition of hardship shall be
the same as that provided under Section 5.01(a)(2).
(2) If withdrawals from a Participant's Elective Deferral Account
are permitted under Item 14 of the Adoption Agreement, such
distributions may be made on account of financial hardship if
the distribution is necessary in light of the immediate and
heavy financial needs of the Participant, provided such
<PAGE>
Participant lacks other available resources.
The amount of any hardship withdrawal granted pursuant to this
subsection (a)(2) shall be limited to the lesser of (i) the
actual amount of the Elective Deferral Contributions made to
the Participant's or former Participant's Elective Deferral
Account (and Income thereon accrued as of December 31, 1988),
less the amount of Elective Deferral Contributions previously
withdrawn; and (ii) the amount required to relieve the
immediate and heavy financial need, less the amount that is
reasonably available to the Participant or former Participant
from other sources to satisfy the need. Hardship
distributions made pursuant to this Section 5.01(a)(2) in Plan
Years which begin before January 1, 1989, may also be made
from the Participant's Qualified Non-elective Account and may
include any Income allocated to the Elective Deferral Account.
For periods prior to April 1, 1989, the determination of the
existence of financial hardship, and the amount required to be
distributed to meet the need created by the hardship, shall be
made by a person or persons designated by the Employer (unless
a different person or persons are given authority elsewhere in
the Plan to approve hardship distributions). All
determinations regarding financial hardship shall be made in
accordance with written procedures that are established by the
person or persons described above, and applied in a uniform
and nondiscriminatory manner. Such written procedures shall
specify the requirements for requesting and receiving
distributions on account of hardship, including what forms
must be submitted and to whom. All determinations regarding
financial hardship must be made in accordance with objective
criteria set forth in the Adoption Agreement. Such
determinations must also comply with applicable regulations
under the Code.
For periods after March 31, 1989, the immediate and heavy
financial needs for which a hardship may be granted shall be
limited to the following:
(i) Medical expenses described in section 213(d) of the Code
which are incurred by the Participant or former
Participant, his spouse, or his dependents (as defined
in section 152 of the Code);
(ii) Purchase (excluding mortgage payments) of a principal
residence of the Participant or former Participant;
(iii) Payment of tuition for the next semester or quarter of
post-secondary education for the Participant or former
Participant, his spouse, children, or dependents;
(iv) The need to prevent the eviction of the Participant or
former Participant from his principal residence or
foreclosure on the mortgage of his principal residence.
To qualify for a hardship withdrawal for periods after March
31, 1989, the Participant or former Participant must satisfy
the following requirements:
<PAGE>
(i) The Participant or former Participant must have obtained
all distributions, other than hardship distributions,
and all nontaxable loans available under all plans
maintained by the Employer,
(ii) The Participant's or former Participant's elective
contributions under the Plan, and all other plans
maintained by the Employer, will be suspended for twelve
(12) months after receipt of the hardship distribution,
and
(iii) The Participant may not make elective contributions
under the Plan, and all other plans maintained by the
Employer, for the taxable year immediately following the
taxable year of the hardship distribution in excess of
the applicable limit under Code Section 402(g) for such
next taxable year less the amount of such Participant's
elective contributions for the taxable year of the
hardship distribution.
A Participant who has had to suspend Elective Deferral
Contributions to the Plan pursuant to this Section shall be
allowed to resume such contributions on the date indicated in
Item 8(a)(4) of the Adoption Agreement which follows the
twelve (12) month suspension period.
(b) Withdrawals from Contributions Made by the Participant. If
withdrawals of a Participant's mandatory Employee Contributions from
his Employee Account are permitted under Item 14 of the Adoption
Agreement, then a Participant who receives such a withdrawal and who
does not have at least a fifty percent (50%) vested interest in his
Employer Account and Matching Account determined as of the date of the
withdrawal shall, if so selected by the Employer in such Item 14, have
the balance of that portion of his Employer Account and Matching
Account not attributable to minimum allocations in Top Heavy Plan
Years treated as a Forfeiture for the Plan Year in which the
withdrawal is received.
If withdrawals of a Participant's voluntary Employee Contributions are
permitted under the Adoption Agreement, then a Participant receiving
such a withdrawal shall not be permitted to make further voluntary
Employee Contributions for a period not to be less than six (6)
months.
The Participant may withdraw any part of the Voluntary Deductible
Contributions Account or Rollover Account by making a written
application to the Plan Administrator at any time. However, if at the
time the distribution is received the Participant has not attained age
fifty nine and one-half (59-1/2) or is not subject to Disability, then
the Participant may be subject to a federal income tax penalty unless
the distribution is rolled over to a qualified plan or Individual
Retirement Account within sixty (60) days of the date of distribution.
Section 5.02 Loans to Participants and Beneficiaries. If the loan option
is elected in Item 13 of the Adoption Agreement, the Plan Administrator, upon
receipt of written application of a Participant or Beneficiary in such manner
and form as required by the Plan Administrator, shall authorize and direct
the Trustee to make a loan to the Participant or Beneficiary from the Trust
Fund, provided the Plan's loan requirements of subsections (a) and (b), as
<PAGE>
applicable, and subsection (c) are satisfied. For purposes of this Section
5.02 the term "Participant" shall include former Participants who are parties
in interest within the meaning of Section 3(14) of ERISA.
(a) For loans granted or renewed on or before October 18, 1989, the Plan's
loan requirement shall be those requirements stated in this subsection
5.02(a), subject to uniform rules and regulations which may be
promulgated by the Plan Administrator with respect to the amount of
loans, interest rates, maturity dates and security. If the loan is to
be a directed investment pursuant to Section 10.11, then the amount of
the loan shall be considered to be an asset only of the Accounts of
the borrower, and not of the Accounts of any other person. However,
the following restrictions shall apply to all loans.
(1) Loans shall be made available to all Participants and
Beneficiaries (including for purposes of this Section 5.02
Spouses, who are parties in interest within the meaning of
section 3(14) of ERISA, of deceased Participants entitled to a
death benefit under Section 7.02 hereof) on a reasonably
equivalent basis.
(2) Loans shall not be made available to Highly Compensated
Employees in an amount greater than the amount made available
to other Employees.
(3) Loans shall be adequately secured and bear a reasonable
interest rate.
(4) No loan shall exceed the value of the Vested Account Balance
of the Participant or Beneficiary.
(5) If the Plan is not subject to the special rule of Section
6.03(d), a Participant must obtain the consent of his Spouse,
if any, to use of the account balance as security for the
loan. Spousal consent shall be obtained no earlier than the
beginning of the ninety (90)-day period that ends on the date
on which the loan is to be so secured. The consent must be in
writing, must acknowledge the effect of the loan, and must be
witnessed by the Plan Administrator or its representative or a
notary public. Such consent shall thereafter be binding with
respect to the consenting Spouse or any subsequent Spouse with
respect to that loan. A new consent shall be required if the
account balance is used for renegotiation, extension, renewal,
or other revision of the loan.
(6) In the event of default, foreclosure on a note which evidences
the debt created by a loan and which is secured by account
balances, and attachment of such security, shall not occur
until a distributable event occurs under the Plan.
(7) No loans shall be made to any shareholder-employee, Owner-
Employee, or Family Member of a Corporation controlled by a
shareholder-employee or Owner-Employee through ownership
directly or indirectly, of fifty percent (50%) or more of the
total value of shares of classes of stock of the Corporation.
For purposes of this requirement, a shareholder-employee means
an Employee or officer of an electing small business
(Subchapter S) corporation who owns (or is considered as
owning within the meaning of Section 318(a)(1) of the Code),
<PAGE>
on any day during the taxable year of such corporation, more
than five percent (5%) of the outstanding stock of the
corporation.
Subject to the preceding restrictions, the rate of interest on each
such loan shall be determined by the Plan Administrator according to
rules of uniform application. The rates of interest on loans may be
changed from time to time even though lower or higher rates have been
previously charged. Any such loan or loans shall be repaid by the
borrower within such time or in such manner as the Plan Administrator
may determine. In the event that the Participant or his Spouse or
Beneficiary becomes entitled to a benefit under the Plan, the Plan
Administrator may cause the Trustee to deduct the total unpaid balance
of such loan, plus interest owed thereon, or any portion thereof, from
any distribution from the Trust Fund to which the Participant, his
Spouse or his Beneficiary shall become entitled, provided that, if
applicable, a valid spousal consent has been obtained in accordance
with subsection 5.02(a)(5). In the event that the amount of such
distribution is not sufficient to repay the remaining balance of such
loan, the Participant shall be liable for and shall continue to make
payments on any such balance still due from him. In no event shall
any distribution be made to a Participant which would reduce the
balance of his Accounts below the outstanding balance of the loan.
(b) For loans granted or renewed after October 18, 1989, the Plan's loan
requirements shall be those requirements stated in this Section
5.02(b); provided, however, that if elected in Item 13 of the Adoption
Agreement the Plan Administrator may adopt alternative requirements
for this loan program. If alternate requirements for this loan
program are adopted, those requirements shall be documented in a
written attachment to the Adoption Agreement which shall form a part
of the Plan and which shall be signed by the Plan Administrator and
designated as Attachment B.
Attachment B shall include, but need not be limited to, the following:
(1) The identity of the person or positions authorized to
administer the loan program;
(2) A procedure for applying for loans;
(3) The basis on which loans will be approved or denied;
(4) Limitations (if any) on the types and amount of loans offered;
(5) The procedure under the program for determining a reasonable
rate of interest;
(6) The types of collateral which may secure a Plan loan; and
(7) The events constituting default and the steps that will be
taken to preserve Plan assets in the event of such default.
If alternative requirements are not elected, the following standard
requirements shall apply to all loans; provided, however, that for
periods prior to adoption of this plan document, the loan requirements
shall be those requirements stated in the prior plan document.
(i) Loans shall be a directed investment pursuant to Section 10.11
<PAGE>
and pursuant to that section the amount of the loan shall be
considered to be an asset of such person's Accounts only, and
not of the Accounts of any other person.
(ii) Loans shall be made available to all Participants and
Beneficiaries (including for purposes of this Section 5.02
Spouses of deceased Participants entitled to a death benefit
under Section 7.02 hereof) on a reasonably equivalent basis,
taking into consideration the size of the loan requested, the
size of the borrower's Vested Account Balance, and the
borrower's ability to repay the loan. Loans to former
Participants with a Vested Account Balance and Beneficiaries
may be made on different terms and conditions than for active
Participants where such terms and conditions are based solely
on factors that are legally considered by commercial entities
in the business of making similar loans. A loan of less than
the minimum amount (not to exceed $1,000), as elected in Item
13 of the Adoption Agreement, will not be allowed.
(iii) Loans shall not be made available to Highly Compensated
Employees in an amount greater than the amount made available
to other Employees.
(iv) The Plan Administrator shall determine the adequacy and amount
of security required for each loan. In making these
determinations the Plan Administrator shall consider the type
and amount of security which would be required in the case of
an otherwise identical transaction in a normal commercial
setting between unrelated parties on arm's-length terms. A
portion of a borrower's Vested Account Balance may be used as
security for a loan. However, no more than fifty percent
(50%) of the borrower's Vested Account Balance may be used as
security for the outstanding balance of all loans under this
Plan made to such borrower. If, pursuant to the election in
Item 13 of the Adoption Agreement, the total outstanding
balances of all loans under the Plan to the borrower is
permitted to exceed fifty percent (50%) of the borrower's
Vested Account Balance the Plan Administrator shall require
additional security. Such additional collateral shall take
the form of such real or personal property as the Plan
Administrator shall determine adequately secures the loan.
(v) Loans shall bear a reasonable interest rate which shall be
equal to the interest rate charged by a lending institution
for a loan which would be made under similar circumstances.
(vi) If the Plan is not subject to the special rule of Section
6.03(d), a Participant must obtain the consent of his Spouse,
if any, to use of the the account balance as security for the
loan. Spousal consent shall be obtained no earlier than the
beginning of the ninety (90)-day period that ends on the date
on which the loan is to be so secured. The consent must be in
writing, must acknowledge the effect of the loan, and must be
witnessed by the Plan Administrator or its representative or a
notary public. Such consent shall thereafter be binding with
respect to the consenting Spouse or any subsequent Spouse with
respect to that loan. A new consent shall be required if the
account balance is used for renegotiation, extension, renewal,
or other revision of the loan.
<PAGE>
(vii) A Participant who is granted a loan from the Plan shall be
required to make payments on such loan through mandatory
payroll deduction. In the event a borrower makes any payment
required hereunder more than fifteen (15) days after the date
on which it is due, such payment shall be increased by the
amount of interest accruing on the unpaid principal balance
from the due date until the date of payment. The borrower
shall be in default if any payment required hereunder is not
made by the date ninety (90) days after it is due, or if the
borrower is adjudicated as bankrupt, makes an assignment for
the benefit of creditors, or files a petition for relief under
the Bankruptcy Act. In the event of a default, all remaining
installment payments on the loan shall be immediately due and
payable. In the event that the Participant or his Spouse or
Beneficiary becomes entitled to a benefit under the Plan, then
if a valid spousal consent has been obtained in accordance
with subsection 5.02(e), the Plan Administrator may cause the
Trustee to deduct the total unpaid balance of such loan, plus
interest owed thereon, or any portion thereof, from any
distribution from the Trust Fund to which the Participant, his
Spouse or his Beneficiary shall become entitled. In the event
that the amount of such distribution is not sufficient to
repay the remaining balance of such loan, the borrower shall
be liable for and shall continue to make payments on any such
balance still due from him. In no event shall any
distribution be made to a borrower which would reduce the
balance of his Accounts below the outstanding balance of the
loan. In the event of default, foreclosure on a note which
evidences the debt created by a loan and which is secured by
account balances, and attachment of such security, shall not
occur until a distributable event occurs in the Plan.
(viii) No loans shall be made to any shareholder-employee, Owner-
Employee, or Family Member or a Corporation controlled by a
shareholder-employee or Owner-Employee through ownership,
directly or indirectly, of fifty percent (50%) or more of the
total value of shares of classes of stock of the Corporation.
For purposes of this requirement, a shareholder-employee means
an Employee or officer of an electing small business
(Subchapter S) corporation who owns (or is considered as
owning within the meaning of Section 318(a)(1) of the Code),
on any day during the taxable year of such corporation, more
than five percent (5%) of the outstanding stock of the
corporation.
(c) Loans made on or before December 31, 1986, shall be repaid according
to their terms. If a loan which was made on or before December 31,
1986, is extended, renegotiated or renewed after that date, the loan
shall be considered as first made on the date of extension,
renegotiation or renewal. No loan to any Participant or Beneficiary
shall be made after December 31, 1986, to the extent that such loan
when added to the outstanding balance of all other loans to the
Participant or Beneficiary would exceed the lesser of (i) fifty
thousand dollars ($50,000) reduced by the excess (if any) of the
highest outstanding balance of loans during the one (1) year period
ending on the day before the loan is made, over the outstanding
balance of loans from the Plan on the date the loan is made, or (ii)
one-half (1/2) the Vested Account Balance of such person in the Plan
or, if greater, the total Vested Account Balance of such person up to
<PAGE>
ten thousand dollars ($10,000). For the purpose of the preceding
limitation, all loans from all plans of the Employer and other members
of a Controlled Group shall be aggregated. Furthermore, any loan
shall by its terms that require repayment (principal and interest) be
amortized in level payments, no less frequently than quarterly, over a
period not extending beyond five (5) years from the date of the loan,
unless such loan is used to acquire a dwelling unit which within a
reasonable time (determined at the time the loan is made) shall be
used as the principal residence of the Participant. An assignment or
pledge of any portion of the Participant's interest in the Plan and a
loan, pledge, or assignment with respect to any insurance contract
purchased under the Plan, shall be treated as a loan under this
section.
ARTICLE 6
RETIREMENT BENEFITS
Section 6.01 Retirement. As of his Normal Retirement Date, a Participant
may retire from Service or he may elect to continue in Service, subject to
the Employer's retirement policy, if any. If such Participant continues in
Service, then he shall continue to be treated in all respects as a
Participant until his actual retirement. For Plan Years commencing before
January 1, 1989, no retirement benefit shall be payable until actual
retirement unless such Participant who could retire requests that his
retirement benefit commence before his actual retirement and the Plan
Administrator, at its sole discretion, permits retirement benefits to
commence pursuant to such request. For Plan Years commencing after December
31, 1988, no retirement benefit shall be payable until actual retirement
unless such Participant who could retire requests that his retirement benefit
commence before his actual retirement and, pursuant to the election under
Item 18 of the Adoption Agreement, the Plan permits retirement benefits to
commence pursuant to such request.
If early retirement is allowed under the provisions of Item 18(b) of the
Adoption Agreement, then the retirement of a Participant who satisfies the
requirements for early retirement and who elects to retire before his Normal
Retirement Date shall be effective on the date so elected. If such a
Participant continues in Service, then he shall be treated in all respects as
a Participant until his actual retirement, and no retirement benefit shall be
payable prior to his Normal Retirement Date. If a Participant separates from
Service before satisfying the age requirement, if any, for early retirement,
but has satisfied the Service requirement, if any, then the Participant shall
be entitled to elect an early retirement benefit upon satisfaction of such
age requirement.
Section 6.02 Retirement Benefits. Upon attainment of Normal Retirement
Age, or upon eligibility for early retirement if permitted under the Plan, a
Participant shall be one hundred percent (100%) vested in his Accounts. Upon
retirement following attainment of his Normal Retirement Age, or upon early
retirement pursuant to Item 18(b) of the Adoption Agreement, a Participant
shall be entitled to receive as the value of his retirement benefit hereunder
the amounts in his Accounts, determined on the Valuation Date immediately
preceding the payment of his benefits, plus any contributions, or Income
gain, allocated to his Accounts after such Valuation Date and less any
payments made from his Accounts, or Income loss allocated against the
Accounts, since such preceding Valuation Date.
<PAGE>
Section 6.03 Payment of Retirement Benefits.
(a) In General. The normal form of payment of the value of the retirement
benefit shall be as set forth in subsection (b) or (c) hereof. In
lieu of the normal form of retirement benefit payment provided
therein, a Participant may elect in writing, subject to (if
applicable) the qualified election requirements set forth in
subsection (c) hereof, to have his benefit paid or applied in
accordance with one (1), or a combination, of the optional forms of
benefit payment described hereinafter if available pursuant to the
Employer's election in Item 19 of the Adoption Agreement; provided,
however, that such option shall comply with the form of payment
limitations set forth in Section 6.07 hereof. For Plan Years
beginning prior to January 1, 1989, the Participant's election of an
optional form of benefit payment shall be subject to the approval of
the Plan Administrator if allowed by the Employer's prior plan
document.
(1) Installments. If elected by the Employer in Item 19 of the
Adoption Agreement, the benefit may be paid or applied in
monthly, quarterly, semiannual or annual installments as
nearly equal as practicable for a period not to exceed that
permitted under Section 6.07(c) hereof.
For Plan Years beginning before January 1, 1989, such
installments shall be made either from a segregated fund set
aside on his behalf if requested by the Participant or,
without regard to any such request, from the Trust Fund
without such segregation at the election of the Plan
Administrator.
For Plan Years beginning on or after January 1, 1989, such
installments shall be made either from a segregated fund or
from the Trust Fund without such segregation, at the election
of the Participant. If no election is made, such installment
shall be made from the Trust Fund without segregation of such
amount.
(2) Annuities. If elected by the Employer in Item 19 of the
Adoption Agreement, or if payment in the form of a Qualified
Joint and Survivor Annuity is required by this Plan, then the
benefit may be paid in the form of an annuity involving life
contingencies purchased from a Life Insurance Company pursuant
to Section 6.09.
(3) Single Sum. If elected by the Employer in Item 19 of the
Adoption Agreement, then an optional form of benefit payment
may be the benefit paid in a single sum.
(4) Other Options. The Plan shall offer the additional optional
forms of payment as described in Item 19 of the Adoption
Agreement, if any, provided such optional forms satisfy the
requirements of Section 401(a) of the Code.
Subject to the time limitations set forth in Sections 6.06 and 6.07
hereof, the benefit commencement date of a Retired Participant shall
be no later than as soon as practicable after the later of the
following occurs (or as soon thereafter as determinable): (i) the date
the Retired Participant attains his Normal Retirement Age, (or, if
<PAGE>
earlier, the date the Participant elects to receive his early
retirement benefit after qualifying for early retirement, if
permitted, under the Plan), or (ii) the date his Service terminates.
However, still subject to the time limitations set forth in Sections
6.06 and 6.07 hereof, if the former Participant is to receive an
allocation pursuant to Item 12 of the Adoption Agreement for the Plan
Year in which his Service terminated, then the retirement benefit
shall be paid after such time as all Employer contributions for such
Plan Year have, in fact, been allocated.
The retirement benefit election period shall be the ninety (90)-day
period ending on the Annuity Starting Date. Any election hereunder
shall be in writing and in such form as the Plan Administrator shall
uniformly and nondiscriminatorily require.
If a Retired Participant dies while benefit payments are being made in
accordance with option (1) herein, then payment shall be made to the
extent of the unpaid installments to his Beneficiary, or if the
Beneficiary is the estate or will otherwise be the distributee under
Section 7.03, then payment of the remaining interest of the former
Participant shall be in a single sum to his estate. If a former
Participant dies while benefit payments are being made in accordance
with option (2) herein, then any further payments shall be determined
pursuant to the terms of the annuity purchased thereunder.
(b) Participants Generally With Service Only Before August 23, 1984. The
provisions of this subsection shall apply to any Participant who is
not credited with at least one (1) Hour of Service with the Employer
on or after August 23, 1984. The provisions of this subsection,
except subsection (b)(2), shall also apply to certain other
Participants in profit sharing plans who are eligible for the special
rule set out in subsection (d).
(1) Normal Retirement Benefit Form. In the event that a
Participant does not elect an optional form of benefit payment
pursuant to subsection (a) hereof within the retirement
benefit election period set forth therein, the normal form of
the retirement benefit payment to the Retired Participant
shall be in a single sum.
(2) Retirement Benefit Form - Married Participant Electing Annuity
Option. In the event that a Participant is to receive his
benefit under an annuity option involving life contingencies,
and the Participant is married on his Annuity Starting Date,
the form of the retirement benefit payment (other than payment
of that portion of the benefit, if any, attributable to the
Retired Participant's Voluntary Deductible Contributions or
Rollover Contributions) shall be a Qualified Joint and
Survivor Annuity to such Retired Participant and his spouse,
unless the Retired Participant elects otherwise. Any portion
of the value of the retirement benefit attributable to the
Retired Participant's Voluntary Deductible Contributions or
Rollover Contributions shall be paid to the Retired
Participant in a single sum, unless the Retired Participant
elects an optional form of benefit payment or Beneficiary, or
both, pursuant to subsection (a) hereof.
The Plan Administrator shall furnish to each Participant a
notice of general information concerning the Qualified Joint
<PAGE>
and Survivor Annuity and the availability of more specific
information. Upon written request, the Plan Administrator
shall furnish a Participant with a more specific written
explanation, in nontechnical language, of the terms and
conditions of the Qualified Joint and Survivor Annuity and the
financial effect on the Participant of receiving benefits in
such form.
(c) Participants Generally With Service On or After August 23, 1984.
Except as provided in subsection (d) hereof with respect to certain
Participants in a Plan which is a profit sharing plan, the provisions
of this subsection shall apply both (i) to any Participant who is
credited with at least one (1) Hour of Service with the Employer on or
after August 23, 1984 and (ii) to such former Participants as provided
under the transitional rules set forth in subsection (e) herein.
(1) Normal Retirement Benefit Form - No Spouse. In the event that
a Participant does not elect an optional form of benefit
payment pursuant to subsection (a) hereof within the
retirement benefit election period set forth therein (or if,
for Plan Years beginning prior to January 1, 1989, the Plan
Administrator declines to approve an election), and the
Participant does not have a Spouse on his Annuity Starting
Date, the normal form of the retirement benefit payment to the
Retired Participant shall be a payment in a straight life
annuity.
(2) Normal Retirement Benefit Form If Spouse. In the event a
Participant does not elect an optional form of benefit payment
or Beneficiary, or both, pursuant to subsection (a) hereof
within the retirement benefit election period set forth
therein under a qualified election, and the Participant does
have a Spouse on his Annuity Starting Date, the normal form of
the retirement benefit payment shall be a Qualified Joint and
Survivor Annuity to such Participant and his Spouse.
(3) Qualified Election. Any waiver of the normal retirement
benefit form shall not be effective unless: (i) the
Participant's Spouse consents in writing to the election; (ii)
the election designates a specific Beneficiary, including any
class of Beneficiaries or any contingent Beneficiaries, which
may not be changed without spousal consent (or the Spouse
expressly permits designations by the Participant without any
further spousal consent); (iii) the Spouse's consent
acknowledges the effect of the election; and (iv) the Spouse's
consent is witnessed by the Plan Administrator, or its
representative, or by a notary public. Additionally, a
Participant's waiver of the Qualified Joint and Survivor
Annuity shall not be effective unless the election designates
a form of benefit payment which may not be changed without
spousal consent (or the Spouse expressly permits designations
by the Participant without any further spousal consent). If
it is established to the satisfaction of the Plan
Administrator, or its representative that there is no Spouse
or that the Spouse cannot be located, a waiver will be deemed
a qualified election.
Any consent by a Spouse obtained under this provision (or
establishment that the consent of a Spouse may not be
<PAGE>
obtained) shall be effective only with respect to such Spouse.
A consent that permits designations by the Participant without
any requirement of further consent by such Spouse must
acknowledge that the Spouse has the right to limit consent to
a specific Beneficiary, and a specific form of benefit where
applicable, and that the Spouse voluntarily elects to
relinquish either or both of such rights. A revocation of a
prior waiver may be made by a Participant without the consent
of the Spouse at any time before the Annuity Starting Date.
The number of revocations shall not be limited. No consent
obtained under this provision shall be valid unless the
Participant has received notice as provided in paragraph (4)
below.
(4) Notice of Normal Form of Payment. Within the period
commencing no less than thirty (30) and no more than ninety
(90) days prior to the Annuity Starting Date, the Plan
Administrator shall provide each Participant notice in the
form of a written explanation containing (i) the terms and
conditions of the normal form of benefit payment, (ii) the
Participant's right to make, and the effect of, an election to
waive the normal form of benefit payment, (iii) the rights of
the Participant's Spouse and (iv) the right to make, and the
effect of, a revocation of a previous election to waive the
normal form of benefit payment.
If the benefit can be distributed to the Participant (or
surviving Spouse) before the Participant attains (or would
have attained if not deceased) the later of Normal Retirement
Age or age sixty-two (62), then the written explanation shall
also include an explanation of the right to defer any
distribution until the later of Normal Retirement Age and age
sixty-two (62).
(d) Special Rule for Certain Profit Sharing Plan Participants. The
provisions of subsection (b) rather than the provisions of subsection
(c) shall apply to a Participant in a profit sharing plan, and to any
distribution, made on or after the first day of the first Plan Year
beginning after December 31, 1988, from or under a separate account
attributable solely to Voluntary Deductible Contributions maintained
on behalf of a Participant in a money purchase pension plan (including
a target benefit plan), regardless of the fact that such Participant
may be credited with one (1) or more Hours of Service with the
Employer on or after August 23, 1984, if
(1) in Item 19(a) the Employer does not elect normal forms of
payment involving life contingencies, and
(2) the Participant cannot, or does not, elect an annuity option
involving life contingencies, and
(3) on the death of a Participant, the Participant's Vested
Account Balance will be paid to the Participant's surviving
Spouse, but if there is no surviving Spouse, or if the
surviving Spouse has consented in a manner conforming to a
qualified election, then to the Participant's designated
Beneficiary. The surviving Spouse may elect to have
distribution of the Vested Account Balance commence within the
ninety (90)-day period following the date of the Participant's
<PAGE>
death. The account balance shall be adjusted for Income
occurring after the Participant's death in accordance with the
provisions of the Plan governing the adjustment of account
balances for other types of distributions.
In addition, if with respect to a Participant, the Plan is a
direct or indirect transferee of a defined benefit pension
plan, a money purchase pension plan, a target benefit pension
plan, a stock bonus plan or any other profit sharing plan
which is subject to the survivor annuity requirements of
Section 401(a)(11) and Section 417 of the Code, then the
provisions of subsection (b) shall apply as to the
Participant's Accounts attributable to the transfer from such
plan, provided that the amount of such transfer and any gains
or losses attributable thereto are maintained in a separate
account.
The Participant may waive the spousal death benefit described
in this subsection at any time provided that no such waiver
shall be effective unless it satisfies the conditions
(described in Section 7.02(c)(4)) that would apply to the
Participant's waiver of the qualified preretirement survivor
annuity.
For purposes of this subsection, "Vested Account Balance"
shall mean, in the case of a money purchase pension plan or a
target benefit plan, the Participant's separate account
balance attributable solely to Voluntary Deductible
Contributions.
(e) Transitional Rules for Annuity Benefits to Retired or Separated
Participants Not In-Payment on August 23, 1984.
(1) Election Period. The respective opportunities to make
elections under this subsection (e) (as described in the two
(2) following paragraphs) shall be afforded to the appropriate
Participants during the period commencing on August 23, 1984,
and ending on the date benefits would otherwise commence to
such Participants.
(2) Service Between January 1, 1976, and August 23, 1984. Any
living Retired or Separated Participant not receiving benefits
on August 23, 1984, who would otherwise not receive the
benefits prescribed by subsections 6.03(c) and 7.02(c) hereof
shall be given the opportunity to elect to have those
subsections apply if such Participant is credited with at
least one (1) Hour of Service under this Plan, or a
predecessor plan of which this Plan is a continuation, in a
Plan Year beginning on or after January 1, 1976, and such
Participant had at least ten (10) years of Vesting Service
when he separated from Service.
(3) Service Between September 2, 1974, and January 1, 1976. Any
living Retired or Separated Participant not receiving benefits
on August 23, 1984, who was credited with at least one (1)
Hour of Service under this Plan, or a predecessor plan of
which this Plan is a continuation, on or after September 2,
1974, and who is not otherwise credited with any Service in a
Plan Year beginning on or after January 1, 1976, shall be
<PAGE>
given the opportunity to have his benefits paid in accordance
with the following provisions of subsection (e)(4).
(4) ERISA Benefits. Any Participant who has elected to receive
benefits pursuant to subsection (e)(3) hereof, and any
Participant who does not elect to receive benefits under
subsection (e)(2) or who meets the requirements of such
subsection except that such Participant does not have at least
ten (10) years of Vesting Service when he separates from
Service, shall have his benefits distributed in accordance
with all of the following requirements, if his benefits would
have been payable in the form of a life annuity:
(i) Automatic joint and survivor annuity. If benefits in
the form of a life annuity become payable to a married
Participant who:
(A) begins to receive payments under the Plan on or
after Normal Retirement Age; or
(B) dies on or after Normal Retirement Age while still
working for the Employer; or
(C) begins to receive payments on or after the
qualified early retirement age; or
(D) separates from Service on or after attaining
Normal Retirement Age (or the qualified early
retirement age) and after satisfying the
eligibility requirements for the payment of
benefits under the Plan and thereafter dies before
beginning to receive such benefits;
then such benefits will be received under this Plan in
the form of a Qualified Joint and Survivor Annuity,
unless the Participant has elected otherwise during the
election period hereunder. The election period
hereunder shall begin at least six (6) months before the
Participant attains his qualified early retirement age
and shall end not more than ninety (90) days before the
commencement of benefits. Any election hereunder shall
be in writing and may be changed by the Participant at
any time by delivering such change of election to the
Plan Administrator.
(ii) Election of early survivor annuity. A Participant who
is employed after attaining the qualified early
retirement age shall be given the opportunity to elect,
during the election period, to have a survivor annuity
payable on death. If the Participant elects the
survivor annuity, then payments under such annuity shall
not be less than the payments which would have been made
to the Spouse under the Qualified Joint and Survivor
Annuity if the Participant had retired on the day before
his death. Any election under this provision shall be
in writing and may be changed by the Participant at any
time by delivering such change of election to the Plan
Administrator. The election period hereunder shall
begin on the later of (1) the ninetieth (90th) day
<PAGE>
before the Participant attains the qualified early
retirement age, or (2) the date on which participation
begins, and shall end on the date the Participant
terminates employment.
(iii) For purposes of this subsection (e)(4) the term
"qualified early retirement age" shall be the latest of:
(A) the earliest date, under the Plan, on which the
Participant may elect to receive retirement
benefits,
(B) the first (1st) day of the one hundred and
twentieth (120th) month beginning before the
Participant reaches Normal Retirement Age, or
(C) the date the Participant begins participation.
Section 6.04 Segregated Accounts. Any segregated account of a Retired
Participant established pursuant to an optional form of benefit payment under
Section 6.03(a) hereof shall remain a part of the Trust Fund, but shall be
separately invested in certificates of deposit, money market certificates,
collective investment trusts, other short-term debt security instruments or
any other investments acceptable to the Trustee, with all investment income
on such investments credited to the segregated account and all disbursements
on behalf of the Retired Participant charged thereto.
Section 6.05 Subsequent Agreement. If the amount credited to any account
of the Retired Participant is being paid to him from the Trust Fund in
monthly installments, the Retired Participant may request that the amount
then credited to such Account shall be applied in accordance with the
provisions of Section 6.03 hereof providing for payment of the balance of the
Retired Participant's Account in a single sum. For Plan Years commencing
prior to January 1, 1989, the right of the Retired Participant to elect to
have the remaining amount of his account paid in a single sum shall be
subject to the Plan Administrator's consent.
Section 6.06 General Commencement of Benefits Rule. Notwithstanding any
other provisions of the Plan, but in addition to such provisions (as
applicable), unless the Participant elects otherwise, distribution of
benefits shall begin no later than the sixtieth (60th) day after the close of
the Plan Year in which the latest of the following events occurs:
(a) the date the Participant attains sixty-five (65) years of age, or, if
earlier, his Normal Retirement Age;
(b) the date the tenth (10th) anniversary of the year in which the
Participant commenced participation in the Plan occurs; or
(c) the date the Participant terminates Service with the Employer.
If the amount of the payment required to commence on the date determined
under this section cannot be ascertained by such date, or if it is not
possible to make such payment on such date because the Committee has been
unable to locate the Participant after making reasonable efforts to do so,
then a payment retroactive to such date shall be made no later than sixty
(60) days after the earliest date on which the amount can be ascertained
under the Plan or the date on which the Participant is located (whichever is
applicable).
<PAGE>
Notwithstanding the foregoing, the failure of a Participant (or, if
applicable, surviving Spouse) to consent to a distribution before the
Participant attains (or would have attained if not deceased) the later of
Normal Retirement Age or age sixty-two (62), shall be deemed to be an
election to defer commencement of payment of any benefit sufficient to
satisfy this Section.
Section 6.07 Special Commencement and Distribution of Benefits Rule.
(a) General Rules.
(1) Subject to Section 6.03 pertaining to Qualified Joint and
Survivor Annuities, the requirements of this section shall
apply to any distribution of a Participant's Accounts and will
take precedence over any inconsistent provisions of this Plan.
Unless otherwise specified, the provisions of this section
apply to calendar years beginning after December 31, 1984.
(2) All distributions required under this section shall be
determined and made in accordance with the proposed
regulations under Code Section 401(a)(9), including the
minimum distribution incidental benefit requirement of section
1.401(a)(9)-2 of the regulations.
(b) Required Beginning Date. The Accounts of a Participant must be
distributed or begin to be distributed no later than the Participant's
required beginning date. The consent of the Participant or of the
Participant's Spouse or Beneficiary shall not be required to make a
distribution required under this section.
(c) Limits on Distribution Periods. As of the first distribution calendar
year, distributions, if not made in a single-sum, may only be made
over one of the following periods (or a combination thereof):
(1) the life of the Participant,
(2) the life of the Participant and a designated Beneficiary,
(3) a period certain not extending beyond the life expectancy of
the Participant, or
(4) a period certain not extending beyond the joint and last
survivor expectancy of the Participant and a designated
Beneficiary.
(d) Determination of Amount to be Distributed Each Year. If the
Participant's Accounts are to be distributed in other than a single
sum, the following minimum distribution rules shall apply on or after
the required beginning date:
(1) Individual Account.
(i) If a Participant's benefit is to be distributed over (A)
a period not extending beyond the life expectancy of the
Participant or joint life and last survivor expectancy
of the Participant and the Participant's designated
Beneficiary or (B) a period not extending beyond the
life expectancy of the designated Beneficiary, the
amount required to be distributed for each calendar
<PAGE>
year, beginning with distributions for the first
distribution calendar year, must at least equal the
quotient obtained by dividing the Participant's benefit
by the applicable life expectancy.
(ii) For calendar years beginning before January 1, 1989, if
the Participant's Spouse is not the designated
Beneficiary, the method of distribution selected must
assure that at least fifty percent (50%) of the present
value of the amount available for distribution is paid
within the life expectancy of the Participant.
(iii) For calendar years beginning after December 31, 1988,
the amount to be distributed each year, beginning with
distributions for the first distribution calendar year
shall not be less than the quotient obtained by dividing
the Participant's benefit by the lesser of (A) the
applicable life expectancy or (B) if the Participant's
Spouse is not the designated Beneficiary, the applicable
divisor determined from the table set forth in Q&A-4 of
section 1.401(a)(9)-2 of the proposed regulations.
Distributions after the death of the Participant shall
be distributed using the applicable life expectancy in
paragraph (i) above as the relevant divisor without
regard to proposed regulations section 1.401(a)(9)-2.
(iv) The minimum distribution required for the Participant's
first distribution calendar year must be made on or
before the Participant's required beginning date. The
minimum distribution for other calendar years, including
the minimum distribution for the distribution calendar
year in which the Employee's required beginning date
occurs, must be made on or before December 31 of that
distribution calendar year.
(2) Other Forms. If the Participant's benefit is distributed in
the form of an annuity purchased from a Life Insurance
Company, distributions thereunder shall be made in accordance
with the requirements of Section 401(a)(9) of the Code and the
regulations thereunder.
(e) Death Distribution Provisions.
(1) Distribution Beginning Before Death. If the Participant dies
after distribution of his benefit has begun, the remaining
portion of such benefit will continue to be distributed at
least as rapidly as under the method of distribution being
used prior to the Participant's death.
(2) Distribution Beginning After Death. If the Participant dies
before distribution of his benefit begins, distribution of the
Participant's entire benefit shall be completed by December 31
of the calendar year containing the fifth (5th) anniversary of
the Participant's death except to the extent that an election
is made to receive distributions in accordance with (i) and
(ii) below:
(i) if any portion of the Participant's benefit is payable
to a designated Beneficiary, distributions may be made
<PAGE>
over the life or over a period certain not greater than
the life expectancy of the designated Beneficiary
commencing on or before December 31 of the calendar year
immediately following the calendar year in which the
Participant died;
(ii) if the designated Beneficiary is the Participant's
surviving Spouse, the date distributions are required to
begin in accordance with (i) above shall not be earlier
than the later of (A) December 31 of the calendar year
immediately following the calendar year in which the
Participant died and (B) December 31 of the calendar
year in which the Participant would have attained age
seventy and one-half (70-1/2).
If the Participant has not made an election pursuant to this
subsection (e)(2) by the time of his death, the Participant's
designated Beneficiary must elect the method of distribution
no later than the earlier of (A) December 31 of the calendar
year in which distributions would be required to begin under
this subsection (e), or (B) December 31 of the calendar year
which contains the fifth (5th) anniversary of the date of
death of the Participant. If the Participant has no
designated Beneficiary, or if the designated Beneficiary does
not elect a method of distribution, distribution of the
Participant's entire interest must be completed by December 31
of the calendar year containing the fifth (5th) anniversary of
the Participant's death.
(3) For purposes of subsection (e)(2) above, if the surviving
Spouse dies after the Participant, but before payments to such
Spouse begin, the provisions of subsection (e)(2) with the
exception of paragraph (ii) therein, shall be applied as if
the surviving Spouse were the Participant.
(4) For purposes of this subsection (e), any amount paid to a
child of the Participant will be treated as if it had been
paid to the surviving Spouse if the amount becomes payable to
the surviving Spouse when the child reaches the age of
majority.
(5) For the purposes of this subsection (e), distribution of a
Participant's benefit is considered to begin on the
Participant's required beginning date (or, if subsection
(e)(3) above is applicable, the date distribution is required
to begin to the surviving Spouse pursuant to subsection (e)(2)
above). If distribution in the form of an annuity irrevocably
commences to the Participant before the required beginning
date, the date distribution is considered to begin is the date
distribution actually commences.
(f) Definitions.
(1) "Applicable life expectancy" shall mean the life expectancy
(or joint and last survivor expectancy) calculated using the
attained age of the Participant (or designated Beneficiary) as
of the Participant's (or designated Beneficiary's) birthday in
the applicable calendar year reduced by one (1) for each
calendar year which has elapsed since the date life expectancy
<PAGE>
was first calculated. If life expectancy is being
recalculated, the applicable life expectancy shall be the life
expectancy as so recalculated. The applicable calendar year
shall be the first distribution calendar year, and if life
expectancy is being recalculated such succeeding calendar
year.
(2) "Designated Beneficiary" shall mean the individual who is
designated as the Beneficiary under the Plan in accordance
with Code Section 401(a)(9) and the regulations thereunder.
(3) "Distribution calendar year" shall mean a calendar year for
which a minimum distribution is required. For distributions
beginning before the Participant's death, the first
distribution calendar year is the calendar year immediately
preceding the calendar year which contains the Participant's
required beginning date. For distributions beginning after
the Participant's death, the first distribution calendar year
is the calendar year in which distributions are required to
begin pursuant to subsection (e) above.
(4) "Life expectancy" shall mean life expectancy and joint and
last survivor expectancy which are computed by use of the
expected return multiples in Tables V and VI of section 1.72-9
of the Treasury Regulations.
Unless otherwise elected by the Participant (or Spouse, in the
case of distributions described in section (e)(2)(ii) above)
by the time distributions are required to begin, life
expectancies shall be recalculated annually. Such election
shall be irrevocable as to the Participant (or Spouse) and
shall apply to all subsequent years. The life expectancy of a
nonspouse Beneficiary may not be recalculated.
(5) "Participant's benefit" shall mean the account balance as of
the last Valuation Date in the calendar year immediately
preceding the distribution calendar year ("valuation calendar
year") increased by the amount of any contributions or
forfeitures allocated to the account balance as of dates in
the valuation calendar year after the valuation date and
decreased by distributions made in the valuation calendar year
after the valuation date.
Notwithstanding the foregoing, if any portion of the minimum
distribution for the first distribution calendar year is made
in the second distribution calendar year on or before the
required beginning date, the amount of the minimum
distribution made in the second distribution calendar year
shall be treated as if it had been made in the immediately
preceding distribution calendar year.
(6) "Required beginning date" shall mean the first day of April of
the calendar year following the calendar year in which the
Participant attains age seventy and one-half (70-1/2) subject,
however, to the following transition rules.
(i) Transitional rules. The required beginning date of a
Participant who attains age seventy and one-half (70-
1/2) before January 1, 1988, shall be determined in
<PAGE>
accordance with (A) and (B) below:
(A) Non-five-percent (5%) owners. The required
beginning date of a Participant who is not a five-
percent (5%) owner is the first day of April of
the calendar year following the calendar year in
which the later of retirement or attainment of age
seventy and one-half (70-1/2) occurs.
(B) Five-percent (5%) owners. The required beginning
date of a Participant who is a five-percent (5%)
owner during any year beginning after December 31,
1979, is the first day of April following the
later of:
1. the calendar year in which the Participant
attains age seventy and one-half (70-1/2), or
2. the earlier of the calendar year with or
within which ends the Plan Year in which the
Participant becomes a five-percent (5%)
owner, or the calendar year in which the
Participant retires.
The required beginning date of a Participant who is not
a five-percent (5%) owner and who attains age seventy
and one-half (70-1/2) during 1988 and has not retired as
of January 1, 1989, is April 1, 1990.
(ii) Five-percent (5%) owner. A Participant is treated as a
five-percent (5%) owner for purposes of this section if
such Participant is a five-percent (5%) owner as defined
in Section 416(i) of the Code (determined in accordance
with Section 416 of the Code but without regard to
whether the Plan is top-heavy) at any time during the
Plan Year ending with or within the calendar year in
which such owner attains age sixty-six and one-half (66-
1/2) or any subsequent Plan Year.
(iii) Once distributions have begun to a five-percent (5%)
owner under this section, they must continue to be
distributed, even if the Participant ceases to be a
five-percent (5%) owner in a subsequent year.
(g) Pre-DEFRA Distribution Designation Savings Rule. Notwithstanding the
preceding requirements of this section, the distribution on behalf of
any Participant may be made in accordance with the following
requirements (regardless of when such distribution commences).
(1) The distribution by the Trust is one (1) which would not have
disqualified such Trust under Code Section 401(a)(9) as in
effect prior to amendment by the Deficit Reduction Act of
1984.
(2) The distribution is in accordance with a method of
distribution designated by the Participant whose interest in
the Trust is being distributed or, if the Participant is
deceased, by a Beneficiary of such Participant.
<PAGE>
(3) Such designation was in writing, was signed by the Participant
or the Beneficiary, and was made before January 1, 1984.
(4) The Participant had accrued a benefit under the Plan as of
December 31, 1983.
(5) The method of distribution designated by the Participant or
the Beneficiary specifies the time at which distribution shall
commence, the period over which distributions shall be made
and, in the case of any distribution upon the Participant's
death, the Beneficiaries of the Participant listed in order of
priority.
A distribution upon death shall not be covered by this subsection
unless the information in the designation contains the required
information described herein with respect to the distributions to be
made upon the death of the Participant.
For any distribution which commences before January 1, 1984, but
continues after December 31, 1983, the Participant, or the
Beneficiary, to whom such distribution is being made shall be presumed
to have designated the method of distribution under which the
distribution is being made if the method of distribution was specified
in writing and the distribution satisfies the requirement in preceding
subsections (c)(1) through (5) herein.
If a designation is revoked, any subsequent distribution shall satisfy
the requirements of Code Section 401(a)(9) and the regulations
thereunder. If a designation is revoked subsequent to the date
distributions are required to begin, the Trust must distribute by the
end of the calendar year following the calendar year in which the
revocation occurs the total amount not yet distributed which would
have been required to have been distributed to satisfy Section
401(a)(9) of the Code and the regulations thereunder, but for the
Section 242(b)(2) election. For calendar years beginning after
December 31, 1988, such distributions must meet the minimum
distribution incidental benefit requirements in section 1.401(a)(9)-2
of the proposed regulations. Any changes in the designation shall be
considered to be a revocation of the designation. However, the mere
substitution or addition of another Beneficiary (not named in the
designation) under the designation shall not be considered to be a
revocation of the designation, so long as such substitution or
addition does not alter the period over which distributions are to be
made under the designation, directly or indirectly (for example, by
altering the relevant measuring life). In the case in which an amount
is transferred or rolled over from one plan to another plan, the rules
in Q&A J-2 and Q&A J-3 of section 1.401(a)(9)-2 of the proposed
regulations shall apply.
Section 6.08 Cash-Out Distribution of Small Benefits. For Plan Years
beginning after December 31, 1986 and before January 1, 1989, in the event
that a former Participant or Beneficiary shall become entitled to receive any
benefit under the Plan, and the Participant's Vested Account Balance is not
greater than three thousand five hundred dollars ($3,500), the Plan
Administrator reserves the right to cause the benefit to be paid to such
person in a single sum not later than the maximum period allowed by law for
the distribution to still be made on account of termination of participation
in the plan. Such payment shall be in lieu of the form of benefit otherwise
payable under any provision in this Plan.
<PAGE>
For Plan Years beginning after December 31, 1988, in the event that a
former Participant or Beneficiary shall become entitled to receive any
benefit under the Plan, and the Participant's Vested Account Balance is not
greater than three thousand five hundred dollars ($3,500), the Plan
Administrator shall, if elected pursuant to Item 16 of the Adoption
Agreement, cause the benefit to be paid to such person in a single sum not
later than the maximum period allowed by law for the distribution to still be
made on account of termination of participation in the plan. Such payment
shall be in lieu of the form of benefit otherwise payable under any provision
of this Plan.
No such distribution shall be made after the Annuity Starting Date. No
such distribution shall be made after benefits commence in the form of
installment payments unless the former Participant and the former
Participant's Spouse, if applicable, consent to such a distribution in a
manner consistent with the qualified election requirements of Sections
6.03(c)(3) and 7.02(c)(4) hereof.
Section 6.09 Purchase Of Annuities. If benefits are required to be paid in
the form of an annuity involving life contingencies under the terms of any
provision of this Plan, then the Trustee shall purchase such annuity
contracts from a Life Insurance Company, utilizing for such purchase the
entire nonforfeitable amount in the Accounts of the Participant. Any annuity
contract which is purchased hereunder to provide benefits otherwise payable
under the Plan, and which is distributed to a Retired or Separated
Participant or Beneficiary, shall be endorsed as "nontransferable." The
terms of any annuity contract purchased and distributed by the Plan to a
Participant or Spouse shall comply with the requirements of this Plan.
Section 6.10 Limitation. Except as provided in Articles 7 or 8 hereof, the
provisions of this article shall not apply to a Separated Participant.
ARTICLE 7
DEATH AND DISABILITY BENEFITS
Section 7.01 Death Benefits. In the event of the death of a Participant or
a Retired Participant (other than a Retired Participant receiving retirement
benefits pursuant to Section 6.03 hereof), prior to the complete distribution
of his Accounts, his death benefit shall be one hundred percent (100%) of his
Accounts determined on the Valuation Date immediately preceding the payment
of the benefit, plus any contributions, or Income gain, allocated to his
Accounts after such Valuation Date and less any payments or withdrawals made
from his Accounts, or Income loss allocated against the Accounts, since such
preceding Valuation Date.
Section 7.02 Payment of Death Benefits.
(a) In General. The form of payment of the value of the death benefit
shall be as set forth in subsections (b) and (c) hereof. In lieu of
the form of death benefit provided therein, a Participant may elect in
writing, subject to (if applicable) the qualified election
requirements set forth in subsection (c)(4) hereof, to have his
benefit paid or applied in accordance with one (1), or a combination,
of the options described in Section 6.03(a); provided, however, that
such elected option shall comply with the form of payment limitations
set forth in Section 6.07 hereof. For Plan Years beginning prior to
January 1, 1989, any election of an alternative form of death benefit
<PAGE>
pursuant to this Section 7.02 shall be subject to the approval of the
Plan Administrator.
Subject to the time limitations set forth in Sections 6.06 and 6.07
hereof, the surviving Spouse or Beneficiary, as applicable, may elect
to have the death benefit commence (or, if applicable, the annuity
contract distributed) within a reasonable time after the death of the
Participant occurs. However, still subject to the time limitations of
Sections 6.06 and 6.07, if the former Participant is to receive an
allocation pursuant to Item 12 of the Adoption Agreement for the Plan
Year in which his Service terminated, then the death benefit shall be
paid, subject to the contrary election by an eligible Spouse to
receive a death benefit immediately without such additional allocation
pursuant to subsection (c)(2) hereof, at such time as contributions
for such Plan Year have, in fact, been allocated.
The death benefit election period shall be a period which begins on
the date the Participant enters the Plan and ends on the date of the
death of the Participant. Any election hereunder shall be in writing
and in such form as the Plan Administrator shall uniformly and
nondiscriminatorily require.
Payment of the death benefit to the Beneficiary of the deceased
Participant shall fully discharge the Trustee, the Plan Administrator
(and the Committee, if appointed pursuant to Section 9.01 hereof) and
the Employer, and each of them, from any and all liability hereunder
as to such deceased Participant. The Trustee, the Plan Administrator
(and the Committee, if appointed pursuant to Section 9.01 hereof), and
the Employer, and each of them, shall not be responsible for the
ultimate disposition of such benefit in accordance with any will or
other testamentary disposition made by such Participant, or in
accordance with the intestacy provisions of any law.
(b) Participants with Service Only Before August 23, 1984. The provisions
of this subsection shall apply to any Participant who is not credited
with at least one (1) Hour of Service with the Employer on or after
August 23, 1984.
In the event that such a Participant does not elect an optional form
of benefit payment pursuant to subsection (a) hereof within the death
benefit election period set forth therein (or if as to Plan Years
beginning prior to January 1, 1989 the Plan Administrator declines to
approve the election), regardless of whether or not the Participant
had been married on his date of death, the death benefit shall be paid
to the Beneficiary of the deceased Participant in a single sum;
provided, however, that such Beneficiary may elect to receive this
death benefit in an optional form of benefit payment pursuant to
subsection (a) hereof as if he were the Participant.
(c) Participants with Service On or After August 23, 1984. Except as
provided in subsection (c)(3) hereof with respect to certain
Participants in a Plan which is a profit sharing plan, the provisions
of this subsection shall apply to any Participant who is credited with
at least one (1) Hour of Service with the Employer on or after August
23, 1984.
(1) Participants Not Leaving a Surviving Spouse on Death. In the
event that a Participant does not elect an optional form of
benefit payment pursuant to subsection (a) hereof within the
<PAGE>
death benefit election period set forth therein (or if, as to
Plan Years beginning prior to January 1, 1989, the Plan
Administrator declines to approve an election), and the
Participant does not have a Spouse on the date of his death,
the death benefit shall be paid to the Beneficiary of the
deceased Participant in a single sum; provided, however, that
such Beneficiary may elect to receive this death benefit in an
optional form of benefit payment pursuant to subsection (a)
hereof as if he were the Participant.
(2) Participants Leaving a Surviving Spouse on Death - Qualified
Preretirement Survivor Annuity. In the event that a
Participant has not selected an optional form of benefit
payment or Beneficiary, or both, pursuant to subsection (a)
hereof within the death benefit election period set forth
therein pursuant to a qualified election, and the Participant
has a Spouse on the date of his death, the death benefit shall
be paid to the surviving Spouse in the form of an annuity for
the Spouse's life; provided, however, that if so provided by
the Employer in Item 19 of the Adoption Agreement, the Spouse
may elect to receive this death benefit in an optional form of
benefit payment pursuant to subsection (a) hereof as if the
Spouse were the Participant pursuant to a qualified election
at any time prior to ninety (90) days before payment of the
death benefit actually commences. Any portion of the value of
the death benefit which is not payable to any surviving Spouse
shall be paid to the Beneficiary of the deceased Participant
in a single sum; provided, however, that such Beneficiary may
elect to receive his portion of the death benefit in an
optional form of benefit payment pursuant to subsection (a)
hereof as if he were the Participant and no qualified election
requirement shall apply to such election by the Beneficiary.
(3) Special Rule for Certain Profit Sharing Plan Participants.
Notwithstanding the foregoing, if the Plan is a profit sharing
plan, and if the Participant has a Spouse on the date of his
death, then the death benefit (including any proceeds received
under a Policy owned by the Trustee on the Participant's life
purchased by Employer contributions or Forfeitures allocated
to the Participant's Employer Account) shall be paid to the
surviving Spouse in the form of a single sum, unless
(i) the Participant has selected a Beneficiary other than
his Spouse pursuant to a qualified election,
(ii) the Participant can, and does, elect an annuity option
involving life contingencies, or
(iii) with respect to such Participant, the Plan is a direct
or indirect transferee of a defined benefit pension
plan, a money purchase pension plan, a target benefit
pension plan, a stock bonus plan or any other profit
sharing plan which is subject to the survivor annuity
requirements of Section 401(a)(11) and Section 417 of
the Code.
(4) Qualified Election. A qualified election shall have the
meaning for this term set forth in Section 6.03(c)(3) hereof,
but shall apply to a spousal waiver of the form of payment, or
<PAGE>
the payment, of the death benefit provided under this
subsection instead of the waiver of the Qualified Joint and
Survivor Annuity provided under Section 6.03(c)(3). However,
in the event the preretirement survivor annuity rules of
subsection (c)(2) are applicable as to the Participant, an
election to waive the preretirement survivor annuity benefit
which is made prior to the first day of the Plan Year in which
the Participant attains age thirty-five (35), shall become
invalid on the first day of the Plan Year in which the
Participant attains age thirty-five (35); provided, however,
that, at that time the Participant shall have the right to
again elect to waive the preretirement survivor annuity
benefit.
(5) Notice of Qualified Preretirement Survivor Annuity. If the
Employer provides in the Adoption Agreement that the
Participant may waive the qualified preretirement survivor
annuity or allows a married Participant to designate a
nonspouse Beneficiary, then the Plan Administrator shall
provide each Participant whose Spouse may receive a qualified
preretirement survivor annuity for such Participant, a
written explanation of the qualified preretirement survivor
annuity described in subsection (c)(2) hereof in such terms
and in such manner as is comparable to the explanation
provided pursuant to Section 6.03(c)(4) with respect to the
Qualified Joint and Survivor Annuity notice. The Plan
Administrator shall provide such Participant with a written
explanation of the qualified preretirement survivor annuity
within whichever of the following periods ends last: (i) the
period beginning with the first day of the Plan Year in which
the Participant attains age thirty-two (32) and ending with
the close of the Plan Year preceding the Plan Year in which
the Participant attains age thirty-five (35); (ii) a
reasonable period ending after the individual becomes a
Participant; (iii) a reasonable period ending after the
qualified preretirement survivor annuity is no longer fully
subsidized; (iv) a reasonable period ending after this article
first applies to the Participant. Notwithstanding the
foregoing, notice must be provided within a reasonable period
ending after separation from service in the case of a
Participant who separates from service before attaining age
thirty-five (35). In addition, notice shall be provided to
active Participants who have not attained age thirty-five (35)
at such time as may be required by regulation.
For purposes of applying the preceding paragraph, a reasonable
period ending after the enumerated events described in (ii),
(iii) and (iv) is the end of the two (2)-year period beginning
one (1) year prior to the date the applicable event occurs,
and ending one (1) year after that date. In the case of a
Participant who separates from service before the Plan Year in
which age thirty-five (35) is attained, notice shall be
provided within the two (2)-year period beginning one (1) year
prior to separation and ending one (1) year after separation.
If such a Participant thereafter returns to employment with
the Employer, the applicable period for such Participant shall
be redetermined.
(6) Exemptions from Notice Requirement. Notwithstanding the other
<PAGE>
requirements of this Section 7.02(c), the respective notices
prescribed by this section need not be given to a Participant
if (i) the Plan "fully subsidizes" the costs of a qualified
preretirement survivor annuity, and (ii) the Plan does not
allow the Participant to waive the qualified preretirement
survivor annuity and does not allow a married Participant to
designate a Beneficiary who is not his Spouse. For purposes
of this section, a Plan fully subsidizes the costs of a
benefit if no increase in cost, or decrease in benefits to the
Participant may result from the Participant's failure to elect
another benefit.
Section 7.03 Designation of Beneficiary. At any time, and from time to
time, each Participant, or Retired or Separated Participant shall have the
right to designate the Beneficiary to receive his death benefit, and to
revoke any such designation, but any such designation shall be subject to the
spousal waiver when required under the qualified election provisions of
Sections 6.03(c)(3) and 7.02(c)(4). Each such designation, or revocation
thereof, shall be evidenced by a written instrument filed with the Plan
Administrator and signed by the Participant, or Retired or Separated
Participant and, if required, the Spouse of such Participant. If no such
designation is on file with the Plan Administrator at the time of the death
of a Participant or Retired or Separated Participant, or if such designation
is not effective for any reason as determined by the Trustee, then the
Participant shall be deemed, unless otherwise required by the law, to have
designated the following Beneficiaries (if living at the time of the death of
the Participant or Beneficiary) in the following order of priority as elected
in Item 19(e) of the Adoption Agreement:
(a) (1) the actual spouse of the Participant,
(2) the children, including adopted children, of the Participant,
in equal shares per stirpes,
(3) the natural parents of the Participant, in equal shares and
(4) the estate of the Participant, or
(b) such order as is indicated in Item 19 of the Adoption Agreement.
Section 7.04 Documentary Proof. The Trustee may require the execution and
delivery of such documents, papers and receipts as it may deem reasonably
necessary in order to be assured that the payment of any death benefit is
made to the person or persons entitled thereto.
Section 7.05 Disability Benefits. In the event of the Disability of a
Participant, and certification thereto by the Plan Administrator to the
Trustee, such Participant shall be entitled to one hundred percent (100%) of
his Accounts determined on the Valuation Date immediately preceding the
payment of the benefit, plus any contributions, or Income gain, allocated to
his Accounts after such Valuation Date and less any payments made from his
Accounts, or Income loss allocated against such Accounts, since such
preceding Valuation Date.
Section 7.06 Payment of Disability Benefits. Subject to the provisions
hereof concerning the death of a disabled Participant, any amounts due a
disabled Participant pursuant to this article from his Accounts shall be paid
or applied for his benefit in accordance with the provisions described in
Section 6.03 hereof for the payment of retirement benefits, subject to the
<PAGE>
form of benefit payment and time limitations of Sections 6.06 and 6.07
hereof, at what would have been his Normal Retirement Date had he remained in
Service. However, if allowed pursuant to Item 16 of the Adoption Agreement,
a Participant may elect that the commencement date of any Disability benefits
shall be any date after his Disability occurred and prior to his Normal
Retirement Date; provided, however, that, for Plan Years beginning prior to
January 1, 1989, a Participant's election of early commencement of any
Disability benefits shall be subject to the approval of the Plan
Administrator.
In the event of the death of a disabled Participant subsequent to the date
his Service terminated and prior to the Annuity Starting Date hereunder, the
amount payable on behalf of such disabled Participant under Section 7.05
hereof shall be paid in the form provided in Section 7.02 hereof. If the
death of a disabled Participant occurs subsequent to the date his Service
terminated and after the Annuity Starting Date hereunder, then no death
benefit shall be payable, unless provided for under the form of benefit
payable pursuant to Section 6.03.
ARTICLE 8
BENEFITS ON SEPARATION FROM SERVICE
Section 8.01 Rights of a Separated Participant. A Participant whose
Service is terminated by causes other than death, Disability, or retirement,
or who incurs a Break in Service, shall have the rights described in this
article. In no case, however, shall such a Separated Participant receive
benefits under the Plan prior to his Normal Retirement Date while still
employed by the Employer. Failure to return to Service with the Employer by
the date on which a Leave of Absence expires shall be considered to be a
termination of Service as of the date of such expiration.
Section 8.02 Vesting of Employer Contributions. Subject to his returning
to Service at a time when he may increase the nonforfeitable percentage of
his Employer Account or Matching Account (if pursuant to Item 8(b) of the
Adoption Agreement the Matching Account is subject to the vesting schedule of
Item 16 of the Adoption Agreement), a Separated Participant shall be entitled
to the prescribed percentage of such accounts, including all Income allocated
thereto, pursuant to the vesting option elected in Item 16 of the Adoption
Agreement, such percentage to be determined as of the earlier of the date on
which his Service terminates and the date he incurs a Break in Service.
Section 8.03 Forfeitures. The portion of an Employer Account or Matching
Account to which a Separated Participant is not entitled, as provided in
Sections 5.01 and 8.02 hereof, shall be a Forfeiture as of the earlier of the
following dates:
(a) the date the Separated Participant is paid the entire vested amount of
such accounts under the Plan pursuant to Sections 6.08 or 8.06 hereof,
or
(b) the date the Separated Participant incurs five (5) consecutive Breaks
<PAGE>
in Service (or, in Plan Years beginning before January 1, 1985, the
date the Separated Participant incurs a Break in Service).
For purposes of this Section, if (i) pursuant to Section 6.08 hereof and the
election in Item 16 of the Adoption Agreement the value of benefits with a
value not greater than three thousand five hundred dollars ($3,500) is
automatically cashed-out, and (ii) the value of an Employee's Vested Account
Balance is zero, the Separated Participant shall be deemed to have received a
distribution of such Vested Account Balance and the Employer Account and the
Matching Account shall be treated as a Forfeiture as of the date indicated in
Item 16 of the Adoption Agreement. For purposes of this paragraph, a
Separated Participant's Vested Account Balance shall not include Voluntary
Deductible Contributions for Plan Years beginning prior to January 1, 1989.
Forfeitures shall be allocated or applied pursuant to Section 4.02 hereof.
No Forfeitures shall occur solely as a result of an Employee's withdrawal
of Employee Contributions, except in certain cases as provided with respect
to the withdrawal of mandatory Employee Contributions as set forth in Section
5.01 hereof.
If a benefit cannot be paid to the Separated Participant or his Beneficiary
because he cannot be found, such benefit (subject to overruling law) shall be
treated as a Forfeiture but, if treated as a Forfeiture, shall be reinstated
if a claim is made by that Participant or his Beneficiary.
If a Separated Participant receives or is deemed to receive a distribution
of his Vested Account Balance upon termination of his Service and he resumes
Service before he incurs five (5) consecutive Breaks in Service (or, in Plan
Years beginning before January 1, 1985, before he incurs a Break in Service),
then any amount forfeited shall be reestablished in such Participant's
account from which it was forfeited; provided, if so elected in Item 8 of the
Adoption Agreement, that such Participant shall first repay the full amount
of such distribution attributable to Employer Contributions and Matching
Contributions, if any, before the earlier of (i) five (5) years after the
first day the Employee subsequently resumes Service, and (ii) the date he
subsequently incurs five (5) consecutive Breaks in Service after such
distribution.
If a Forfeiture is reestablished as part of an account of a former
Separated Participant who has resumed Service without his having to repay the
full amount of the distribution, then the resulting Employer Account or
Matching Account (as applicable) shall be established on his behalf as a
separate bookkeeping account, separate from any account which may be
established on his behalf due to resumption of Service. In the event that
the Participant later ceases to be a Participant, the amount to which he is
entitled from the separate bookkeeping account shall be computed as of the
date he ceases to be a Participant pursuant to the following formula:
X = P x (AB + (R x D)) - (R x D)
For purposes of solving this equation, "X" is the amount to which the
Participant is entitled, "P" is his vested percentage at the relevant time,
"AB" is his Employer Account or Matching Account (as applicable) balance at
the relevant time, "R" is the ratio of such account balance at the relevant
time to such account balance immediately after the distribution, and "D" is
the amount of the distribution.
Section 8.04 Immediate Vesting of Certain Contributions. All Elective
<PAGE>
Deferral Contributions, Qualified Non-elective Contributions, Qualified
Matching Contributions, Employee Contributions, Rollover Contributions, and
Voluntary Deductible Contributions and all Income allocated thereon, shall be
fully vested when made and shall be nonforfeitable at all times thereafter.
Section 8.05 Benefits Upon Separation from Service. A Separated
Participant whose Service terminates for reasons other than death, Disability
or retirement, but who has not incurred a Break in Service, shall be entitled
to receive the Vested Account Balance (determined at the date his Service
terminates), such Accounts to be determined as of the Valuation Date
immediately preceding the date of the distribution, increased by any
contributions or Income gain, allocated after such Valuation Date and reduced
by any payments or withdrawals made from the Accounts, or Income loss
allocated against the Accounts, since such preceding Valuation Date.
Section 8.06 Payment of Service Separation Benefits. Subject to the
provisions hereof concerning the death or Disability of a Separated
Participant, any amounts due the Separated Participant pursuant to this
article from his Accounts shall be paid or applied for his benefit in
accordance with the provisions of Section 6.03 hereof for the payment of
retirement benefits, subject to the form of benefit payment and time
limitations of Sections 6.06 and 6.07 hereof, at what would have been his
Normal Retirement Date had he remained in Service. However, if allowed
pursuant to Item 16 of the Adoption Agreement, a Separated Participant may
elect that the commencement date of any amounts due the Separated Participant
pursuant to this article shall be any date after his Service terminates and
prior to his Normal Retirement Date; provided, however, that, for Plan Years
beginning prior to January 1, 1989, a Participant's election of early
commencement of any amounts due the Separated Participant pursuant to this
article shall be subject to the approval of the Plan Administrator.
In the event of the death of a Separated Participant subsequent to the date
his Service terminates and prior to the Annuity Starting Date hereunder, the
amount payable on behalf of such Separated Participant under this article
shall be paid in the form provided in Section 7.02 hereof as if he were a
deceased Participant. If the death of a Separated Participant occurs
subsequent to the date his Service terminates and after the Annuity Starting
Date hereunder, then no death benefit shall be payable unless provided for on
his death under the form of benefit pursuant to Section 6.03.
In the event of the Disability of a Separated Participant, and
certification thereof by the Plan Administrator to the Trustee, subsequent to
the date his Service terminates and prior to the commencement of benefits
hereunder, the amount payable on behalf of such Separated Participant under
this article shall be paid in the form provided in Section 7.06 hereof as if
he were a Participant who sustained a Disability. If benefits have commenced
hereunder, then in the event of the Disability of a Separated Participant
benefits shall continue in the form in which such benefits were being paid on
the date of such Disability.
ARTICLE 9
PLAN ADMINISTRATION
Section 9.01 Appointment of the Plan Administrator. The Plan Administrator
shall be the Employer or other entity or entities set forth in Item 3 of the
Adoption Agreement. The Plan Administrator may at any time be removed, with
or without cause, and a successor appointed by the Employer.
<PAGE>
The Plan Administrator shall serve without compensation, but the reasonable
expenses of the Plan Administrator in discharging its responsibilities shall
be borne by the Employer.
The Plan Administrator may appoint a Committee of not less than three (3)
persons to carry out the day to day administrative functions of the Plan in
its stead, but such Committee shall not be Plan Administrator unless so
designated in Item 3 of the Adoption Agreement.
Section 9.02 Powers and Duties of the Plan Administrator. The Plan
Administrator shall administer and supervise the operation of the Plan in
accordance with the terms and provisions of the Plan.
The Plan Administrator shall have all power and authority (including
discretion with respect to the exercise of that power and authority)
necessary, properly advisable, desirable or convenient for the performance of
its duties, which duties shall include, but not be limited to, the following:
(a) to construe the Plan in good faith;
(b) to determine eligibility of Employees for participation in the Plan
and to notify Employees of their eligibility and of any requirements
for such participation;
(c) to determine and certify eligibility for benefits under the Plan, to
maintain one or more separate bookkeeping accounts for each
Participant or Beneficiary to which shall be credited the various
types of contributions, if any, made under this Plan, and Income
thereon, and to direct the Trustee concerning the amount, manner and
time of the payment of such benefits and any insurance and annuity
contracts to be purchased on behalf of Participants, Retired or
Separated Participants and Beneficiaries;
(d) to prepare and distribute, in such manner as the Plan Administrator
determines to be appropriate, information explaining the Plan;
(e) to require a Participant to complete and file with the Plan
Administrator an application for a benefit and all other forms
approved by the Plan Administrator, and to furnish all pertinent
information requested by the Plan Administrator, which information may
be relied upon by the Plan Administrator;
(f) to adopt such rules as it deems necessary, desirable or appropriate
for the administration of the Plan, provided such rules are consistent
with the terms and provisions of the Plan; all rules and decisions of
the Plan Administrator shall be uniformly and consistently applied to
all Participants in similar circumstances;
(g) to appoint and compensate such agents as it may need in the
performance of its duties, with the consent of the Employer; and
(h) to receive and review the reports from the Trustee.
Section 9.03 Plan Administrator Procedures. The Plan Administrator may
adopt such procedures and regulations as it deems desirable for the
administration of the Plan. Such procedures and regulations shall be non-
discriminatory and shall to the extent feasible be maintained in writing.
Section 9.04 Claims and Review Procedures. The Plan Administrator shall
<PAGE>
establish reasonable procedures concerning the filing of claims for benefits
hereunder, and shall administer such procedures uniformly. If a claim is
wholly or partially denied, the Plan Administrator shall furnish the
claimant, within ninety (90) days after receipt of the claim by the Plan
Administrator, a notice of such denial, setting forth at least the following
information in language calculated to be understood by the claimant:
(a) the specific reason or reasons for the denial;
(b) specific reference to pertinent Plan provisions on which the denial is
based;
(c) a description of any additional material or information necessary for
the claimant to perfect the claim and an explanation of why such
material or information is necessary; and
(d) an explanation of the claims review procedure in the Plan.
Upon receipt of such notice of denial, or if such a notice is not furnished
but the claim has not been granted within ninety (90) days of its filing, the
claimant or his duly authorized representative may appeal to an "Appeals
Committee" or "Appeals Officer" from time to time appointed by the Employer
to hear such appeals, for a full and fair review.
In submitting a request for review, the claimant or his duly authorized
representative may request a review upon written application to the Appeals
Committee or Officer, may review pertinent documents, and may submit comments
in writing. Such request for review must be made within sixty (60) days of
the receipt by the claimant of the notice of denial (or within sixty (60)
days of the expiration of the ninety (90) day period beginning with the date
of the filing of the claim, if no such notice is received during such
period).
The Appeals Committee or Officer shall respond promptly to a request for
review and shall deliver a written decision which shall include, in a manner
calculated to be understood by the claimant, the decision itself, specific
reasons therefor and specific references to the pertinent Plan provisions on
which the decision is based. The decision shall be made not later than sixty
(60) days after the Appeals Committee's or Officer's receipt of the request
for review, unless special circumstances (such as, for example, the need to
hold a hearing) require an extension of this time; however, in no case shall
a decision be rendered more than one hundred and twenty (120) days after
receipt of a request for a review. The Plan Administrator and the claimant
shall be bound by the decision of the Appeals Committee or Officer.
Section 9.05 Purchase of Annuities and Incidental Death Insurance. The
Plan Administrator shall, if so directed in Item 15 of the Adoption
Agreement, or may, if so authorized therein, direct the Trustee ratably to
purchase, and pay premiums from the accounts attributable to Employer
contributions of a Participant for, one (1) or more ordinary or term
insurance policies and/or annuity contracts (hereinafter referred to as
Policies) from a Life Insurance Company, including, but not limited to,
variable annuities, flexible funds or contracts involving mortality
assumptions, on the life of a Participant, but such investment shall be
subject to the following restrictions:
(a) In any year in which the total of all amounts allocated to the
accounts attributable to Employer contributions of a Participant is
insufficient to meet his premium payments, the Trustee shall apply
<PAGE>
other amounts in his accounts attributable to Employer contributions,
to the extent permitted in this article, to the payment of said
premiums; provided that, in no event, shall the aggregate of premiums
paid under all Policies on the Participant's life ever exceed forty-
nine percent (49%) if of the ordinary type, or twenty-four percent
(24%) if of the term or universal type, of the total amount of all
Employer's contributions on behalf of said Participant. If premiums
are paid on both ordinary type Policies and term or universal life
type Policies on the life of a Participant, then the sum of one-half
(1/2) of the ordinary life premiums and all other life insurance
premiums shall not exceed one-fourth (1/4) of the total amount of all
Employer contributions on behalf of said Participant. For purposes of
these incidental insurance provisions, ordinary life insurance
contracts are contracts with both nondecreasing death benefits and
nonincreasing premiums.
(b) The Trustee shall pay all proceeds of any Policy it owns in accordance
with the provisions of this Plan, including the qualified election
provisions of Sections 6.03(c)(3) and 7.02(c)(4) hereof where
applicable. In conformity with such provisions, however, the Plan
Administrator may direct the Trustee to distribute the Policy itself
instead of the proceeds of any such Policy to the Participant as a
portion (equal in value to the cash surrender value of the Policy) of
the benefit otherwise due said Participant. In the event that a
distribution described in the immediately preceding sentence is made
at a time when the cash surrender value of the Policy exceeds the
value of the Participant's vested benefit, the Participant may
nonetheless receive such a distribution upon paying to the Trustee an
amount equal to the difference between said cash surrender value and
the value of his vested benefit.
(c) Any annuity contract which is purchased hereunder to provide benefits
otherwise payable under the Plan, and which is distributed to a
Retired Participant or Beneficiary, shall be endorsed as
"nontransferable."
The Trustee shall be the owner of all Policies obtained hereunder, and the
application for such Policy or Policies shall be in such manner as may be
necessary for the Trustee to vest in itself all incidents of ownership. Any
such Policy or Policies shall be in such form and substance as the Plan
Administrator shall determine, except as herein expressly provided. The
premium payments made on account of any such Policy shall be considered as an
investment of the accounts attributable to Employer contributions of the
Participant on whose life such Policy is issued, and such premium payments
shall be charged to such accounts.
Any dividends or credits earned on Policies shall be allocated to the
accounts attributable to Employer contributions of the Participant for whose
benefit the Policies are held. In the event of the death of such Participant
prior to retirement, the proceeds of such Policy shall be paid to the Trustee
and the proceeds shall be credited to the accounts attributable to Employer
contributions of such Participant. To the extent the Plan Administrator
establishes the amount to be invested in said Policies, as provided in
subsection (a) hereof, all Policies shall bear a common premium date and
dividends, if any, on said Policies shall be paid in cash to the Trust or
shall be used to reduce premiums and shall not reduce the amount otherwise
allocable to the Participant's Accounts. The Plan Administrator shall
specify whether all Participants shall participate uniformly in the purchase
of Policies, or whether each Participant may specify (within the limits
<PAGE>
established in (a) hereof) the amount of Employer contributions on his behalf
which shall be used to purchase such Policies.
If the Plan is a target benefit pension plan, the Plan Administrator may
direct that the amount of the retirement benefit provided to each Participant
by Policies shall not be increased until such Participant's Compensation is
large enough to increase the retirement benefit through such Policies by a
specified minimum amount. This minimum amount may be no greater than one
hundred and twenty dollars ($120) each year or ten dollars ($10) per month,
or alternatively, expressed as an increase in the face amount of the Policy,
a minimum increase in the face amount of the Policy which does not exceed one
thousand dollars ($1,000).
In the event of any conflict between the provisions of this Plan and the
terms of any Policy issued hereunder, the provisions of the Plan shall
control.
Once instructed by the Plan Administrator to purchase certain Policies, the
Trustee shall continue to pay premiums on such Policies as they fall due,
subject to the limitations of this subsection, during the continued
Participation of the insured and in the absence of direction to the contrary
from the Plan Administrator. In the absence of specific instruction from the
Plan Administrator, if a Participant's Service terminates, the Trustee shall
(i) if the Participant is not entitled to a vested benefit from his Employer
Account, cease to pay premiums, or (ii) if the Participant is entitled to a
vested benefit from his Employer Account, continue to pay premiums until the
former Participant incurs a Break in Service and shall then cease to pay
premiums. When premiums have ceased, the provisions of subsection (b) hereof
shall apply.
Section 9.06 Correction of Errors. If any error or change in records,
including an error resulting from an incorrect or incomplete allocation,
results in any Participant, Retired or Separated Participant, or Beneficiary
receiving from the Plan more or less than he would have been entitled to
receive had the records been correct or had the error not been made, the Plan
Administrator, upon discovery of such error, shall correct the error by
adjusting, as far as practicable, the accounts in such a manner that the
benefits to which such person was correctly entitled shall be paid.
ARTICLE 10
THE TRUSTEE
Section 10.01 General Duties. The Trustee shall hold all property received
by it hereunder, which, together with the income and gains therefrom and
additions thereto, shall constitute the Trust Fund. The Trustee shall
manage, invest and reinvest the Trust Fund, collect the income thereof, and
make payments therefrom, all as provided in the Plan.
The Trustee shall be responsible only for the property actually received by
it hereunder. It shall have no duty or authority to compute any amount to be
paid to it by the Employer or to bring any action or proceeding to enforce
the collection from the Employer of any contribution to the Trust Fund.
Title to the Trust Fund, including all funds and investments held hereunder
by the Trustee, shall be and remain in the Trustee, and no Participant,
Retired or Separated Participant or Beneficiary shall have any legal or
equitable right or interest in the Trust Fund except to the extent that such
<PAGE>
rights or interests are expressly granted under the provisions of the Plan.
Section 10.02 General Powers. The Trustee shall have all the powers
necessary for the performance of its duties as Trustee. The Trustee shall
have the following powers and immunities and be subject to the following
duties:
(a) The Trustee shall receive all contributions hereunder and apply such
contributions as hereinafter set forth. The Trustee shall have the
custody of and safely keep all cash, securities, property and
investments, including any Policies, received or purchased in
accordance with the terms hereof.
(b) Subject to any limitations that may be contained elsewhere in the
Plan, the Trustee shall take control and management of the Trust Fund
and shall hold, sell, buy, exchange, invest and reinvest the corpus
and income of the Trust Fund. All contributions paid to the Trustee
under the Plan shall be held and administered by the Trustee as a
single Trust Fund, and the Trustee shall not be required to segregate
and invest separately any part of the Trust Fund representing accruals
or interests of individual Participants in the Plan, except as
provided in Sections 4.11, 6.03, 10.09, 10.10 and 10.11 hereof.
(c) The Trustee may invest and reinvest the funds of the Trust Fund in any
property, real, personal or mixed, wherever situate, or whether or not
productive of income or consisting of wasting assets, including,
without limitation, any and all common and preferred stocks, bonds,
notes, puts, debentures, leaseholds, equipment trust certificates,
financial futures contracts, mortgages (including without limitation,
any collective or part interest in any bond and mortgage or note and
mortgage), certificates of deposit, and oil, mineral or gas
properties, royalties, interests or rights (including equipment
pertaining thereto), without being limited to the classes of property
in which trustees are authorized by law or any rule of court to invest
trust funds and without regard to the proportion any such property may
bear to the entire amount of the Trust Fund.
Nothing to the contrary withstanding, in performing its duties, the
Trustee shall have the power (subject to the provisions of the Plan as
amended from time to time relating to investment discretion and
investment directions) specifically to invest in units of any
collective investment trust or pooled fund sponsored by, or invested
in by, the Trustee or an affiliate of the Trustee, including, without
limiting the foregoing, all existing or future common, collective or
mutual trust funds created, administered and maintained pursuant
thereto for which this Trust may be eligible to be a participating
Trust (including, but not limited to, any temporary investment or
"sweep program" funds or common trust funds designed for investment in
real estate established by, or invested in by, the Trustee or an
affiliate of the Trustee), as presently constituted or hereafter
amended from time to time (the instrument creating each such group
trust or common trust fund, together with any amendments,
modifications or supplements thereof, heretofore or hereafter made
being hereby incorporated herein and made a part hereof as fully, and
for all intents and purposes, as if set forth herein in their
entirety).
The Trustee is expressly authorized to invest all or part of the Trust
Fund in savings accounts, time deposits, certificates of deposit,
<PAGE>
money market accounts, repurchase agreements or any other interest-
bearing accounts (regardless of the term of such deposits or
investments) issued by the Trustee or any of its affiliates, which
bear a reasonable interest rate.
The Trustee is further expressedly authorized to utilize the discount
brokerage operation, if any, offered by the Trustee.
(d) The Trustee may sell or exchange any property or asset of the Trust
Fund at public or private sale, with or without advertisement, upon
terms acceptable to the Trustee and in such manner as the Trustee may
deem wise and proper. The proceeds of any such sale or exchange may
be reinvested as is provided hereunder. The purchaser of any such
property from the Trustee shall not be required to look to the
application of the proceeds of any such sale or exchange by the
Trustee.
(e) The Trustee shall have full power to mortgage, pledge, lease or
otherwise dispose of the property of the Trust Fund without securing
any order of court therefor, without advertisement, and to execute any
instrument containing any provisions which the Trustee may deem proper
in order to carry out such actions. Any such lease so made by the
Trustee shall be binding, notwithstanding the fact that the term of
the lease may extend beyond the termination of the Plan.
(f) The Trustee shall have the power to borrow money upon terms agreeable
to the Trustee and pay interest thereon at rates agreeable to the
Trustee, and to repay any debts so created.
(g) The Trustee shall have the power to exercise any conversion privilege
or subscription right available in connection with any securities or
other property which it may hold at any time; to oppose, or to consent
to, the organization, consolidation, merger or readjustment of the
finances of any corporation, company or association, or to the sale,
mortgage, pledge or lease of the property of any corporation, company
or association, whose securities it may hold at any time; and to do
any act with reference thereto, including the exercise of options, the
making of agreements or subscriptions and the payment of expenses,
assessments or subscriptions which it may deem necessary or advisable
in connection therewith; to hold and retain any securities or other
property which it may acquire; to write covered listed call options
against existing positions or to close such option contracts; and
generally to exercise any of the powers of any owner with respect to
any stock or other securities or property comprising the Trust Fund.
(h) The Trustee may, through any duly authorized officer or proxy, vote
any share of stock which the Trustee may own from time to time, except
as provided in Section 10.09 if an Investment Manager is appointed.
(i) The Trustee shall retain in cash and keep unproductive of income such
funds as from time to time it may deem advisable. The Trustee shall
not be required to pay interest on any such cash in its hands pending
investment, nor shall the Trustee be responsible for the adequacy of
the Trust Fund to discharge any and all payments under the Plan. All
persons dealing with the Trustee are released from inquiry into the
decision or authority of the Trustee to act.
(j) The Trustee may hold stocks, bonds, or other securities in its own
name as Trustee, with or without the designation of said trust estate,
<PAGE>
or the name of a nominee selected by it for the purpose, but said
Trustee shall nevertheless be obligated to account for all securities
received by it as part of the corpus of the trust estate herein
created, notwithstanding the name in which the same may be held.
(k) The Trustee may or may not consult with legal counsel (who may or may
not be of counsel to the Employer or the Plan Administrator)
concerning any questions which may arise with reference to the
construction of this Plan, its duties hereunder, or any action which
it proposes to take or omit, and the Trustee shall not be deemed
imprudent merely by reason of taking, or refraining to take, any
action in accordance with the opinion of such counsel.
(l) The Trustee may employ such counsel, accountants and other agents as
it shall deem advisable. The Trustee may charge the compensation of
such counsel, accountants and other agents, the Trustee's compensation
for its services in such amounts as may be agreed upon from time to
time by the Employer and the Trustee, and any other expenses necessary
in the administration of this Plan against the Trust Fund to the
extent they are not paid by the Employer.
(m) If the Plan Administrator so desires, the Trustee may use the Trust
Fund to purchase insurance policies or annuity contracts issued by a
Life Insurance Company as provided in the Plan.
(n) The Trustee shall have the power to sell for cash or on credit, to
grant options, convert, redeem, exchange for other securities or other
property or otherwise to dispose of the securities or other property
which it holds at any time; and to engage in writing covered options.
(o) The Trustee may settle, compromise or submit to arbitration, any
claims, debts, or damages, alleged or determined due or owing to or
from the Trust; and may commence or defend suits or legal proceedings
on the Trust's behalf.
(p) The Trustee may manage, administer, operate, lease for any number of
years (regardless of any restrictions on leases made by fiduciaries),
develop, improve, repair, alter, demolish, mortgage, pledge, grant
options with respect to, or otherwise deal with any real property or
interest therein which it may hold at any time; and may hold any such
real property in its own name or in the name of a nominee, with or
without the addition of words indicating that such property is held in
a fiduciary capacity; and may cause to be formed a corporation or
trust, with the aforesaid powers, to hold title to any such real
property, all upon the terms and conditions which it may deem
advisable.
(q) The Trustee may renew or extend, or participate in the renewal or
extension of, any mortgage upon such terms as it may deem advisable,
and may agree to a reduction in the rate of interest or to any other
modification or change in the terms of any mortgage or guarantee
pertaining thereto, in any manner and to any extent that it may deem
advisable for the protection of the Trust Fund or the preservation of
the value of the investment; may waive any default, whether in the
performance of any covenant or condition of any mortgage or in the
performance of any guarantee, or may enforce any such default in such
manner and to such extent as it may deem advisable; may exercise and
enforce any and all rights of foreclosure, may bid in property for
foreclosure, may take a deed in lieu of foreclosure, with or without
<PAGE>
paying a consideration therefor and in connection therewith, may
release the obligation on the bond secured by such mortgage, and may
exercise and endorse, in any action, suit or proceedings at law or in
equity, any rights or remedies in respect to any such mortgage or
guarantee.
(r) The Trustee may form corporations and create trusts to hold title to
any securities or other property, all upon such terms and conditions
as it may deem advisable.
(s) The Trustee may make, execute and deliver as Trustee, any and all
deeds, leases, mortgages, conveyances, contracts, waivers, releases or
other instruments in writing which are necessary or proper for the
accomplishment of any of its powers.
(t) The Trustee may, if the Plan is a profit sharing plan and if the
Employer consents, invest up to the amount specified in Item 10 of the
Adoption Agreement of the Trust Fund in Qualifying Employer
Securities, subject to its fiduciary duties under this article.
(u) The Trustee may designate a bank or trust company as depositary of the
funds or property of the Trust and may retain investment counsel, and
the Trustee named herein may deposit funds in its name as Trustee
without making bond.
(v) Without diminution or restriction of the powers vested by law or
elsewhere in this Plan, and subject to all the provisions of the Plan,
the Trustee, without the necessity of procuring any judicial
authorization therefor or approval thereof, shall be vested with, and
in the application of its best judgment and discretion on behalf of
the beneficiaries of this Plan, shall be authorized to exercise all or
any of the powers specifically permitted by statute or judicial
decision in, or with respect to, a state in which it does business.
(w) The Trustee may do all acts which it may deem necessary to carry out
any of the powers either set forth herein or which it otherwise deems
to be in the best interest of the Trust Fund.
Section 10.03 Reliance on Plan Administrator and Employer. Until notified
pursuant to Section 12.03 hereof that the Plan Administrator or other person
authorized to act for the Employer has ceased to act or is no longer
authorized to act for the Employer, the Trustee may continue to rely on the
authority of such Plan Administrator or other person. The Trustee may rely
upon any certificate, notice or direction purporting to have been signed on
behalf of the Employer which the Trustee believes to have been signed by the
Plan Administrator or other person or persons authorized to act for the
Employer. The Trustee may request instructions in writing from the Plan
Administrator on other matters and may rely and act thereon.
Section 10.04 Accounts and Reports. The Trustee shall keep an accurate
record of its administration of the Trust Fund, including a detailed account
of all investments, receipts and disbursements, and other transactions
hereunder. All accounts, books and records relating hereto shall be open for
inspection to any person designated by the Plan Administrator or the Employer
at all reasonable times. Within sixty (60) days following the close of each
Plan Year, the Trustee shall file with the Plan Administrator a written
report setting forth all investments, receipts and disbursements and other
transactions during the Plan Year, and such report shall contain an exact
description of all securities purchased, exchanged or sold, and the cost or
<PAGE>
net proceeds of each transaction, and shall show the securities and
investments held at the end of such Plan Year, and the market value and cost,
as carried on the books of the Trustee, of each item thereof.
The Trustee shall also provide the Employer and the Plan Administrator with
such other information in its possession as may be necessary for the Plan
Administrator to comply with the reporting and disclosure requirements of
ERISA.
Upon the expiration of ninety (90) days from the date of filing such report
and information, the Trustee shall be forever released and discharged from
all liability and accountability to anyone with respect to the recording of
its acts or transactions shown in such statement, except with respect to any
such acts or transactions as to which the Employer shall file with the
Trustee written objections within such ninety (90) day period.
Section 10.05 Insurance. It shall be the duty of the Plan Administrator to
direct the Trustee in writing as to the amount and nature of any Policies to
be purchased on the life of any Participant or Separated or Retired
Participant and the name of the Life Insurance Company from which such
purchase shall be made. The Plan Administrator shall also direct the Trustee
as to the time that such Policies may be discontinued or transferred to a
Participant or Separated or Retired Participant and the conditions under
which the transfer shall be made.
Section 10.06 Disbursements. The Trustee, upon written instructions from
the Plan Administrator, shall make distributions or payments, including
monthly payments, to the Participants, Retired or Separated Participants, and
Beneficiaries who qualify for such benefits and shall purchase, transfer,
discontinue or surrender any Policies. The Trustee shall have no liability
to the Employer, the Plan Administrator or any other person in making such
distributions or payments. The Trustee shall not be required to determine or
make any investigation to determine the identity or mailing address of any
person entitled to benefits under the Plan and shall have discharged its
obligation in that respect when it shall have sent checks and other papers by
ordinary mail to such person or persons at such addresses as may be certified
to it in writing by the Plan Administrator, except in the case of
malfeasance, gross negligence or willful misconduct in such matters by the
Trustee.
Section 10.07 Payment in Kind. Whenever the Trustee is empowered hereunder
to make any payment or distribution, the Trustee shall have the power, in its
sole discretion, to make such payment in cash or in kind, or partly in cash
and partly in kind. The assets of the Trust Fund shall be valued, for the
purposes of making, or of computing the amount of, such payment or
distribution, at their fair market value at the dates of such payments or
distributions or at any other date, as the Trustee shall, in its absolute
discretion, determine.
Section 10.08 Authority of Trustee. At no time during the administration
of the Trust Fund shall the Trustee be required to obtain any court approval
of any act required of it in connection with the performance of its duties or
in the performance of any act required of it in the administration of its
duties as Trustee. The Trustee shall have full authority to exercise its
judgement in all matters and at all times without court approval of such
decisions; provided, however, that if any application to, or proceeding or
action in, the courts is made, only the Employer and the Trustee shall be
necessary parties, and no Participant in the Plan or other person having an
interest in the Trust Fund shall be entitled to any notice or service of
<PAGE>
process. Any judgment entered in such proceeding or action shall be
conclusive upon all persons claiming an interest under the Trust Fund.
Section 10.09 Appointment of Investment Manager. The Employer, if it has
so elected in Item 10 of the Adoption Agreement, may at any time and from
time to time appoint in writing an Investment Manager or Managers to manage
all or any portion of the assets of the Plan, and may revoke any such
appointment previously made. For purposes hereof, the Employer shall mean
only the entity executing the Adoption Agreement as "Employer", but shall not
mean any organization executing the Plan as an "Adopting Employer." While
such an appointment is in effect, the relations among the Plan Administrator,
Employer, Investment Manager and Trustee shall be governed by the following
provisions:
(a) The Employer shall certify to the Trustee the name or names of any
Investment Manager appointed by it to manage the investment or
reinvestment of all or any portion of the Trust Fund. Such
certificate shall also state that the Investment Manager has
acknowledged his Fiduciary status with respect to the Plan in writing.
(b) The Trustee shall segregate any portion of the Trust Fund held by it
which will be subject to the management of an Investment Manager into
one or more separate accounts to be known as investment manager
accounts and shall charge any expenses related to investments directed
by an Investment Manager against such accounts. Each Investment
Manager shall have the right and power to manage the investment and
reinvestment of his investment manager account. The Trustee shall
follow the directions of the Investment Manager with respect to the
account of such Investment Manager and shall not be obligated to
invest or otherwise manage any such investment manager account. All
directions given by an Investment Manager to the Trustee shall be in
writing, signed by an officer or a partner of the Investment Manager
or by such other person or persons as may be designated by such
officer or partner. Subject to such conditions as may be approved by
the Employer and Trustee, the Investment Manager may place direct
orders for the purchase or sale of securities or other property for
its investment manager account, provided, that the Trustee shall
nevertheless retain custody of the assets comprising said account.
(c) If the Employer, by written notice to the Trustee, terminates the
authority of an Investment Manager but does not appoint a successor to
manage the investment and reinvestment of the account of such
Investment Manager, the portion of the Fund then held in such
investment manager account shall return to the unsegregated portion of
the Fund and the Trustee shall have authority to manage the investment
and reinvestment of such account. Until receipt of a written notice
terminating the authority of an Investment Manager, the Trustee shall
be fully protected in relying upon the latest prior written notice of
appointment of an Investment Manager.
(d) Any Investment Manager may, in writing, authorize the Trustee to
invest any portion of his investment manager account in short-term
investments. The Trustee, in its sole discretion, may make such
investments either directly or by investment collectively with other
assets, including but not limited to investment in any common,
commingled, collective, mutual or pooled trust fund established and
maintained by the Trustee, or an affiliate of the Trustee, for the
investment of funds administered in a fiduciary capacity.
<PAGE>
(e) The Trustee shall not be responsible for any loss caused by its acting
upon any notice, direction or certification of any Investment Manager
appointed by the Employer which the Trustee reasonably believes to be
genuine. The Trustee shall have no duty to question any direction,
action or inaction of any Investment Manager taken as provided in this
section. The Trustee shall have no duty to review the securities or
other property held in any investment manager account or to make any
suggestions to any Investment Manager or to the Employer with respect
to the investment, reinvestment, or disposition of investments in any
investment manager account. The Trustee shall not be responsible for
the results arising from the Trustee's compliance with the
instructions of any Investment Manager.
(f) The Trustee shall not be responsible for determining the
reasonableness of any compensation paid to or agreed to be paid to an
Investment Manager. Any such compensation to an Investment Manager
shall be paid from the Trust Fund, if the Plan Administrator so
directs.
(g) With respect to any share of stock in the investment manager account,
the Investment Manager may, through any duly authorized officer or
proxy, vote any such stock.
Section 10.10 Direction by the Employer. If so elected by the Employer in
Item 10 of the Adoption Agreement, the Employer shall have the right to
manage the investment and reinvestment of all or any portion of the Trust
Fund. For purposes hereof, the Employer shall mean only the entity executing
the Adoption Agreement as "Employer", but shall not mean any organization
executing the Plan as an "Adopting Employer." The Employer shall furnish the
Trustee with written instructions with respect to such investments. The
Trustee shall segregate any portion of the Trust Fund held by it which is
subject to the management of the Employer into one (1) or more separate
accounts and shall charge any expenses related to investments directed by the
Employer against such accounts.
Section 10.11 Direction by Participants. If so elected by the Employer in
Item 10(a) of the Adoption Agreement, then each Participant shall manage the
investment and reinvestment of all or a portion (as indicated in Item 10(a))
of his Accounts.
If so elected by the Employer in Item 10(b) of the Adoption Agreement, then
the Plan Administrator may elect, by providing written notice to the Trustee
on a form and in a manner designated by the Trustee, to permit Participants
to direct the investment of their Accounts. The Plan Administrator may limit
such investments to investment options which the Plan Administrator and the
Trustee have jointly approved. The Plan Administrator shall establish
uniform and nondiscriminatory rules and restrictions with respect to such
directed investments.
The Trustee shall carry out the investment directions of a Participant
hereunder as soon as practicable after receipt of each such direction, but
nothing herein shall be construed to compel the Trustee to accept as a
directed investment hereunder an investment which the Trustee, in its sole
discretion, determines inadvisable to make, or to continue to make. Any
election hereunder shall be in writing in a form acceptable to the Trustee
and shall remain in effect until a contrary election is properly submitted by
the Participant to the Trustee (including an election to reinvest the
previously Participant directed amount in the general assets of the Trust
Fund), or the Trustee deems it advisable to invoke the preceding sentence and
<PAGE>
gives written notice of its intent to the Participant.
For purposes hereof, the Employer shall mean only the entity executing the
Adoption Agreement as the "Employer", but shall not mean any organization
executing the Plan as an "Adopting Employer." The Plan Administrator shall
notify the Trustee in writing of any rules which it has established with
respect to Participant directed investments. The Trustee shall segregate any
portion of the Fund held by it which is subject to the management of a
Participant into one (1) or more separate accounts to be known as
"participant directed investment accounts" and shall charge any expenses
related to investments directed by a Participant against his accounts. All
investment income or losses on investments in such separate accounts shall be
credited only to such separate accounts. Such separate accounts shall not
share in any Income of the remaining general assets of the Trust Fund. If
permitted by the Trustee, the Plan Administrator may direct the Trustee that
loans to Participants made pursuant to Section 5.02, to the extent
permissible under the limitations of both Section 5.02 and this section,
shall be deemed to be directed investments hereunder.
However, any investment of assets of a participant directed investment
account in collectibles (within the meaning of Section 408(m)(2) of the Code)
occurring after December 31, 1981, is prohibited, or, if inadvertently made,
shall be considered to be a distribution from the Plan.
Section 10.12 Protection of Trustee and Investment Manager When Participant
or Employer Directs Investments. Neither the Trustee nor any Investment
Manager shall be responsible for any loss caused by its acting upon any
notice, direction or certification furnished by any Participant or the
Employer pursuant to Section 10.10 or Section 10.11 which the Trustee or
Investment Manager reasonably believes to be genuine. Neither the Trustee
nor any Investment Manager shall have the duty to question any direction,
action or inaction of any Participant or the Employer acting pursuant to
Section 10.10 or Section 10.11. Neither the Trustee nor any Investment
Manager shall have the duty to review the securities or other property held
in the account of any such Participant or to make any suggestions to such
Participant or to the Employer with respect to the investment, reinvestment
or disposition of investments made by any such Participant or by the
Employer. Neither the Trustee nor any Investment Manager shall be
responsible for the results arising from their compliance with the
instructions of any such Participant or the Employer.
Section 10.13 Indemnification of Trustee When Acting Pursuant to Investment
Directions. The Employer agrees to hold the Trustee harmless and defend the
Trustee against any claims alleged to have been caused by its action pursuant
to investment instructions from or by its failure to act in the absence of
investment instructions from any Investment Manager, Participant or the
Employer except in the case of malfeasance, gross negligence or willful
misconduct in such matters by the Trustee.
Section 10.14 Right of Trustee to Direct Investments. If no Investment
Manager has been appointed, if the Employer does not have or has not
exercised the right to manage the investment and reinvestment of all or any
portion of the Fund, and if Participants do not have or have not exercised
the right to direct the investment and reinvestment of all or any portion of
their accounts, the Trustee shall be free to manage the investment and
reinvestment of all or any portion of the Fund under the powers granted by
this Trust as if Sections 10.09 through 10.13 were not a part of this Trust.
Section 10.15 Trustee to Trustee Transfers. A direct transfer of plan
<PAGE>
assets attributable to a Participant's participation in other pension, profit
sharing or stock bonus plans qualified under Section 401(a) of the Code
(including notes evidencing the Participant's debt to the Plan on plan loans)
to this Plan from such other plan by that plan's trustee may be allowed in
cash or other property acceptable to the Trustee pursuant to this Section
10.15. For Plan Years commencing before January 1, 1989, a direct transfer
of assets to this Plan pursuant to this Section 10.15 may be allowed, subject
to the discretion of the Employer. For Plan Years commencing after December
31, 1988, a direct transfer of assets to this Plan shall be allowed, if so
elected by the Employer in Item 9 of the Adoption Agreement. However, any
restrictions on distributions of such transferred assets under such other
plan which are also required under current law shall be maintained under this
Plan with respect to such assets. In no event shall transfers be allowed
from plans which would require the Plan to offer forms of benefit payment
which are not indicated in Item 19 of the Adoption Agreement. Likewise, the
Trustee may make such a direct transfer of assets attributable to a
Participant's participation in this Plan to another pension, profit sharing
or stock bonus plan qualified under Section 401(a) of the Code from this
Plan.
A separate bookkeeping account shall be established on behalf of each
Participant on whose behalf assets have been transferred, and the balance of
each such account shall be fully vested at all times. Such direct trustee to
trustee transfers shall not be considered in determining the maximum benefits
permissible under the Plan pursuant to Section 4.07 hereof or as
contributions by the Employer under Sections 3.01 or 13.03 of this Plan.
A Participant may direct the Trustee to invest the entire amount credited
to such Participant's separate account in a particular manner or in a
diversity of manners, subject to prior written approval by the Trustee and
the Plan Administrator. Such individual election shall be made to the
Trustee in writing on a form, and at such time, as prescribed by the Trustee.
The Trustee shall carry out any such direction of such Participant as soon as
practicable after receipt of the individual election, shall segregate such
Participant's account from the general assets of the Trust Fund, and shall
earmark the directed investment as allocable only to such Participant's
account.
Any direction by a Participant shall remain in effect until another valid
direction has been made by the Participant or until the Trustee is authorized
by the Participant to permit the amount credited to the Participant's account
to be reinvested as a general asset of the Trust Fund. The Trustee shall be
fully protected in relying upon the latest valid written investment direction
of a Participant, and shall not be responsible for any loss caused by its
acting on any direction which the Trustee reasonably believes to be valid.
The Trustee shall have no duty to question any direction, action or inaction
of any Participant taken pursuant to this section, nor shall the Trustee have
a duty to review any investment or to make any suggestions with respect to
the investment, reinvestment or disposition of investments under an
individually directed account. Notwithstanding the foregoing, however, the
Trustee shall be responsible in such matters in the case of its malfeasance,
gross negligence or willful misconduct.
Unless, upon prior approval by the Trustee, a Participant directs his
separate account be invested apart from the general assets of the Trust Fund,
each such separate account shall be credited each Plan Year with the net rate
of investment return earned by the Trust Fund, as calculated annually by the
Plan Administrator.
<PAGE>
Section 10.16 Custodial Duties. The Trustee may delegate any of its
ministerial powers or duties hereunder, including the signing of any checks
drawn on its account, to any one of its agents or employees. In addition,
the Trustee may delegate its responsibility to physically hold and safeguard
the assets of the Plan to a custodian which is a duly licensed bank or such
other person who demonstrates to the satisfaction of the Commissioner of
Internal Revenue that the manner in which that other person shall discharge
its custodial duties shall be consistent with the requirements of the Code.
Section 10.17 Action by Trustee. If there is more than one Trustee, then
they shall act by a majority of their number, but may authorize one or more
of them to sign documents or papers on their behalf.
ARTICLE 11
AMENDMENT AND TERMINATION OF THE PLAN
Section 11.01 Amendment of Regional Prototype Plan Document. By the
authority delegated by the Employer in Item 28 of the Adoption Agreement, the
Sponsor shall have the power, at any time and from time to time, to modify,
alter or amend the Adoption Agreement and/or this regional prototype plan
document, subject to the provisions of this article. A copy of any such
amendment or amendments shall be delivered within thirty (30) days after the
adoption thereof to each Employer who has adopted the regional prototype plan
document, and no such amendment or amendments shall become effective until at
least thirty (30) days after written notice thereof has been given to each
such Employer.
Section 11.02 Amendment of the Adoption Agreement and Plan. The Employer
may (i) change the choice of options in the Adoption Agreement, (ii) add
overriding language in the Adoption Agreement when such language is necessary
to satisfy Section 415 or Section 416 of the Code because of the required
aggregation of multiple plans, and (iii) add certain model amendments
published by the Internal Revenue Service which specifically provide that
their adoption will not cause the Plan to be treated as individually
designed. The Employer may also amend administrative provisions involving
the Trust of the Plan (such as provisions relating to investments and the
duties of the Trustee), provided the amended provisions are not in conflict
with any other provision of the Plan and do not prevent the Plan from
qualifying under Code Section 401(a), and, provided further, that if the
Employer has adopted a standardized Adoption Agreement, it may only amend the
provisions involving the Trust with regard to the names of the Plan, the
Employer, the Trustee or custodian, Plan Administrator and other Fiduciaries,
the trust year, or the name of any pooled trust fund in which the Trust will
participate. An Employer (i) that amends the Plan for any other reason,
including a waiver of the minimum funding requirement under Section 412(d) of
the Code, or (ii) that chooses to discontinue participation in the Plan as
amended by the Sponsor and does not substitute another approved regional
prototype or an approved master or prototype plan, shall no longer
participate in this regional prototype plan and shall be considered to have
an individually designed plan. A copy of any amendments to the Adoption
Agreement shall be filed with the Trustee and the Sponsor. Only the Employer
which is the entity executing the Adoption Agreement as the "Employer," and
not any organization executing the Plan as an "Adopting Employer," shall have
the authority to amend the Plan under this article.
Section 11.03 Limitations on Amendments. Subject to the provisions of
Section 12.05 hereof, neither the Trustee nor the Employer shall have the
<PAGE>
right to amend the regional prototype plan document, the Plan or the Adoption
Agreement in the following respects.
(a) No amendment may be made which shall vest in any Employer, directly or
indirectly, any interest in, or ownership or control of, any of the
present or subsequent funds set aside for Participants pursuant to the
Plan.
(b) No part of funds of the Trust shall, by reason of any amendment, be
used for or diverted to purposes other than for the exclusive benefit
of Participants, Retired or Separated Participants, or their
Beneficiaries or for administration expenses of the Plan.
(c) No amendment to the Plan shall be effective to the extent that it has
the effect of decreasing a Participant's accrued benefit.
Notwithstanding the preceding sentence, a Participant's account
balance may be reduced to the extent permitted under Section 412(c)(8)
of the Code. For purposes of this paragraph, a Plan amendment which
has the effect of decreasing a Participant's account balance or
eliminating an optional form of benefit, with respect to benefits
attributable to service before the amendment shall be treated as
reducing an accrued benefit. Furthermore, if the vesting schedule of
a Plan is amended, in the case of an Employee who is a Participant as
of the later of the date such amendment is adopted or the date it
becomes effective, the nonforfeitable percentage (determined as of
such date) of such Employee's Accounts will not be less than the
percentage computed under the Plan without regard to such amendment.
(d) No amendment may be made to Item 16 of the Adoption Agreement under
Section 11.02 hereof by the Employer, or to the Plan by Plan amendment
under Section 11.01 hereof by the Sponsor, that may in any way
directly or indirectly affect the computation of the Participant's
nonforfeitable percentage, unless each Participant who has completed
three (3) or more Years of Service at the date of adoption of such
amendment is given the right to elect irrevocably to have his
nonforfeitable benefits computed without regard to such amendment.
For Participants who do not have at least one (1) Hour of Service in
any Plan Year beginning after December 31, 1988, the preceding
sentence shall be applied by substituting "five (5)" for "three (3)"
where such number appears. Such election must be made within the
period beginning on the date of adoption of the amendment and ending
sixty (60) days after the latest of:
(i) the date the amendment is adopted,
(ii) the date the amendment becomes effective, and
(iii) the date on which the Participant is furnished written notice
of the amendment.
Section 11.04 Removal or Resignation of Trustee. The Trustee may at any
time be removed as Trustee of the Plan by written action of the governing
body of the Employer with or without cause, upon written notice to that
effect sent or delivered to the Trustee, such removal to be effective sixty
(60) days after such notice is given. For purposes hereof, the Employer
shall mean only the entity executing the Adoption Agreement as "Employer",
but shall not mean any organization executing the Plan as an "Adopting
Employer".
<PAGE>
The Trustee may resign as Trustee of the Plan upon written notice to that
effect sent or delivered to the Employer, such resignation to be effective
sixty (60) days after such notice is given.
Upon mutual, written agreement by the Employer and the Trustee, the sixty
(60) day period in this section may be waived or a shorter period
substituted.
For purposes hereof, the term "Trustee" shall include any individual
Trustee if more than one (1) Trustee exists.
Section 11.05 Successor Trustee. In the event of the resignation or
removal of the Trustee, the Employer shall appoint a successor trustee in
place of the resigned or removed Trustee.
Within one hundred and twenty (120) days after written notice of removal or
resignation, the Trustee shall file with the Employer affected a written
report setting forth all investments, receipts and disbursements and other
transactions effected by it since the end of the preceding Plan Year. Such
report shall be in the same form and be subject to the same requirements as
the annual report.
The Trustee, if not paid by the Employer, is authorized to reserve such sum
of money or to liquidate such property and reserve the proceeds thereof as it
may deem advisable for the payment of its expenses and/or charges in
connection with the settlement of its account or otherwise, and any such
balance of such reserve remaining after the payment of such expenses and
charges shall be paid over to the successor trustee or trustees, or to the
Participants in the event of termination.
Section 11.06 Intent to Continue Plan. The Employer has established the
Plan with the bona fide intention and expectation that from year to year it
will be able, and will deem it advisable, to continue the Plan and to make
its contributions as herein provided. However, the Employer realizes that
circumstances not now foreseen or circumstances beyond its control may make
it either impossible or inadvisable to continue the Plan or to make such
contributions. The Employer shall have the right to modify, suspend, or
discontinue contributions to the Plan at any time and from time to time, and
such action shall not be deemed to be a termination of the Plan unless it
constitutes a complete discontinuance of contributions by the Employer to the
Plan.
Section 11.07 Termination or Partial Termination of the Plan by the
Employer. In the event the Employer concludes that it is impossible or
inadvisable for the Employer to continue the Plan or to continue to make its
contributions as herein provided, the governing body of the Employer shall
have the right to terminate the Plan by an appropriate resolution or
resolutions which shall specify the date of termination. A certified copy of
such resolution or resolutions shall be delivered to the Plan Administrator,
the Sponsor and the Trustee, and as soon as possible thereafter the Plan
Administrator shall send or deliver to each then Participant a notice of such
action.
If a determination is made that the Plan has experienced a complete or
partial termination, the accounts of affected Participants shall become
nonforfeitable without regard to Section 8.02 hereof.
Section 11.08 Termination of the Plan on Happening of Certain Events. The
Plan shall automatically terminate upon the happening of any of the following
<PAGE>
events:
(a) Discontinuance or liquidation of the Employer's business;
(b) The merger or consolidation of the Employer with any other corporation
or business organization, or the sale by the Employer of substantially
all of its assets to any corporation or business organization which
shall fail to adopt and continue the Plan within ninety (90) days from
the effective date of such consolidation, merger or sale of assets.
(c) Complete discontinuance of contributions by the Employer to the Plan.
Section 11.09 Distribution of Trust Fund Upon Complete Termination. Upon
complete termination of the Plan, each Participant, Retired or Separated
Participant, or Beneficiary shall be entitled to receive any amounts then
credited to his Accounts in the Trust Fund, after payment of all expenses and
proportional adjustment of Participants' Accounts to reflect such expenses,
investment gains or losses and reallocations to the date of termination. The
Trustee shall make payment of such amounts pursuant to the provisions of
Section 8.06 hereof as if the former Participants of the Plan upon
termination were Separated Participants; provided, however, that if the Plan
does not offer an annuity option and the Employer does not maintain any other
defined contribution plan (other than an employee stock ownership plan as
defined in Section 4975(e)(7) of the Code), the Participant's account balance
may, without the Participant's consent, be distributed to the Participant.
Upon the distribution of all of the Trust Funds as aforesaid, the Trustee
shall be discharged from all obligations under the Trust and no Participant,
Retired or Separated Participant, or Beneficiary shall have any further
rights or claim therein.
Section 11.10 Successor Organization. In the event of a merger or
consolidation of any Employer or transfer of all or substantially all of its
assets to any corporation, partnership or association, provision may be made
by such successor corporation, partnership or association for its election of
the continuance of this Plan as to such successor entity. Such successor
shall, upon its election to continue this Plan, be substituted in place of
the transferor Employer by an instrument duly authorizing such substitution
and duly executed by such Employer and its successor. Upon notice of such
substitution, accompanied by a certified copy of the resolutions of the
governing body of such Employer and the governing body of its successor
authorizing such substitution and delivered to the Trustee, the Trustee shall
be authorized to recognize such successor in the place of the transferor
Employer.
Section 11.11 Minimum Benefit Upon Plan Merger, Consolidation or Transfer
of Assets. In the event of any merger or consolidation of the Plan with, or
the transfer of assets or liabilities of the Plan to, any other plan or
trust, each Participant, Retired or Separated Participant and Beneficiary
shall be entitled upon any subsequent termination of the successor plan or
trust immediately after the merger, consolidation or transfer to a benefit in
an amount not less than he would have been entitled to receive if the Plan
had terminated immediately before the merger, consolidation or transfer.
Section 11.12 Termination of Plan with Respect to an Adopting Employer. In
the event that two or more Employers participate in a single Trust Fund
pursuant to the provisions of Section 4.08 hereof, each Adopting Employer
reserves the right to terminate its participation in the Plan in accordance
with Section 11.07 hereof, and the occurrence of either of the events set out
in Section 11.08 hereof with respect to an Adopting Employer shall constitute
<PAGE>
termination of such Adopting Employer's Plan. In the event of any such
termination, the Trustee shall segregate the portion of the Trust Fund
attributable to participation in the Plan by the Employees of such Employer,
and the amount so segregated shall be subject to the provisions of Section
11.09 hereof.
Section 11.13 Special Distribution Rules. Elective Deferrals, Qualified
Non-elective Contributions, and Qualified Matching Contributions, and Income
allocable to each are not distributable to a Participant or his Beneficiary
in accordance with such Participant's or Beneficiary's election, earlier than
upon separation from Service, death, or Disability. However, such amounts
may also be distributed upon:
(a) termination of the Plan without the establishment of another defined
contribution plan;
(b) the disposition by a corporation to an unrelated corporation of
substantially all of the assets (within the meaning of section
409(d)(2) of the Code) used in a trade or business of such corporation
if such corporation continues to maintain this Plan after the
disposition, but only with respect to Employees who continue
employment with the corporation acquiring such assets;
(c) the disposition by a corporation to an unrelated entity of such
corporation's interest in a subsidiary (within the meaning of section
409(d)(3) of the Code) if such corporation continues to maintain this
Plan, but only with respect to Employees who continue employment with
such subsidiary.
(d) the attainment of age fifty-nine and one-half (59-1/2) in the case of
a profit-sharing plan.
(e) the hardship of the Participant as described in Section 5.01.
All distributions that may be made pursuant to one or more of the foregoing
distributable events are subject to the spousal and Participant consent
requirements (if applicable) contained in Sections 401(a)(11) and 417 of the
Code.
ARTICLE 12
CERTAIN PROVISIONS AFFECTING THE EMPLOYER
Section 12.01 Duties of the Employer. The Employer shall furnish the
Trustee and the Plan Administrator with the information required herein. The
Employer shall make its contributions as the same may be appropriated by due
action, which contributions may be in cash or in other property acceptable to
the Trustee. The Employer shall keep accurate books and records with respect
to its Employees and their compensation.
Section 12.02 Right of Employer to Discharge Employees. The adoption and
maintenance of the Plan shall not be deemed to constitute a contract between
the Employer and any Employee, or to be a consideration for, or an inducement
or condition of, the employment of any person. Nothing herein contained, nor
any action taken hereunder, shall be deemed to give to any Employee the right
to be retained in the Service of the Employer or to interfere with the right
of the Employer to discharge any Employee at any time, nor shall it be deemed
to give to the Employer the right to require the Employee to remain in its
<PAGE>
Service, nor shall it interfere with the Employee's right to terminate his
Service at any time.
Section 12.03 Information to be Furnished. As soon as practicable after
the close of each Plan Year, the Employer shall deliver to the Plan
Administrator a full and complete list of all Employees entitled to
participate in the Plan during such Plan Year, together with the information
required to perform the allocation described in Article 4 hereof with respect
to such Plan Year. As soon as possible after the completion of the Adoption
Agreement, and from time to time thereafter, the Employer and the Plan
Administrator shall certify to the Trustee the names and specimen signatures
of any representatives of the Employer who have authority to act on its
behalf with respect to the Plan.
Section 12.04 Communications from Employer to Trustee. All notices,
certifications, directions, information and other communications from the
Employer to the Trustee shall be in writing subscribed by an officer of the
Employer. The Trustee may rely upon and shall be protected in acting upon
any information furnished to it by the Employer as aforesaid. Any
certification by the Employer of the information required or permitted to be
certified to the Trustee pursuant to the provisions of the Plan, shall, for
all purposes of the Plan, be binding upon all parties in interest; provided
that whenever any Employee proves to the satisfaction of the Employer that
his age, period of employment or his compensation as so certified is
incorrect, the Employer shall correct such certification unless the Employee
is deemed to be estopped.
Section 12.05 No Reversion to Employer. The Employer has no beneficial
interest in the Trust Fund, and no part of the Trust Fund shall revert or be
repaid to the Employer, directly or indirectly, except:
(a) in the event of initial non-qualification as described in Section
15.07 hereof, in which case the contribution with interest, if any,
shall be returned to the Employer within one (1) year after the date
such initial qualification is denied;
(b) in the event that a contribution is made to the Plan conditioned upon
qualification of the Plan as amended, such contribution shall be
returned to the Employer upon the determination that the amended Plan
fails to qualify under the Code; provided that:
(i) the Plan amendment is submitted to the Internal Revenue
Service for qualification within one (1) year after the date
the amendment is adopted, and
(ii) such contribution that was made conditioned upon the Plan's
requalification is returned to the Employer within one (1)
year after the date the Plan's requalification is denied;
(c) in the event that the deduction of an Employer contribution to the
Plan under Section 404 of the Code is disallowed, in which case the
contribution (to the extent disallowed) shall be returned to the
Employer, upon the request of the Employer, within one (1) year after
the disallowance of the deduction; or
(d) in the event that any Employer contribution is made by mistake of
fact, in which case the amount of such mistaken contribution shall be
returned to the Employer provided no more than one (1) year has
elapsed since the date of payment by the Employer of the mistaken
<PAGE>
contribution.
Section 12.06 Indemnification by Sponsor. The right of indemnification
granted to each director, officer or employee of the Employer under the
governing articles of organization of the Employer, as from time to time
amended, shall apply to any action taken by the Plan Administrator or by any
individual member of the Plan Administrator in connection with the Plan.
ARTICLE 13
TOP HEAVY PLANS
Section 13.01 Top Heavy Plans. The provisions of this article are designed
to meet the requirements of Section 416 of the Code and shall apply in every
Plan Year beginning after December 31, 1983, in which this Plan is a Top
Heavy Plan. Accordingly, if the Plan is a Top Heavy Plan in any Plan Year
beginning after December 31, 1983, the provisions of this article shall
automatically supersede any conflicting provisions in the Plan or Adoption
Agreement. If the Plan covers employees of two or more Employers who are not
members of the same Controlled Group, the determination as to whether the
Plan is a Top Heavy Plan and the application of the minimum benefit and
vesting requirements shall apply separately as to such Employers.
Section 13.02 Definitions. For purposes of this article, and only this
article, unless a term defined in this article is the subject of explicit
reference elsewhere in the Plan, the following terms when used herein, unless
the context specifically or clearly indicates otherwise, shall have the
meanings set forth hereinafter:
(a) "Compensation" shall mean, for each Employee, compensation as that
term is defined in Section 415(c)(3) of the Code, plus amounts
contributed by the Employer pursuant to a salary reduction agreement
which are excludible from the employee's gross income under Section
125, Section 402(a)(8), Section 402(h) or Section 403(b) of the Code.
However, "Compensation" shall not include compensation in excess of
two hundred thousand dollars ($200,000), as adjusted by the Secretary
at the same time and in the same manner as under Section 415(d) of the
Code.
(b) "Determination Date" shall mean, with respect to any Plan Year
subsequent to the first Plan Year, the last day of the preceding Plan
Year. For the first Plan Year of the Plan, the Determination Date
shall be the last day of such Plan Year.
(c) "Key Employee" shall mean any Employee or former Employee (or
Beneficiary of such Employee or former Employee) who, at any time
during the determination period, was (i) an officer of the Employer
having an annual Compensation greater than fifty percent (50%) of the
maximum dollar limitation in effect under Section 415(b)(1)(A) of the
Code for any such Plan Year, (ii) an owner (or a person considered an
owner under Section 318 of the Code) of one (1) of the ten (10)
largest interests in the Employer if such interest is directly or
indirectly greater than one-half percent (1/2%), and such individual's
Compensation exceeds the maximum dollar limitation under Section
415(c)(1)(A) of the Code for any such Plan Year, (iii) an owner of
more than five percent (5%) of the Employer or (iv) an owner of more
than one percent (1%) of the Employer who has an annual Compensation
of more than one hundred and fifty thousand dollars ($150,000). The
<PAGE>
determination period is the Plan Year containing the Determination
Date and the four (4) preceding Plan Years. The determination of who
is a Key Employee shall be made in accordance with Section 416(i)(1)
of the Code and regulations thereunder.
(d) "Non-Key Employee" shall mean any Employee who is not a Key Employee.
(e) "Permissive Aggregation Group" shall mean the Required Aggregation
Group of plans plus any other plan or plans of the Employer which,
when considered as a group with the Required Aggregation Group, would
continue to satisfy the requirements of Sections 401(a)(4) and 410 of
the Code.
(f) "Present Value" shall mean the present value of a benefit based only
on the interest and mortality rates specified in Item 20 of the
Adoption Agreement if the Employer also maintains a defined benefit
pension plan.
(g) "Required Aggregation Group" shall mean as follows:
(1) each qualified plan of the Employer in which at least one (1)
Key Employee participates or participated at any time during
the determination period (regardless of whether the plan
terminated), and
(2) any other qualified plan of the Employer which enables a plan
described in the preceding subsection (1) to meet the
requirements of Sections 401(a)(4) or 410 of the Code.
(h) "Super Top Heavy Plan" shall mean, for any Plan Year beginning after
December 31, 1983, the Plan if it would be a Top Heavy Plan under
Section 13.02(i) hereof if the words "ninety percent (90%)" were
substituted for the words "sixty percent (60%)" in subsection 13.02(i)
hereof.
(i) "Top Heavy Plan" shall mean, for any Plan Year beginning after
December 31, 1983, the Plan if any of the following conditions exists:
(1) If the Top Heavy Ratio for this Plan exceeds sixty percent
(60%) and this Plan is not part of any Required Aggregation
Group or Permissive Aggregation Group of plans.
(2) If this Plan is a part of a Required Aggregation Group of
plans, but not part of a Permissive Aggregation Group, and the
Top Heavy Ratio for the Required Aggregation Group of plans
exceeds sixty percent (60%).
(3) If this Plan is a part of a Required Aggregation Group and is
also a part of a Permissive Aggregation Group, and the Top
Heavy Ratio for the Permissive Aggregation Group exceeds sixty
percent (60%).
(j) "Top Heavy Ratio" shall mean as follows:
(1) If the Employer maintains one (1) or more qualified defined
contribution plans (including any simplified employee pension
plan under Section 408(k) of the Code), but the Employer has
not maintained any qualified defined benefit pension plan
which during the five (5) year period ending on the
<PAGE>
Determination Date(s) has or has had accrued benefits, then
the Top Heavy Ratio for this Plan alone or for the Required or
Permissive Aggregation Group, as appropriate, is a fraction,
the numerator of which is the sum of the account balances of
all Key Employees thereunder as of the Determination Date(s)
(including any part of any account balance distributed in the
five (5) year period ending on the Determination Date(s)), and
the denominator of which is the sum of all account balances
(including any part of any account balance distributed in the
five (5) year period ending on the Determination Date(s)),
both computed in accordance with Section 416 of the Code and
the regulations thereunder. Both the numerator and
denominator of the Top Heavy Ratio are increased to reflect
any contribution not actually made as of the Determination
Date(s), but which is required to be taken into account on
that date under Section 416 of the Code and the regulations
thereunder.
(2) If the Employer maintains one (1) or more qualified defined
contribution plans (including any simplified employee pension
plan under Section 408(k) of the Code), and the Employer
maintains or has maintained one (1) or more qualified defined
benefit pension plans which during the five (5) year period
ending on the Determination Date(s) has or has had accrued
benefits, then the Top Heavy Ratio for the Required or
Permissive Aggregation Group, as appropriate, is a fraction,
the numerator of which is the sum of account balances for all
Key Employees thereunder determined in accordance with
subsection (j)(1) herein and the present value of accrued
benefits for all Key Employees thereunder as of the
Determination Date(s), and the denominator of which is the sum
of the account balances for all Participants thereunder
determined in accordance with subsection (j)(1) herein and the
present value of accrued benefits for all Participants
thereunder as of the Determination Date(s), all determined in
accordance with Section 416 of the Code and regulations
thereunder. The accrued benefits under a qualified defined
benefit pension plan in both the numerator and denominator of
the Top Heavy Ratio are increased for any distribution of an
accrued benefit made in the five (5) year period ending on the
Determination Date(s).
(3) For purposes of the preceding subsections (j)(1) and (j)(2),
the value of account balances and the present value of accrued
benefits shall be determined as of the most recent Top Heavy
Valuation Date that falls within or ends with the twelve (12)
month period ending on the Determination Date, except as
provided in Section 416 of the Code and the regulations
thereunder for the first and second plan years of a qualified
defined benefit pension plan. The account balances and
accrued benefits of a Participant (i) who is a Non-Key
Employee, but who was a Key Employee in a prior year, or (ii)
who has not been credited with at least one (1) Hour of
Service with any Employer maintaining the relevant qualified
plan at any time during the five (5) year period ending on the
Determination Date shall be disregarded. The calculation of
the Top Heavy Ratio, and the extent to which distributions,
rollovers and transfers are taken into account shall be made
in accordance with Section 416 of the Code and the regulations
<PAGE>
thereunder. Deductible employee contributions shall not be
taken into account for purposes of computing the Top Heavy
Ratio. When aggregating plans, the value of account balances
and accrued benefits shall be calculated with reference to the
determination dates that fall within the same calendar year.
The accrued benefit of a Participant other than a Key Employee
shall be determined under (i) the method, if any, that
uniformly applies for accrual purposes under all defined
benefit plans maintained by the Employer, or (ii) if there is
no such method, as if such benefit accrued not more rapidly
than the slowest accrual rate permitted under the fractional
rule of Section 411(b)(C) of the Code.
(k) "Top Heavy Valuation Date" shall mean, with respect to any Plan Year,
for this Plan, the Determination Date, and shall mean with respect to
any Plan Year for a defined benefit pension plan maintained by the
Employer, the day within the twelve (12) month period ending on the
determination date for such defined benefit pension plan as of which
the actuarial determination of the minimum funding standard is
calculated.
Section 13.03 Minimum Allocations in Single Plan. Notwithstanding the
provisions of Section 4.01 hereof, and before any contributions are allocated
thereunder, minimum Employer Contributions shall be made and allocated
pursuant to this section in a Plan Year in which the Plan is Top Heavy.
(a) Profit Sharing Plans. If the Plan is a profit sharing plan, then the
Employer contributions (and Forfeitures, if Forfeitures are to be
allocated in the same manner as Employer contributions) shall be
allocated to the Employer Account of each Participant as follows.
(1) Minimum Allocation. First, Employer contributions (and
Forfeitures, if to be allocated) shall be allocated to each
Participant in the proportion which his Compensation bears to
the total Compensation paid to all Participants; provided,
however, that no Employee shall receive under this stage of
the minimum top-heavy allocation more than three percent (3%)
of his Compensation as an allocation. In any Plan Year in
which the Plan has elected to be subject to the provisions of
Section 13.05(a), the figure of three percent (3%) shown in
the immediately preceding sentence may be modified pursuant to
the provisions of Section 13.05(a) or 13.06, as applicable.
(2) Integrated Minimum Allocation. Second, if an integrated
allocation formula has been elected in Item 13(b) of the
Adoption Agreement, additional Employer contributions (and
Forfeitures, if to be allocated) shall be allocated to each
Participant who is eligible to share in the allocation of
Employer Contributions pursuant to Section 4.01, in the
proportion which his Compensation in excess of the integration
level elected in Item 13(b)(1) of the Adoption Agreement bears
to the total such excess Compensation paid to all such
Participants; provided, however, that no Employee shall
receive under this stage of the allocation a higher percentage
of his Compensation in excess of said integration level than
the lesser of (i) the percentage of his Compensation allocated
to him in the first stage of the minimum top-heavy allocation
described in (1) above, or (ii), the percentage specified in
<PAGE>
Item 13(b)(2) of the Adoption Agreement.
(3) Restricted Regular Allocation. Third, any Employer
contributions (and Forfeitures, if to be allocated) remaining
unallocated shall be allocated pursuant to the provisions of
Section 4.01 hereof; provided, however, that all allocations
under the Plan pursuant to Section 4.01 shall be determined
with respect to Compensation as that term is defined in
Section 1.10 hereof, but subject to the dollar limitation set
forth in Section 13.02(a) hereof. Further, if an integrated
allocation formula has been elected in Item 13(b) of the
Adoption Agreement, the percentage disparity selected in Item
13(b)(2) of the Adoption Agreement shall be reduced, for
purposes of the allocation pursuant to Section 4.01, by the
percentage of the Participant's Compensation in excess of the
integration level which has been allocated to him pursuant to
the "Integrated Minimum Allocation" described in (2) above.
(b) Money Purchase Pension Plans and Target Benefit Pension Plans. If the
Plan is either a money purchase pension plan or a target benefit
pension plan, then the Employer contributions allocated to the
Employer Account of each Participant shall be the greater of the
following.
(1) Minimum Allocation. A minimum allocation equal to the lesser
of (i) three percent (3%) of such Participant's Compensation
or (ii) an amount equal to such Participant's Compensation
multiplied by the largest percentage of Employer contributions
which would have been allocated on behalf of any Key Employee
for that Plan Year with respect to such Key Employee's
Compensation under Section 4.01 hereof; or
(2) Restricted Regular Allocation. The regular allocation equal
to an amount determined pursuant to Section 4.01 hereof;
provided, however, that the allocation pursuant to Section
4.01 hereof shall be determined with respect to Compensation
as that term is defined in Section 1.10 hereof, but subject to
the dollar limitation set forth in Section 13.02(a) hereof.
If the allocation performed according to this Section 13.03(b) results
in the allocation of Employer contributions in excess of the amount of
such contributions which would have been allocated if the Plan had not
been Top Heavy, then the Employer shall contribute an amount equal to
the amount of such excess, in addition to the contribution required
under Section 3.01(c) for the Plan Year.
(c) Minimum Allocation Requirements. The minimum allocation provided for
in subsections (a)(1) and (b)(1) hereof shall be made even though,
under other Plan provisions, the Participant would not otherwise be
entitled to receive an allocation, or would have received a lesser
allocation, for the Plan Year because of the following:
(1) the Participant's failure to complete one thousand (1,000)
Hours of Service.
(2) the Participant's failure to make mandatory Employee
contributions, if any, required for participation in the Plan;
or
<PAGE>
(3) the Participant's Compensation was less than any stated
required amount.
This subsection shall not apply, however, to any Participant who was
not employed by the Employer on the last day of the Plan Year.
In determining Employer contributions under this section, Elective
Deferral Contributions, Matching Contributions or benefits under
Chapter 2 of the Code (relating to taxes on self-employed income),
Chapter 21 of the Code (relating to the Federal Insurance Contribution
Act) or any other Federal or State laws (including Title II of the
Social Security Act) shall not be taken into account.
The minimum allocations required hereunder (to the extent required to
be nonforfeitable under Section 416(b) of the Code) shall not be
forfeitable under subsections 411(a)(3)(B) (regarding the suspension
of benefits upon reemployment of a retiree) or 411(a)(3)(D) (regarding
withdrawal of mandatory contributions) of the Code.
Section 13.04 Minimum Vesting Schedules. For any Plan Year in which this
Plan is a Top Heavy Plan, the minimum vesting schedule as elected by the
Employer in Item 20(b) of the Adoption Agreement shall automatically apply to
the Plan; provided, however, that if the Employer has selected a regular
vesting schedule in Item 16 of the Adoption Agreement under which the vested
percentage for that Plan Year is greater than that provided in Item 20(b) of
the Adoption Agreement, then the greater vested percentage under Item 16
shall apply. This vesting provision applies to all benefits within the
meaning of Section 411(a)(7) of the Code (except those which are otherwise
immediately nonforfeitable when contributed to the Plan, if any), including
benefits accrued before the effective date of Section 416 of the Code and
benefits accrued before the Plan became a Top Heavy Plan. Further, no
decrease in a Participant's nonforfeitable percentage may occur in the event
the Plan's status as a Top Heavy Plan changes for any Plan Year. However,
this section does not apply to the account balances of any Employee who does
not have an Hour of Service after the Plan has initially become a Top Heavy
Plan, and such Employee's vested interest in his Employer Account and
Matching Account shall be determined without regard to this section.
In the absence of an alternative affirmative election by the Employer, the
vesting schedule stated at option (ii) of Item 20(b) shall apply hereunder.
Section 13.05 Special Limitations on Top Heavy Allocations in Multiple
Plans; "Code Section 415(e) Buy-Back". If for any Plan Year the Plan is a
Top Heavy Plan, and the Employer maintains or has ever maintained a qualified
defined benefit pension plan, then in applying the limitations of Section
4.07 of the Plan the words "one hundred percent (100%)" shall be substituted
for the words "one hundred and twenty-five percent (125%)" in both the
Defined Benefit Fraction and the Defined Contribution Fraction, as such terms
are defined in Section 4.07 of the Plan, unless the Employer elects to "buy-
back" the use of the "one hundred twenty-five percent (125%)" limit with
respect to any Plan Year in which the Plan is not Super Top Heavy by
providing minimum benefits in excess of those otherwise required pursuant to
the provisions of Section 13.03. An Employer accomplishes this "Code Section
415(e) Buy-Back" by electing to retain the use of the "one hundred twenty-
five percent (125%)" limit in Item 20(c)(1)(i) of the Adoption Agreement and
by agreeing in such Item either (1) to provide the required increased minimum
benefits under the defined benefit plan or (2) to provide the required
increased minimum benefits in this Plan according to one (1) of the following
methods.
<PAGE>
(a) The Employer may elect to provide the minimum accruals set out in this
Section 13.05(a) by electing (in Item 20(c)(1)(ii) of the Adoption
Agreement) to be subject to the following provision.
(1) Any Employee who is a Participant otherwise entitled to
receive top heavy allocations from this Plan, but who is not
entitled to receive a minimum benefit from the defined benefit
pension plan, shall receive a minimum nonintegrated allocation
of four percent (4%) of Compensation under subsections
13.03(a)(1) or 13.03(b)(1) of this Plan instead of three
percent (3%) of Compensation.
(2) If the Employer has elected to provide the required increased
minimum benefits in this Plan, then each Employee who
participates in this Plan and who also participates in the
defined benefit pension plan shall receive a minimum
nonintegrated allocation of seven and one-half percent (7-
1/2%) of Compensation under subsections 13.03(a)(1) or
13.03(b)(1) of this Plan instead of three percent (3%) of
Compensation.
(3) If the Employer has elected to provide the required increased
minimum benefits in the defined benefit pension plan, then
each Employee who participates in this Plan and who also
participates in the defined benefit pension plan shall not be
entitled to receive a minimum allocation under this Plan.
(b) The Employer may elect (by setting out overriding provisions in Item
20(c)(1)(ii) of the Adoption Agreement) to provide the minimum
accruals required by Code Section 416(h)(2) by some method other than
that set out in Section 13.05(a).
If the Plan is one (1) of multiple qualified plans maintained by the
Employer and has not elected to provide the required minimum benefits under
Section 13.05(a), and the Employer has not elected to utilize the Code
Section 415(e) Buy-Back provisions, then the Employer shall provide (by
setting out overriding provisions in Item 20(c)(1)(ii) of the Adoption
Agreement) minimum benefit accruals pursuant to Section 416(f) of the Code.
Section 13.06 Minimum Defined Contribution Plan Allocations Under Super Top
Heavy Multiple Plans or Without Code Section 415(e) Buy-Back. In any Plan
Year in which the Plan and a defined benefit pension plan maintained by the
Employer are subject to the Employer's election under Item 20(c)(1)(ii) of
the Adoption Agreement, if the plans are considered Super Top Heavy or if the
Employer has elected not to utilize the Code Section 415(e) Buy-Back, then
minimum nonintegrated allocations shall be made under this section.
(a) Any Employee who is a Participant otherwise entitled to receive top
heavy allocations from this Plan, but who does not participate in the
defined benefit pension plan, shall receive a minimum nonintegrated
allocation of three percent (3%) of Compensation under 13.03(a)(1) of
this Plan.
(b) If the Employer has elected to provide the required increased benefits
in this Plan, then each Employee who is a Participant in this Plan and
who also participates in the defined benefit pension plan shall
receive a minimum nonintegrated allocation of five percent (5%) of
such Participant's Compensation under subsections 13.03(a)(1) or
13.03(b)(1) this Plan instead of three percent (3%) of Compensation.
<PAGE>
(c) If the Employer has elected to provide the required increased minimum
benefits in the defined benefit pension plan, then each Employee who
participates in this Plan and who also participates in the defined
benefit pension plan shall not be entitled to receive a minimum
allocation under this Plan.
ARTICLE 14
PAIRED PLANS
Section 14.01 Paired Plans. The provisions of this article shall apply if
this Plan is a Paired Plan. Under this article, Sections 14.02 and 14.03
shall apply with respect to Plan Years in which the Plan is paired hereunder
with another defined contribution plan maintained by the Employer.
With respect to such Paired Plans, the term "Compensation" shall have the
meaning set forth in Section 13.02(a) hereof.
Section 14.02 Defined Contribution Paired Plans Prevention of Duplication
of Allocations. In any Plan Year in which the Plan is a Paired Plan with
another defined contribution plan, the Employer shall provide each Employee
who is a Participant in this Paired Plan and who participates in the other
defined contribution Paired Plan the minimum nonintegrated allocation
specified under this article only in that Paired Plan indicated in Item
20(c)(1)(iii) of the Adoption Agreement.
Section 14.03 Forfeitures in Paired Plans. If this Plan is a Paired Plan,
then the minimum nonintegrated allocations provided by this Plan under this
article shall include in their computation Forfeitures, if Forfeitures are to
be allocated in the same manner as Employer contributions pursuant to Item 8
of the Adoption Agreement.
Section 14.04 Integrated Paired Plans. If the Paired Plans involve
integration with Social Security, then only one (1) Paired Plan shall be
integrated.
ARTICLE 15
MISCELLANEOUS PROVISIONS
Section 15.01 Allocation of Responsibility Among Fiduciaries for Plan and
Trust Administration. The Employer, the Plan Administrator (and the
Committee, if appointed pursuant to Section 9.01 hereof), the Investment
Manager, if any, and the Trustee shall be named Fiduciaries under the Plan,
but only with respect to their respective specific responsibilities under the
Plan.
Each Fiduciary shall have only those specific powers, duties,
responsibilities and obligations as are specifically given it under the Plan.
Each Fiduciary warrants that any directions given, information furnished, or
action taken by it shall be in accordance with the provisions of the Plan
authorizing or providing for such direction, information or action.
Furthermore, each Fiduciary may rely upon any such direction, information or
action of any other Fiduciary as being proper under the Plan and is not
required under the Plan to inquire into the propriety of any such direction,
information or action. It is intended under the Plan that each Fiduciary
shall be responsible for the proper exercise of its own powers, duties,
<PAGE>
responsibilities and obligations under the Plan and shall not be responsible
for any act or failure to act of another Fiduciary. No Fiduciary guarantees
the Trust Fund in any manner against investment loss or depreciation in asset
value.
Each Fiduciary shall discharge its duties set forth in the Plan solely in
the interests of the Participants, Retired or Separated Participants and
their Beneficiaries and:
(a) for the exclusive purpose of:
(1) providing benefits to such persons; and
(2) defraying reasonable expenses of administering the Plan;
(b) with the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise
of a like character and with like aims.
Section 15.02 Alienation or Assignment of Benefits. The right of any
Participant, Separated or Retired Participant, or Beneficiary in any benefit
or to any payment hereunder or to any segregated account shall not be
anticipated, conveyed, assigned, mortgaged or encumbered either by voluntary
or involuntary action or by operation of law, except as permitted herein; nor
shall any such right or interest be in any manner subject to levy,
attachment, execution, garnishment or any other seizure under legal,
equitable or other process, except pursuant to a qualified domestic relations
order, as defined in Section 414(p) of the Code, or pursuant to a domestic
relations order entered before January 1, 1985, under which payment of
benefits under that order has commenced as of such date. Otherwise, such
interest in this Plan shall be payable only in accordance with the provisions
hereof; provided, however, that distributions pursuant to a qualified
domestic relations order may be made without regard to the age or employment
status of the Participant.
Section 15.03 Headings. The headings and sub-headings of Articles and
Sections are included solely for convenience of reference, and if there be
any conflict between such headings and the text of the Plan, the text shall
control.
Section 15.04 Construction of the Plan. All legal questions pertaining to
the Plan shall be determined in accordance with the laws of the state in
which the Employer principally does business, except insofar as they have
been superseded by the provisions of ERISA, and all contributions hereunder
shall be deemed to have been made in that state. For purposes hereof, the
Employer shall mean only the entity executing the Adoption Agreement as
"Employer", but shall not mean any organization executing the Plan as an
"Adopting Employer."
In the construction of the Plan, the masculine gender shall include the
feminine, and the singular shall include the plural, unless the context
clearly indicates otherwise.
Section 15.05 Claims to Plan Benefits. Each Participant, Retired or
Separated Participant, Beneficiary or any other person who shall claim the
right to any payment or benefit under the Plan, shall look only to the Trust
Fund for such payment or benefit and shall not have any right, claim or
demand therefor against the Employer.
<PAGE>
Section 15.06 Legally Incompetent. If any Participant, Retired or
Separated Participant, or Beneficiary is a minor, or is in the judgment of
the Plan Administrator otherwise legally incapable of personally receiving
and giving a valid receipt for any payment due him hereunder, the Plan
Administrator may, unless and until claim shall have been made by a guardian
or conservator of such person duly appointed by a court of competent
jurisdiction, direct that such payment, or any part thereof, be made to such
person or to such person's spouse, child, parent, brother or sister, or other
person deemed by the Plan Administrator to be a proper person to receive such
payment. Any payment so made shall be, to the extent of the payment, a
complete discharge to the Employer, the Plan Administrator (and the
Committee, if appointed pursuant to Section 9.01 hereof) and the Trustee of
any liability under the Plan.
Section 15.07 Non-Qualification Exclusion. The Employer which is the
entity executing the Adoption Agreement as the "Employer" (but not any
organization executing the Plan as an "Adopting Employer"), if required for
evidence of qualification under Revenue Procedure 89-13, shall apply to the
Internal Revenue Service for a determination of the qualification of its Plan
and Trust under the provisions of Sections 401(a) and 501(a), respectively,
of the Code within ninety (90) days after the date of adoption of the Plan by
the Employer, or within ninety (90) days after the date of any amendment to
the Plan, unless an extension of time for such filing is approved by the
Sponsor. Such application for a determination shall be made with due regard
for the requirement that notice of such application be given to each person
who qualifies as an interested party.
If an Employer's Plan fails to meet the requirements for qualification, the
Employer shall be precluded from including this regional prototype plan
document as part of its Plan until such time as all requirements are met. If
the Plan established by an Adopting Employer at any time fails to retain
qualification, such Plan shall cease to participate as a regional prototype
plan under Revenue Procedure 89-13. If the Employer's Plan fails to attain
or retain qualification, such Plan shall be considered an individually
designed plan. Funds held in Trust on behalf of the Employer shall be
segregated, or otherwise disposed of, for the exclusive benefit of the
Employer's Employees within sixty (60) days after the date of determination
of disqualification. Provided, however, that if the Employer which is the
entity executing the Adoption Agreement as the "Employer" shall fail to
receive an initial letter of qualification from the Internal Revenue Service,
all contributions to the Plan by the Employer or any Adopting Employer shall
be returned to such Employer pursuant to Section 12.05 hereof and the Trustee
shall be discharged from all obligation thereunder.
Section 15.08 Control of Trades or Businesses by Owner- Employee. If this
Plan provides contributions or benefits for one (1) or more Owner-Employees
who control both the business for which this Plan is established and one (1)
or more other trades or businesses, then this Plan and the plan established
for other trades or businesses shall, when considered as a single plan,
satisfy Code Sections 401(a) and (d) for the employees of this and all other
trades or businesses.
If the Plan provides contributions or benefits for one (1) or more Owner-
Employees who control one (1) or more other trades or businesses, then the
employees of the other trades or businesses shall be included in a plan which
satisfies Code Sections 401(a) and (d) and which provides contributions and
benefits not less favorable than provided for Owner-Employees under this
Plan.
<PAGE>
If an individual is covered as an Owner-Employee under the plans of two (2)
or more trades or businesses which are not controlled, and the individual
controls a trade or business, then the contributions and benefits of the
employees under the plan of the trades or businesses which are controlled
shall be as favorable as those provided for the Owner-Employee under the most
favorable plan of the trade or business which is not controlled.
For purposes of the preceding paragraphs, an Owner-Employee, or two (2) or
more Owner-Employees, shall be considered to control a trade or business if
the Owner-Employee, or two (2) or more Owner-Employees together:
(1) own the entire interest in an unincorporated trade or business, or
(2) in the case of a partnership, own more than fifty percent (50%) of
either the capital interest or the profits interest in the
partnership.
For purposes of the preceding sentence, an Owner-Employee, or two (2) or
more Owner-Employees shall be treated as owning any interest in a partnership
which is owned, directly or indirectly, by a partnership which such Owner-
Employee, or such two (2) or more Owner-Employees, are considered to control
within the meaning of the preceding sentence.
IN WITNESS WHEREOF, Bryan, Pendleton, Swats & McAllister has caused this
Regional Prototype Defined Contribution Plan and Trust to be executed by its
duly authorized representative on this 19th day of September, 1990.
BRYAN, PENDLETON, SWATS & MCALLISTER
By:
Title: Partner
<PAGE>
BPS&M
REGIONAL PROTOTYPE DEFINED CONTRIBUTION PLAN AND TRUST
ADOPTION AGREEMENT
SAVINGS PLAN
ADOPTED BY
Mississippi Phosphates Corporation
(Name of Employer)
AS THE
Mississippi Phosphates Corporation
401(k) Retirement Plan
(Name of Plan)
Adoption Agreement #002 (Non-standardized)
Defined Contribution Basic Plan Document #01
WHEN YOU COMPLETE THIS FORM IT BECOMES AN IMPORTANT DOCUMENT WITH LEGAL AND
TAX IMPLICATIONS AND SHOULD BE REVIEWED BY YOUR ATTORNEY. BPS&M DOES NOT
PRACTICE LAW AND CANNOT GIVE THE EMPLOYER LEGAL ADVICE.
<PAGE>
TABLE OF CONTENTS
ITEM PAGE
1 PLAN INFORMATION
3 PLAN ADMINISTRATION
4 EMPLOYEE CLASSES EXCLUDED
5 ELIGIBILITY AND PARTICIPATION
6 MEASURING SERVICE
7 COMPENSATION
8 EMPLOYER CONTRIBUTIONS AND FORFEITURES
9 PARTICIPANT CONTRIBUTIONS AND TRANSFERS
10 INVESTMENTS
11 ALLOCATION OF EMPLOYER CONTRIBUTIONS
12 ALLOCATION IN YEAR OF TERMINATION
13 LOANS
14 IN-SERVICE WITHDRAWALS
15 INSURANCE
16 TERMINATION OF EMPLOYMENT (VESTING SCHEDULE)
17 VESTING SERVICE EXCLUSIONS
18 RETIREMENT REQUIREMENTS
19 FORMS OF BENEFIT PAYMENT
20 TOP HEAVY PLANS (CODE SECTION 416)
21 MULTIPLE PLANS-LIMITATION ON TOTAL BENEFITS (CODE SECTION 415)
22 SERVICE WITH PREDECESSOR EMPLOYER
23 CONTROLLED GROUPS
24 OTHER ADOPTING EMPLOYERS
25 COMPENSATION OF TRUSTEE
26 APPOINTMENT OF TRUSTEE
27 COORDINATION OF PLAN ADMINISTRATOR AND TRUSTEE
28 AMENDMENT BY EMPLOYER
<PAGE>
<PAGE>
ADOPTION INFORMATION
THIS ADOPTION AGREEMENT, and the provisions of the BPS&M Regional
Prototype Defined Contribution Plan and Trust, are hereby adopted by the
Employer named hereinafter in order to establish a qualified plan and trust
for the exclusive benefit of participating Employees of the Employer and
their beneficiaries.
Plan Name: Mississippi Phosphates Corporation 401(k) Retirement Plan
ITEM 1 PLAN INFORMATION.
(a) The Employer hereby
[X] establishes the above-named Plan
[ ] amends, restates and continues the above-named Plan, which was
originally effective on ___________________________________,
[ ] amends, restates and continues as the above-named Plan the
plan previously named the ____________________________ which
was originally effective on _____________________________,
by adopting the BPS&M REGIONAL PROTOTYPE DEFINED CONTRIBUTION PLAN
AND TRUST as established on September 19, 1990.
(b) The Effective Date of this Plan adoption or amendment shall be
January 1, 1993.
(c) The Plan Year shall end on December 31.
(d) The Limitation year shall be [X] the Plan Year.
[ ] the 12 consecutive month period
ending on _______________.
(e) The Plan is a profit sharing plan which [X] does [ ] does not
contain Elective Deferral Contributions. (Note: the "does" box
should be elected only if Elective Deferral Contributions are
allowed in Item 8(a)).
ITEM 2 EMPLOYER INFORMATION.
The Employer furnishes the following information:
Name: Mississippi Phosphates Corporation
Business address: P.O. Box 986, Yazoo City, MS 39194-0986
Telephone number (including area code): (601) 746-5529
Nature and principal location(s) of business: fertilizer manufacturer
headquarters: Yazoo City, MS
plant: Pascagoula, MS
Four-digit business code number used on Form 5500: 2898
Date of incorporation or commencement of business: 10-29-90
<PAGE>
Employer's I.R.S. Employer Identification Number: 64-0794981
Three-digit number assigned to the Plan: 001
Employer's tax year ends: 6-30
Employer contributes to the following additional pension or profit
sharing plans: None
Type of Entity: [X] Corporation [ ] S Corporation
[ ] Sole Proprietorship [ ] Partnership [ ] Tax Exempt
Organization
[ ] Professional Corporation [ ] Professional Association
Note: Tax Exempt Organizations may not elect Elective Deferral
Contributions in Item 8(a).
ITEM 3 PLAN ADMINISTRATION.
The Trustee shall be
(specify) Name: NationsBank, N.A.
Address: P.O. Box 221514, Columbia, SC 29222-1514
Telephone Number: (803) 929-5932
The Plan Administrator, whose duties are set forth in Article 9 of the
Plan, and the agent for service of process shall be
[X] The Employer, Attn: Corporate Secretary, Owner Cooper
Administration Building, Highway 49E, Yazoo City, MS
Telephone Number: (601) 746-5529
[ ] Other (specify):_______________________________________
_______________________________________________________
_______________________________________________________
Telephone Number:_____________________________________
Address:_______________________________________________
ITEM 4 EMPLOYEE CLASSES EXCLUDED.
The following class(es) of persons employed by the Employer shall not be
eligible to participate in the Plan:
[ ] (a) No exclusions
[ ] (b) Hourly paid
[ ] (c) Salaried
[ ] (d) Piece work paid
[ ] (e) Commission paid
[X] (f) Employees covered by a collective bargaining agreement between
the Employer and representatives of such Employees in which
retirement benefits were the subject of good faith bargaining,
except as otherwise provided in the collective bargaining
<PAGE>
agreement. For this purpose, the term "representatives of
such Employees" shall not include any organization more than
1/2 of whose members are Employees who are owners, officers or
executives of the Employer.
[X] (g) Leased Employees
[X] (h) Others (specify): Temporary employees
ITEM 5 ELIGIBILITY AND PARTICIPATION.
(a) Eligibility: Employees shall become eligible to participate in the
Plan upon satisfaction of the following age and/or service
requirements:
(1) Age requirement (check one block):
[X] The Plan shall have no age requirement for eligibility.
[ ] Attainment of age _____ (note: not more than age 21).
(2) Service requirement (check one block):
[ ] The Plan shall have no service requirement for
eligibility.
[X] 1 (note: not more than 1*) Years of Service.
[ ] the date ________ (note: not more than 12*) months after
the day the Employee was first employed by the Employer.
*If this Adoption Agreement applies to any Plan Year beginning
prior to January 1, 1989, then the service requirement for
each such Plan Year shall be _________ (note: the same as in
the prior plan document).
Each Employee who has satisfied the above age and service
requirements as of the Effective Date of this adoption shall be
eligible to become a Participant on the Effective Date. If this is
an amendment of a plan, no Employee who has been a Participant
under the Plan prior to this amendment and who is otherwise
eligible to participate in this Plan shall be excluded from
participation because of failure to satisfy the above age and
service requirements.
(b) Entry into Participation: An Employee who has satisfied the
requirements for eligibility set out in (a) above shall become a
Participant in the Plan on the entry date (as defined in this Item
5(b)) coincident with or immediately following the date on which he
satisfies the eligibility requirements.
The Plan shall have (check one block):
[ ] An annual entry date (the Anniversary Date). (Note: You can
elect an annual entry date only if the Plan's age requirement
is 20-1/2 or less and the Plan's service requirement is 6
months or less.)
[ ] Semi-annual entry dates (the Anniversary Date and the day 6
<PAGE>
months after the Anniversary Date).
[ ] Quarterly entry dates (the Anniversary Date and the days 3, 6,
and 9 months after the Anniversary Date).
[ ] Monthly entry dates (the first day of each calendar month).
[ ] Daily entry dates.
ITEM 6 MEASURING SERVICE.
Service shall be determined for all purposes under the Plan on the basis
selected as follows. (Note: Only one method from options (a) through
(f) may be selected for any class of Employees; if different methods are
selected for different classes of Employees, then the combination of
methods selected cannot result in discrimination. If only one method is
selected, it shall apply to all classes of Employees covered by the
Plan.)
Counting Hours of Service
Hours of Service shall be counted:
[X] (a) On the basis of actual hours for which an Employee is paid or
entitled to payment.
[ ] (b) On the basis of days worked: an Employee shall be credited
with 10 Hours of Service if under Section 1.31 of the Plan
such Employee would be credited with at least 1 Hour of
Service during the day.
[ ] (c) On the basis of weeks worked: an Employee shall be credited
with 45 Hours of Service if under Section 1.31 of the Plan
such Employee would be credited with at least 1 Hour of
Service during the week.
[ ] (d) On the basis of semi-monthly payroll periods: an Employee
shall be credited with 95 Hours of Service if under Section
1.31 of the Plan such Employee would be credited with at least
1 Hour of Service during the semi-monthly payroll period.
[ ] (e) On the basis of months worked: an Employee shall be credited
with 190 Hours of Service if under Section 1.31 of the Plan
such Employee would be credited with at least 1 Hour of
Service during the month.
Elapsed Time
Instead of counting Hours of Service, Service under the Plan shall be
determined:
[ ] (f) On the basis of "elapsed time," as provided for in Section
1.31 of the Plan.
Classes of Employees
If more than one method of measuring Service is elected from options (a)
through (f) above then complete the following:
<PAGE>
[ ] Option _____ shall apply to hourly paid Employees covered by the
Plan.
[ ] Option _____ shall apply to salaried Employees covered by the Plan.
[ ] Option _____ shall apply to (specify) _______________ covered by
the Plan.
Note: If you elect different options for different classes of employees
you may be considered to have separate "plans" for each class
pursuant to Code Section 401(a)(4). Code Section 401(a)(4)
requires that each "plan" satisfy certain nondiscrimination
requirements.
ITEM 7 COMPENSATION.
(a) Compensation shall mean all of each Participant's (select one)
[X] (1) W-2 Earnings as defined in Section 4.07(e)(13)
[ ] (2) total "compensation" (as that term is defined in Section
4.07(e)(2)(ii))
which is actually paid to the Participant during the Plan Year.
Note: Compensation for a Self-Employed Individual shall mean
Earned Income as defined in Section 1.15.
(b) Compensation
[X] shall include
[ ] shall not include
employer contributions made pursuant to a salary reduction
agreement which are not includible in the gross income of the
Employee under a 401(k) plan (including this Plan, if applicable),
a cafeteria plan pursuant to Code Section 125 a simplified employee
pension (SEP) pursuant to Code Section 402(h), a tax sheltered
annuity pursuant to Code Section 403(b), or a deferred compensation
plan pursuant to Code Section 457(b) or employee contributions
under a governmental plan described in Code Section 414(h)(2) that
are picked up by the employing unit.
(c) Compensation shall exclude:
[X] safe harbor exclusions - reimbursements or other expense
allowances, fringe benefits (cash and noncash), moving
expenses, deferred compensation, and welfare benefits (Note:
If only this exclusion is elected the definition of
compensation will be deemed to be nondiscriminatory)
[ ] overtime compensation
[X] discretionary bonuses
[ ] contractual bonuses
[ ] ____% of commissions
<PAGE>
[ ] other extraordinary remuneration:
(specify)_________________________________________
[ ] compensation during the year in excess of $________.
Note: If the Plan is integrated with Social Security, no compensation
may be excluded in (c).
(d) Compensation of a Participant shall include:
[ ] his Compensation for the entire Plan Year.
[X] only his Compensation for the portion of the Plan Year during
which he was a Participant.
[ ] only his Compensation for the portion of the Plan Year
commencing with the first day of the month during which he
became a Participant.
Note: The above definition in Items 7(a) through (d) will apply as of
the Effective Date of this adoption or amendment; provided,
however, that if this is an amendment of the Plan for the changes
required by the Tax Reform Act of 1986, then (i) the above
definition will first apply as of the first Plan Year beginning
after the adoption of this amendment, and (ii) the definition of
"Compensation" for earlier Plan Years to which this Adoption
Agreement applies shall be the definition from the prior plan
document, which shall be incorporated herein by reference.
(e) For Plan Years beginning before the later of January 1, 1992 and
the date that is 60 days after the publication of final
regulations, Compensation used in determining the Average Deferral
Percentage under Section 3.05 and the Average Contribution
Percentage under Section 3.06 [X] shall [ ] shall not be limited to
Compensation received by the Participant during the period for
which he is a Participant.
ITEM 8 EMPLOYER CONTRIBUTIONS AND FORFEITURES.
Contributions Made by the Employer.
Matching Contributions, Employer Contributions and Qualified Matching
Contributions shall be (elect one) [ ] out of Net Profits [X] without
regard to Net Profits.
(a) Elective Deferral Contributions. Elective Deferral Contributions
are "pre-tax" contributions made by Participants; however, they are
technically considered contributions made by the Employer. They
are always 100% vested.
(1) Elective Deferral Contributions to the Plan
[ ] shall not be allowed.
[X] shall be allowed. (If this item is checked complete (2)
through (6) below).
(2) A Participant may elect to have his or her Compensation
reduced by the following percentage or amount per pay period,
<PAGE>
or for a specified pay period or periods, as designated in
writing to the Plan Administrator (check applicable boxes and
fill in blanks):
[X] a percentage of Compensation of not less than 0% and not
more than 16%.
[ ] The Participant's elective deferral percentage must
be in whole percentages.
[ ] a dollar amount not less than $________ each pay period
and not more than _____% of Compensation.
Elective Deferral Contributions made on behalf of a
Participant in any taxable year may not exceed
[X] $7,000 as adjusted annually pursuant to Code Section
402(g).
[ ] $________ (note: if you want to apply a lower dollar
limit insert a dollar amount not exceeding the $7,000
limit under Code Section 402(g)).
(3) A Participant's Elective Deferral Contributions shall be based
on total Compensation as defined in Item 7(a) and subject to
the exclusions in 7(c) while a Participant.
Elective Deferral Contributions [ ] shall [X] shall not be
based on bonuses, notwithstanding any contrary election. If
Elective Deferral Contributions shall be based on bonuses,
then in order to have Elective Deferral Contributions based on
bonuses a Participant [ ] does [ ] does not need to make a
special election.
(4) A Participant may elect to begin Elective Deferral
Contributions as of the first payroll period following:
(elect each one that applies).
[ ] the first day of the Plan Year.
[ ] the first day of the seventh month of the Plan Year
(note: for example, if the Plan Year is a calendar year
this would be July 1st).
[X] any date
[ ] other:_______________________________________
_____________________________________________
(5) A Participant's election to have Elective Deferral
Contributions begin shall remain in effect until changed or
terminated.
A Participant may make a written election to change the amount
or percentage of his or her future Elective Deferral
Contributions as of the first payroll period following:
(elect each one that applies).
[ ] the first day of the Plan Year.
<PAGE>
[ ] the first day of the seventh month of the Plan Year
(note: for example, if the Plan Year is a calendar year
this would be July 1st).
[X] other: any date
(6) Participants who claim Excess Elective Deferrals for the
preceding taxable year must submit their claims in writing to
the Plan Administrator by April 14 (specify a date before
April 15).
(b) Matching Contributions. Matching Contributions are contributions
made by the Employer, the amounts of which are based on the amount
of Elective Deferral Contributions and/or Employee (after-tax)
Contributions (depending on the Employer's elections) which the
Participant makes. Matching Contributions may be subject to a
vesting schedule.
(1) The Employer [X] shall [ ] shall not make Matching
Contributions to the Plan on behalf of certain Participants
who make "eligible contributions." (If Matching Contributions
shall be made complete items (2) through (5) below.)
(2) "Eligible contributions" shall include (elect one or both, as
applicable)
[X] Elective Deferral (Pre-Tax) Contributions.
[ ] Employee (After-Tax) Contributions.
(3) Matching Contributions shall be made on behalf of [X] all
Participants [ ] only Non-Highly Compensated Participants who
(elect one):
[X] (i) make eligible contributions during the Plan Year.
[ ] (ii) make eligible contributions during the Plan Year
and satisfy the service requirements of Section
4.01(c), subject to the election in Item 12
regarding termination during the year.
[ ] (iii) have made eligible contributions since the last
Valuation Date and who are still employed on the
Valuation Date.
[ ] For purposes of allocating Matching
Contributions only, the term Valuation Date
shall include interim valuation dates specified
in Section 4.09.
(4) The Employer shall make the following amount of Matching
Contributions on behalf of "eligible Participants" as defined
in Item 8(b)(3) above (elect one and fill in blanks):
[X] an amount equal to 50 percent of the portion of the
eligible contributions of each eligible Participant for
the Plan Year which does not exceed 2 percent of the
Participant's Compensation for the Plan Year
<PAGE>
PLUS
an amount equal to _____ percent of the portion of the
eligible contributions which exceeds _____ percent of the
eligible Participant's Compensation for the Plan Year,
but does not exceed _____ percent of the Participant's
Compensation for the Plan Year.
The Employer [X] shall [ ] shall not have discretion to
increase the contribution percentage.
[ ] an amount equal to _____ percent of the first $________
of each eligible Participant's eligible contributions for
the Plan Year
PLUS
an amount equal to _____ percent of the portion of the
eligible contributions for the Plan Year exceeds
$________ of the Participant's eligible contributions for
the Plan Year but does not exceed $________.
The Employer [ ] shall [ ] shall not have discretion to
increase the contribution percentage.
[ ] an amount which shall be determined at the discretion of
the Employer; any amount so contributed shall be
allocated among Participants based on
[ ] each eligible Participant's eligible contributions
not exceeding _____ percent of the Participant's
Compensations for the Plan Year.
[ ] the first $________ of each eligible Participant's
eligible contributions for the Plan Year.
(5) Matching Contributions shall be vested in accordance with the
following schedule (elect one):
[ ] 100% vested when made.
[X] the general vesting schedule elected in Item 16.
Note: Choosing to make Matching Contributions 100% vested is
not sufficient to allow them to be used in the ADP
special nondiscrimination test. If you want matching-
type contributions to be used in the ADP test, you
should elect Qualified Matching Contributions under
8(d) below.
(c) Qualified Non-elective Contributions. Qualified Non-elective
Contributions are contributions made by the Employer which are used
to help the Plan pass the special nondiscrimination test. The
amount of Qualified Non-elective Contributions made for each Plan
Year shall be determined by the Employer. Qualified Non-elective
Contributions are always 100% vested.
(1) The Employer [ ] may [X] may not make Qualified Non-electie
Contributions to the Plan. (If Qualified Non-elective
<PAGE>
Contributions shall be made complete items (2) and (3) below.)
(2) Qualified Non-elective Contributions shall be made on behalf
of [ ] all Employees [ ] only Non-Highly Compensated
Employees who (elect one):
[ ] are eligible to make Elective Deferral Contributions at
any time during the Plan Year.
[ ] satisfy the service requirements of Section 4.01(c),
subject to the election in Item 12 regarding termination
during the year.
(3) Qualified Non-elective Contributions shall be allocated to the
Qualified Non-elective Contributions Account of "eligible
Employees" as defined in Item 8(c)(2) (elect one):
[ ] In the ratio in which each eligible Employee's
Compensation for the Plan Year bears to the total
Compensation of all eligible Employees for such
Plan Year.
[ ] In the ratio in which each eligible Employee's
Compensation not in excess of $________ for the
Plan Year bears to the total Compensation of all
eligible Employees not in excess of $________ for
such Plan Year.
(d) Qualified Matching Contributions. Qualified Matching Contributions
are contributions made by the employer which are used to help the
Plan pass the special nondiscrimination tests. The amount of
Qualified Matching Contribution is based on the amount of Elective
Deferral Contributions which eligible Participants elect.
Qualified Matching Contributions are always 100% vested.
(1) The Employer [X] shall [ ] shall not make Qualified Matching
Contributions to the Plan on behalf of eligible Participants
who make Elective Deferral Contributions. (If Qualified
Matching Contributions shall be made complete items (2) and
(3) below.)
(2) Qualified Matching Contributions shall be made on behalf of
[ ] all Participants [X] only Non-Highly Compensated
Participants who (elect one):
[X] make Elective Deferral Contributions during the Plan
Year.
[ ] make Elective Deferral Contributions during the Plan Year
and satisfy the service requirements of Section 4.01(c),
subject to the election in Item 12 regarding termination
during the year.
(3) The Employer shall make the following amount of Qualified
Matching Contributions to "eligible Participants" as defined
in Item 8(d)(2) (elect one):
[ ] an amount equal to _____ percent of the portion of the
elective Deferral Contributions of each eligible
<PAGE>
Participant for the Plan Year which does not exceed _____
percent of the Participant's Compensation for the Plan
Year
PLUS
an amount equal to _____ percent of the portion of the
Elective Deferral Contributions which exceeds _____
percent of the eligible Participant's Compensation for
the Plan Year, but does not exceed _____ percent of the
Participant's Compensation for the Plan Year.
The Employer [ ] shall [ ] shall not have discretion to
increase the contribution percentage.
[ ] an amount equal to _____ percent of the first $________
of each eligible Participant's Elective Deferral
Contributions for the Plan Year
PLUS
an amount equal to _____ percent of the portion of the
Elective Deferral Contributions for the Plan Year which
exceeds $________ of the Participant's Elective Deferral
Contributions for the Plan Year but does not exceed
$________.
The Employer [ ] shall [ ] shall not have discretion to
increase the contribution percentage.
[X] a percentage which shall be determined at the discretion
of the Employer based on
[X] each eligible Participant's Elective Deferral
Contributions not exceeding 100 percent of the
Participant's Compensations for the Plan Year.
[ ] the first $__________ of each eligible
Participant's Elective Deferral Contributions for
the Plan Year.
(e) Employer Contributions. Employer Contributions are contributions
made by the Employer which are profit sharing-type contributions.
These contributions shall be subject to a vesting schedule.
(1) The Employer [ ] shall [X] shall not make Employer
Contributions to the Plan on behalf of eligible Participants.
(If Employer Contributions shall be made, complete item (2)
below.)
(2) The amount of Employer Contributions made to the Plan for each
Plan Year shall be (elect one):
[ ] such amount as the Employer, in its sole discretion,
shall elect to contribute for the Plan Year.
[ ] other (describe, but note: must be in accordance with
generally accepted accounting
principles):_________________________________
<PAGE>
_____________________________________________
_____________________________________________
_____________________________________________
(f) Calendar Year Election. For purposes of determining which
Employees are Highly Compensated Employees pursuant to Section 1.30
of the Plan, the Employer [X] shall [ ] shall not make the "look-
back year calculation" on the basis of the calendar year ending
with or within the applicable Plan Year, rather than the "look-back
year."
Note: If the Plan Year is already a calendar year, then if you
elect "shall" above, you will not need to make separate
look-back year and determination year calculations.
Forfeitures:
(g) Forfeitures of Employer Contributions shall be (note: elect one):
[ ] allocated in the same manner as Employer Contributions.
[X] treated as if they are Employer contributions and thus reduce
the amount otherwise to be made as an actual contribution by
the Employer.
(h) Forfeitures of Matching Contributions shall be (elect one):
[ ] allocated in the same manner as Matching Contributions.
[X] treated as if they are Employer contributions and thus reduce
the amount otherwise required as an actual contribution by the
Employer.
(i) If a Participant receives a distribution from his Employer Account
or Matching Account upon termination of Service and is reemployed
by the Employer before he incurs 5 consecutive Breaks in Service
(or in Plan Years beginning before January 1, 1985, before he
incurs a Break in Service), then he [X] will be required [ ] will
not be required to repay the entire amount of the distribution in
order to have his Forfeiture reestablished under the Plan.
Note: See Item 16(d) for additional provisions affecting Forfeitures.
ITEM 9 PARTICIPANT CONTRIBUTIONS AND TRANSFERS.
Participant Contributions.
The following Participant contributions may be made, subject to the
provisions of Section 3.03 of the Plan.
(a) Employee Contributions. Employee Contributions are nondeductible
"after-tax" contributions made by Participant which are always 100%
vested.
(1) Employee Contributions to the Plan
[X] shall not be allowed.
[ ] shall be allowed but shall not be required for
<PAGE>
participant in the Plan. (If this item is checked
complete (2) through (6) below)
[ ] shall be required for participation in the Plan, in the
amount of _____% of Compensation. (If this item is
checked complete (2) through (6) below)
(2) Employee Contributions
[ ] shall be made regularly by payroll deduction, and shall
share in investment Income for the Plan Year for which
made.
[ ] shall be made as determined by the Participant, and [ ]
shall [ ] shall not share in investment Income for the
Plan Year for which made.
(3) A Participant may elect to contribute the following percent or
amount of Compensation, as defined in Item 7(a) and subject to
the exclusions in 7(c), per pay period (if contributions are
made regularly by payroll deduction) or per Plan Year (if
Employee Contributions are made as determined by the
Participant):
[ ] a percentage of Compensation of not less than _____% and
not more than _____%.
[ ] The Participant's contribution percentage must be
in whole percentages.
[ ] a dollar amount not less than $________ and not more than
_____% of Compensation.
(4) A Participant may elect to begin Employee Contributions as of
the first payroll period following: (elect each one that
applies)
[ ] the first day of the Plan Year.
[ ] the first day of the seventh month of the Plan Year
(note: for example, if the Plan Year is a calendar year
this would be July 1st).
[ ] other:_______________________________________
_____________________________________________
(5) A Participant's election to have Employee Contributions begin
shall remain in effect until changed or terminated.
A Participant may make a written election to change the amount
or percentage of his or her Employee Contributions as of the
first payroll period following: (elect one that applies).
[ ] the first day of the Plan Year.
[ ] the first day of the seventh month of the Plan Year
(note: for example, if the Plan Year is a calendar year
this would be July 1st).
<PAGE>
[ ] other:_______________________________________
_____________________________________________
(6) Employee Contributions shall be (elect one):
[ ] combined with other Plan assets for investment purpose.
[ ] invested separately from other Plan assets in an account
consisting of certificates of deposit, money market
certificates, collective investment trusts, other short-
term debt security instruments or any other investments
acceptable to the Trustee.
(b) Rollover Contributions from other qualified plans and individual
retirement accounts which were conduits for distributions from
other qualified plans
[ ] shall not be allowed.
[X] shall be allowed.
Trustee-to-Trustee Transfers
(c) Direct Trustee-to-Trustee Transfers (pursuant to Section 10.15 of
the Plan) from other qualified plans
[ ] shall not be allowed.
[X] shall be allowed.
ITEM 10 INVESTMENTS.
(a) Investment decisions shall be controlled by (note: choose
only one option from (a))
[ ] the Trustee in its sole discretion.
[ ] an Investment Manager appointed by the Employer pursuant
to the provisions of Section 10.09 of the Plan.
[ ] the Employer, pursuant to the provisions of Section 10.10
of the Plan.
[X] each Participant, with respect to his Accounts, pursuant
to the provisions of Section 10.11 of the Plan.
[ ] (b) Although the Trustee, the Employer, or an Investment Manager
has been designated above to control investments, the Plan
Administrator may elect to permit each Participant to have the
right, at his discretion, to control the investment of his
Account(s), if permitted by the Committee, pursuant to the
provisions of Section 10.11 of the Plan. (Note: this option
should not be chosen if the last option in (a) was chosen.)
[ ] (c) Investment by the Plan in Qualifying Employer Securities shall
be permitted to a maximum of _____% (note: more than 100%) of
[ ] that portion of the Trust Fund attributable to Employer
contributions and Forfeitures [ ] the value of the entire
Trust Fund (note: election of this second option may require
<PAGE>
the registration of such securities with the Securities and
Exchange Commission). With respect to the voting of such
Qualifying Employer Securities, the following entity shall
vote such shares (note: select only one):
[ ] the Trustee.
[ ] the Participant to whose account the shares have been
allocated.
[ ] the Plan Administrator or, if appointed, the Committee.
ITEM 11 ALLOCATION OF EMPLOYER CONTRIBUTIONS.
This Plan may be either non-integrated or integrated with Social
Security. (Note: Choose one method only. Complete only if Employer
Contributions may be made under the Plan.)
[X] (a) NON-INTEGRATED
Employer Contributions (and Forfeitures, if to be allocated in the
same manner as Employer Contributions pursuant to Item 8) shall be
allocated, pursuant to the provisions of Sections 4.01 and 4.02 of
the Plan, to each Participant's Employer Account in the proportion
that such Participant's Compensation for the Plan Year bears to the
total Compensation for the Plan Year of all Participants entitled
to share in the allocation.
--------------------------------------------
[ ] (b) INTEGRATED
(1) The integration break-point for the Plan shall be
[ ] the Taxable Wage Base in effect at the beginning of the
Plan Year.
[ ] $________ (note: not greater than the Taxable Wage Base
in effect as of the beginning of the first Plan Year to
which this election applies)
[ ] _____% of the Taxable Wage Base in effect at the
beginning of the Plan Year (not to exceed 100%).
(2) The disparity between the percentage of Compensation allocated
below the integration break-point and the percentage of
Compensation allocated above the integration break-point shall
not exceed _____% of Compensation. Note: if the maximum
permissible degree of integration is desired, insert the term
"Max" in this blank. "Max" shall mean the greater of (i)
5.7%, and (ii) the Employer's Social Security tax rate which
is attributable to old-age insurance. If the second option
has been elected in Item 11(b)(1) and if the integration
break-point exceeds the greater of $10,000 or one-fifth of the
Taxable Wage Base in effect as of the beginning of the Plan
Year but is less than the Taxable Wage Base, then the "Max"
shall be reduced based on the following chart:
If the integration break-point the 5.7
<PAGE>
______________________________ percent factor
in the maximum
Is more But not more disparity allowance
than than is reduced to -
_________________________________________________
X* 80% of Taxable 4.3%
Wage Base
80% of Y** 5.4%
Taxable
Wage Base
__________________________________________________
* X = the greater of $10,000 or 20% of the Taxable Wage Base.
** Y = any amount more than 80% of the Taxable Wage Base but
less than 100% of the Taxable Wage Base.
(3) If an Employee's entry date for participation in the Plan is
not the Anniversary Date, then the integration break-point
elected above [ ] shall [ ] shall not be prorated in the Plan
Year in which the Participant enters or reenters the Plan in
the ratio that the length of the Participant's participation
in the Plan that Plan Year bears to the length of that entire
Plan Year.
Note: If this Adoption Agreement applies to any Plan Year
beginning prior to January 1, 1989, then the method for
allocating Employer Contributions and applying Forfeitures
for each such Plan Year shall be the method provided for in
the prior plan document, which shall be incorporated herein
by reference. The elections under this Item shall also be
subject to such modifications as may be necessary pursuant
to the Employer's election under IRS Notice 88-131, or
subsequent IRS relief procedures, related to benefit
accruals which occur before the adoption of this Adoption
Agreement.
ITEM 12 ALLOCATION IN YEAR OF TERMINATION.
In performing such allocation of Employer Contributions (and Matching
Contributions, Qualified Non-elective Contributions, or Qualified
Matching Contributions if pursuant to the elections in Item 8 those
contributions are subject to this Item 12) former Participants who are
no longer employed on the allocation date shall be:
[X] included, if they meet the Service requirement.
[ ] excluded, except that any former Participant whose Service
terminated due to death, disability, or retirement shall be
included,
[ ] if they meet the Service requirement.
[ ] regardless of whether they meet the Service requirement.
[ ] excluded.
<PAGE>
Notes: (1) Service Requirement. If the Plan provides in Item 6 for
counting Hours of Service, then the Service requirement for
sharing in the annual allocation of Employer Contributions
shall be 1000 Hours during a Plan Year. If the Plan
provides in Item 6 for using the "elapsed time" method then
the Participant is required to have an Hour of Service
during the Plan Year to share in the annual allocation of
Employer Contributions.
(2) Exclusion of such persons may under certain circumstances
endanger the continued qualification of the Plan by the
Internal Revenue Service.
ITEM 13 LOANS.
(a) The Plan Administrator [ ] shall [X] shall not permit loans to
Participants and Beneficiaries pursuant to the provisions of
Section 5.02 of the Plan. (If shall is checked please complete (b)
below)
(b) The Plan's loan requirements shall be (check one)
[ ] (1) those standard requirements described in Section 5.02,
subject to the following elections:
(i) Plan loans may not be made for amounts less than
$________ (note: fill in the blank with a dollar
amount not exceeding $1,000).
(ii) The total amount of a person's loan balance from
the Plan [ ] shall [ ] shall not be limited to an
amount equal to 50% of such person's Vested
Accounts Balance (note: if shall not is elected
only 50% of such person's Vested Account Balance
may be considered security and additional security
will be required).
[ ] (2) those requirements stated in Attachment B.
[ ] (c) (Note: Do not elect this option if the Plan is integrated with
Social Security). In the event of default while on a leave of
absence, the Employee will be deemed to have requested an in-
service withdrawal from the Plan in order to repay any outstanding
balance (including interest) of the loan, and to insure no loss of
income to the Trust, provided that the Employee qualifies for an
in-service withdrawal under the terms of the Basic Plan Document
regardless of whether in-service withdrawals are allowed pursuant
to the elections in Item 14 of this Adoption Agreement. However,
in the event more than one-half of the Vested Account Balance is
available for a loan, and if the Plan is not subject to the special
rule of Section 6.03(d), then only fifty percent (50%) of the
Vested Account Balance will be available for an in-service
withdrawal if the Employee has a Spouse.
ITEM 14 IN-SERVICE WITHDRAWALS.
Withdrawals - Employer Contributions
[ ] Withdrawals from a Participant's Employer Account shall not be
<PAGE>
permitted.
[X] (Note: do not elect this option if Item 11(b) has been elected).
If the requirements under Section 5.01(a) of the Plan are met,
withdrawals of up to 100% (note: not more than 100%) of a
Participant's vested interest in his Employer Account may be
permitted.
Withdrawals of Employer Contributions shall be limited to the
following instances (note: 1 and 2 are optional; any combination
(or neither) may be selected).
[X] (1) A withdrawal shall be permitted only in the case of
financial hardship, as determined by the Plan
Administrator in a uniform and nondiscriminatory manner.
[X] (2) A withdrawal shall be permitted only to those
Participants (note: if more than one is selected, the
earliest shall apply)
[ ] who have _____ Years of Service.
[ ] who are eligible for early retirement under this
Plan.
[ ] who are at least age 59-1/2.
Withdrawals - Elective Deferral Contributions
Hardship withdrawals of the Participant's Elective Deferral
Contributions
[ ] shall not be allowed.
[X] shall be allowed.
If hardship withdrawals of the Participant's Elective Deferral
Contributions are allowed for Plan Years after December 31, 1988 such
withdrawals [ ] may [ ] may not be made as to Income on Elective
Deferral Contributions as of December 31, 1988.
Withdrawals - Mandatory Employee Contributions. Mandatory Employee
Contributions are after-tax contributions that are required in order for
the Employee to be eligible to receive an allocation of contributions
made by the Employer.
[ ] Withdrawals from a Participant's Employee Account of mandatory
Employee Contributions shall not be permitted.
[ ] Withdrawals of up to _____% (note: not more than 100%) of a
Participant's Employee Account arising from mandatory Employee
Contributions may be permitted. [ ] If the Participant is less
than 50% vested in his Employer Account, then his withdrawal of
mandatory Employee Contributions shall result in a Forfeiture of
that portion of his Employer Account not attributable to minimum
allocations in Top Heavy Plan Years.
Withdrawals - Voluntary Employee Contributions
<PAGE>
[ ] Withdrawals from a Participant's Employee Account of voluntary
Employee Contributions shall not be permitted.
[ ] Withdrawals of up to _____% (note: not more than 100%) of a
Participant's Employee Account arising from voluntary Employee
Contributions may be permitted.
Withdrawal Restrictions
If withdrawals of Employee Contributions are permitted they shall be
limited to the following instances (note: 1,2, 3 and 4 are optional:
any one or any combination of more than one (or none) may be selected):
[ ] (1) A withdrawal shall be permitted only if the right of a
Participant to make Employee Contributions to his Employee
Account shall be suspended for (note: select only one)
[ ] the next _________________ (note: not less than 6)
months.
[ ] the later of the next _____________ (note: not less than
6) months or the time the withdrawal from the Employee
Account is paid back in full by the Participant.
[X] (2) A withdrawal shall be permitted in the case of financial
hardship, as determined by the [ ] Employer [X] Plan
Administrator in a uniform and nondiscriminatory manner.
[ ] (3) A withdrawal shall be permitted only to those Participants
(note: if more than one is selected, the earliest shall
apply)
[ ] who have _____ Years of Service.
[ ] who are eligible for early retirement under this Plan.
[ ] who have terminated employment with the Employer.
[ ] (4) Other (specify, but note: vested benefits may not be
forfeited under this option):
__________________________________________________
__________________________________________________
__________________________________________________
ITEM 15 INSURANCE.
Insurance Policies [ ] shall [ ] may [X] shall not be purchased to
provide incidental death benefits on behalf of Participants, pursuant to
the provisions of Sections 9.05 of the Plan, in addition to the purchase
of any annuity contract which is required under Item 19 or under the
provisions of the Plan.
ITEM 16 TERMINATION OF EMPLOYMENT (VESTING SCHEDULE).
(a) Vesting Schedule. A Participant's Employer Account (and Matching
Account if pursuant to Item 8 the Matching Account is subject to
this vesting schedule) shall be vested in him according to the
following schedule:
<PAGE>
Full Years of [ ] [ ] [X] [ ]
Vesting Service (i) (ii) (iii) (iv)
Less than 1 100% 0% 0% ___
1 100 0 0 ___
2 100 0 0 ___
3 100 20 0 ___
4 100 40 0 ___
5 100 60 100 ___
6 100 80 100 ___
7 or more 100 100 100 ___
___________________________
Note: No schedule shall be elected under option (iv) which is not
at least as favorable at each duration as either option
(ii), applied uniformly, or option (iii), applied uniformly.
If this election represents a change in the Plan's vesting
schedule, then as to Participants who were Participants on the day
prior to the effective date of this change (elect one)
[ ] such Participant's vesting percentage shall remain the same as
it was under the prior schedule until such time as it would
increase to a higher vesting percentage under the new
schedule.
[ ] such Participant's vesting percentage for any Plan Year
following such change shall be determined under whichever of
the old schedule or the new schedule would produce the higher
vesting percentage.
Note: If this election represents a change in the Plan's vesting
schedule, each Participant with at least 3 Years of Service
with the Employer may elect within a reasonable period after
the adoption of the change to have his nonforfeitable
percentage computed under the Plan without regard to the
change.
If this Adoption Agreement applies to any Plan Year beginning prior
to January 1, 1989, then the vesting schedule for each such Plan
Year shall be the schedule from the prior plan document, which
shall be incorporated herein by reference.
(b) Vesting of Insurance. If the Plan includes or may in the future
include any insurance Policies, check one of the following blocks:
[X] The vesting schedule elected shall apply to the value of the
Policies as well as to the remainder of the Participant's
Employer Account.
[ ] Vesting schedule ______ shall apply to the value of the
Policies, and vesting schedule ______ shall apply to the
remainder of the Participant's Employer Account.
(c) Timing of Payments. Benefits under the Plan due a former
Participant who is not eligible for normal retirement or early
retirement on his separation from Service shall be paid to such
former Participant or applied for his benefit from the Accounts as
<PAGE>
follows (note: select only one):
[ ] (1) within 60 days following the close of the Plan Year
during which the former Participant attains what would
have been his Normal Retirement Age. (If this option is
selected select the sub-option below if it is
applicable.)
[ ] unless such former Participant has a Disability, in
which case his benefit shall be paid within 60 days
following the close of the Plan Year during which
such former Participant incurs a Break in Service,
or as soon thereafter as determinable, if the
Participant requests such early payment.
[X] (2) within 60 days following the close of the Plan Year
during which the Separated Participant incurs 0 (note:
not greater than 5) Break in Service, or as soon
thereafter as determinable, if the Participant requests
such early payment.
[ ] (3) Other:_______________________________________
_____________________________________________
(note: not later than 60 days following the close of the
Plan Year during which the Participant attains what would
have been his Normal Retirement Age).
(d) Small Benefits. The Plan Administrator (select one) [X] shall [ ]
shall not automatically cause the benefit attributable to Employer
and Employee contributions which is not greater than $3,500 to be
paid to the former Participant or Beneficiary in a single sum as
provided in Section 6.08 of the Plan. If "shall" is elected then
the benefits of a Separated Participant who has no vested benefits
shall be treated as a Forfeiture on the last day of the Plan Year
in which the Participant
[X] terminates employment with the Employer.
[ ] incurs _____ (not more than 5) consecutive Breaks in Service.
If the election above represents a change in the timing of
Forfeitures and if the effective date of such change is other than
the effective date of this amendment to the Plan, indicate the
effective date of such change here: ______________, 19__. If this
election does represent a change and if this Adoption Agreement
applies to Plan Years beginning prior to this change, then the
provisions of the proper plan document shall apply in those prior
Plan Years and shall be incorporated by reference.
Note: If Forfeitures are to occur before 5 consecutive Breaks in
Service, a restoration of the non-vested account balance may
be required under Section 8.03 of the Basic Plan Document if
the Separated Participant is reemployed.
ITEM 17 VESTING SERVICE EXCLUSIONS.
In determining a Participant's years of Vesting Service, the following
periods of Service shall be excluded in addition to the exclusions set
out in Section 1.73 of the Plan:
<PAGE>
[ ] (a) Service prior to the Plan Year during which a Participant
attains age _____ (note: not more than 18) years.
[X] (b) Service during any period for which the Employer did not
maintain this Plan or a predecessor plan.
[ ] (c) Service during any period for which the Employee made no
contributions to the Plan, if Employee Contributions were
required to participate in the Plan for such period.
[ ] (d) Pre-Break Service excluded under the "Rule of Parity" pursuant
to Section 1.73 dealing with the relationship between periods
of absence and pre-Break Service.
[ ] (e) None of the above exclusions.
ITEM 18 RETIREMENT REQUIREMENTS.
(a) The Normal Retirement Age of a Participant shall be (elect one)
[X] age 60 (note: not to exceed 65).
[ ] the later of age _____ (note: not to exceed 65) or the _____*
(note: not to exceed "5th") anniversary of his participation
commencement date. The participation commencement date is the
date on which the Participant commenced participation in the
Plan.
* If this Adoption Agreement constitutes an amendment to an
existing plan, then, for any Plan Year to which this
Adoption Agreement applies beginning prior to the Plan Year
following the adoption of this amendment, the number
indicated above shall be replaced with the following number
which was used in the prior plan document _____ (note: not
to exceed "10th").
(b) [ ] (Note: this selection is optional.) A Participant may retire
early with full vesting on the first day of any month
following his attainment of age
_____ (note: between 55 and 65 years) if he has then
completed _____ years of
[ ] Vesting Service.
[ ] Service with the Employer.
(c) A Participant who has reached his Normal Retirement Date
[ ] must wait until actual retirement, subject to Section 6.07
(the age 70-1/2 benefit commencement requirement) before he
can begin to receive his retirement benefit pursuant to
Article 6 of the Plan.
[X] may, upon his request, begin to receive his retirement benefit
before his actual retirement, subject to the restrictions of
Section 11.13.
(d) [ ] (Note: this selection is optional.) For purposes of the
Plan, Disability shall not include the following:
[ ] a physical or mental condition which results directly or
<PAGE>
indirectly from (note: select one or more):
[ ] injury intentionally self-inflicted
[ ] injury or disease resulting from military service
[ ] injury or disease suffered or contracted prior to
the last date of an Employee's commencement of
Service
[ ] Other (specify):_____________________________
_____________________________________________
(e) For purposes of determining the existence of Disability, the Plan
Administrator shall (check one or both, as applicable)
[ ] require medical evidence.
[X] allow receipt of Social Security or any insured disability
benefits to be conclusive evidence of Disability.
ITEM 19 FORMS OF BENEFIT PAYMENT.
(a) The normal form of payment shall be
[X] a single sum.
[ ] a straight life annuity for a Participant who does not have a
Spouse on his Annuity Starting Date and a Qualified Joint and
Survivor Annuity if the Participant does have a Spouse on his
Annuity Starting Date.
(b) (Note: this selection is optional.) The Plan shall offer the
following optional forms of payment pursuant to Section 6.03
[ ] installments
[ ] annuities
[X] single sum
[X] A combination of single sums, on the dates and in the amounts
selected by the Participant (subject to a minimum for any
single distribution of $100).
Others: (describe in detail or reference a specific attachment,
such as "Attachment A," which describes the elected
option(s) in detail)
[ ] __________________________________________________
__________________________________________________
__________________________________________________
[ ] __________________________________________________
__________________________________________________
__________________________________________________
[ ] __________________________________________________
__________________________________________________
<PAGE>
__________________________________________________
(Note: Optional forms of benefit payment may not be eliminated.)
(c) If benefits may be paid in the form of an annuity, then the
Qualified Joint and Survivor Annuity shall be an annuity with [ ]
50% [ ] 75% [ ] 100% of the annuity benefit continuing to a
Participant's surviving Spouse at the Participant's death.
(d) If ever a death benefit is to be paid to a Spouse of a Participant
in the form of annuity described in Section 7.02(c)(2) of the Plan
(i.e., a qualified preretirement survivor annuity), then that
Spouse [ ] may [ ] may not elect an optional form of death benefit
payment (such as a lump sum) provided under the Plan.
Note: If the Employer has previously allowed benefits under the Plan to
be paid in the form of an annuity involving life contingencies,
but would like to eliminate the availability of that form of
payment as to contributions and forfeitures allocated in the
future, the following provision should be completed.
Contributions and Forfeitures (if applicable) allocated to a
Participant's account under the Plan plus any Income allocated to
such amounts on or after __________, 19__, shall not be paid in
the form of an annuity.
(e) If at the Participant's death there is no effective Beneficiary
designation on file with the Plan Administrator then the
Participant shall be deemed to have designated the Beneficiaries
(if living at the time of the death of the Participant or
Beneficiary) in the following order of priority (check one):
[X] in the order provided in Section 7.03(a) of the Plan.
[ ] in the following order:___________________________
__________________________________________________
__________________________________________________
ITEM 20 TOP HEAVY PLANS (CODE SECTION 416).
This item automatically applies only in Plan Years in which the Plan is
a Top Heavy Plan, but all options herein must be completed by every
Employer in case the Plan ever becomes Top Heavy.
(a) Single Plan-Minimum Contributions and Allocations. Notwithstanding
the provisions of Item 11, and before any contributions are
allocated thereunder, minimum Employer contributions shall be made
and allocated pursuant to Section 13.03 of the Plan in a Plan Year
in which the Plan is Top Heavy.
(b) Minimum Vesting. Notwithstanding the provisions of Item 16, the
vested interest of each Employee in his Employer Account in a Plan
Year in which the Plan is Top Heavy shall be determined pursuant to
Section 13.04 of the Plan on the basis of the following vesting
schedule, unless a more rapid vesting schedule has been selected in
Item 16:
Full Years of [X] [ ]
Vesting Service (i) (ii)
<PAGE>
Less than 1 0% 0%
1 0 0
2 0 20
3 100 40
4 100 60
5 100 80
6 or more 100 100
(Note: If you do not make an election, then option (ii) shall
apply).
If the vesting schedule under the Plan shifts in or out of the
above schedule for any Plan Year because of a change in the Plan's
Top Heavy status, then such shift shall be considered an amendment
to the vesting schedule and the election rule for Participants with
3 or more Years of Service set forth in Section 11.03(d) of the
Plan applies. Furthermore, any portion of the Employer Account
that becomes vested under this minimum vesting schedule for a Top
Heavy Plan shall remain nonforfeitable if the Plan shifts out of
Top Heavy status.
(c) Multiple Plans-Minimum Contributions and Allocations. This
subsection shall only apply if you sponsor another qualified
retirement plan.
(1) Minimum Contributions and Allocations.
(i) Code Section 415(e) Buy-Backs. If another retirement
plan is a qualified defined benefit plan, and if for a
Plan Year the plans are Top Heavy (but not Super Top
Heavy), then the "Code Section 415(e) buy back"
provisions, as defined in Section 13.05 of the Plan.
[ ] shall be utilized, so that 125%
[X] shall not be utilized, so that 100%
of the dollar limitations set out in Section 4.07 of the
Plan shall be used in computing the Defined Benefit
Fraction and the Defined Contribution Fraction. If the
125% limit is to be used, then the required extra
minimum contributions or benefits shall be provided in
[ ] this Plan [ ] the defined benefit plan.
(ii) Minimum Accruals. If another retirement plan is a
qualified defined benefit plan
[X] the Plan shall be considered to be subject to the
minimum allocation provisions of Section 13.05(a)
or 13.06, whichever is applicable.
[ ] the following overriding provisions shall control
instead of the provisions regarding minimum
accruals under Section 13.05(a) or 13.06.
____________________________________________
____________________________________________
<PAGE>
____________________________________________
____________________________________________
____________________________________________
(iii) No Duplicate Benefits. If another retirement plan is a
qualified defined contribution plan which is a Paired
Plan, then any additional required minimum Employer
contributions and allocations shall be provided only
under [X] this Plan [ ] the other qualified defined
contribution plan.
(2) Present Value. For purposes of establishing Present Value to
compute the Top Heavy Ratio for the Plan as set forth in
Section 13.02(j), any benefit under a qualified defined
benefit pension plan maintained by the Employer shall be
discounted only for mortality and interest based on the
following factors, which, if a lump sum benefit is available,
should be the factors used to compute a lump sum benefit:
Mortality Table: [ ] the UP-1984 Mortality Table
[X] as provided in the qualified defined
benefit pension plan
[ ] Other:______________________
Interest Rate: [ ] the rates which would be used by the
Pension Benefit Guaranty Corporation for
a trusteed single-employer plan to value
a benefit upon termination of an
insufficient trusteed single-employer
plan
[X] as provided in the qualified defined
benefit pension plan
[ ] Other:______________________
ITEM 21 MULTIPLE PLANS-LIMITATION ON TOTAL BENEFITS (CODE SECTION 415).
The Employer must complete (a) and (b) below. If the Employer maintains
or ever maintained another qualified plan in which any Participant in
this Plan is (or was) a Participant or could possibly become a
Participant, the Employer must indicate how it will deal with benefits
under the plans that exceed the limits under Code Section 415. If the
Employer maintains a welfare benefit fund, as defined in Section 419(e)
of the Code, or an individual medical account, as defined in Section
415(1)(2) of the Code, under which amounts are treated as Annual
Additions with respect to any Participant in this Plan, then it must
also indicate how it will deal with benefits which under such fund or
account in combination with benefits under this Plan exceed the limits
under Code Section 415.
(a) If the Participant is covered under another qualified defined
contribution plan maintained by the Employer, other than a master
or prototype plan (note: select only one option):
<PAGE>
[ ] This situation is not applicable.
[X] The provisions of subsection 4.07(b)(1) through subsection
4.07(b)(6) of the Plan shall apply, as if the other plan was a
master or prototype plan.
[ ] The amount of Annual Additions allocated to any Participant's
Accounts under this Plan shall be limited to the Maximum
Permissible Amount, and Excess Amounts will be properly
reduced, as follows:
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
(b) If the Participant is or ever has been a Participant in a defined
benefit plan maintained by the Employer (note: select only one
option):
[ ] This situation is not applicable.
[ ] In any Limitation Year, the Annual Additions credited under
this Plan to the Participant may not cause the sum of the
Defined Benefit Fraction and Defined Contribution Fraction to
exceed 1.0. If the Employer's contribution that would
otherwise be made on the Participant's behalf during the
Limitation Year would cause the 1.0 limitation to be exceeded,
the rate of contribution under this Plan will be reduced so
that the sum of the fractions equals 1.0. If the 1.0
limitation is exceeded because of an Excess Amount, such
Excess Amount will be reduced in accordance with subsection
4.07(a)(4) of the Plan.
[X] In any Limitation Year, the additional benefit accrued under
the defined benefit plan to the Participant may not cause the
sum of the Defined Benefit Fraction and Defined Contribution
Fraction to exceed 1.0. If the additional benefit that the
Participant would normally accrue would cause the 1.0
limitation to be exceeded, the rate of benefit accrued under
the defined benefit plan will be reduced so that the sum of
the fractions equals 1.0.
[ ] The amount of Annual Additions allocated to any Participant's
Accounts under this Plan shall be limited to the Maximum
Permissible Amount, and Excess Amounts will be properly
reduced, as follows:
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
<PAGE>
ITEM 22 SERVICE WITH PREDECESSOR EMPLOYER.
Employment with the following predecessor employer(s) (and such other
predecessor employers as the Employer shall subsequently designate in
writing) shall be considered Service with the Employer for all purposes
of the Plan (note: if the Employer is maintaining a tax-qualified plan
of a predecessor employer, that predecessor employee must be listed;
place an asterisk (*) after the name of any such predecessor employer):
[X] There are no such predecessor employers.
[ ] _______________________________________________________
_______________________________________________________
_______________________________________________________
ITEM 23 CONTROLLED GROUPS.
The following employers are members of a Controlled Group:
[ ] (a) There are no such employers.
[X] (b) Mississippi Chemical Corporation
Newsprint South, Inc.
Newsprint South Sales Corp.
ITEM 24 OTHER ADOPTING EMPLOYERS.
The following adopting Employers are affiliates of the Employer which,
pursuant to Section 4.08 of the Plan, have adopted the Plan and for
which a single Trust Fund may be used for the investment of the Trust
Fund: None
Each such adopting Employer which is a member of a Controlled Group [ ]
shall [ ] shall not be considered to be a separate Employer for purposes
of allocating Employer contributions and Forfeitures.
Note: If you elect "shall" above, you may be considered to have
different "plans" for each adopting Employer for purposes of Code
Section 401(a)(26). Code Section 401(a)(26) requires that each
"plan" benefit the lesser of 50 Employees or 40% of all Employees
of all members of the Controlled Group.
ITEM 25 COMPENSATION OF TRUSTEE.
The Employer agrees to pay and/or reimburse the Trustee for expenses on
the basis set out in the Plan, provided the Trustee is not a full-time
Employee of the Employer, and to pay the Trustee an annual fee according
to its schedule of fees. The Trustee's annual compensation shall be
charged to the Trust fund, unless paid or reimbursed by the Employer.
ITEM 26 APPOINTMENT OF TRUSTEE.
The Trustee, by execution of this Adoption Agreement, accepts its
appointment as Trustee under the aforesaid Plan.
ITEM 27 COORDINATION OF PLAN ADMINISTRATOR AND TRUSTEE.
<PAGE>
At the commencement of this Plan and at the end of each Plan Year
thereafter, the Plan Administrator appointed by the Employer shall
deliver to the Trustee such information as the Trustee may require for
the proper installation and administration of the Plan.
ITEM 28 AMENDMENT BY EMPLOYER.
The elective features of this Adoption Agreement may be amended by the
Employer as provided in Article 11 of the Plan, but all authority to
amend the portions of the Plan which constitute a regional prototype
plan approved by the Internal Revenue Service under Revenue Procedure
89-13 is specifically delegated irrevocably to the Sponsor, subject to
the provisions of Article 11 of the Plan.
IN WITNESS WHEREOF, the following parties have caused this Adoption
Agreement to be executed this the 14th day of December, 1992.
Mississippi Phosphates Corporation NationsBank, N.A.
EMPLOYER TRUSTEE
By: /s/ Tom C. Parry By:
Title: President Title: Vice President
______________________________ ______________________________
ADOPTING EMPLOYER TRUSTEE
By:___________________________ By:___________________________
Title:________________________ Title:________________________
______________________________ ______________________________
ADOPTING EMPLOYER TRUSTEE
By:___________________________ By:___________________________
Title:________________________ Title:________________________
NOTICE TO EMPLOYER AND ADOPTING EMPLOYER(S)
An Employer may not rely on the notification letter issued by the Key
District Office of the Internal Revenue Service as evidence that this Plan is
qualified under Section 401 of the Code. In order to obtain reliance with
respect to Plan qualification, the Employer must apply to the appropriate Key
District Office of the Internal Revenue Service for a determination letter
pursuant to Revenue Procedure 89-13.
This Adoption Agreement may be used only in conjunction with BPS&M Defined
Contribution Basic Plan Document #01.
ASSIGNMENT OF AUTHORIZATION NUMBER
Use of this form for preparation of a plan document is not allowed without
<PAGE>
the approval of BPS&M. The authorization number assigned by BPS&M to the
form is J2034.
<PAGE>
FIRST AMENDMENT
TO THE
BPS&M REGIONAL PROTOTYPE
DEFINED CONTRIBUTION PLAN AND TRUST
BASIC PLAN DOCUMENT 001
WHEREAS, Bryan, Pendleton, Swats and McAllister ("BPS&M") sponsors the
BPS&M Regional Prototype Defined Contribution Plan and Trust in order to
assist Employers in adopting a defined contribution plan and trust which is
qualified under Section 401(a) and Section 501(a) of the Code, respectively;
and
WHEREAS, BPS&M desires to conform the Plan and Trust to the final
regulations issued under the Tax Reform Act of 1986, and to make those
amendments permitted by Revenue Procedure 92-41;
NOW THEREFORE, effective on the dates described below, the plan is
hereby amended as shown below. Except where indicated otherwise, the
amendments below shall be effective on the first day of the Plan Year
commencing in 1992.
Section 1.30(a) is amended by adding to the and thereof the following:
"Notwithstanding the above, (and notwithstanding anything to the
contrary in the Adoption Agreement) at the election of the Plan
Administrator. the election to make the calendar year calculation, as
provided in Section 1.414(g)-1T, Q&A 14(b), of the Treasury Regulations,
shall be made and shall apply for a Plan Year. In this case. the look-
back year for the Plan Year shall be the calendar year ending with or
within the applicable Plan Year, and the determination year shall be the
period of time, if any, which extends beyond the look-back year and ends
on the last day of the Plan Year for which testing is being performed
(the "lag period"). If the lag period is less than twelve (12) months
long, then the dollar amounts applicable under (a)(1), (a)(2), and
(a)(3) above shall be prorated based upon the number of months in the
lag period."
Section 2.03 shall be amended by adding to the end thereof the following
paragraph:
"If the Plan uses Adoption Agreement #002 or #005 (savings plan),
the participation of an Employee shall be subject to the requirement
that the Employee make Employee Contributions if such requirement is
elected in Item 9(a)(1) of the Adoption Agreement. If a Participant
ceases to make required Employee Contributions, he shall be treated in
the same manner as a Participant who has changed his classification of
employment to an excluded classification as described in the preceding
paragraph."
<PAGE>
Section 3.01(c)(2) is amended by adding to the and thereof the following
paragraph (iii)
"(iii) Waiver of Service Requirement. The Plan Administrator may
elect to waive the requirement in this Section 3.01(c)(2) of a
specified number of Hours of Service, or the requirement that
a Participant be in Service on the Valuation Date, or both
requirements, with respect to a group of Participants or
Separated Participants for a Plan Year, if such waiver is
necessary in order to satisfy the requirements of Section
410(b) of the Code for such Plan Year.
The last paragraph of Section 3.01 is amended by deleting the phrase,
"if only partners participate, shall be allowed if such election" and
replacing it with the phrase, "if partners may participate, shall be allowed
only if such election".
Section 3.03(c) is amended, effective January 1, 1993, by adding the
following paragraph immediately after the first paragraph:
"If Rollover Contributions are permitted by Item 9 of the Adoption
Agreement, the Plan shall permit a Participant to make a Rollover
Contribution in the form of a direct trustee to trustee transfer,
provided that: (1) the transferor plan is described in the preceding
paragraph as a plan from which Rollover Contributions are accepted; (2)
the direct transfer is made pursuant to the Participant's election; (3)
the amount transferred is no greater than the amount that would be
accepted as a Rollover Contribution in accordance with the preceding
paragraph; and (4) the transferor plan is required by section 401(a)(31)
of the Internal Revenue Code to permit the transfer. The amount
contributed in accordance with this paragraph shall be allocated to the
Participant's Rollover Account."
The second paragraph of Section 3.04 is amended by adding to the end
thereof the following:
"In the event that the Participant's elective deferrals (within the
meaning of Section 402(g)(3) of the Code) made under this Plan and all
other plans maintained by the Employer (without taking into account any
plan not maintained by the Employer) during any calendar year exceed the
limitation contained in Section 402(g) of the Code in effect at the
beginning of such calendar year, the Participant shall be deemed to have
made the notification referred to in the preceding sentence with respect
to such Excess Elective Deferrals (calculated without regard to any plan
not maintained by the Employer). If the Participant has not actually
made such notification, and if the Participant has made Elective
Deferrals to more than one plan maintained by the Employer, the Employer
shall select the plan to which the Excess Elective Deferrals shall be
assigned."
Section 3.04 is amended by adding to the end thereof the following
paragraph:
<PAGE>
"Effective with the first Plan Year commencing in 1992, the amount
in (ii) in the preceding paragraph shall be replaced with zero ($O)
unless Item 8(j)(2) of the Adoption Agreement (as modified by the
Supplemental Adoption Agreement, if any) is elected. The Plan
Administrator may elect, for any Plan Year, to replace the amount in (i)
in the preceding paragraph. with an amount computed using the method
that is used by the Plan to allocate Income to Participants' Accounts,
provided such method is reasonable, non-discriminatory (within the
meaning of Section 401(a)(4) of the Code) and is used consistently for
all Participants and for all corrective distributions under the Plan for
the Plan Year."
Section 3.05(a) is amended by adding to the and thereof the following:
"For Plan Years commencing in 1992 and later, the Compensation used in
determining the Average Deferral Percentage shall be limited to
Compensation received by the Employee for the period in which he is a
Participant, if this is the method elected in Item 7 of the Adoption
Agreement (as modified by the Supplemental Adoption Agreement, if any).
If this method has been elected with respect to Plan Years commencing
before 1992, then this method shall automatically be elected for Plan
Years commencing in 1992 and later, unless a contrary election is made."
Section 3.05(c) is amended by deleting the last six words of the first
paragraph ("the manner prescribed by the regulations") and replacing them
with the following:
"proportion to the contributions with respect to each family member that
are included in the numerator of the ratio described in Section 3.05(a)
in the definition of "Average Deferral Percentage."
Section 3.05(d) is amended by adding to the and thereof the following
paragraph:
"Effective with the first Plan Year commencing in 1992, the amount
in (2) above shall be replaced with zero ($O) unless Item 8(j)(2) of the
Adoption Agreement (as modified by the Supplemental Adoption Agreement,
if any) is elected. The Plan Administrator may elect, for any Plan
Year, to replace the amount in (1) above with an amount computed using
the method that is used by the Plan to allocate Income to Participants'
Accounts, provided such method is reasonable, non-discriminatory (within
the meaning of Section 401(a)(4) of the Code) and is used consistently
for all Participants and for all corrective distributions under the Plan
for the Plan Year."
Section 3.06(c)(3) is amended by adding to the end thereof the
following:
"For Plan Years commencing in 1992 and later, the Compensation used in
determining the Average Contribution Percentage shall be limited to
Compensation received by the Employee for the period in which he is a
Participant, if this is the method elected in Item 7 of the Adoption
Agreement (as modified by the Supplemental Adoption Agreement, if any).
If this method has been elected with respect to Plan Years commencing
<PAGE>
before 1992, then this method shall automatically be elected for Plan
Years commencing in 1992 and later, unless a contrary election is made."
Section 3.06(d) is amended by deleting from the second sentence the
phrase ("the manner prescribed by regulations") and replacing it with the
following:
"proportion to the Contribution Percentage Amount of each family
member."
Section 3.06(s) is amended by adding to the and thereof the following
paragraph:
"Effective with the first Plan Year commencing in 1992, the amount
in (ii) in the preceding paragraph shall be replaced with zero ($O)
unless Item 8(j)(2) of the Adoption Agreement (as modified by the
Supplemental Adoption Agreement, if any) is elected. The Plan
Administrator may elect, for any Plan Year, to replace the amount in (i)
in the preceding paragraph, with an amount computed using the method
that is used by the Plan to allocate Income to Participants' Accounts,
provided such method is reasonable, non-discriminatory (within the
meaning of Section 401(a)(4) of the Code) and is used consistently for
all Participants and for all corrective distributions under the Plan for
the Plan Year."
Section 4.01(b) is amended by adding to the end thereof the following:
"No Matching Contribution shall be allocated with respect to any
Employee Contribution or Elective Deferral Contribution that is returned
or distributed to the Participant in accordance with Section 3.04 (Limit
on Elective Deferrals), Section 3.05 (ADP test), Section 3.06 (ACP test)
or Section 4.07 (Maximum Annual Additions). In the event that such a
Matching Contribution is allocated to the Matching Account of a
Participant, such Matching Contribution shall be forfeited as of the
last day of the Plan Year in which it was allocated. Any Matching
Contributions forfeited in accordance with the preceding sentence shall
not be included in the ACP test in Section 3.06."
Section 4.01(c)(1) is amended by adding to the end thereof the following
paragraph (iii)
"(iii) Waiver of Service Requirement. The Plan Administrator may
elect to waive the requirement in this Section 4.01(c)(1) of a
specified number of Hours of Service, or the requirement that
a Participant be in Service on the Valuation Date, or both
requirements, with respect to a group of Participants or
Separated Participants for a Plan Year, if such waiver is
necessary in order to satisfy the requirements of Section
410(b) of the Code for such Plan Year.
Effective on the first day of the Plan Year commencing in 1991, Section
4.07(a)(4) is deleted and replaced with the following provision:
<PAGE>
"(4) If, as a result of the allocation of forfeitures, a reasonable
error in estimating a Participant's annual Compensation, a
reasonable error in determining the amount of elective deferrals
(within the meaning of Section 402(g)(3) of the Code) that may be
made with respect to any individual under the limits of this
Section 4.07, or other facts and circumstances that justify the
availability of the rules set forth below, there is an Excess
Amount, then such excess shall be disposed of as follows:
(i) Any Employee Contributions (whether voluntary or mandatory)
shall be returned to the Participant, and any Elective
Deferral Contributions shall be distributed to the
Participant, to the extent such return or distribution would
reduce the Excess Amount. The amounts returned or
distributed shall include Income on such amounts determined
in the same manner as Income is determined in Section 3.04
(however, if such method of determining Income is not
permitted by regulations, then Income shall be determined in
a manner consistent with any applicable regulations). Any
amount distributed or returned in accordance with this
paragraph (i) shall not be included as an Elective Deferral
Contribution or Employee Contribution for purposes of the ADP
test in Section 3.05, the ACP test in Section 3.06, or the
limit on Elective Deferrals in Section 3.04. The consent of
the Participant or the Participant's Spouse shall not be
required to make any return or distribution in accordance
with this paragraph (i).
(ii) If after the application of paragraph (i) an Excess Amount
still exists, and the Participant is covered by the Plan at
the and of the Limitation Year, then any remaining Excess
Amount in the Participant's Accounts shall be used to reduce
Employer contributions (including any allocation of
Forfeitures) for such Participant in the next Limitation
Year, and each succeeding Limitation Year if necessary.
(iii) If after the application of paragraph (i) an Excess Amount
still exists, and the Participant is not covered by the Plan
at the end of a Limitation Year, then the Excess Amount shall
be held unallocated in a suspense account which shall be
applied to reduce future Employer contributions (including
any allocation of Forfeitures) for all remaining Participants
in the next Limitation Year, and each succeeding Limitation
Year if necessary.
(iv) If a suspense account is in existence at any time during a
Limitation Year pursuant to this section, then it shall not
participate in the allocation of the Trust's investment gains
and losses. If a suspense account is in existence at any
time during a particular Limitation Year, all amounts in the
suspense account must be allocated and reallocated to
Participants' accounts before any employer contributions or
any employee contributions may be made to the plan for that
Limitation Year. For purposes of this paragraph (iv) Excess
Amounts may not be distributed to Participants or former
Participants."
<PAGE>
Effective on the first day of the Plan Year commencing in 1993, Section
4.07(e)(2)(i) is amended to read as follows:
"(i) If Item 7(a)(1) or 7(a)(3) is elected in the Adoption Agreement (as
modified by the Supplemental Adoption Agreement), Compensation
shall mean W-2 Earnings."
Effective on the first day of the Plan Year commencing in 1993, Section
4.07(e)(13) is amended to read as follows:
"(13) 'W-2 Earnings' shall be defined in accordance with (i) or
(ii), as determined by the election in Item 7 of the Adoption
Agreement (as modified by the Supplemental Adoption Agreement,
if any). If Item 7(a)(1) of the Adoption Agreement is
elected, W-2 Earnings shall be defined in (i) below, unless
Item 7(a)(3) has been elected on the Adoption Agreement or the
Supplemental Adoption Agreement, in which case W-2 Earnings
shall be defined in (ii) below.
(i) shall mean wages within the meaning of Section 3401(a) of
the Code and all other payments of compensation to the
Employee by the Employer (in the course of the Employer's
trade or business) for which the Employer is required to
furnish the Employee a written statement under Sections
6041(d), 6051(a)(3) and 6052 of the Code, determined
without regard to any rules under Section 3401(a) of the
Code that limit the remuneration included in wages based
on the nature or location of the employment or the
services performed.
(ii) shall mean wages as defined in Code Section 3121(a), for
purposes of calculating social security taxes, but
determined without regard to the wage base limitation in
Code Section 3121(a)(1), the special rules in Code
Section 3121(v) (applicable to certain elective
contributions and nonqualified deferred compensation),
any rules that limit covered employment based on the type
or location of an employee's employer, and any rules that
limit the remuneration included in wages based an
familial relationship or based on the nature or location
of the employment or the services performed (such as the
exceptions to the definition of employment in Code
Section 3121(b)(1) through (20))."
The second paragraph of Section 5.01(a)(2) is amended by adding to the
end thereof the following:
"The amount computed under clause (ii) above may, in the discretion of
the Plan Administrator (applied in a uniform and non-discriminatory
basis), include any amounts necessary to pay any federal, state or local
income taxes or penalties reasonably anticipated to result from the
distribution."
<PAGE>
Section 5.01(a)(2) is amended by replacing the first paragraph
designated (i) (regarding medical expenses as an immediate and heavy
financial need) with the following:
"(i) Expenses incurred or necessary for medical care, described in
Section 213(d) of the Code, of the Participant or former
Participant, his spouse, or his dependents (as defined in Section
152 of the Code);"
Section 5.01(a)(2) is amended by replacing the first paragraph
designated (iii) (regarding tuition as an immediate and heavy financial need)
with the following:
"(iii) Payment of tuition and related educational fees for the next
twelve (12) months of post secondary education for the
Participant or former Participant, his spouse, children or
dependents;"
Section 5.01(b) is amended by adding the following sentence after the
first sentence of the last paragraph:
"The Participant may withdraw any part of his Account attributable to
direct transfers made to the Plan pursuant to Section 10.15 (Trustee to
Trustee Transfers) by making a written application to the Plan
Administrator at any time, subject to any restrictions an such
withdrawals that are required to be carried over from the transferor
plan."
Effective January 1, 1993, Section 6.03 shall be amended by adding to
the and thereof the following subsection (f):
"(f) Direct Rollover. This subsection (f) applies to distributions made
on or after January 1, 1993. Notwithstanding any provision of the
plan to the contrary that would otherwise limit a distributee's
election under this subsection (f), a distributee may elect, at the
time and in the manner prescribed by the plan administrator, to
have any portion of an eligible rollover distribution paid directly
to an eligible retirement plan specified by the distributee in a
direct rollover.
Definitions applicable to this subsection (f):
(1) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an
eligible rollover distribution does not include any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies of the distributee and the
distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent
such distribution is required under section 401(a)(9) of the
<PAGE>
Internal Revenue Code; and the portion of any distribution
that is not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with
respect to employer securities).
(2) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in section 408(a) of
the Code, an individual retirement annuity described in
section 408(b) of the Code, an annuity plan described in
section 403(a) of the Code, or a qualified trust described in
section 401(a) of the Code, that accepts the distributee's
eligible rollover distribution. However, in the case of an
eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account
or individual retirement annuity.
(3) Distributee: A distributee includes an employee or former
employee. In addition, the employee's or former employee's
surviving spouse and the employee's or former employee's
spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in section
414(p) of the Code, are distributees with regard to the
interest of the spouse or former spouse.
(4) Direct rollover: A direct rollover is a payment by the Plan
to the eligible retirement plan specified by the distributee."
Section 10.02(1) is amended by adding to the end thereof the following:
"Expenses that are paid by the Plan may be allocated to the accounts of
the Participants and Separated Participants in a manner determined by
the Plan Administrator that is equitable, uniform and non-
discriminatory. If appropriate, such expenses shall reduce the amount
of Income allocated on the next Valuation Date. Expenses that relate
solely to the account of one Participant or Separated Participant may be
allocated to that person's account."
Section 10.12 is amended by adding to the and thereof the following
paragraph:
"The Plan Administrator may designate the Plan to be an "ERISA
Section 404(c) Plan". This designation shall be made by informing the
Trustee that the Plan shall be an ERISA Section 404(c) Plan, and by
complying in operation with Department of Labor Regulations Section
2550.404c-1. If the Plan Administrator makes this designation, then the
Plan Fiduciaries shall have the protections provided by Section 404(c)
of the ERISA, specifically that: (a) a Participant exercising control
over the assets in his account shall not be deemed a fiduciary by reason
of his exercise of such control; and (b) no person who is otherwise a
fiduciary shall be liable for any loss, or by reason of any breach,
which results from such exercise of control."
Section 11.07 is amended by deleting the word "Participants" from the
last paragraph and replacing it with the phrase "Participants and Separated
Participants".
<PAGE>
Section 14.02 is amended to read as follows:
"Section 14.02 Defined Contribution Paired Plans - Prevention of
Duplication of Allocations. In any Plan Year (a) in which the Plan is a
Paired Plan with another defined contribution plan, and (b) in which the
coverage and eligibility provisions of each Paired Plan are identical,
the Employer shall provide each Employee who is a Participant in this
Paired Plan and who participates in the other defined contribution
Paired Plan the minimum nonintegrated allocation specified under Article
13 only in that Paired Plan indicated in Item 20(c)(1)(iii) of the
Adoption Agreement.
In any Plan Year (a) in which the Plan is a Paired Plan with
another defined contribution plan, and (b) in which the coverage and
eligibility provisions of each Paired Plan are not identical, each
Employee who is a Participant in this Plan shall receive the minimum -
nonintegrated allocation specified under Article 13 in this Plan, and
each Employee who is a Participant in the other Paired Plan shall
receive the minimum nonintegrated benefit specified under the
corresponding provisions in the other Paired Plan."
IN WITNESS WHEREOF, Bryan, Pendleton, Swats & McAllister has caused this
First Amendment to the BPS&M Regional Prototype Defined Contribution Plan and
Trust to be executed by its duly authorized representative on this 6th day of
July, 1993.
BRYAN, PENDLETON, SWATS & MCALLISTER
By:
Title: Partner
<PAGE>
AMENDMENT NUMBER 1
MISSISSIPPI PHOSPHATES CORPORATION 401(K) RETIREMENT PLAN
The plan's Adoption Agreement (as executed December 14, 1992) is hereby
amended effective January 1, 1995, as follows:
1. Item 13 "Loans" is amended as reflected on the attached page 18.
2. Attachment B "Loan Procedures" is included as part of the Adoption
Agreement, as indicated in Item 13.
IN WITNESS WHEREOF, the duly authorized officer of Mississippi Phosphates
Corporation has executed this Amendment Number 1 on this 17th day of
November, 1994.
MISSISSIPPI PHOSPHATES CORPORATION
By: /s/ W. F. Hawkins
W. F. Hawkins
Title: Vice President of Finance
and Treasurer
<PAGE>
ITEM 13 LOANS.
(a) The Plan Administrator [X] shall [ ] shall not permit loans to
Participants and Beneficiaries pursuant to the provisions of Section
5.02 of the Plan. (If shall is checked please complete (b) below)
(b) The Plan's loan requirements shall be (check one)
[ ] (1) those standard requirements described in Section 5.02,
subject to the following elections:
(i) Plan loans may not be made for amounts less than
$__________ (note: fill in the blank with a dollar
amount not exceeding $1,000).
(ii) The total amount of a person's loan balance from the
Plan [ ] shall [ ] shall not be limited to an amount
equal to 50% of such person's Vested Accounts Balance
(note: if shall not is elected only 50% of such
person's Vested Account Balance may be considered
security and additional security will be required).
[X] (2) those requirements stated in Attachment B.
[ ] (C) (Note: Do not elect this option if the Plan is integrated with
Social Security). In the event of default while on a leave of
absence, the Employee will be deemed to have requested an in-
service withdrawal from the Plan in order to repay any
outstanding balance (including interest) of tho loan, and to
insure no loss of income to the Trust, provided that the Employee
qualifies for an in-service withdrawal under the terms of the
Basic Plan Document regardless of whether in-service withdrawals
are allowed pursuant to the elections in Item 14 of this Adoption
Agreement. However, in the event more than one-half of the
Vested Account Balance is available for a loan, and if the Plan
is not subject to the special rule of Section 6.03(d), then only
fifty percent (50%) of the Vested Account Balance will be
available for an in-service withdrawal if the Employee has a
Spouse.
ITEM 14 IN-SERVICE WITHDRAWALS.
Withdrawals - Employer Contributions
[ ] Withdrawals from a Participant's Employer Account shall not be
permitted.
<PAGE>
ATTACHMENT B TO THE ADOPTION AGREEMENT
LOAN PROCEDURES
for the
MISSISSIPPI PHOSPHATES CORPORATION 401(K) RETIREMENT PLAN
The Plan permits loans to be made to Participants and their Beneficiaries.
However, before any loan is made, the Plan requires that a written loan
program be established which sets forth the rules and guidelines for making
Participant loans. This document serves as the required written loan
program. In addition, the Plan Administrator may use this document to serve
as, or supplement, any required notice of the loan program to Participants
and their Beneficiaries. All references to Participants in this loan program
includes Participants and their Beneficiaries who are "parties in interest"
as defined by Section 3(14) of ERISA.
1. The Committee of the Plan is authorized to administer the Participant
loan program. All applications for loans shall be made by a
Participant to the Committee on forms which the Committee will make
available for such purpose.
2. All loan applications shall be considered by the Committee within a
reasonable time after the Participant makes formal application. The
Participant shall also be required to provide such supporting
information deemed necessary by the Committee.
3. The Committee shall determine whether a Participant qualifies for a
loan. Loans will be approved by the Committee in a uniform and
nondiscriminatory manner with respect to all Participants similarly
situated. Each loan will be approved on the basis of positive written
evidence submitted to the Committee demonstrating that the Participant
will use loan proceeds for one or more of the following purposes for
the benefit of the Participant or a member of his or her immediate
family:
(a) to meet expenses resulting from fire or natural disaster;
(b) to meet expenses related to education, including but not limited
to expenses for room, board, books, and related fees and travel;
(c) to meet expenses related to medical treatment or care, including
but not limited to expenses for related travel of the patient and
family members, sitters, rehabilitation and infertility
treatment;
(d) the purchase, refinancing or improvement of real property; and
(e) to meet expenses resulting from emergencies or other causes
deemed by the Committee to constitute true financial need or
hardship.
In addition to the above, the Committee may, but is not required to,
consider other criteria. Such other criteria shall include, but need
not be limited to, the creditworthiness of the Participant and his
general ability to repay the loan, the period of time such Participant
has been employed by the Employer, whether adequate security has been
provided for the loan, and whether the Participant agrees, as a
<PAGE>
condition for receiving the loan, to make repayments through direct,
after-tax payroll deduction.
4. With regard to any loan made pursuant to this program, the following
rules and limitations shall apply, in addition to such other
requirements as may be set forth in the Plan:
(a) The minimum loan amount is $1,000.
(b) The maximum loan amount is the lesser of (i) and (ii), where:
(i) = 50% of the Participant's vested account balance
(determined as of the end of the last calendar quarter
less any withdrawals or other reductions in the
account since the end of the last calendar quarter);
and
(ii) = $50,000, reduced by the excess (if any) of the highest
outstanding loan balance in the last 12 months over
the loan balance on the date the current loan is made
(including the current loan).
(c) The Participant must pledge his/her account balance as
collateral for the loan, to the extent allowed by law.
(d) The loan interest rate shall be fixed for the duration of the
loan. The interest rate shall be the prime rate of
NationsBank of South Carolina, N.A. as of the date of the loan
plus two percent (2%).
(e) The maximum term for loans is 5 years, except for loans to
purchase the Participant's primary residence. Such
residential loans are limited to a term of the lesser of (i)
15 years, and (ii) the number of years and months until the
end of the calendar year in which the Participant attains age
69.
(f) Loans must be repaid in equal installments, on a semi-monthly
basis, by payroll deduction. While Participants are on leave
of absence, or after the Participant has terminated employment
or retired, payments must be made by personal check or money
order.
(g) The Committee may charge the Participant a loan set-up fee and
a fee for loan processing and/or administration. The loan
processing/administration fee may be charged to the
Participant's accounts.
(h) No more than one loan to a Participant may be outstanding at
any time.
(i) After a loan has defaulted, the Participant cannot take out
another loan for a period of one year.
(j) Loans may be prepaid in full. Partial prepayments are not
permitted.
(k) Loans may be refinanced. Loan set-up fees will be applicable
to refinanced loans.
<PAGE>
(l) The money the Participant receives from the loan will be taken
from the investment funds in which his account is invested on
a prorata basis.
(m) The money the Participant repays for the loan will be
reinvested in accordance with his current investment election
for contributions to the Plan (i.e., the investment election
in effect at the time of repayment).
(n) Loans are considered directed investments, such that principal
and interest payments by a Participant are credited to that
Participant's account.
(o) No loans will be made to a Participant during a period when
the Plan Administrator is determining whether a domestic
relations order affecting the Participant's account is a
qualified domestic relations order (QDRO).
(p) Default occurs in the following circumstances:
- if payment is not made when due, at 4:30 p.m. on the
fifth calendar day after the payment due date (if such
fifth day occurs in the weekend or a holiday, then at
4:30 p.m. on the Friday preceding such fifth day);
- on the Participant's death;
- if a distribution from the Participant's account would
result in the non-loaned portion of the Participant's
vested account to be an amount which is less than 20% of
the outstanding loan balance at the time of the
distribution.
Upon default, the entire amount outstanding on the loan is due
and payable. The Plan may foreclose on the loan to the extent
and at the time allowed by law. Foreclosure occurs by
reducing the value of the Participant's account by the amount
of the outstanding loan.
(q) Loan proceeds will be considered to be withdrawn from the
Participant's accounts in the following order:
(i) Employee Deferred Account;
(ii) Employer Account;
(iii) Employee Non-deferred Account;
(iv) Rollover Account.
(r) In the event that a loan and a hardship distribution are to be
made simultaneously, the loan shall be considered to have been
made first.
5. Any loan granted or renewed under this program shall bear a
reasonable rate of interest. In determining such rate of interest,
the Plan shall require a rate of return commensurate with the
prevailing interest rate charged on similar commercial loans under
like circumstances by persons in the business of lending money.
<PAGE>
Such prevailing interest rate standard shall permit the Committee
to consider factors pertaining to the opportunity for gain and risk
of loss that a professional lender would consider on a similar
arms-length transaction, such as the creditworthiness of the
participant and the security given for the loan.
6. The Plan shall require that adequate security be provided by the
Participant before a loan is granted. For this purpose, the Plan
shall consider a Participant's interest under the Plan to be
adequate security. However, in no event shall more than 50% of a
Participant's vested interest in the Plan be used as security for
the loan. The Plan will not make loans which require security
other than the Participant's vested interest in the Plan.
7. Generally, a default shall occur upon the failure of a Participant
to timely remit payments under the loan when due. In such event,
the Trustee shall take such reasonable actions which a prudent
fiduciary in like circumstances would take to protect and preserve
Plan assets, including foreclosing on any collateral and commencing
such other legal action for collection which the Trustee deems
necessary and advisable. Any expenses (including attorney's fees)
incurred by the Plan as a result of such collection efforts and/or
legal action shall be charged to the borrower.
8. Upon satisfaction of the criteria established for granting a loan,
the Committee shall inform the Trustee that the Participant has
qualified to receive a loan under the Plan's program. The
Committee shall require that the Participant execute all documents
necessary to establish the loan, including a promissory note and
such other documents which will provide the Plan with adequate
security.
9. This loan procedure may be amended from time to time, with respect
to both loans made after the date of change and loans outstanding
on the date of change.
<PAGE>
AMENDMENT NUMBER 2
MISSISSIPPI PHOSPHATES CORPORATION 401(K) RETIREMENT PLAN
The plan's Adoption Agreement (as executed December 14, 1992) is hereby
amended effective July 1, 1995, as follows:
1. Item 10 "Investments" is amended as reflected on the attached page 15.
IN WITNESS WHEREOF, the Sponsor and the Trustee have each caused this
Amendment Number 2 to be executed by its duly authorized officer on this ____
day of __________, 1995.
MISSISSIPPI PHOSPHATES CORPORATION
By:________________________________
Title;_____________________________
NATIONSBANK OF SOUTH CAROLINA, N.A.
By:________________________________
Title;_____________________________
<PAGE>
ITEM 10 INVESTMENTS.
(a) Investment decisions shall be controlled by (note: choose
only one option from (a))
[ ] the Trustee in its sole discretion.
[ ] an Investment Manager appointed by the Employer pursuant
to the provisions of Section 10.09 of the Plan.
[X] the Employer, pursuant to the provisions of Section
10.10 of the Plan.,
[ ] each Participant, with respect to his Accounts, pursuant
to the provisions of Section 10.11 of the Plan.
[X] (b) Although the Trustee, the Employer, or an Investment Manager
has been designated above to control investments, the Plan
Administrator may elect to permit each Participant to have the
right, at his discretion, to control the investment of his
Account(s), if permitted by the Committee, pursuant to the
provisions of Section 10.11 of the Plan. (Note: this option
should not be chosen if the last option in (a) was chosen.)
[X] (c) Investment by the Plan in Qualifying Employer Securities shall
be permitted to a maximum of 100% (note: not more than 100%)
of [ ] that portion of the Trust Fund attributable to Employer
contributions and Forfeitures [X] the value of the entire
Trust Fund (note: election of this second option may require
the registration of such securities with the Securities and
Exchange Commission). With respect to the voting of such
Qualifying Employer Securities, the following entity shall
vote such shares (note: select only one):
[ ] the Trustee.
[X] the Participant to whose account the shares have been
allocated.
[ ] the Plan Administrator or, if appointed, the Committee.
ITEM 11 ALLOCATION OF EMPLOYER CONTRIBUTIONS.
This Plan may be either non-integrated or integrated with Social
Security. (Note: Choose one method only. Complete only if Employer
Contributions may be made under the Plan.)
[X] (a) NON-INTEGRATED
Employer Contributions (and Forfeitures, if to be allocated in the
same manner as Employer Contributions pursuant to Item 8) shall be
allocated, pursuant to the provisions of Sections 4.01 and 4.02 of
the Plan, to each Participant's Employer Account in the proportion
that such Participant's Compensation for the Plan Year bears to the
total Compensation for the Plan Year of all Participants entitled
to share in the allocation.
--------------------------------------
<PAGE>
MISSISSIPPI CHEMICAL CORPORATION
THRIFT PLAN PLUS
Amended and Restated Effective
January 1, 1989
(except as otherwise indicated)
<PAGE>
TABLE OF CONTENTS
INTRODUCTION
DEFINITIONS
1.01 Account. . . . . . . . . . . . . . . . . . . . . . . .
1.02 Adopting Employer . . . . . . . . . . . . . . . . . . .
1.03 Allocation Date . . . . . . . . . . . . . . . . . . . .
1.04 Beneficiary . . . . . . . . . . . . . . . . . . . . . .
1.05 Break in Service . . . . . . . . . . . . . . . . . . .
1.06 Code . . . . . . . . . . . . . . . . . . . . . . . . .
1.07 Compensation . . . . . . . . . . . . . . . . . . . . .
1.08 Controlled Group . . . . . . . . . . . . . . . . . . .
1.09 Disability . . . . . . . . . . . . . . . . . . . . . .
1.10 Effective Date . . . . . . . . . . . . . . . . . . . .
1.11 Employee . . . . . . . . . . . . . . . . . . . . . . .
1.12 Employer . . . . . . . . . . . . . . . . . . . . . . .
1.13 Employer Account . . . . . . . . . . . . . . . . . . .
1.14 ERISA . . . . . . . . . . . . . . . . . . . . . . . . .
1.15 Fiduciary . . . . . . . . . . . . . . . . . . . . . . .
1.16 Forfeiture . . . . . . . . . . . . . . . . . . . . . .
1.17 Highly Compensated Employee . . . . . . . . . . . . . .
1.18 Hours of Service . . . . . . . . . . . . . . . . . . .
1.19 Income . . . . . . . . . . . . . . . . . . . . . . . .
1.20 Investment Manager . . . . . . . . . . . . . . . . . .
1.21 Leased Employee . . . . . . . . . . . . . . . . . . . .
1.22 Non-highly Compensated Employee . . . . . . . . . . . .
1.23 Normal Retirement Age . . . . . . . . . . . . . . . . .
1.24 Normal Retirement Date . . . . . . . . . . . . . . . .
1.25 Participant . . . . . . . . . . . . . . . . . . . . . .
1.26 Personal Account . . . . . . . . . . . . . . . . . . .
1.27 Plan . . . . . . . . . . . . . . . . . . . . . . . . .
1.28 Plan Administrator . . . . . . . . . . . . . . . . . .
1.29 Plan Year . . . . . . . . . . . . . . . . . . . . . . .
1.30 Portability Group Member . . . . . . . . . . . . . . .
1.31 Retired Participant . . . . . . . . . . . . . . . . . .
1.32 Service . . . . . . . . . . . . . . . . . . . . . . . .
1.33 Sponsor . . . . . . . . . . . . . . . . . . . . . . . .
1.34 Spouse . . . . . . . . . . . . . . . . . . . . . . . .
1.35 Thrift Comittee or Comittee . . . . . . . . . . . . . .
1.36 Trust . . . . . . . . . . . . . . . . . . . . . . . . .
1.37 Trust Fund or Fund . . . . . . . . . . . . . . . . . .
1.38 Trustee . . . . . . . . . . . . . . . . . . . . . . . .
1.39 Vesting Service . . . . . . . . . . . . . . . . . . . .
1.40 Year of Service . . . . . . . . . . . . . . . . . . . .
PARTICIPATION IN THE PLAN
2.01 Eligibility Date. . . . . . . . . . . . . . . . . . . .
2.02 Eligibility Determination. . . . . . . . . . . . . . .
2.03 Participation. . . . . . . . . . . . . . . . . . . . .
2.04 Participation Following Reemployment or Break in Service
2.05 Participation Following Change in Classification. . . .
2.06 Portability. . . . . . . . . . . . . . . . . . . . . .
2.07 Absence in the Armed Services. . . . . . . . . . . . .
2.08 Family and Medical Leave Act Requirements. . . . . . .
CONTRIBUTIONS TO THE PLAN . . . . . . . . . . . . . . . . . . .
3.01 Employer Contributions. . . . . . . . . . . . . . . . .
<PAGE>
3.02 Contributions By, or On Behalf of, Participants. . . .
3.03 Coverage and Discrimination Requirements. . . . . . . .
3.04 Discrimination Requirements for Other Contributions. .
3.05 Multiple Use of Alternative Limitation. . . . . . . . .
3.06 Medium of Financing the Plan. . . . . . . . . . . . . .
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS . . . . . . . . . . . . .
4.01 Allocation of Employer Contributions. . . . . . . . . .
4.02 Allocation of Income. . . . . . . . . . . . . . . . . .
4.03 Adjustment to Accounts. . . . . . . . . . . . . . . . .
4.04 Maximum Annual Additions to Participants' Accounts. . .
4.05 Separation of Forfeitures and Accounts by Employer. . .
4.06 Fair Market Value. . . . . . . . . . . . . . . . . . .
4.07 Interim Allocations. . . . . . . . . . . . . . . . . .
4.08 Election of Investment Fund. . . . . . . . . . . . . .
4.09 Units Accounting for Investment Fund . . . . . . . . .
IN-SERVICE WITHDRAWALS . . . . . . . . . . . . . . . . . . . .
5.01 Withdrawals from Participants' Employer Accounts. . . .
5.02 Withdrawals from Participants' Personal Accounts. . . .
5.03 Loans to Participants. . . . . . . . . . . . . . . . .
GENERAL BENEFIT PROVISIONS . . . . . . . . . . . . . . . . . .
6.01 Form of Benefit Payment. . . . . . . . . . . . . . . .
6.02 Commencement of Benefits Rule. . . . . . . . . . . . .
6.03 Special Commencement and Distribution of Benefits Rules.
6.04 Limitations on Distribution of Salary Deferrals. . . .
6.05 Single Sum Distribution of Small Benefits. . . . . . .
6.06 Designation of Beneficiary. . . . . . . . . . . . . . .
6.07 Direct Rollover of Eligible Rollover Distributions. . .
RETIREMENT, DEATH AND DISABILITY BENEFITS . . . . . . . . . . .
7.01 Benefits Upon Retirement. . . . . . . . . . . . . . . .
7.02 Death Benefits. . . . . . . . . . . . . . . . . . . . .
7.03 Disability Benefits. . . . . . . . . . . . . . . . . .
TERMINATION BENEFITS. . . . . . . . . . . . . . . . . . . . . .
8.01 Benefits Upon Termination of Service. . . . . . . . . .
8.02 Forfeitures. . . . . . . . . . . . . . . . . . . . . .
8.03 Payment of Benefits. . . . . . . . . . . . . . . . . .
PLAN ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . .
9.01 Plan Administrator and Appointment of Committee. . . .
9.02 Powers and Duties of the Plan Administrator. . . . . .
9.03 Plan Administrator Procedures. . . . . . . . . . . . .
9.04 Committee Procedures. . . . . . . . . . . . . . . . . .
9.05 Claims and Review Procedures. . . . . . . . . . . . . .
THE TRUST AND THE TRUSTEE . . . . . . . . . . . . . . . . . . .
10.01 The Trust; General Duties of the Trustee. . . . . . .
10.02 General Powers. . . . . . . . . . . . . . . . . . . .
10.03 Reliance on Plan Administrator and Employer. . . . .
10.04 Accounts and Reports. . . . . . . . . . . . . . . . .
10.05 Disbursements. . . . . . . . . . . . . . . . . . . .
10.06 Payment in Kind. . . . . . . . . . . . . . . . . . .
10.07 Authority of Trustee. . . . . . . . . . . . . . . . .
10.08 Removal or Resignation of Trustee. . . . . . . . . .
10.09 Successor Trustee. . . . . . . . . . . . . . . . . .
10.10 Trust Funding Policy; Parties in Interest. . . . . .
<PAGE>
10.11 Trustee to Trustee Transfers. . . . . . . . . . . . .
10.12 Investment Manager. . . . . . . . . . . . . . . . . .
AMENDMENT AND TERMINATION OF THE PLAN . . . . . . . . . . . . .
11.01 Amendment of Plan. . . . . . . . . . . . . . . . . .
11.02 Intent to Continue the Plan. . . . . . . . . . . . .
11.03 Termination of the Plan by the Sponsor; Partial
Termination . . . . . . . . . . . . . . . . . . . . .
11.04 Termination of the Plan Upon Certain Events. . . . .
11.05 Distribution of Trust Fund Upon Termination. . . . .
11.06 Termination of Plan With Respect to an Adopting
Employer . . . . . . . . . . . . . . . . . . . . . .
CERTAIN PROVISIONS AFFECTING THE EMPLOYER . . . . . . . . . . .
12.01 Duties of the Employer. . . . . . . . . . . . . . . .
12.02 Right of Employer to Discharge Employees. . . . . . .
12.03 Information to be Furnished. . . . . . . . . . . . .
12.04 Communications from Sponsor to Trustee. . . . . . . .
12.05 No Reversion to Employer. . . . . . . . . . . . . . .
12.06 Indemnification. . . . . . . . . . . . . . . . . . .
12.07 Adoption of Plan by Adopting Employers. . . . . . . .
PROVISIONS APPLICABLE TO A TOP HEAVY PLAN . . . . . . . . . . .
13.01 Top Heavy Plans. . . . . . . . . . . . . . . . . . .
13.02 Definitions. . . . . . . . . . . . . . . . . . . . .
13.03 Minimum Allocations in Single Plan. . . . . . . . . .
13.04 Minimum Vesting Schedules. . . . . . . . . . . . . .
13.05 Special Limitations and Allocation in Multiple Plans.
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . .
14.01 Allocation of Responsibility among Fiduciaries for Plan and Trust
Administration. . . . . . . . . . . . . . . . . . . .
14.02 Alienation or Assignment of Benefits (QDRO's). . . .
14.03 Headings. . . . . . . . . . . . . . . . . . . . . . .
14.04 Construction of the Plan. . . . . . . . . . . . . . .
14.05 Correction of Errors. . . . . . . . . . . . . . . . .
14.06 Legally Incompetent. . . . . . . . . . . . . . . . .
14.07 Successor Organization. . . . . . . . . . . . . . . .
14.08 Minimum Benefit in Successor Plan. . . . . . . . . .
14.09 Application of Plan Provisions. . . . . . . . . . . .
14.10 Qualification of the Plan. . . . . . . . . . . . . .
14.11 Fiduciary Liability. . . . . . . . . . . . . . . . .
14.12 Severability of Provisions. . . . . . . . . . . . . .
14.13 Applicable Law. . . . . . . . . . . . . . . . . . . .
14.14 Nonassignability of Duties. . . . . . . . . . . . . .
14.15 Entire Plan. . . . . . . . . . . . . . . . . . . . .
<PAGE>
INTRODUCTION
Effective July 1, 1973, adopted the Mississippi Chemical Corporation
Savings and Investment Plan (Thrift Plan) to aid and encourage savings by its
eligible employees. Thereafter this Plan was amended on July 1, 1975,
amended and restated in its entirety effective January 1, 1976, and was
further amended on August 24, 1977, June 22, 1979, and June 29, 1979. The
Plan was amended and restated in its entirety on January 1, 1983, and again
on January 1, 1984. This later restatement brought the Plan into compliance
with the Tax Equity and Fiscal Responsibility Act of 1982. In order to
comply with changes in the law caused by Part I of the Deficit Reduction Act
of 1984 (also known as the Tax Reform Act of 1984) and the Retirement Equity
Act of 1984, the Plan was again amended and restated in its entirety
effective January 1, 1985. Thereafter, the Plan was amended effective
January 1, 1986, January 1, 1987, again effective January 1, 1987,
February 1, 1988 and July 1, 1992.
Now, in order to comply with changes in the law caused by the Tax
Reform Act of 1986, the Omnibus Budget Reconciliation Act of 1986, the
Omnibus Budget Reconciliation Act of 1987, the Technical and Miscellaneous
Revenue Act of 1988, the Omnibus Budget Reconciliation Act of 1989, the
Unemployment Compensation Amendments of 1992, the Omnibus Budget
Reconciliation Act of 1993, and various regulations, the Sponsor hereby
amends, restates and continues the Plan effective January 1, 1989 (except as
otherwise indicated herein for specified provisions or as required by
applicable law or regulations).
The Plan and incorporated Trust shall continue to be designated as the
MISSISSIPPI CHEMICAL CORPORATION THRIFT PLAN PLUS. The Plan is adopted as an
amendment to, and restatement of, the MISSISSIPPI CHEMICAL CORPORATION THRIFT
PLAN PLUS, as it was in effect on the day preceding the effective date of
adoption of this amendment.
The purposes of the Plan are to provide the Employees who qualify to
participate in the Plan and their Beneficiaries certain benefits as
stipulated herein in the event of retirement, death or termination of Service
prior to retirement, and to provide such Employees the opportunity to save
for such events on a tax-deferred incentive basis pursuant to the provisions
of section 401(k) of the Code. The Plan is intended to be qualified under
section 401(a) of the Code as a profit sharing plan and its incorporated
Trust is intended to qualify as a tax-exempt trust under section 501(a) of
the Code.
Unless specifically otherwise provided in the Plan, the provisions of
the restated Plan shall apply only to Employees who have Service with the
Employer on or after January 1, 1989. The rights and benefits, if any, of
former Employees shall be determined in accordance with the provisions of the
Plan as in effect on the respective dates of termination of Service of such
former Employees.
ARTICLE 1
DEFINITIONS
The following terms when used herein, unless the context clearly
indicates otherwise, shall have the meanings set forth hereinafter.
<PAGE>
1.01 "ACCOUNT" shall mean the Employer Account and the Personal Account
maintained on behalf of a Participant.
1.02 "ADOPTING EMPLOYER" shall mean any business organization or
corporation affiliated with the Sponsor through complete or partial
ownership by the Sponsor or by any owner therein, or which is
otherwise cooperating with the Sponsor for purposes of establishing
and maintaining a qualified plan, which is authorized by the Board of
Directors of the Sponsor to adopt the Plan, and which subsequently
adopts the Plan.
The term shall also include any business organization or corporation
into which the Adopting Employer may be merged or consolidated or by
which it may be succeeded.
1.03 "ALLOCATION DATE" shall mean March 31, June 30, September 30 and
December 31 of each Plan Year, or such other date as of which assets
are valued for purposes of an interim allocation pursuant to the
provisions of Section 4.07 hereof.
1.04 "BENEFICIARY" shall mean the person, persons or legal entity last
designated in accordance with Section 6.06 hereof, who shall receive
any death benefits that may be payable under the Plan after the death
of a Participant or Retired Participant.
1.05 "BREAK IN SERVICE" shall mean a consecutive twelve (12) month period
during which the Employee does not perform more than five hundred
(500) Hours of Service. For purposes of determining eligibility to
participate in the Plan, pursuant to Article 2 hereof, the initial
twelve (12) month period shall commence on the date the Employee first
performs an Hour of Service, and each subsequent twelve (12) month
period shall be the Plan Year, beginning with the Plan Year which
commences prior to the end of the initial twelve (12) month period.
For purposes of determining Vesting Service, the consecutive twelve
(12) month period shall be the Plan Year.
For purposes of determining whether a Break in Service has occurred,
Hours of Service shall include any period in which the Employee is
absent from work for maternity or paternity reasons for any of the
following:
(a) by reason of the pregnancy of the Employee,
(b) by reason of the birth of a child of the Employee,
(c) by reason of the placement of a child with the Employee in
connection with the adoption of such child by such Employee,
or
(d) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
Provided, however, that Hours of Service credited for such absence
from work shall not exceed the Hours which would normally have been
credited to such individual but for such absence. Such Hours of
Service shall be credited in the Plan Year in which the absence from
work begins if an Employee would be prevented from incurring a Break
in Service in such Plan Year solely because the period of absence is
treated as Hours of Service or, in any other case, in the immediately
<PAGE>
following Plan Year. No credit for Hours of Service for absence by
reason of such pregnancy or placement shall be given hereunder unless
an Employee furnishes to the Committee such timely information as the
Plan Administrator may reasonably require to establish that the
absence from work is for a reason set forth in (a) through (d).
1.06 "CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and as in effect on the relevant date to be interpreted
hereunder.
1.07 "COMPENSATION" shall mean, except as otherwise provided, compensation
which is paid to the Employee by the Employer, as defined in (a) or
(b) below, subject to (c), (d) and (e).
(a) Compensation means the regular basic compensation paid to an
Employee by the Employer. Only Compensation for the portion
of any Plan Year during which an Employee is a Participant
shall be taken into account for purposes of the Plan.
Compensation shall not include payments for overtime work in
excess of the regularly scheduled work period, expense
allowances, bonuses, shift differential pay, relief pay, pay
for unused vacation or other non-basic types of compensation.
(b) For purposes of Section 1.17 and Section 3.03 and 3.04
hereof, Compensation shall mean the total compensation for
Service by an Employee for the Employer that is includable in
gross income as provided in Section 414(s) of the Code for
the period during the Plan Year in which he is a Participant
or for the entire Plan Year, as determined by the Plan
Administrator.
(c) Compensation shall include any contributions made by the
Employer on behalf of an Employee to a plan qualified under
section 125 or section 401(k) of the Code, but shall not
include any other contribution made by the Employer under
this Plan or under any pension plan or other employee benefit
plan or insurance plan maintained by the Employer for the
benefit of such Employee.
(d) For any Plan Year beginning after December 31, 1988 and
before January 1, 1994, the annual compensation of each
Participant taken into account for determining all benefits
provided under the Plan for any such year shall not exceed
two hundred thousand dollars ($200,000). This limitation
shall be adjusted by the Secretary at the same time and in
the same manner as under section 415(d) of the Code, except
that the dollar increase on January 1 of any calendar year is
effective for years beginning in such calendar year and the
first adjustment to the two hundred thousand dollar
($200,000) limitation is effective on January 1, 1990. In
determining the compensation of a Participant for purposes of
this limitation, the rules of section 414(q)(6) of the Code
shall apply, except in applying such rules, the term "family"
shall include only the spouse of the Participant and any
lineal descendants of the Participant who have not attained
age nineteen (19) before the close of the year. If, as a
result of the application of such rules, the adjusted two
hundred thousand dollars ($200,000) limitation is exceeded,
then (except for purposes of determining the portion of
<PAGE>
compensation up to the integration level if this plan
provides for permitted disparity), the limitation shall be
prorated among the affected individuals in proportion to each
such individual's compensation as determined under this
section prior to the application of this limitation. The
application of this provision shall be subject to such rules
as may be prescribed by the Secretary of the Treasury.
(e) Section 401(a)(17) Limitation. In addition to other
applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the
contrary, for Plan Years beginning on or after January 1,
1994, the annual compensation of each Employee taken into
account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit
is one hundred fifty thousand dollars ($150,000), as adjusted
by the Commissioner for increases in the cost of living in
accordance with section 401(a)(17)(B) of the Internal Revenue
Code. The cost-of-living adjustment in effect for a calendar
year applies to any period, not exceeding twelve (12) months,
over which compensation is determined (determination period)
beginning in such calendar year. If a determination period
consists of fewer than twelve (12) months, the OBRA '93
annual compensation limit will be multiplied by a fraction,
the numerator of which is the number of months in the
determination period, and the denominator of which is
twelve (12).
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under section 401(a)(17) of the Code shall
mean the OBRA '93 annual compensation limit set forth in this
provision.
If compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current
plan year, the compensation for that prior determination period is
subject to the OBRA '93 annual compensation limit in effect for that
prior determination period. For this purpose, for determination
periods beginning before the first day of the first Plan Year
beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is one hundred fifty thousand dollars ($150,000).
1.08 "CONTROLLED GROUP" shall mean, except as modified by section 415(h) of
the Code for purposes of determining limitations under section 415 of
the Code pursuant to Section 4.04 hereof, any corporation which is a
member of a controlled group of corporations (as defined by section
414(b) of the Code) of which the Employer is a member, any other trade
or business (whether or not incorporated) which is under common
control (as defined by section 414(c) of the Code) with respect to the
Employer or any organization which is a member of an affiliated
service group (as defined by section 414(m) of the Code) of which the
Employer is a member and any other entity required to be aggregated
with the Employer pursuant to regulations under section 414(o) of the
Code, but only for the period during which such other corporation,
trade or business or organization and the Employer are members of such
controlled group of corporations, are under such common control or are
serving as members of such an affiliated service group. All employees
of members of a Controlled Group shall be treated as employed by a
single employer for purposes of determining compliance with sections
<PAGE>
401, 410, 411, 415 and 416 of the Code.
1.09 "DISABILITY" shall mean a Participant's total and permanent disability
as a result of disease or bodily injury so as to render the
Participant incapable of engaging in any substantial gainful activity
by reason of any medically determinable physical or mental impairment
or impairments that can be expected to result in death or that have
lasted or can be expected to last for a continuous period of not less
than twelve (12) months. The Thrift Committee shall have the
exclusive right, power and discretion of determining, from time to
time, with the assistance of a competent physician, whether a
participant has suffered Disability, and a certificate to that effect
executed by a duly authorized officer of the Employer and supported by
the affidavit of an examining physician shall be sufficient evidence
of such fact and may be so accepted by the Trustee without further
inquiry, provided that all Participants under similar circumstances
shall be treated alike.
1.10 "EFFECTIVE DATE" shall mean July 1, 1973, the date the Plan was
established; provided, however, that the term shall mean, for an
Employee, the effective date of adoption of the Plan by his Employer
if such date is later than July 1, 1973.
The effective date of this amendment, restatement and continuation of
the Plan shall be January 1, 1989, except as otherwise specifically
indicated for provisions herein or as otherwise required by applicable
law or regulation.
1.11 "EMPLOYEE" shall mean either (a) a person, other than an independent
contractor, who is receiving remuneration from the Employer for
services rendered to, or labor performed for, the Employer (or who
would be receiving such remuneration except for an authorized leave of
absence), or (b) a Leased Employee.
1.12 "EMPLOYER" shall mean the Sponsor or an Adopting Employer, or both, as
required by the context of this Plan; provided, however, that if an
Employee is simultaneously employed by the Sponsor and one (1) or more
Adopting Employers or by two (2) or more Adopting Employers, the term
shall mean all such employers.
1.13 "EMPLOYER ACCOUNT" shall mean the account maintained on behalf of a
Participant to which shall be credited the Participant's share of
Employer contributions, except those attributable to salary deferrals,
together with the Participant's share of the Income of the Trust Fund
allocable to this account.
For purposes of administrative convenience, each Participant's
Employer Account shall be divided into the following parts:
Part I attributable to Employer matching contributions made pursuant
to Section 3.01(a) hereof.
Part II attributable to Qualified Matching Contributions made
pursuant to Section 3.01(b) hereof.
1.14 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and as in effect on the relevant
date to be interpreted hereunder.
<PAGE>
1.15 "FIDUCIARY" shall mean the Employer, the Committee, the Trustee, the
Investment Manager, if any, and any other business organization or
corporation designated by such a fiduciary to carry out fiduciary
responsibilities under the Plan, which accepts such designation, but
only with respect to the specific responsibilities for each such
fiduciary described herein.
1.16 "FORFEITURE" shall mean the portion of a Participant's Employer
Account which is forfeited before full vesting occurs or because of
the operation of Section 4.04 hereof.
1.17 "HIGHLY COMPENSATED EMPLOYEE" shall mean a person who is either a
"highly compensated active employee" as defined in subsection (a)
hereof or a "highly compensated former employee" as defined in
subsection (b) hereof.
(a) A "highly compensated active employee" is any employee who
performs service for the Employer during the determination
year and who, during the look-back year:
(1) received compensation from the Employer in excess of
seventy-five thousand dollars ($75,000) (as adjusted
pursuant to section 415(d) of the Code);
(2) received compensation from the Employer in excess of
fifty thousand dollars ($50,000) (as adjusted pursuant
to section 415(d) of the Code) and was a member of the
top-paid group for such year; or
(3) was an officer of the Employer and received
compensation during such year that is greater than
fifty percent (50%) of the dollar limitation in effect
under section 415(b)(1)(A) of the Code.The term "highly
compensated active employee" also includes:
(4) An employee (i) who is described in the preceding
sentence if the term "determination year" is
substituted for the term "look-back year" and (ii) who
is one of the one hundred (100) employees who received
the most compensation from the Employer during the
determination year; and
(5) An employee who is a five percent (5%) owner at any
time during the look-back year or the determination
year.
If no officer has satisfied the compensation requirement of
(3) above during either a determination year or look-back
year, the highest paid officer for such year shall be treated
as a Highly Compensated Employee.
(b) A "highly compensated former employee" is any employee who
separated from service (or was deemed to have separated)
prior to the determination year, performs no service for the
Employer during the determination year, and was a highly
compensated active employee for either the separation year or
any determination year ending on or after the employee's
fifty-fifth (55th) birthday.
<PAGE>
For purposes of this Section, the determination year would normally be
the Plan Year, and the look-back year would normally be the twelve
(12)-month period immediately preceding the determination year.
However, the Plan Administrator has elected to make the calendar year
calculation, provided in Section 1.414(q)-1T, Q&A 14(b), of the
Treasury Regulations, with respect to the Plan for all Plan Years.
Pursuant to this election and for this purpose, both the determination
year and the look-back year are the Plan Year.
If an employee is, during a determination year or look-back year, a
family member of either a five percent (5%) owner who is an active or
former employee or a Highly Compensated Employee who is one of the ten
(10) most highly compensated employees ranked on the basis of
compensation paid by the Employer during such year, then the family
member and five percent (5%) owner or top ten (10) Highly Compensated
Employee shall be treated as a single employee receiving compensation
and Plan contributions or benefits equal to the sum of such
compensation and contributions or benefits of the family member and
five (5%) percent owner or top ten (10) Highly Compensated Employee.
For purposes of this section, family member includes the spouse,
lineal ascendants and descendants of the employee or former employee
and the spouses of such lineal ascendants and descendants.
In determining who is a Highly Compensated Employee, employees who are
non-resident aliens and who received no earned income (within the
meaning of Code section 911(d)(2)) from the Employer constituting
United States source income within the meaning of Code section
861(a)(3) shall not be treated as Employees. Additionally, all
employers in the Controlled Group shall be taken into account as a
single employer and Leased Employees shall be considered employees
unless such Leased Employees are covered by a plan described in Code
section 414(n)(5) and are not covered in any qualified plan maintained
by the Employer. The exclusion of Leased Employees for this purpose
shall be applied on a uniform and consistent basis for all of the
Employer's retirement plans. Highly Compensated Former Employees
shall be treated as Highly Compensated Employees without regard to
whether they performed services during the determination year.
The determination of who is a Highly Compensated Employee, including
but not limited to the determinations of the number and identity of
Employees in the top-paid group, the top one hundred (100) Employees,
the number of Employees treated as officers and the compensation that
is considered, will be made in accordance with Section 414(q) of the
Code and the regulations thereunder. Such determination may also take
into account other rulings and pronouncements issued by the Secretary
of the Treasury or the Internal Revenue Service.
1.18 "HOURS OF SERVICE" shall mean the aggregate of the following:
(a) Hours of Service shall include each actual hour for which an
Employee is paid, or entitled to payment, for the performance
of duties for the Employer. These hours shall be credited to
the Employee for the Plan Year in which the duties are
performed.
(b) Hours of Service shall include each hour for which an
Employee is paid, or entitled to payment, by the Employer on
account of a period of time during which no duties are
performed (irrespective of whether the employment
<PAGE>
relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), layoff, jury
duty, military duty or authorized leave of absence. No more
than five hundred and one (501) Hours of Service shall be
credited under this subsection for any single continuous
period (whether or not such period occurs in a single Plan
Year). Hours under this subsection shall be calculated and
credited pursuant to Section 2530.200b-2 of the Department of
Labor Regulations, which are incorporated herein by this
reference as if fully set forth.
(c) Hours of Service shall include each hour for which back pay,
irrespective of mitigation of damages, has been either
awarded or agreed to by the Employer. These hours shall be
credited to the Employee for the Plan Year to which the award
or agreement pertains rather than the Plan Year in which the
award, agreement or payment is made. Hours shall not be
credited under both this and either of the two (2) preceding
subsections of this section.
(d) Hours of Service, however, shall not be credited for payments
made solely to comply with workers' or unemployment
compensation or disability insurance laws or as reimbursement
for medical expenses.
Hours of Service shall be credited for employment with other members
of a Controlled Group of which the Employer is a member. Hours of
Service shall also be credited for any individual considered an
Employee for purposes of the Plan under section 414(n) of the Code or
section 414(o) of the Code and the regulations thereunder.
1.19 "INCOME" shall mean the net gain or loss of the Trust Fund from
investments, as reflected by interest payments, dividends, realized
and unrealized gains and losses on securities, other investment
transactions, and expenses paid from the Trust Fund which are not
reimbursed by the Employer. In determining the Income of the Trust
Fund for any period, assets shall be valued on the basis of fair
market value.
If any portion of the Trust Fund is segregated into one (1) or more
separate accounts on behalf of a Participant, Income shall be
determined with respect to each such account.
1.20 "INVESTMENT MANAGER" shall mean any Fiduciary, other than the Trustee,
who
(a) has the power to manage, acquire, or dispose of any asset of
the Plan;
(b) (i) is registered as an investment advisor under the
Investment Advisers Act of 1940; (ii) is a bank, as defined
in that Act; or (iii) is an insurance company qualified to
perform services described in subsection (a) under the laws
of more than one (1) state; and
(c) has acknowledged in writing that he is a Fiduciary with
respect to the Plan.
1.21 "LEASED EMPLOYEE" shall mean any person, other than a common law
<PAGE>
employee of the Employer, who provides services for the Employer if
the following conditions are met:
(a) such services are provided pursuant to an agreement between
the Employer and a leasing organization,
(b) such person has performed services for the Employer (or the
Employer and a "related person" as that term is defined in
section 414(n)(6) of the Code) on a substantially full-time
basis for a period of at least one (1) year, and
(c) such services are of a type historically performed, in the
business field of the Employer, by employees.
Notwithstanding the foregoing, a Leased Employee shall not be
considered an Employee of the Employer as to services performed after
December 31, 1986 if:
(d) such person is covered by a money purchase pension plan
providing:
(1) a nonintegrated employer contribution rate of at least
ten percent (10%) of compensation, as defined in
section 415(c)(3) of the Code, but including amounts
contributed pursuant to a salary reduction agreement
which are excludable from the employee's gross income
under a 401(k) plan, a cafeteria plan pursuant to Code
section 125, a simplified employee pension (SEP)
pursuant to Code section 402(h) or a tax sheltered
annuity pursuant to Code section 403(b),
(2) immediate participation, and
(3) full and immediate vesting; and
(e) Leased Employees do not constitute more than twenty percent
(20%) of the recipient's nonhighly compensated workforce.
For purposes of this Plan, contributions or benefits provided to a
Leased Employee by the leasing organization which are attributable to
services performed for the Employer shall be treated as provided by
the Employer.
1.22 "NON-HIGHLY COMPENSATED EMPLOYEE" shall mean an Employee of the
Employer who is neither a Highly Compensated Employee nor a "family
member" (as defined in section 414(q)(6)(B) of the Code).
1.23 "NORMAL RETIREMENT AGE" shall mean for a Participant the date the
Participant attains sixty-five (65) years of age.
1.24 "NORMAL RETIREMENT DATE" shall mean for a Participant the first day of
the month coincident with or next following the date on which he
attains his Normal Retirement Age.
1.25 "PARTICIPANT" shall mean an Employee participating in the Plan in
accordance with the provisions of Article 2 hereof.
1.26 "PERSONAL ACCOUNT" shall mean the account maintained on behalf of a
Participant to which shall be credited the amount of any salary
<PAGE>
deferral contributions, voluntary Participant contributions,
Participant rollover contributions or trustee to trustee transfers,
together with the Participant's share of the Income of the Trust Fund
allocable to this account. For purposes of reference in this Plan,
each Participant's Personal Account shall be divided into the
following parts:
Part I attributable to pre-tax salary deferral contributions, if
any, made pursuant to Section 3.02(a) hereof;
Part II attributable to after-tax voluntary Participant
contributions, if any, made pursuant to Section 3.02(b)
hereof.
Part III attributable to Participant rollover contributions, if any,
made pursuant to Section 3.02(c) hereof.
Part IV attributable to trustee to trustee transfers, if any, made
with respect to a Participant's benefits pursuant to Section
10.11 hereof.
1.27 "PLAN" shall mean this Plan, entitled the "ERROR! BOOKMARK NOT
DEFINED.," as it may be amended from time to time, and as in effect on
the relevant date to be interpreted hereunder.
1.28 "PLAN ADMINISTRATOR" shall mean Mississippi Chemical Corporation, the
entity designated as the Plan Administrator pursuant to Section 9.01
of the Plan to administer the Plan.
1.29 "PLAN YEAR" shall mean the twelve (12) consecutive month period from
January 1 through the following December 31.
1.30 "PORTABILITY GROUP MEMBER" shall mean the Sponsor and any business
organization with which the Sponsor has agreed to recognize the
portability of either service or benefits, or both, with respect to
employees whose employment is transferred between such Portability
Group Members. As of January 1, 1989, portability group members are
Mississippi Chemical Corporation and Triad Chemical.
1.31 "RETIRED PARTICIPANT" shall mean a former Participant whose
participation in the Plan has terminated and who is entitled to
receive benefits provided by the Plan.
1.32 "SERVICE" shall mean employment of an Employee by the Employer and
shall be measured in Hours of Service. In determining Service for an
Employee, the following periods shall be considered employment with
the Employer:
(a) the Employee's employment with any members of a Controlled
Group while such employers are members of the Controlled
Group;
(b) the Employee's employment recognized by any Portability Group
Member; and
(c) to the extent resolved by the governing body of the Sponsor,
any period of continuous employment of the Employee by any
predecessor organization to the Employer which ended on the
date the predecessor organization merged or consolidated into
<PAGE>
the Employer.
In no event shall Service include any period of time during which the
Employee was not a common-law employee, but rather a partner or a
proprietor or an independent contractor. Furthermore, an Employee's
employment with a Controlled Group Member prior to its becoming a
member shall be considered Service for purposes of determining
eligibility under Section 2.01 of this Plan, except as otherwise
provided in a resolution pursuant to subsection (c) above.
1.33 "SPONSOR" shall mean ERROR! BOOKMARK NOT DEFINED., a Mississippi
corporation with corporate offices in Yazoo City, Mississippi, and
any business organization or corporation into which Mississippi
Chemical Corporation may be merged or consolidated or by which it may
be succeeded.
1.34 "SPOUSE" shall mean the actual spouse or surviving spouse of a
Participant or a former spouse of a Participant, if and to the extent
such former spouse is to be treated as a spouse or surviving spouse of
the Participant under a qualified domestic relations order described
in section 414(p) of the Code.
1.35 "THRIFT COMMITTEE" OR "COMMITTEE" shall mean the committee as provided
in Article 9 hereof appointed with respect to the administration of
the Plan.
1.36 "TRUST" shall mean the trust continued pursuant to Article 10 hereof
by the Sponsor under which the Employer contributions and any
contributions by Participants shall be received, held, invested and
disbursed by the Trustee to, or for the benefit of, Participants,
Retired Participants and their Beneficiaries.
1.37 "TRUST FUND" OR "FUND" shall mean any and all cash, securities, real
estate and other property held by the Trustee pursuant to the terms of
the Plan.
1.38 "TRUSTEE" shall mean NationsBank of South Carolina, NA or any
individual, individuals or financial institution as shall have
accepted the appointment by the Sponsor as successor Trustee under the
Plan.
1.39 "VESTING SERVICE" shall mean the number of Plan Years during which an
Employee completes at least one thousand (1,000) Hours of Service.
Provided, however, that the following periods of Service shall be
disregarded in computing a Participant's period of Vesting Service
under the Plan:
(a) Service before the Effective Date to the extent that such
Service would have been disregarded under the rules of any
predecessor plan concerning disruptions in Service;
(b) Service rendered by an Employee during a period prior to
April 1, 1984, for which he was eligible to make
contributions to the Plan but declined to make any such
contributions to the Plan; provided, however, that any such
period occurred prior to his initial date of Participation in
the Plan; and
(c) Service rendered by an Employee prior to the original
<PAGE>
Effective Date of this Plan.
1.40 "YEAR OF SERVICE" shall mean a twelve (12) consecutive month period of
Service during which an Employee completes at least one thousand
(1,000) Hours of Service. The initial twelve (12) consecutive month
period shall commence on the date the Employee first performs an Hour
of Service, and each subsequent twelve (12) month period shall be the
Plan Year, beginning with the Plan Year which commences prior to the
end of the initial twelve (12) month period.
ARTICLE 2
PARTICIPATION IN THE PLAN
2.01 Eligibility Date.
Each Employee on December 31, 1988, who is a Participant in the Plan
on that date and who continues to be an Employee on January 1, 1989,
shall without further requirements, continue as a Participant
hereunder.
Each other Employee on January 1, 1989, and each person who becomes an
Employee after January 1, 1989, shall, subject to the overriding
provisions of the following paragraphs, be eligible to become a
Participant on the first day of the month coincident with or next
following the date such person completes one (1) Year of Service,
provided he is still an Employee on such first day of the month.
Provided, however, that no Employee shall become a Participant prior
to the effective date of adoption of the Plan by the Employee's
Employer.
Notwithstanding the above, the following classes of Employees shall be
considered as excluded classes for purposes of the Plan, and Employees
who are members of such classes shall not be eligible to participate
in the plan:
(a) individuals who are represented by a collective bargaining
unit, except as otherwise provided in any applicable
collective bargaining agreement;
(b) Leased Employees;
(c) individuals who are classified as temporary employees under
the normal employment classification practices of the
Employer (other than those who are Participants in the Plan
on July 1, 1992).
2.02 Eligibility Determination.
Within a reasonable time prior to the date on which an Employee will
become eligible, if the Employee continues employment with the
Employer, to participate in the Plan, the Plan Administrator shall
forward to the Employee a salary deferral agreement and such
application for participation as the Plan Administrator shall require
and shall notify him of the requirements to become a Participant.
Should any question arise as to eligibility, the Plan Administrator
shall decide such question, and such determination, if made in good
<PAGE>
faith and in accordance with the terms of the Plan, shall be final.
2.03 Participation.
An Employee shall become a Participant on the first day on which he is
eligible to become a Participant and has filed with the Plan
Administrator such written application as the Plan Administrator may
require for participation in the Plan, in which the Employee has
agreed to abide by all the provisions hereof and has specified the
amount of the Employee's salary deferral, if any, pursuant to Section
3.02 hereof.
Once an Employee has become a Participant he shall continue to be a
Participant until his Service terminates or he dies, sustains
Disability, incurs a Break in Service or retires. In the event that a
Participant's Service terminates or he dies, sustains Disability, or
retires in accordance with the provisions of the Plan, he shall
thereupon cease to be a Participant. A Participant who ceases to be
eligible for the Plan because of a change in his classification of
employment shall not be entitled to receive benefits solely by reason
of such change in classification, but rather his eligibility for
benefits shall be determined in accordance with the provisions of the
Plan; provided, however, that employment of the Participant in such an
excluded class shall be deemed Service for participation and vesting
purposes.
2.04 Participation Following Reemployment or Break in Service.
Except as otherwise provided in the following sentence, an individual
who has previously met the Plan's age and service requirements and
whose Service has terminated or who has incurred a Break in Service,
shall be eligible to participate immediately upon again being credited
with Service. Such an individual who is re-employed in an excluded
class of employees, as described in Section 2.01, shall not be
eligible to participate while in such excluded class.
2.05 Participation Following Change in Classification.
In the event a Participant becomes ineligible to participate because
he is no longer a member of an eligible class of Employees, but his
Service has not terminated, such Employee shall be eligible to
participate immediately upon his return to an eligible class of
Employees. If such participant's Service is terminated, his
eligibility to participate shall be determined as a former Participant
pursuant to Section 2.04 hereof.
In the event an Employee who is not a member of the eligible class of
Employees becomes a member of the eligible class, such Employee then
shall participate immediately if such Employee has satisfied the
minimum age and Service requirements and would have previously become
eligible to participate had he been in the eligible class. If such an
Employee has not satisfied the minimum age and Service requirements
when he becomes a member of the eligible class, he shall participate
as provided in Section 2.03 hereof, and his employment in the excluded
class shall be treated as Service in determining his eligibility to
participate.
2.06 Portability.
<PAGE>
In the event that an individual is transferred to or from employment
covered by this Plan from or to employment covered by Another Plan,
the provisions of this Section 2.06 shall control in situations where
the provisions of this Section 2.06 are in conflict with any other
Section or Sections of the Plan. For purposes of this Section 2.06,
"Another Plan" or "Other Plan" shall mean a qualified defined
contribution plan of deferred compensation of either a member of the
Controlled Group or a Portability Group Member.
In the event that an individual is transferred from employment covered
by Another Plan to employment covered by this Plan, employment of such
individual which is counted for eligibility, vesting and/or benefit
accrual under the Other Plan shall be counted as Service for the same
purpose under this Plan. Provided, however, that participation in
this Plan shall not commence prior to the date on which the transfer
takes place.
In the event that an individual is transferred from employment covered
by this Plan to employment covered by Another Plan, employment of such
individual which is counted for vesting purposes under the Other Plan
shall be counted as Service for vesting purposes under this Plan. The
individual's Accounts in this Plan shall be maintained on an inactive
basis and will continue to share in the allocation of investment
earnings pursuant to Section 4.02 hereof. Except as otherwise
provided in this paragraph, such individual, will not share in the
allocation of Employer matching contributions under this Plan after
the date of his transfer to employment covered by Another Plan. In
the Plan Year in which such transfer occurs, such individual shall be
entitled to share in the Employer matching contributions under this
Plan based on his salary deferral contributions under this Plan prior
to the date of transfer. The individual shall not share in the
allocation of Employer matching contributions under this Plan after
the Plan Year in which the transfer occurs unless the individual is
transferred back into employment covered by this Plan, in which case
the second paragraph of this Section 2.06 shall apply. Payment of
termination benefits under this Plan may not occur prior to the date
the individual's employment covered by Another Plan terminates. The
individual shall, however, be permitted to make in-service withdrawals
pursuant to the terms of Article 5 and to transfer amounts between
investment funds pursuant to the terms of Section 4.08.
2.07 Absence in the Armed Services.
In the case of an Employee or a Participant who leaves Service to
enter the Armed Services of the United States of America and who
returns to Service on or before the expiration of ninety (90) days
after the date on which he is entitled to be released from active duty
in the Armed Services (or at such other date as the law may specify as
to re-employment), such Service of an Employee or Participant, to the
extent required by law, shall be treated as continuous despite such
absence, and such period of absence shall be included, to the extent
required by law, in determining service for purposes of eligibility
and Vesting Service for purposes of the Plan.
2.08 Family and Medical Leave Act Requirements.
Notwithstanding any other provisions of the Plan, in the case of an
Employee who takes family or medical leave as an eligible employee of
a covered employer under the provisions of the Family and Medical
<PAGE>
Leave Act of 1993 (FMLA), any period of FMLA leave shall be treated as
continued service for purposes of eligibility to participate and
Vesting Service to the extent required by applicable law.
ARTICLE 3
CONTRIBUTIONS TO THE PLAN
3.01 Employer Contributions.
Each Plan Year ending after the Effective Date and during the
continuance of the Plan, the Employer shall make contributions to the
Plan as described below.
(a) Employer Matching Contribution - The Employer shall
contribute on behalf of each Participant an amount equal to
fifty percent (50%) of such Participant's salary deferral
contributions during a payroll period, but not in excess of
three percent (3%) of such Participant's Compensation for the
payroll period. Provided, however, the Employer shall not
contribute amounts which (i) would, if allocated to the
Employer Account of Highly Compensated Employees pursuant to
Section 4.01(c), create excess aggregate contributions (as
defined in Section 3.04) or (ii) are attributable to
contributions which pursuant to Sections 3.02(a), 3.03 or
3.04 are to be distributed to Employees. The Employer
matching contribution shall be subject to the vesting
schedule provided in Section 8.01 hereof and shall be
credited to Part I of the Participant's Employer Account.
(b) Qualified Matching Contribution - The Employer may, in order
to preserve the qualified status of the Plan, contribute a
Qualified Matching Contribution based on the salary deferral
contributions of Non-highly Compensated Employees. Qualified
Matching Contributions shall be fully vested at all times,
shall be subject to the distribution provisions that are
applicable to salary deferral contributions and shall be
credited to Part II of the Participant's Employer Account.
Employer contributions shall be made as soon as practicable on or
before the due date (including extensions) for filing the federal
income tax return for the year for which such contributions are made.
Provided, however, that any Forfeitures arising with respect to an
Employer since the last day of the preceding Plan Year or otherwise
becoming available shall be applied to reduce that Employer's
contributions to the Plan for the current Plan Year, or as soon
thereafter as practicable.
In satisfaction of its contribution obligations under this Section
3.01, the Employer may, at its option, deliver or cause to be
delivered either cash or such other property as is acceptable to the
Trustee.
Contributions made to the Plan by the Employer shall be made on the
condition that they are deductible under section 404 of the Code.
3.02 Contributions By, or On Behalf of, Participants.
<PAGE>
A Participant may elect contributions to the Plan, as described below.
Such amounts shall be fully vested at all times.
(a) Salary Deferral Contributions. Effective with the first full
payroll period beginning on or after the date on which he
becomes a Participant, a Participant may voluntarily elect to
enter into a salary deferral agreement with the Employer.
Such salary deferral agreement shall serve to direct the
Employer to contribute to the Participant's Personal Account,
as salary deferral contributions, a percentage of the amount
which would otherwise be paid to the Participant as direct
Compensation. The amount of his Compensation which the
Participant is to defer for a Plan Year may not be more than
seventeen and six-tenths percent (17.6%). Provided, further,
that such amount shall be subject also to the limitations on
annual additions for the limitation year under Section 4.04
hereof.
A Participant's aggregate elective salary deferral
contributions in any taxable year of the Participant shall
not be greater than seven thousand dollars ($7,000), or such
increased amount pursuant to section 402(g) of the Code for
any taxable year as determined by the Commissioner of
Internal Revenue and effective on January 1 of the taxable
year. Elective salary deferral contributions in excess of
the preceding limit occurring in any Plan Year (together with
any Income allocable to such amount) shall be distributed not
later than the first April 15th following the close of the
Plan Year in which such excess deferral contributions
occurred, to the Participant on whose behalf the excess was
contributed.
If the Participant makes "elective deferrals," as defined in
regulations issued pursuant to section 402(g) of the Code, to
more than one plan, which exceed the limit described above in
the aggregate, such Participant may elect a distribution of a
part or all of such excess amount which has been contributed
to this Plan. An election to receive a distribution of such
excess deferrals must be in writing and must include the
Employee's certification that the specified amount is an
excess deferral. Such election must be made not later than
the first March 15th following the close of the Plan Year in
which such excess deferrals occurred. Upon such election,
the excess amount specified by the Participant shall be
distributed to the Participant not later than the first April
15th following the close of the Plan Year in which such
excess deferrals occurred. The amount of such excess to be
distributed shall be reduced by the amount of any excess
contributions previously distributed pursuant to Section 3.03
hereof for the Plan Year beginning within the taxable year
for which the excess under this Section 3.02 is distributed.
Such excess deferrals shall be adjusted for any Income
allocable to such excess deferrals up to the date of
distribution. The Income allocable to such excess deferrals
shall be equal to the sum of (i) Income allocable to Part I
of the Participant's Personal Account for the taxable year
multiplied by a fraction, the numerator of which is the
excess deferrals for the Participant for the year and the
<PAGE>
denominator of which is the total account balance of the
Employee attributable to elective salary deferrals without
regard to any Income occurring during the taxable year; and
(ii) the Income allocable to Part I of the Participant's
Personal Account for the period between the end of the
taxable year and the distribution date multiplied by a
fraction determined under the method described in (i) of this
sentence.
The determination of whether a Participant's elective
deferrals with respect to any taxable year shall exceed the
limitations of Code section 402(g) shall be the sole
responsibility of the Participant, and neither the Employer,
the Committee nor the Trustee shall have any obligations with
respect to such determination.
Salary deferral contributions shall be made by payroll
deduction and shall be considered to be salary deferral
contributions for the Plan Year in which they are actually
made.
The direction and agreement by the Participant to defer a
portion of his Compensation as a salary deferral contribution
rather than receive it as a cash benefit shall be in the form
of a salary deferral agreement as set forth in Section 2.03
hereof. A Participant's salary deferral agreement may be
prospectively amended to change the percentage of the salary
deferral, either increasing, decreasing, starting or stopping
the percentage of salary deferral, as of any payroll period.
Such change shall be effective as of the first pay period
following receipt by the Committee of written notice of the
change, provided such written notice is received in time to
allow normal processing of the paperwork involved in
instituting the change. The Committee may establish
additional procedures for the renewal, amendment,
termination, or revocation of salary deferral agreements
which shall be uniform and nondiscriminatory. Provided,
however, that the requirement of uniformity (but not
nondiscrimination) may be suspended, and such differences in
procedure (provided such differences are merely procedural)
may be permitted between Highly Compensated Employees and
Non-highly Compensated Employees as are necessary, proper and
convenient in order to bring the Plan into compliance with
the coverage and discrimination requirements of Section 3.03
and thereby preserve, or assure the preservation of, the
qualified status of the Plan. As a condition precedent for
accepting a Participant's salary deferral agreement, the
Employer also may, at any time, as of any time, and from time
to time, amend, terminate or revoke the salary deferral
agreement of a Participant who is a Highly Compensated
Employee in order to comply with the coverage and
discrimination requirements of Section 3.03 hereof.
The Employer shall contribute to Part I of the Personal
Account of each Participant an amount equal to the reduction
in such Participant's Compensation pursuant to his salary
deferral agreement. The contribution to be made as a result
of such reduction in Compensation shall be paid to the
Trustee as soon as practicable, but no later than the month
<PAGE>
following the month for which the reduction in Compensation
was made; provided, that if a Participant has executed a
salary deferral agreement pending the adoption of the Plan by
the Employer or pending a determination by the Committee
whether contributions on his behalf under such agreement
would cause the Plan not to qualify under section 401(k) of
the Code, such contributions may be paid to the Trustee
during the month following the month in which such adoption
or determination is made, whichever is applicable, but in no
event later than thirty (30) days after the end of the Plan
Year. Such salary deferral contributions shall be considered
to be Employer contributions under the Plan and shall be
nonforfeitable when made.
If the Committee shall determine that the salary deferral
contributions provided for in this Section 3.02 would exceed
the limitations of Section 3.03 hereof, the Committee shall,
before the end of the Plan Year following the Plan Year
during which such excess contribution occurs, distribute the
amount of such excess to the Participant on whose behalf the
contribution was made.
(b) Voluntary After-Tax Contributions. Voluntary after-tax
contributions may not be made to the Plan. In the past, such
contributions were permitted, and any such amounts still in
the Plan shall be maintained in Part II of the Participant's
Personal Account.
(c) Rollover Contributions. Rollover contributions by a
Participant (or by an Employee expected to become a
Participant) to his Personal Account in cash or in other
property acceptable to the Trustee shall be allowed from
individual retirement accounts, within the meaning of section
408(a) of the Code, which have been established as conduits
for other qualified plan distributions pursuant to section
402 or section 403 of the Code or from another qualified
plan; provided that no portion of any such rollover is
attributable to nondeductible employee contributions and
provided further that acceptance of such rollover
contributions shall be subject to any procedures governing
acceptance of such rollover contributions which may be
established by the Plan Administrator or Trustee. Direct
rollover of an eligible rollover contribution as described in
Code sections 401(a)(31) and 402 and regulations thereunder
elected by a Participant (or by an Employee expected to
become a Participant) shall be allowed from another qualified
plan, provided that such direct rollover shall be made only
in cash or its equivalent in cash or in other property
acceptable to the Trustee and provided further that
acceptance of such rollover contributions shall be subject to
any procedures governing acceptance of such rollover
contributions which may be established by the Plan
Administrator or Trustee.
Any such rollover contributions shall be remitted to the
Trustee as soon as practicable, shall be credited to Part III
of the Participant's Personal Account and shall be fully
vested at all times. Rollover contributions shall be treated
in the same manner as Participant voluntary after-tax
<PAGE>
contributions for purposes of investment and allocation of
Income, and shall be withdrawable from the Participant's
Personal Account to the extent provided in Article 5 or
otherwise shall be distributed as provided in Articles 6, 7
and 8 hereof.
Rollover contributions shall not be considered (i) as
contributions by the Employer under Section 3.01 of this
Plan, (ii) in determining the maximum benefits permissible
under the Plan pursuant to Section 4.04 hereof or (iii) in
determining the Top Heavy Ratio in Section 13.02(j) hereof.
3.03 Coverage and Discrimination Requirements.
Salary deferral contributions for any Plan Year after December 31,
1986 shall satisfy one (1) of the following tests:
(a) the average deferral percentage for the Highly Compensated
Employees who are eligible to participate in the Plan for the
Plan Year shall not be more than the average deferral
percentage of the Non-highly Compensated Employees who are
eligible to participate in the Plan for the Plan Year
multiplied by one and twenty-five hundredths (1.25); or
(b) the excess of the average deferral percentage for the Highly
Compensated Employees who are eligible to participate in the
Plan for the Plan Year over that of the Non-highly
Compensated Employees who are eligible to participate in the
Plan for the Plan Year shall not be more than two percent
(2%), nor shall the average deferral percentage for such
Highly Compensated Employees be more than that of such Non-
highly Compensated Employees multiplied by two (2).
For purposes of this Section, the term "average deferral percentage"
for a group of Employees shall mean the average of the percentages,
calculated separately for each Employee in the group, of the amount of
salary deferral contributions and, if applicable, Qualified Matching
Contributions, made on behalf of the Employee for a Plan Year, to the
amount of the Employee's Compensation for such Plan Year (the
"deferral percentage"). However, for purposes of determining the
deferral percentage of a Participant who is a five percent (5%) owner
of the Employer or one of the top ten (10) highest paid Highly
Compensated Employees, the amount of contributions and Compensation of
such Participant shall include the contributions and Compensation of
family members (as described in Code section 414(q)(6)(B)) to the
extent required by regulations. Family members who are required to be
aggregated with respect to such Highly Compensated Employees shall be
disregarded as separate Employees in determining the average deferral
percentage both for eligible Employees who are Highly Compensated
Employees and for eligible Employees who are Non-highly Compensated
Employees.
A salary deferral contribution shall be considered to have been made
with respect to a Plan Year if it (i) is allocated to the account of a
Participant as of any date within that Plan Year and (ii) relates to
Compensation that either would have been received by the Participant
in the Plan Year but for the Participant's election to defer under the
arrangement, or is attributable to services performed by the
Participant in the Plan Year and, but for the Participant's election
<PAGE>
to defer, would have been received by the Participant within two and
one-half (2-1/2) months after the close of the Plan Year. A
contribution shall be considered allocated as of any date within a
Plan Year if the following conditions are met:
(c) such allocation is not dependent upon participation in the
Plan as of any date subsequent to the allocation date,
(d) the Employer contributions in addition to those attributable
to salary deferral contributions are actually made to the
Plan no later than the end of the period described in Code
section 404(a)(6) applicable to the taxable year with or
within which the Plan Year ends, and
(e) the Employer contributions attributable to salary deferrals
are actually made to the Plan no later than the end of the
twelve (12) month period immediately following the end of the
Plan Year to which the contribution relates.
Excess contributions shall mean, with respect to any Plan Year, the
excess of:
(f) The aggregate amount of contributions actually taken into
account in computing the average deferral percentage of
Highly Compensated Employees for such Plan Year as described
above, over
(g) The maximum amount of such contributions permitted by the
average deferral percentage test (determined by reducing
contributions made on behalf of Highly Compensated Employees
in order of the average deferral percentages, beginning with
the highest of such percentages).
Provided, that the amount of any such excess contributions to be
distributed pursuant to this Section 3.03 with respect to a
Participant for a Plan Year shall be reduced by any salary deferral
contributions in excess of the dollar limit specified in Section
3.02(a) hereof which are previously distributed to such Participant
for his taxable year ending with or within such Plan Year. In
addition, the amount of such excess contribution of a Highly
Compensated Employee whose average deferral percentage is determined
under the family aggregation rules, shall be allocated among the
family members in proportion to the salary deferral contributions of
each family member that are combined to determine the combined average
deferral percentage.
Excess contributions shall be adjusted for any Income up to the date
of distribution. The Income allocable to such excess contribution
shall be equal to the sum of (i) the allocable Income for the Plan
Year and (ii) the allocable Income for the period between the end of
the Plan Year and the date of distribution. The Income allocable to
excess contributions for such periods is determined in a manner
analogous to the above allocation of Income to excess deferrals, but
basing the allocation on excess contributions and the Income allocable
to salary deferral contributions.
If, for any Plan Year, salary deferral contributions are made with
respect to the Highly Compensated Employees in excess of that
permissible under subsections (a) and (b) of this Section 3.03, the
<PAGE>
Committee shall, before the end of the Plan Year following the Plan
Year during which such excess contribution occurs, distribute the
amount of such excess to the Participant on whose behalf the
contribution was made.
Any distributions made hereunder shall be made to Highly Compensated
Employees on the basis of the respective portions of the excess
contributions attributable to each of such Employees.
The tests described in this Section and the corrective measures for
insuring passage of such tests may be performed in any manner
permitted under section 401(k) of the Code, the regulations thereunder
and any other related rulings or pronouncements issued by the
Secretary of the Treasury or the Internal Revenue Service.
3.04 Discrimination Requirements for Other Contributions.
The Plan must satisfy the nondiscrimination requirements of section
401(m) of the Code and the regulations issued thereunder, which are
incorporated herein by reference. The Plan shall satisfy such
requirements if, with respect to any Plan Year, either of the
following alternative conditions are met:
(a) the average contribution percentage for eligible Highly
Compensated Employees is not greater than the average
contribution percentage for eligible Non-highly Compensated
Employees, multiplied by one and twenty-five hundredths
(1.25).
(b) the excess of the average contribution percentage for
eligible Highly Compensated Employees over that of eligible
Non-highly Compensated Employees is not more than two percent
(2%), nor is the average contribution percentage for such
Highly Compensated Employees more than that of such Non-
highly Compensated Employees, multiplied by two (2).
"Eligible Employee" shall mean any Employee who is eligible to make
voluntary after-tax contributions, or a salary deferral contribution
(if the Employer takes such contributions into account in the
calculation of the average contribution percentage). The term
"average contribution percentage" for a group of Employees shall mean
the average of the ratios, calculated separately for each Employee in
the group, of the amount of voluntary after-tax contributions and
Employer matching contributions made on behalf of an Employee during
the Plan Year to that Employee's Compensation for such Plan Year (the
"contribution percentage"). Provided, that the Employer may elect to
include salary deferral contributions and Qualified Matching
Contributions to the extent such contributions are not included in the
calculation of the tests specified in Section 3.03 hereof, in the
calculation of an average contribution percentage. However, for
purposes of determining the contribution percentage of a Participant
who is a five percent (5%) owner of the Employer or one of the top ten
(10) highest paid Highly Compensated Employees, the amount of
voluntary after-tax contributions, Employer matching contributions and
Compensation of such Participant shall include the voluntary after-tax
contributions, Employer matching contributions and Compensation of
family members (as described in Code section 414(q)(6)(B)). Family
members, with respect to Highly Compensated Employees, shall be
disregarded as separate Employees in determining the contribution
<PAGE>
percentage both for eligible Employees who are Non-highly Compensated
Employees and for eligible Employees who are Highly Compensated
Employees.
"Excess aggregate contributions", plus any Income allocable thereto,
shall be forfeited, if forfeitable, or if not forfeitable, distributed
no later than the last day of each Plan Year to Participants to whose
accounts such excess aggregate contributions were allocated for the
preceding Plan Year. Excess aggregate contributions shall be
allocated to Participants who are subject to the family member
aggregation rules of section 414(q)(6) of the Code in proportion to
the Employee matching contributions of each family member that are
combined to determine the combined average contribution percentage.
Excess aggregate contributions shall be treated as annual additions,
as defined in Section 4.04, hereof.
"Excess aggregate contributions" shall mean, with respect to any Plan
Year, the excess of:
(c) The aggregate contribution percentage amounts taken into
account in computing the numerator of the contribution
percentage actually made on behalf of Highly Compensated
Employees for such Plan Year, over
(d) The maximum contribution percentage amounts permitted by the
average contribution percentage test (determined by reducing
contributions made on behalf of Highly Compensated Employees
in order of their contribution percentages beginning with the
highest of such percentages).
Such determination shall be made after first determining excess
elective deferrals pursuant to Section 3.02 and then determining
excess contributions pursuant to Section 3.03 hereof.
Excess aggregate contributions shall be adjusted for any Income up to
the date of distribution. The Income allocable to excess aggregate
contributions for such period is determined in a manner analogous to
the above allocation of Income to excess deferrals, but basing the
allocation on excess aggregate contributions and the Income allocable
to Employer matching contributions and Employee voluntary after-tax
contributions.
Forfeitures of excess aggregate contributions shall be applied to
reduce Employer contributions.
The tests described in this Section and the corrective measures for
insuring passage of such tests may be performed in any manner
permitted under section 401(m) of the Code, the regulations thereunder
and any other related rulings or pronouncements issued by the
Secretary of the Treasury or the Internal Revenue Service.
3.05 Multiple Use of Alternative Limitation.
Compliance with Section 3.03 and Section 3.04 shall not be achieved by
the use of both the limitation in Section 3.03(b) and the limitation
in Section 3.04(b) for the same Plan Year. The determination and
correction of such a multiple use shall be governed by the rules set
forth in section 401(m) of the Code and in regulations, rulings or
other pronouncements interpreting such section, which are incorporated
<PAGE>
herein by reference; provided, however, that the multiple use shall be
corrected through reduction of the average contribution percentage of
all Highly Compensated Employees.
3.06 Medium of Financing the Plan.
Investment of all contributions made in accordance with the Plan and
provision for payment of benefits to Retired Participants and
Beneficiaries shall be accomplished by a Trust, as it may be amended
from time to time, which shall constitute a part of the Plan.
ARTICLE 4
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
4.01 Allocation of Employer Contributions.
Employer contributions for each Plan Year shall be allocated as
follows:
(a) Salary Deferrals. Salary deferral contributions pursuant to
Section 3.02(a) hereof shall be allocated as of each
Allocation Date to Part I of the Personal Account of each
Participant on whose behalf such contributions were made.
(b) Employer Matching Contributions. Employer matching
contributions pursuant to Section 3.01(a) hereof shall be
allocated to Part I of the respective Employer Accounts of
Participants on whose behalf such contributions were made.
(c) Qualified Matching Contributions. Qualified Matching
contributions pursuant to Section 3.01(b) hereof shall be
allocated as of the last day of the Plan Year to Part II of
the Employer Account of each Non-highly Compensated Employee
who was credited with an Employer matching contribution for
the Plan Year. Each Participant's share in such Qualified
Matching Contributions shall be that amount which bears the
same ratio to the total Qualified Matching Contributions as
the Participant's Employer matching contribution for the Plan
Year bears to the total Employer matching compensation for
the Plan Year for all Non-highly Compensated Employees
entitled to share in the allocation.
Participant contributions pursuant to Section 3.02 hereof shall be
allocated to the respective Personal Accounts of Participants who
contributed such amounts or on whose behalf such contributions were
made.
4.02 Allocation of Income.
As of each Allocation Date, Income received on investments held by the
Trustee shall be allocated to each Participant's Employer Account and
Personal Account.
The Income of the Trust Fund for the period ending with such
Allocation Date shall be determined as the change in the fair market
value of the Trust Fund since the last Allocation Date, after
eliminating the effect of all non-investment transactions.
<PAGE>
Income shall be allocated as of each such Allocation Date as provided
hereunder. Income shall be allocated to each Participant's accounts
in the ratio that the value of each such account as of the last
Allocation Date bears to the total value of the Employer Accounts and
Personal Accounts for all such persons as of the last Allocation Date.
These account values shall not include any accounts terminated or
amounts withdrawn since the last Allocation Date. Income on
segregated account balances shall be allocated as received on the
investment of assets of such accounts.
For purposes of this section only, the term "Participants" shall
include Retired Participants, present and former Employees and
Beneficiaries who have account balances, but who would not otherwise
be considered to be Participants under the Plan.
Should the Plan Administrator determine that the strict application of
the foregoing allocation procedures will not result in an equitable
and non-discriminatory allocation among the accounts of Participants,
it may modify its procedures for the purpose of achieving an equitable
and non-discriminatory allocation in accordance with the general
concepts of the Plan and the provisions of this article.
4.03 Adjustment to Accounts.
As soon as practicable after each Allocation Date, the value of each
Employer Account and each Personal Account shall be determined as
follows:
(a) Each Employer Account shall be equal to the value of such
account as of the last Allocation Date, less any payment or
Forfeiture from the account since the last Allocation Date
to, or on behalf of, such Participant, plus the allocations
of Employer contributions and Income specified in this
article and any other adjustments made to the Account since
the last Allocation Date.
(b) Each Personal Account shall be equal to the value of such
account as of the last Allocation Date, plus any
contributions made on behalf of the Participant to the Plan
(including Participant salary deferral contributions) and
less any withdrawals or payments to or on behalf of such
Participant from such account since the last Allocation Date,
plus the allocation of Income specified in this article and
any other adjustments made to the Account since the last
Allocation Date.
4.04 Maximum Annual Additions to Participants' Accounts.
The annual addition to any Participant's accounts for any Plan Year
shall not exceed the lesser of (i) thirty thousand dollars ($30,000),
or, if greater, one-fourth of the defined benefit dollar limitation
set forth in section 415(b)(1) of the Code as in effect for the
limitation year, and (ii) twenty-five percent (25%) of such
Participant's total cash compensation for the Plan Year.
For purposes of this section and of Article 13 hereof, the term
"compensation" shall mean wages within the meaning of Code section
3401(a) and all other payments of compensation to an Employee by his
Employer (in the course of the employer's trade or business) for which
<PAGE>
the Employer is required to furnish the Employee a written statement
under Code sections 6041(d), 6051(a)(3), and 6052. Compensation shall
be determined without regard to any rules under Code section 3401(a)
that limit the remuneration included in wages based on the nature or
location of the employment or the services performed (such as the
exception for agricultural labor in Code section 3401(a)(2)).
For any self-employed individual, "Compensation" will mean earned
income.
For limitation years beginning after December 31, 1991, for purposes
of applying the limitations of this section, compensation for a
limitation year is the compensation actually paid or made available
during such limitation year.
The term "annual addition" for a Participant means the sum of the
following for the Plan Year:
(a) contributions made by the Employer on behalf of the
Participant (including salary deferral contributions made
pursuant to Section 3.02(a) hereof); and
(b) Forfeitures allocated to a Participant's Employer Account, if
any;
(c) contributions made by the Participant, if any;
(d) amounts allocated to an individual medical account which is
part of a defined benefit plan, as described in Code section
415(l)(2); and
(e) amounts attributable to post-retirement medical benefits
allocated to a separate account of a key employee under a
welfare benefit fund as described in Code section 419A(d)(2).
If a Participant is, or was, a participant at any time in both a
qualified defined benefit pension plan and a qualified defined
contribution plan ever maintained by the same employer, the sum of the
defined benefit fraction and the defined contribution fraction in any
limitation year may not exceed one (1).
The term "defined benefit fraction" shall mean, for any Plan Year, a
fraction the numerator of which is the projected annual benefit of the
Participant under all qualified defined benefit pension plans
maintained by the Employer (determined as of the close of the Plan
Year), if any, and the denominator of which is the lesser of the
following:
(i) one and four tenths (1.4) multiplied by one hundred percent
(100%) of the Participant's average total cash compensation
for the three (3) consecutive limitation years in which he
received the highest aggregate total cash compensation; and
(ii) one and twenty-five hundredths (1.25) multiplied by ninety
thousand dollars ($90,000) (or such greater amount as may be
determined by the Secretary of the Treasury).
The term "defined contribution fraction" shall mean, for any Plan
Year, a fraction the numerator of which is the sum of the annual
<PAGE>
additions to the Participant's accounts under all qualified defined
contribution plans maintained by the Employer (determined as of the
close of the Plan Year) and the denominator of which is the sum of the
lesser of the following amounts determined for such year and for each
prior year of service with the Employer:
(i) 1.25, multiplied by the dollar limitation in effect under
Code section 415(c)(1)(A) for such year (determined without
regard to Code section 415(c)(6)), or
(ii) 1.4, multiplied by the amount which may be taken into account
under Code section 415(c)(1)(B) (or Code section 415(c)(7),
if applicable) with respect to such individual under such
plan for such year.
For purposes of determining annual additions, the limitation year
shall be the Plan Year.
All qualified defined benefit pension plans (whether or not
terminated) of an employer shall be treated as one (1) qualified
defined benefit pension plan for purposes of applying the limitations
of section 415(b), (c) and (e) of the Code.
All qualified defined contribution plans (whether or not terminated)
of an employer shall be treated as one (1) qualified defined
contribution plan for purposes of applying the limitations of section
415(b), (c) and (e) of the Code.
In the case of a group of employers which constitutes a Controlled
Group, all such employers shall be considered a single employer for
purposes of applying the limitations of section 415 of the Code.
If as a result of the allocation of Forfeitures, a reasonable error in
estimating the compensation of a Participant, a reasonable error in
determining the amount of elective deferral contributions (within the
meaning of Code section 402(g)(3)) that may be made with respect to
any individual under the limits of Code section 415, or other facts
and circumstances allowed by regulation, the annual additions
limitation is exceeded in any Plan Year, the excess annual addition
shall be charged against the Participant's accounts in the following
order of priority by the amount required to insure compliance with
this Section:
(i) voluntary after-tax contributions;
(ii) salary deferral contributions which are not matchable salary
deferrals pursuant to Section 3.01(b);
(iii) matchable salary deferral contributions pursuant to Section
3.01(b) and Employer matching contributions, on a pro rata
basis;
(iv) all other Employer contributions.
The portion of such excess which consists of voluntary after-tax
contributions and salary deferral contributions shall be returned to
the Participant. The portion of such excess attributable to Employer
contributions shall be treated as a Forfeiture for the Plan Year and
shall be allocated to, and maintained as, a suspense account under the
<PAGE>
Plan to which Income is not allocated and which will be used to reduce
Employer contributions along with other Plan Forfeitures as of the
next date on which Employer contributions are allocated. In addition,
no Employer or Employee contributions may be made to the Plan until
any excess maintained in a suspense account is exhausted.
Notwithstanding any provision of the Plan to the contrary, if, in any
limitation year, the sum of the defined benefit fraction and the
defined contribution fraction exceed one (1.0), then the rate of the
annual addition for any Participant shall be automatically reduced to
the level necessary to prevent the limitations of this section from
being exceeded with respect to such Participant.
4.05 Separation of Forfeitures and Accounts by Employer.
The accounts of Participants who are Employees of each Employer shall
be administered separately from those of any other Employer for
purposes of allocating Employer contributions and applying
Forfeitures, except that Forfeitures attributable to an Employer which
is unable to apply such Forfeitures shall be allocated among the
Employers which are members of a Controlled Group for application in
proportion to such Employers' contributions to the Plan for the most
recent Plan Year.
Provided, however, that a single Trust Fund may be used for the
investment of the funds of the Plan.
4.06 Fair Market Value.
The Plan Administrator shall cause to be determined the fair market
value of all assets held by the Trustee in the Trust hereunder as of
each Allocation Date.
4.07 Interim Allocations.
The Plan Administrator may direct a special allocation date in order
to avoid prejudice either to continuing Participants or terminating
Participants. Such special allocation date shall be deemed equivalent
to a regular Allocation Date, except that the allocations under
Section 4.01 may be deferred until the next following regular
Allocation Date. Interim allocations, if any, shall be made on a
nondiscriminatory basis.
4.08 Election of Investment Fund.
Each Participant shall elect to have his Participant contributions and
Employer contributions invested in the available investment funds in
any combination of whole percentages that totals one hundred percent
(100%).
All elections hereunder shall be effective for the entire amount of
both his Participant contributions and Employer contributions. The
form and manner of all elections under this section shall be
prescribed by the Thrift Committee.
Such investment funds shall remain a part of the Trust Fund, but shall
be separately invested, with all investment income on such investments
credited to the investment funds and all disbursements to, or on
behalf of, the Participant changed thereto.
<PAGE>
A Participant may make or revoke such election for the future
investment of contributions made under this Plan provided for under
this Section 4.08 as of the first day of any future pay period,
provided sufficient notice is provided to allow the modification to be
made. Such election shall remain effective for all subsequent
contributions allocated on behalf of the Participant to the investment
funds until the election is effectively modified or revoked.
The transfer of existing balances in the Accounts of Participants
between investment funds shall be permitted once each calendar month.
Such election of transfer may be made only before the ten (10) day
period preceding the end of each calendar month and shall become
effective on the first day of the calendar month immediately following
the date of election; all other elections shall be void.
Notwithstanding the foregoing, the election by a Participant to
transfer between the investment funds shall be restricted as provided
by the respective mutual fund or other companies responsible for the
funds.
4.09 Units Accounting for Investment Fund
The Committee may choose to maintain accounting of one or more of the
investment funds on a "units" basis, wherein the market value of the
assets in the fund are represented by units. As of any date, the
market value of a units fund will exactly equal the product of the
number of units in the fund on that date and the value of each unit on
that date. Each Participant's Accounts with respect to such a fund
will be maintained in units, and all additions to and subtractions
from such Accounts will be in terms of units and will be based on the
unit value as of the date of the transaction. Investment earnings of
the fund shall be accounted for based on the market value of the fund
units, and the provisions of the Plan regarding the allocation of
investment earnings shall not apply to a fund being maintained on a
units basis. The provisions of this Section shall automatically
supersede any conflicting provisions in the Plan.
ARTICLE 5
IN-SERVICE WITHDRAWALS
5.01 Withdrawals from Participants' Employer Accounts.
The Participant may make a withdrawal from his Employer Account equal
to the lesser of the amount requested and the value of his vested
interest in his Employer Account as of the date of his application.
Withdrawals under this Section 5.01 shall be permitted under the
following circumstances:
(a) Two-year/Five-year Rule - The Participant may withdraw
amounts which have been allocated to his Employer Account for
at least two (2) years, or the entire vested portion of his
Employee Account if he has been a Participant for five (5) or
more years, whichever is greater. Any withdrawal under this
Two-year/Five-year rule will result in the suspension of
Employer matching contributions on behalf of the Participant
for the two (2) whole calendar month periods following such
withdrawal.
<PAGE>
(b) Withdrawal shall be permitted at any time after attainment of
age 59-1/2 by the Participant.
(c) Withdrawal shall be permitted on account of the Participant's
financial need or hardship, as defined in this Section 5.01.
The existence of financial need or hardship for purposes of this
Section 5.01 shall be determined by the Committee in a uniform and
non-discriminatory manner with respect to all Participants similarly
situated, on the basis of positive written evidence submitted to the
Committee by the Participant demonstrating that he is confronted with
financial necessity, hardship, or impending financial ruin arising
from:
(d) fires or disaster due to natural causes;
(e) educational, medical or emergency expenses for the
Participant or his family;
(f) the purchase of or improvements to a Participant's primary
residence; or
(g) such other unexpected causes as may occur that are deemed by
the Committee to constitute true financial need or hardship.
If a withdrawal is made under this subsection from a Participant's
Employer Account at a time when the Participant has a nonforfeitable
right to less than one hundred percent (100%) of such Employer
Account, then the portion of the Participant's Employer Account which
he did not receive as a withdrawal shall be subject to the special
vesting rules described herein. For purposes of these rules, such
portion shall be described as the "separate account." At any later
relevant time, the amount to which the Participant shall be entitled
from the "separate account" shall be computed according to the
following formula:
X = P x (AB + (R x D)) - (R x D)
For purposes of solving this equation, "X" is the amount to which the
Participant is entitled, "P" is his vested percentage at the relevant
time, "AB" is his Account balance at the relevant time, "R" is the
ratio of his Account balance at the relevant time to his Account
balance immediately after the distribution, and "D" is the amount of
the distribution. Provided, however, that a separate account is not
required to be established so long as account balances are maintained
under a method that has the same effect as the method described above.
5.02 Withdrawals from Participants' Personal Accounts.
While a Participant or a former Participant is in the Service of the
Employer, he may apply to the Plan Administrator to withdraw all or a
part of the amount attributed to Part I of his Personal Account. Such
a request shall be granted only if the Participant has demonstrated an
immediate and heavy financial need arising from a hardship situation
or has attained fifty nine and one half (59-1/2) years of age. The
Committee shall determine whether an emergency financial hardship has
been proven by the Participant in accordance with regulations issued
by the Secretary of the Treasury pursuant to section 401(k) of the
Code and the Secretary of the U.S. Department of Labor pursuant to
<PAGE>
ERISA section 408.
The determination of whether a Participant or a former Participant has
an immediate and heavy financial need and no other resources available
to satisfy such need shall be made in accordance with the following
conditions.
(a) Financial Need Test. The immediate and heavy financial needs
for which a hardship withdrawal may be granted shall be
limited to the following:
(1) Expenses for medical care described in Code section
213(d) previously incurred by the Participant, the
Participant's spouse, or any dependents of the
Participant (as defined in Code section 152) or
necessary for these persons to obtain medical care
described in Code section 213(d);
(2) Costs directly related to the purchase of a principal
residence for the Participant (excluding mortgage
payments);
(3) Payment of tuition and related education fees for the
next twelve (12) months of post-secondary education for
the Participant, or the Participant's spouse, children,
or dependents (as defined in Code section 152);
(4) Payments necessary to prevent the eviction of the
Participant from the Participant's principal residence
or foreclosure on the mortgage on that residence; or
(5) Other expenses which the Commissioner of the Internal
Revenue Service indicates will be deemed to be made on
account of such need.
The amount of any hardship withdrawal granted pursuant to
this Section 5.02(a) shall be limited to the lesser of:
(6) the actual amount of the salary deferral contributions
made on behalf of the Participant or former
Participant, without regard to Income allocable
thereto, less the amount of salary deferral
contributions previously withdrawn; and
(7) the amount required to relieve the financial need plus
amounts necessary to pay any federal, state, or local
income taxes or penalties reasonably anticipated to
result from the hardship distribution.
(b) Resources Test. To qualify for a hardship withdrawal
pursuant to Section 5.02(a), the Participant or former
Participant must certify that the financial need giving rise
to the hardship cannot be met from other resources that are
reasonably available to the participant, such as:
(i) insurance reimbursement;
(ii) liquidation of assets, including those of the spouse
and minor children of the Participant;
<PAGE>
(iii) cessation of contributions to the Plan;
(iv) other plan distributions or commercial loans.
The Committee shall establish uniform and nondiscriminatory withdrawal
rules which shall apply to Parts II, III and IV of each Participant's
Personal Account. Such withdrawals may be made at the discretion of
the Participant but no more frequently than once each calendar month,
at the end of the month.
5.03 Loans to Participants.
Loans to Participants will not be permitted from the Plan.
ARTICLE 6
GENERAL BENEFIT PROVISIONS
6.01 Form of Benefit Payment.
The normal form of payment shall be a single lump sum. In lieu of
this normal form of payment, a Participant may elect to have his
benefit paid in accordance with the optional forms of payments
described hereinafter.
A Retired Participant may elect to receive his Personal Account in a
single sum as soon as practicable after his termination of Service.
If no such election is made, his Personal Account shall be paid or
applied in the same manner as his Employer Account.
The Retired Participant may elect to have his Employer Account paid or
applied in accordance with one (1) or more of the following options:
(a) paid in a single sum; or
(b) paid or applied as a combination of single sums, on the dates
and in the amounts selected by the Participant, subject to a
minimum for any single distribution of five hundred dollars
($500).
Such election must be in writing, in such form as the Committee shall
uniformly and nondiscriminatorily require, and may be submitted at any
time during the ninety (90) day period preceding the first day of the
first period for which an amount is paid as a benefit and following
the date which the Participant is provided with information concerning
the optional forms of benefit and the Participant's right, if any, to
defer payment of his benefit. Such notice shall be provided at least
thirty (30) and no more than ninety (90) days before the first day of
the period described in the preceding sentence. If a distribution is
one to which sections 401(a)(11) and 417 of the Internal Revenue Code
do not apply, such distribution may commence less than thirty
(30) days after the notice required under section 1.411(a)-11(c) of
the Income Tax Regulations is given, provided that:
(1) the Plan Administrator clearly informs the Participant that
the Participant has a right to a period of at least thirty
(30) days after receiving the notice to consider the decision
of whether or not to elect a distribution (and, if
<PAGE>
applicable, a particular distribution option), and
(2) the Participant, after receiving the notice, affirmatively
elects a distribution.
If the Retired Participant does not elect an option, such benefits
shall be paid or applied in accordance with the option described in
(a) above.
6.02 Commencement of Benefits Rule.
Notwithstanding any other provisions of the Plan, but in addition to
such provisions (as applicable), unless the Participant elects
otherwise in writing, distribution of benefits shall begin no later
than the sixtieth (60th) day after the close of the Plan Year in which
the latest of the following events occurs:
(a) the date the Participant attains sixty-five (65) years of
age;
(b) the date which is the tenth (10th) anniversary of the first
(1st) day of the Plan Year in which the Participant commenced
participation in the Plan; or
(c) the date the Participant terminates Service with the
Employer.
A Participant shall have the right to elect to defer receipt of his
benefits until 30 days after the end of the Plan Year in which the
Participant attains age 69, at which time the entire Accounts of the
Participant must be distributed. A Participant who reaches age 65
without having elected to withdraw his Accounts will be deemed to have
elected to leave his Accounts in the Plan until 30 days after the end
of the Plan Year in which the Participant attains age 69. Such
participant shall have the right to elect payment of his Accounts at
any time before the above mandatory distribution date, and payment
shall be made as soon as administratively feasible after such
election.
If the amount of the payment required to commence on the date
determined under this section cannot be ascertained by such date, or
if it is not possible to make such payment on such date because the
Committee has been unable to locate the Participant after making
reasonable efforts to do so, then a payment retroactive to such date
may be made no later than sixty (60) days after the earliest date on
which the amount can be ascertained under the Plan or the date on
which the Participant is located (whichever is applicable).
6.03 Special Commencement and Distribution of Benefits Rules.
(a) General Rules.
(1) The requirements of this section shall apply to any
distribution of a Participant's interest and will take
precedence over any inconsistent provisions of this
Plan.
(2) All distributions required under this section shall be
determined and made in accordance with the proposed
<PAGE>
regulations under section 401(a)(9) of the Code,
including the minimum distribution incidental benefit
requirement of section 1.401(a)(9)-2 of the proposed
regulations.
(b) Required Beginning Date. The entire interest of a
Participant must be distributed or begin to be distributed no
later than the Participant's required beginning date. The
consent of the Participant or of the Participant's Spouse or
Beneficiary shall not be required to make a distribution
required under this section.
"Required beginning date" shall mean the first day of April
of the calendar year following the calendar year in which the
Participant attains age seventy and one-half (70-1/2)
subject, however, to the following transition rules.
(1) Transitional rules. The required beginning date of a
Participant who attains age seventy and one-half (70-
1/2) before January 1, 1988, shall be determined in
accordance with (i) and (ii) below:
(i) Non-five-percent (5%) owners. The required
beginning date of a Participant who is not a
"five-percent (5%) owner" (as defined in (2)
below) is the first day of April of the calendar
year following the calendar year in which the
later of retirement and attainment of age seventy
and one-half (70-1/2) occurs.
(ii) five-percent (5%) owners. The required beginning
date of a Participant who is a five-percent (5%)
owner during any year beginning after December 31,
1979, is the first day of April following the
later of:
(A) the calendar year in which the Participant
attains age seventy and one-half (70-1/2),
and
(B) the earlier of the calendar year with or
within which ends the Plan Year in which the
Participant becomes a five-percent (5%)
owner, and the calendar year in which the
Participant retires.
The required beginning date of a Participant who
is not a five-percent (5%) owner who attains age
seventy and one-half (70-1/2) during 1988 and who
has not retired as of January 1, 1989, is April 1,
1990.
(2) Five-percent (5%) owner. A Participant is treated as a
five-percent (5%) owner for purposes of this subsection
(b) if such Participant is a five-percent (5%) owner as
defined in section 416(i) of the Code (determined in
accordance with section 416 but without regard to
whether the Plan is top-heavy) at any time during the
Plan Year ending with or within the calendar year in
<PAGE>
which such owner attains age sixty-six and one-half
(66-1/2) or any subsequent Plan Year.
(3) Once distributions have begun to a five-percent (5%)
owner under this section, those distributions must
continue even if the Participant ceases to be a five-
percent (5%) owner in a subsequent year.
(c) Duration of Benefits. Benefits to a Participant shall be
distributed, beginning not later than the required beginning
date set forth in subsection (b) in accordance with
regulations, for a period not exceeding the life of such
Participant or, if applicable, the joint lives of such
Participant and his Beneficiary, or over the life expectancy
of such Participant or, if applicable, the joint life
expectancies of the Participant and his Beneficiary. For
purposes of this section, "life expectancy" shall mean the
life expectancy (or joint and last survivor expectancy)
calculated using the attained age of the Participant (or
designated Beneficiary) as of the Participant's (or
designated Beneficiary's) birthday in the applicable calendar
year, reduced by one (1) for each calendar year which has
elapsed since the date life expectancy was first calculated.
If life expectancy is being recalculated, the applicable life
expectancy shall be the life expectancy as so recalculated.
The applicable calendar year shall be the first distribution
calendar year, and if life expectancy is being recalculated
such succeeding calendar year. If annuity payments commence
before the required beginning date, the applicable calendar
year is the year such payments commence. Life expectancy and
joint and last survivor expectancy are computed by use of the
expected return multiples in Tables V and VI of section 1.72-
9 of the Treasury Regulations.
(d) Minimum Amount to be Distributed Each Year. If the
Participant's interest is to be distributed in other than a
single sum, the following distribution rules shall apply on
or after the required beginning date.
(1) The amount to be distributed each year, beginning with
distributions for the first distribution calendar year
shall not be less than the quotient obtained by
dividing the Participant's benefit by the lesser of (i)
the applicable life expectancy as described in Section
6.04(c) or (ii) if the Participant's Spouse is not the
designated Beneficiary, the applicable divisor
determined from the table set forth in Q&A-4 of section
1.401(a)(9)-2 of the proposed regulations.
(2) The minimum distribution required for the Participant's
first distribution calendar year must be made on or
before the Participant's required beginning date. The
minimum distribution for other calendar years,
including the minimum distribution for the distribution
calendar year in which the employee's required
beginning date occurs, must be made on or before
December 31 of that distribution calendar year.
(3) Distribution calendar year. For purposes of this
<PAGE>
section, the term "distribution calendar year" means a
calendar year for which a minimum distribution is
required. For distributions beginning before the
Participant's death, the first distribution calendar
year is the calendar year immediately preceding the
calendar year which contains the Participant's required
beginning date. For distributions beginning after the
Participant's death, the first distribution calendar
year is the calendar year in which distributions are
required to begin pursuant to section 6.04(e) below.
(e) Death distribution provisions.
(1) Distribution Beginning Before Death. If the
Participant dies after distribution of his or her
interest has begun, the remaining portion of such
interest will continue to be distributed at least as
rapidly as under the method of distribution being used
prior to the Participant's death.
(2) Distribution Beginning After Death. If the Participant
dies before distribution of his or her interest begins,
distribution of the Participant's entire interest shall
be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant's
death except to the extent that an election is made to
receive distributions in accordance with (i) or (ii)
below:
(i) if any portion of the Participant's interest is
payable to a designated Beneficiary, distributions
may be made over the life or over a period certain
not greater than the life expectancy of the
designated Beneficiary commencing on or before
December 31 of the calendar year immediately
following the calendar year in which the
Participant died;
(ii) if the designated Beneficiary is the Participant's
surviving spouse, the date distributions are
required to begin in accordance with (i) above
shall not be earlier than the later of (1)
December 31 of the calendar year immediately
following the calendar year in which the
Participant died and (2) December 31 of the
calendar year in which the Participant would have
attained age 70 1/2.
If the Participant has not made an election pursuant to
this subsection (e)(2) by the time of his or her death,
the Participant's designated Beneficiary must elect the
method of distribution no later than the earlier of (1)
December 31 of the calendar year in which distributions
would be required to begin under this section, or (2)
December 31 of the calendar year which contains the
fifth anniversary of the date of death of the
Participant. If the Participant has no designated
Beneficiary, or if the designated Beneficiary does not
elect a method of distribution, distribution of the
<PAGE>
Participant's entire interest must be completed by
December 31 of the calendar year containing the fifth
anniversary of the Participant's death.
(3) For purposes of subsection (e)(2) above, if the
surviving Spouse dies after the Participant, but before
payments to such Spouse begin, the provisions of
subsection (e)(2), with the exception of paragraph (ii)
therein, shall be applied as if the surviving Spouse
were the Participant.
(4) For the purposes of this subsection (e), distributions
of a Participant's interest is considered to begin on
the Participant's required beginning date (or, if
subsection (e)(3) above is applicable, the date
distribution is required to begin to the surviving
Spouse pursuant to subsection (e)(2) above). If
distribution in the form of an annuity irrevocably
commences to the Participant before the required
beginning date, the date distribution is considered to
begin is the date distribution actually commences.
6.04 Limitations on Distribution of Salary Deferrals.
Except as otherwise provided in this section, amounts attributable to
elective salary deferrals pursuant to Section 3.02(a) hereof shall not
be distributed earlier than upon the occurrence of one of the
following events:
(a) the employee's retirement, death, Disability or termination
of Service;
(b) attainment of age fifty-nine and one-half (59-1/2);
(c) the termination of the Plan without the establishment of a
successor plan;
(d) the date of the sale or other disposition by the Employer of
substantially all of the assets used by such corporation in a
trade or business of the Employer with respect to an Employee
who continues employment with the corporation acquiring such
assets;
(e) with regard to an Employee who continues employment with such
subsidiary, the date of the sale or other disposition by the
Employer of such corporation's interest in a subsidiary;
(f) with regard to distributions of elective salary deferrals
only, the Participant's or former Participant's hardship, as
defined in Section 5.02 hereof.
This Section 6.04 shall be interpreted in accordance with section
1.401(k)-1(d) of the Treasury Regulations.
6.05 Single Sum Distribution of Small Benefits.
In the event that a Retired Participant or Beneficiary shall become
entitled to receive any benefit under the Plan, and the value of the
nonforfeitable benefit is not greater than (or at the time of any
<PAGE>
prior distribution was not greater than) one hundred dollars ($100),
the benefit shall be paid to such person in a single sum before the
end of the second Plan Year following the Plan Year during which the
Participant ceases to participate in the Plan. Provided, however,
that for distributions made on or after January 1, 1993, the foregoing
shall be subject to the provisions of Section 6.07 hereof regarding
direct rollover of eligible rollover distributions as provided
therein.
Payment under this section shall be in lieu of the form of benefit
otherwise payable under any provision of this Plan.
6.06 Designation of Beneficiary.
Subject to the rights of a surviving Spouse described herein, each
Participant or Retired Participant shall have the right to designate
the Beneficiary to receive the death benefit on his behalf, and to
revoke any such designation. Each such designation, or revocation
thereof, shall be evidenced by a written instrument filed with the
Committee and signed by the Participant or Retired Participant.
Unless the conditions which follow for the designation of a
Beneficiary other than the Spouse are satisfied, the Beneficiary of a
Participant or Retired Participant shall be the surviving Spouse, if
any, whether or not so designated in the written instrument filed with
the Committee and even if no such instrument is filed. Designation of
a Beneficiary other than the Spouse shall be valid only if either:
(a) the Spouse consents in writing to such designation,
acknowledging the effect thereof, witnessed by a notary
public or Plan representative;
(b) the Retired Participant or Participant, although married at
the time of the designation, is ultimately not survived by
his Spouse; or
(c) the surviving Spouse cannot be located.
Such spousal consent obtained pursuant to (a) shall be irrevocable.
If the Participant or Retired Participant is survived by a Spouse
other than the Spouse who consented to designation of another as
Beneficiary, the consent of the former Spouse shall be ineffective.
If no designation of Beneficiary is on file with the Plan
Administrator at the time of the death of a Participant or Retired
Participant, or if such designation is not effective for any reason,
and if there is no surviving Spouse, the death benefit shall be
payable to the estate of the Participant or Retired Participant (which
shall be conclusively deemed to be the Beneficiary designated to
receive such death benefit).
6.07 Direct Rollover of Eligible Rollover Distributions.
(a) This Section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan
to the contrary that would otherwise limit a distributee's
election under this Section, a distributee may elect, at the
time and in the manner prescribed by the Plan Administrator,
to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the
<PAGE>
distributee in a direct rollover. Provided, however, that
direct rollovers are not permitted for amounts under two
hundred dollars ($200).
(b) Definitions
(1) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion
of the balance to the credit of the distributee, except
that an eligible rollover distribution does not
include: any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or
joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution
to the extent such distribution is required under
section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income
(determined without regard to the exclusion for net
unrealized appreciation with respect to employer
securities).
(2) Eligible retirement plan: An eligible retirement plan
is an individual retirement account described in
section 408(a) of the Code, an individual retirement
annuity described in section 408(b) of the Code, an
annuity plan described in section 403(a) of the Code,
or a qualified trust described in section 401(a) of the
Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible
rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement
account or individual retirement annuity.
(3) Distributee: A distributee includes an Employee or
former employee. In addition, the Employee's or former
employee's surviving spouse and the Employee's or
former employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations
order, as defined in section 414(p) of the Code, are
distributees with regard to the interest of the spouse
or former spouse.
(4) Direct rollover: A direct rollover is a payment by the
Plan to the eligible retirement plan specified by the
distributee.
ARTICLE 7
RETIREMENT, DEATH AND DISABILITY BENEFITS
7.01 Benefits Upon Retirement.
Upon attainment of Normal Retirement Age, a Participant shall be one
hundred percent (100%) vested in his Accounts. Upon retirement
following attainment of his Normal Retirement Age, a Participant shall
<PAGE>
be entitled to receive as the value of his retirement benefit
hereunder the amounts in his Accounts determined on the Allocation
Date coincident with or immediately preceding his retirement,
increased by any Employer and Participant contributions allocated
after such Allocation Date, reduced by any payments and withdrawals
made from such accounts since such Allocation Date and adjusted for
any Income allocated after such Allocation Date.
7.02 Death Benefits.
In the event of the death of a Participant or Retired Participant
prior to the complete distribution of his accounts, the amount of the
death benefit on his behalf shall be one hundred percent (100%) of
both his Employer Account and Personal Account, determined on the
Allocation Date coincident with or immediately preceding the date of
his death, increased by any Employer and Participant contributions
allocated after such Allocation Date, reduced by any payments and
withdrawals made from such accounts since such preceding Allocation
Date and adjusted for any Income allocated after such Allocation Date.
Provided, however, that the death benefit to be distributed from the
Employer Account of a Retired Participant whose participation in the
Plan terminated before the date of his death (other than a disabled
Participant pursuant to Section 7.03 hereof) shall be determined by
application of the vested percentage described in Section 8.01 hereof.
The death benefit shall be subject to the general benefit provisions
of Article 6 hereof. The benefit shall be paid in a single sum, or in
such other optional form as may be elected by the Participant or
Beneficiary, as the case may be, under Section 6.01 hereof, to the
designated Beneficiary of the deceased Participant as soon as
practicable after such death occurs.
7.03 Disability Benefits.
In the event the Committee determines that a Participant incurs
Disability while still an Employee, such Participant shall be entitled
to one hundred percent (100%) of both his Employer Account and
Personal Account, determined on the Allocation Date coincident with or
immediately preceding the date of his Disability, increased by any
Employer and Participant contributions allocated after such Allocation
Date, reduced by any payments and withdrawals made from his accounts
since such preceding Allocation Date and adjusted for any Income
allocated after such Allocation Date.
The Disability benefit shall be paid to the disabled Participant as
soon as practicable after his Disability has been confirmed by the
Committee, but in no event later than the close of the calendar year
following the calendar year during which Disability occurred in
accordance with an optional form of payment as provided in Section
6.01, unless later payment is requested in writing by the disabled
Participant and approved by the Committee. Such optional form of
payment of the disability benefit shall be determined in accordance
with the provisions of that section, subject to the general benefit
provisions of Article 6 hereof.
In the event of the death of the Participant subsequent to the date
his Disability occurred and prior to the commencement of his
disability benefits hereunder, the amount payable on behalf of such
Participant shall be paid as a death benefit as provided otherwise in
<PAGE>
this article.
ARTICLE 8
TERMINATION BENEFITS
8.01 Benefits Upon Termination of Service.
A Participant whose Service terminates for reasons other than
retirement on or after his Normal Retirement Date, death or Disability
shall be entitled to a vested percentage, determined at the date his
Service terminates, of Part I of his Employer Account, and one hundred
percent (100%) of Part II of his Employer Account and his Personal
Account. Such accounts will be determined as of the Allocation Date
coincident with or immediately preceding the date the Participant's
Service terminates, increased by any Employer and Participant
contributions allocated to such accounts after such Allocation Date,
reduced by any payments and withdrawals from the accounts since such
preceding Allocation Date and adjusted for any Income allocated after
such Allocation Date.
The vested percentage of Part I of a Participant's Employer Account
shall be determined from the following schedule:
Years of Vested
Vesting Service Percentage
Less than 5 0%
5 or more 100%
Notwithstanding the above, the vested percentage of Part I of the
Employer Account for an individual who was actively employed on
December 31, 1988 and whose date of participation in the Plan was on
or before January 1, 1990, shall be determined from the following
schedule:
Years of Vested
Vesting Service Percentage
Less than 1 0%
1 10%
2 20%
3 30%
4 40%
5 or more 100%
Provided, however, that the vested percentage shall be one hundred
percent (100%) for a Participant on and after his Normal Retirement
Age.
8.02 Forfeitures.
The portion of an Employer Account to which a former Participant is
not entitled, as provided in Section 8.01 hereof, shall be a
Forfeiture as of the last day of the Plan Year in which occurs the
earlier of the following dates:
(a) the date the former Participant is paid the entire vested
<PAGE>
amount of his Accounts, and
(b) the date the former Participant incurs five (5) consecutive
Breaks in Service.
For purposes of this Section, if the value of an Employee's vested
account balance is zero, the former Participant shall be deemed to
have received a distribution of such vested account balance and the
Employer Account shall be treated as a Forfeiture as of the date such
Employee terminates Service.
If a former Participant receives or is deemed to have received a
distribution from his Employer Account due to termination of
participation in the Plan, no later than the close of the second Plan
Year following the Plan Year during which he ceases to be a
Participant, which distribution is:
(c) equal to his vested Employer Account, but less than one
hundred percent (100%) of such account, and
(d) in an amount not exceeding one hundred dollars ($100) or, if
greater, which the Participant elected to receive,
and he subsequently resumes Service before he incurs five (5)
consecutive Breaks in Service, he may repay such distribution to the
Plan. Such repayment must be made before the earlier of the date the
Participant incurs five (5) consecutive Breaks in Service and the
fifth anniversary of the date of the Participant's resumption of
Service following the Break in Service. In the event of such
repayment, the amount of the Participant's Employer Account at the
date of the distribution shall be reestablished.
If a benefit cannot be paid to a Retired Participant or his
Beneficiary because he cannot be found, such benefit (subject to
overruling law) shall be treated as a Forfeiture but, if treated as a
Forfeiture, shall be reinstated if a claim is made by that Participant
or his Beneficiary. Such reinstatement shall be made from then
available Forfeitures arising from the Accounts of other Retired
Participants. If the amount of available Forfeitures is insufficient
for such reinstatement, then the Employer shall contribute an amount
to complete the reinstatement.
Any Forfeitures remaining after the reinstatements described above
shall be applied during the Plan Year in which, or immediately
following the Plan Year in which, such Forfeitures occur as a credit
against the salary deferral contributions and the Employer matching
contributions otherwise due for such Plan Year.
If a distribution is made from a Retired Participant's Employer
Account at a time when the Retired Participant has a vested percentage
of less than one hundred percent (100%) of such Employer Account, and
the Retired Participant resumes Service before the non-vested portion
of such Employer Account becomes a Forfeiture, then the portion of the
Participant's Employer Account which he did not receive as a
distribution shall be established on his behalf as a "separate
account." At any later relevant time, the amount to which the
Participant shall be entitled from the "separate account" shall be
computed according to the following formula:
<PAGE>
X = P x (AB + (R x D)) - (R x D)
For purposes of solving this equation, "X" is the amount to which the
Participant is entitled, "P" is his vested percentage at the relevant
time, "AB" is his Account balance at the relevant time, "R" is the
ratio of his Account balance at the relevant time to his Account
balance immediately after the distribution, and "D" is the amount of
the distribution. Provided, however, that a separate account is not
required to be established so long as Account balances are maintained
under a method that has the same effect as the method described above.
8.03 Payment of Benefits.
Any amounts due pursuant to this article to a Participant whose
Service has terminated shall be paid or applied for his benefit in
accordance with the general benefit provisions of Article 6 hereof;
provided, however, that the commencement date of any benefits payable
to a terminated Participant may be before his Normal Retirement Date
at the election of the terminated Participant.
In the event of the death of the Participant subsequent to the date
his Service terminates and prior to the commencement of his benefits,
the amount payable on behalf of such Participant shall be paid as
provided in Article 7 hereof.
ARTICLE 9
PLAN ADMINISTRATION
9.01 Plan Administrator and Appointment of Committee.
The Sponsor shall be the Plan Administrator of the Plan. The Board of
Directors of the Sponsor may appoint a Thrift Committee consisting of
not less than three (3) and not more than twelve (12) persons to
assist the Plan Administrator and to carry out the day to day
administrative functions of the Plan as the Plan Administrator may
delegate to the Committee.
Members of the Committee shall serve without compensation, but the
reasonable expenses of the Committee in discharging its
responsibilities shall be borne by the Sponsor.
The Sponsor will notify the Trustee in writing of the names of the
members of the Committee and of any changes in Committee membership
that may transpire from time to time.
9.02 Powers and Duties of the Plan Administrator.
The Plan Administrator shall administer and supervise the operation of
the Plan in accordance with the terms and provisions of the Plan.
The Plan Administrator shall have all power and authority (including
discretion with respect to the exercise of that power and authority)
necessary, properly advisable, desirable or convenient for the
performance of its duties, which duties shall include, but not be
limited to, the following:
(a) to construe the Plan in good faith;
<PAGE>
(b) to determine eligibility of Employees for participation in
the Plan, and to notify Employees of their eligibility and
the requirements for such participation;
(c) to determine and certify eligibility for benefits under the
Plan, and to direct the Trustee concerning the amount, manner
and time of the payment of such benefits and any annuity
contracts to be purchased on behalf of Participants, Retired
Participants and Beneficiaries;
(d) to prepare and distribute, in such manner as the Plan
Administrator determines to be appropriate, information
explaining the Plan;
(e) to require a Participant to complete and file with the Plan
Administrator an application for a benefit and all other
forms approved by the Plan Administrator, and to require that
the Participant furnish all pertinent information requested
by the Plan Administrator, which information may be relied
upon by the Plan Administrator;
(f) to cause the allocations of contributions to the Plan and
investment earnings (or losses) to be made as of each
Allocation Date;
(g) to adopt such rules as it deems necessary, desirable or
appropriate for the administration of the Plan, provided such
rules are consistent with the terms and provisions of the
Plan; all rules and decisions of the Plan Administrator shall
be uniformly and consistently applied to all Participants in
similar circumstances;
(h) to appoint such agents as it may need in the performance of
its duties; and
(i) to receive and review the reports from the Trustee and other
agents.
9.03 Plan Administrator Procedures.
The Plan Administrator may adopt such procedures and regulations as it
deems desirable for the administration of the Plan. Such procedures
and regulations shall be nondiscriminatory and shall to the extent
feasible be maintained in writing.
9.04 Committee Procedures.
The Committee may act at a meeting or in writing without a meeting.
The Committee shall elect one (1) of its members as chairman, appoint
a secretary, who may or may not be a Committee member, and the Trustee
shall be advised in writing of such actions. The secretary shall
forward all necessary communications to the Sponsor and the Trustee.
The Committee may adopt such bylaws and regulations as it deems
desirable for the conduct of its affairs. All decisions of the
Committee shall be made by majority vote.
A dissenting Committee member who, within a reasonable time after he
has knowledge of any action or failure to act by the majority,
registers his dissent in writing delivered to the other Committee
<PAGE>
members, the Sponsor and the Trustee, shall not be responsible for any
such action or failure to act.
9.05 Claims and Review Procedures.
The Plan Administrator shall establish reasonable procedures
concerning the filing of claims for benefits hereunder and shall
administer such procedures uniformly. If a claim is wholly or
partially denied, the Plan Administrator shall furnish the claimant,
within a reasonable period of time after receipt of the claim by the
Plan Administrator, a notice of such denial, setting forth at least
the following information in language calculated to be understood by
the claimant:
(a) the specific reason or reasons for the denial;
(b) specific reference to pertinent Plan provisions on which the
denial is based;
(c) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary;
and
(d) an explanation of the claims review procedure in the Plan.
Upon receipt of such a notice of denial, or if such a notice is not
furnished but the claim has not been granted within sixty (60) days of
its filing, the claimant or his duly authorized representative may
appeal to the Plan Administrator for a full and fair review.
In submitting a request for review, the claimant or his duly
authorized representative may request a review upon written
application to the Plan Administrator, may review pertinent documents,
and may submit comments in writing. Such request for review must be
made within sixty (60) days of the receipt by the claimant of the
notice of denial (or within sixty (60) days of the expire of the sixty
(60) day period beginning with the date of the filing of the claim, if
no such notice is received during such period).
The Plan Administrator shall respond promptly to a request for review
and shall deliver a written decision which shall include, in a manner
calculated to be understood by the claimant, the decision itself,
specific reasons therefor and specific references to the pertinent
Plan provisions on which the decision is based. The decision shall be
made not later than one hundred twenty (120) days after receipt of a
request for review.
Any decision by the Plan Administrator shall be conclusive and binding
upon all persons, subject to the claims review procedure described in
this Section 9.05 and subject to judicial review where it is shown by
clear and convincing evidence that the Plan Administrator acted in an
arbitrary and capricious manner.
ARTICLE 10
THE TRUST AND THE TRUSTEE
<PAGE>
10.01 The Trust; General Duties of the Trustee.
The Sponsor hereby continues the Trust previously established with the
Trustee pursuant to the terms of the Plan. The Trustee shall hold all
property received by it hereunder, which, together with the income and
gains therefrom and additions thereto, shall constitute the Trust
Fund. The Trustee shall manage, invest and reinvest the Trust Fund,
collect the income thereof, and make payments therefrom, all as
provided in this Plan and Trust.
The Trustee shall be responsible only for the property actually
received by it hereunder. It shall have no duty or authority to
compute any amount to be paid to it by the Employer or to bring any
action or proceeding to enforce the collection from the Employer of
any contribution to the Trust Fund.
Title to the Trust Fund, including all funds and investments held
hereunder by the Trustee, shall be and remain in the Trustee, and no
Participant, Retired Participant or Beneficiary shall have any legal
or equitable right or interest in the Trust Fund except to the extent
that such rights or interests are expressly granted under the
provisions of the Plan.
The Trust Fund may not be used or diverted for purposes other than the
exclusive benefit of Participants, Retired Participants and
Beneficiaries for the proper satisfaction of liabilities to such
persons covered by the Trust.
10.02 General Powers.
The Trustee shall have all the powers necessary for the performance of
its duties as Trustee. The Trustee shall have the following powers
and immunities and be subject to the following duties:
(a) The Trustee shall receive all contributions hereunder and
apply such contributions as hereinafter set forth. The
Trustee shall have the custody of and safely keep all cash,
securities, property and investments, including any insurance
company contracts, received or purchased in accordance with
the terms hereof.
(b) Subject to any limitations that may be contained elsewhere in
the Plan, the Trustee shall take control and management of
the Trust Fund and shall hold, sell, buy, exchange, invest
and reinvest the corpus and income of the Trust Fund. All
contributions paid to the Trustee under the Plan shall be
held and administered by the Trustee as a single Trust Fund,
and the Trustee shall not be required to segregate and invest
separately any part of the Trust Fund representing accruals
or interests of individual Participants in the Plan, except
as provided in Section 6.02 hereof.
(c) The Trustee may invest and reinvest the funds of the Trust
Fund in any property, real, personal or mixed, wherever
situate, and whether or not productive of income or
consisting of wasting assets, including, without limitation,
common and preferred stock, bonds, notes, debentures,
leaseholds, mortgages (including without limitation, any
collective or part interest in any bond and mortgage or note
<PAGE>
and mortgage), certificates of deposit, and oil, mineral or
gas properties, royalties, interests or rights (including
equipment pertaining thereto), without being limited to the
classes of property in which trustees are authorized by law
or any rule of court to invest trust funds and without regard
to the proportion any such property may bear to the entire
amount of the Trust Fund.
The Trustee may invest and reinvest all or any portion of the Trust
Fund collectively with funds of other retirement plan trusts exempt
from tax under section 501(a) of the Code, including, without
limitation, power to invest collectively with such other funds through
the medium of one (1) or more common, collective or commingled trust
funds which have been or may hereafter be established and maintained
by the Trustee, the instrument or instruments establishing such trust
fund or funds, as amended from time to time, being made part of this
Trust by reference so long as any portion of the Trust Fund shall be
invested through the medium thereof.
The Trustee is expressly authorized to invest all or part of the Trust
Fund in savings accounts, time deposits, certificates of deposit,
money market accounts, repurchase agreements and any other interest-
bearing accounts which bear a reasonable interest rate (regardless of
the term of such deposits or investments), issued by the Trustee or
any of its affiliates. The Trustee is further expressly authorized to
utilize the discount brokerage operation, if any, offered by the
Trustee or its affiliates.
(d) The Trustee may sell or exchange any property or asset of the
Trust Fund at public or private sale, with or without
advertisement, upon terms acceptable to the Trustee and in
such manner as the Trustee may deem wise and proper. The
proceeds of any such sale or exchange may be reinvested as is
provided hereunder. The purchaser of any such property from
the Trustee shall not be required to look to the application
of the proceeds of any such sale or exchange by the Trustee.
(e) The Trustee shall have full power to mortgage, pledge, lease
or otherwise dispose of the property of the Trust Fund
without securing any order of court therefor, without
advertisement, and to execute any instrument containing any
provisions which the Trustee may deem proper in order to
carry out such actions. Any such lease so made by the
Trustee shall be binding, notwithstanding the fact that the
term of the lease may extend beyond the termination of the
Plan.
(f) The Trustee shall have the power to borrow money upon terms
agreeable to the Trustee and pay interest thereon at rates
agreeable to the Trustee, and to repay any debts so created.
(g) The Trustee may participate in the reorganization,
recapitalization, merger or consolidation of any corporation
wherein the Trustee may own stock or securities and may
deposit such stock or other securities in any voting trust or
protective committee or like committee or trustee, or with
the depositories designated thereby, and may exercise any
subscription rights or conversion privileges, and generally
may exercise any of the powers of any owner with respect to
<PAGE>
any stock or other securities or property comprising the
Trust Fund.
(h) The Trustee may, through any duly authorized officer or
proxy, vote any share of stock which the Trustee may own from
time to time.
(i) The Trustee shall retain in cash and keep unproductive of
income such funds as from time to time it may deem advisable.
The Trustee shall not be required to pay interest on any such
cash in its hands pending investment, nor shall the Trustee
be responsible for the adequacy of the Trust Fund to
discharge any and all payments under the Plan. All persons
dealing with the Trustee are released from inquiry into the
decision or authority of the Trustee to act.
(j) The Trustee may hold stocks, bonds, or other securities in
its own name as Trustee, with or without the designation of
said trust estate, or in the name of a nominee selected by it
for the purpose, but said Trustee shall nevertheless be
obligated to account for all securities received by it as
part of the corpus of the trust estate herein created,
notwithstanding the name in which the same may be held.
(k) The Trustee may consult with legal counsel (who may be of
counsel to the Employer or the Plan Administrator) concerning
any questions which may arise with reference to the
construction of this Plan, its duties hereunder, or any
action which it proposes to take or omit.
(l) The Trustee may employ such counsel, accountants and other
agents as it shall deem advisable. The Trustee may charge
the compensation of such counsel, accountants and other
agents and the Trustee's compensation for its services in
such amounts as may be agreed upon from time to time by the
Employer and the Trustee, and any other expenses necessary in
the administration of this Plan against the Trust Fund to the
extent they are not paid by the Employer. However, only
those fees and expenses which constitute reasonable expenses
of administering the Plan may be charged to the Trust.
(m) The Trustee shall have the power to designate a bank or trust
company as depository of the funds or property of the Trust
and also to retain investment counsel, and the Trustee may
deposit funds in its commercial banking department (if any)
without making bond.
(n) Without diminution or restriction of the powers vested by law
or elsewhere in this Plan, but subject to all the provisions
of the Plan, the Trustee, without the necessity of procuring
any judicial authorization therefor or approval thereof,
shall be vested with and, in the application of its best
judgment and discretion on behalf of the beneficiaries of
this Plan, shall be authorized to exercise all or any of the
powers specifically permitted by statute or judicial decision
in, or with respect to, the state in which the Trustee
principally does business.
10.03 Reliance on Plan Administrator and Employer.
<PAGE>
Until notified pursuant to Article 9 hereof that any person authorized
to act for the Plan Administrator (such as a Committee member) has
ceased to act or is no longer authorized to act for the Plan
Administrator, the Trustee may continue to rely on the authority of
such person. The Trustee may rely upon any certificate, notice or
direction purporting to have been signed on behalf of the Plan
Administrator which the Trustee believes to have been signed by or on
behalf of the Plan Administrator. The Trustee may rely upon any
certificate, notice or direction of the Employer which the Trustee
believes to have been signed by a duly authorized officer, principal
or agent of the Employer. The Trustee may request instructions in
writing from the Plan Administrator on other matters and may rely and
act thereon.
10.04 Accounts and Reports.
The Trustee shall keep an accurate record of its administration of the
Trust Fund, including a detailed account of all investments, receipts
and disbursements, and other transactions hereunder. All accounts,
books and records relating hereto shall be open for inspection to any
person designated by the Committee or the Sponsor at all reasonable
times. Within sixty (60) days following the close of each Plan Year,
the Trustee shall file with the Plan Administrator a written report
setting forth all investments, receipts and disbursements and other
transactions during the Plan Year, and such report shall contain an
exact description of all securities purchased, exchanged or sold, the
cost or net proceeds of sale, and shall show the securities and
investments held at the end of such Plan Year, and the cost and fair
market value of each item thereof, as carried on the books of the
Trustee.
The Trustee shall also provide the Plan Administrator with such other
information in its possession as may be necessary for the Plan
Administrator to comply with the reporting and disclosure requirements
of ERISA.
10.05 Disbursements.
The Trustee, upon written instructions from the Plan Administrator,
shall make distributions or payments, or both, including monthly
payments, to the Participants, Retired Participants, and Beneficiaries
who qualify for such benefits. The Trustee shall have no liability to
the Employer, the Plan Administrator or any other person in making
such distributions or payments. The Trustee shall not be required to
determine or make any investigation to determine the identity or
mailing address of any person entitled to benefits under the Plan and
shall have discharged its obligation in that respect when it shall
have sent checks and other papers by ordinary mail to such person or
persons at such addresses as may be certified to it in writing by the
Plan Administrator.
10.06 Payment in Kind.
Whenever the Trustee is empowered hereunder to make any payment or
distribution, the Trustee shall have the power, in its sole
discretion, to make such payment in cash or in kind, or partly in cash
and partly in kind. In no event shall any payment in kind be made in
the form of a life annuity. The assets of the Trust Fund shall be
valued, for the purposes of making, or of computing the amount of,
<PAGE>
such payment or distribution, at their fair market value at the dates
of such payment or distributions.
10.07 Authority of Trustee.
At no time during the administration of the Trust Fund shall the
Trustee be required to obtain any court approval of any act required
of it in connection with the performance of its duties or in the
performance of any act required of it in the administration of its
duties as Trustee. The Trustee shall have full authority to exercise
its judgment in all matters and at all times without court approval of
such decisions; provided, however, that if any application to, or
proceeding or action in, the courts is made, only the Sponsor and the
Trustee shall be necessary parties, and no Participant in the Plan or
other person having an interest in the Trust Fund shall be entitled to
any notice or service of process. Any judgment entered in such
proceeding or action shall be conclusive upon all persons claiming an
interest under the Trust Fund.
10.08 Removal or Resignation of Trustee.
The Trustee may at any time be removed as Trustee of the Plan by
action of the Board of Directors of the Sponsor and written notice to
the Trustee, such removal to be effective sixty (60) days after such
notice is given.
The Trustee may resign as Trustee of the Plan upon written notice to
the Sponsor, such resignation to be effective sixty (60) days after
such notice is given.
Upon mutual, written agreement by the Sponsor and the Trustee, the
sixty (60) day period in this section may be waived or a shorter
period substituted.
10.09 Successor Trustee.
In the event of the resignation or removal of the Trustee, the Sponsor
shall appoint a successor trustee in place of the resigned or removed
Trustee on or before the effective date of such resignation or
removal. In the absence of such action, the Sponsor shall be deemed
to have terminated the Plan, and the termination provisions of Article
11 shall apply.
On or before the effective date of the removal or resignation, the
Trustee shall file with the Sponsor a written report setting forth all
investments, receipts and disbursements and other transactions
effected by it since the end of the preceding Plan Year. Such report
shall be in the same form and be subject to the same requirements as
the annual report.
The Trustee, if not paid by the Sponsor, is authorized to reserve such
sum of money or to liquidate such property and reserve the proceeds
thereof as it may deem advisable for the payment of its expenses or
charges in connection with the settlement of its account or otherwise,
and any such balance of such reserve remaining after the payment of
such expenses and charges shall be paid over to the successor trustee
or trustees, or to the Participants in the event of termination.
10.10 Trust Funding Policy; Parties in Interest.
<PAGE>
From time to time the Plan Administrator shall communicate to the
Trustee the current funding policy and method that have been
established to carry out the objectives of the Plan.
Upon the written request of the Trustee, the Sponsor shall file with
the Trustee a roster of the names of all persons, corporations,
partnerships, organizations and entities which are "parties in
interest" with respect to the Plan, as that term is defined in ERISA.
10.11 Trustee to Trustee Transfers.
The Plan Administrator shall have the power to authorize the
acceptance of a direct transfer to this Plan of plan assets
attributable to a Participant's participation in another qualified
profit sharing plan which did not provide for any life annuity form of
payment from such plan by that plan's trustee; provided, however, that
any restrictions on distributions of such transferred assets under
such other plan shall be maintained under this Plan with respect to
such assets. Likewise, the Plan Administrator shall have the power to
authorize the Trustee to make such a direct transfer of assets from
this Plan attributable to a Participant's participation in this Plan
to another qualified pension, profit sharing or stock bonus plan.
A separate bookkeeping subaccount for his transfers shall be
established on behalf of a Participant under his Personal Account, and
such transfers shall be treated as Participant contributions for
purposes of investment and allocation of Income. Likewise, for
purposes of the withdrawal and distribution of benefits pursuant to
Articles 5, 6, 7 and 8 hereof, the subaccount shall be treated as part
of the Personal Account, subject to any additional restrictions
required by the preceding paragraph. The balance of each such account
shall be fully vested at all times.
Such direct trustee to trustee transfers shall not be considered (i)
as contributions by the Employer under Section 3.01 of this Plan, (ii)
in determining the maximum benefits permissible under the Plan
pursuant to Section 4.04 hereof or (iii) in determining the Top Heavy
Ratio in Section 13.02(j) hereof, provided they are transfers
initiated by the Employee and made from a plan maintained by an
employer which is not in the Controlled Group.
10.12 Investment Manager.
The Sponsor may appoint in writing an Investment Manager or Investment
Managers to manage all or any portion of the assets of the Plan and
may revoke any such appointment previously made. While such an
appointment is in effect, the relations among the Plan Administrator,
Sponsor, Investment Manager, and Trustee shall be governed by the
following provisions:
(a) The Sponsor shall certify to the Trustee the name or names of
any Investment Manager appointed by it to manage the
investment or reinvestment of all or any portion of the Trust
Fund. Such certificate shall also state that the Investment
Manager has acknowledged his Fiduciary status with respect to
the Plan in writing.
(b) The Trustee shall segregate any portion of the Trust Fund
held by it which will be subject to the management of an
<PAGE>
Investment Manager into one or more separate accounts to be
known as investment manager accounts and shall charge any
expenses related to investments directed by an Investment
Manager against such accounts. Each Investment Manager shall
have the right and power to manage the investment and
reinvestment of his investment manager account. The Trustee
shall follow the directions of the Investment Manager with
respect to the account of such Investment Manager and shall
not be obligated to invest or otherwise manage any such
investment manager account. All directions given by an
Investment Manager to the Trustee shall be in writing, signed
by an officer or a partner of the Investment Manager or by
such other person or persons as may be designated by such
officer or partner. Subject to such conditions as may be
approved by the Sponsor and Trustee, the Investment Manager
may place direct orders for the purchase or sale of
securities or other property for its investment manager
account, provided, that the Trustee shall nevertheless retain
custody of the assets comprising said account.
(c) If the Sponsor, by written notice to the Trustee, terminates
the authority of an Investment Manager but does not appoint a
successor to manage the investment and reinvestment of the
account of such Investment Manager, the portion of the Fund
then held in such investment manager account shall return to
the unsegregated portion of the Fund and the Trustee shall
have authority to manage the investment and reinvestment of
such account. Until receipt of a written notice terminating
the authority of an Investment Manager, the Trustee shall be
fully protected in relying upon the latest prior written
notice of appointment of an Investment Manager.
(d) Any Investment Manager may, in writing, authorize the Trustee
to invest any portion of his investment manager account in
short-term investments. The Trustee, in its sole discretion,
may make such investments either directly or by investment
collectively with other assets, including but not limited to
investment in any common, commingled, collective, mutual or
pooled trust fund established and maintained by the Trustee
or any affiliate of the Trustee for the investment of funds
administered in a fiduciary capacity.
(e) The Trustee shall not be responsible for any loss caused by
its acting upon any notice, direction or certification of any
Investment Manager appointed by the Sponsor which the Trustee
reasonably believes to be genuine. The Trustee shall have no
duty to question any direction, action or inaction of any
Investment Manager taken as provided in this section. The
Trustee shall have no duty to review the securities or other
property held in any investment manager account or to make
any suggestions to any Investment Manager or to the Employer
with respect to the investment, reinvestment, or disposition
of investments in any investment manager account. The
Trustee shall not be responsible for the results arising from
the Trustee's compliance with the instructions of any
Investment Manager.
(f) The Trustee shall not be responsible for determining the
reasonableness of any compensation paid to or agreed to be
<PAGE>
paid to an Investment Manager. Any such compensation to an
Investment Manager shall be paid from the Trust Fund, if the
Plan Administrator so directs.
(g) With respect to any share of stock in the investment manager
account, the Trustee may, through any duly authorized officer
or proxy, vote any such stock.
ARTICLE 11
AMENDMENT AND TERMINATION OF THE PLAN
11.01 Amendment of Plan.
The Board of Directors of the Sponsor shall have the right at any
time, and from time to time, to modify, alter or amend the Plan in
whole or in part by instrument in writing duly executed.
Provided, however, that the Plan shall not be amended in the following
respects:
(a) the duties, powers and responsibilities of the Trustee shall
not be increased without the written consent of the Trustee;
(b) subject to Section 12.05 hereof, no amendment may be made to
permit any part of the funds of the Trust to be used for or
diverted to purposes other than for the exclusive benefit of
Participants, Retired Participants and their Beneficiaries or
for administration expenses of the Plan;
(c) no amendment may be made, unless it is necessary to meet the
requirements of any federal law or regulation, which shall
reduce the benefits which have accrued or the nonforfeitable
percentage applicable to any Participant, Retired Participant
or Beneficiary prior to the later of the date of adoption or
the effective date of such amendment, nor shall any amendment
to the Plan eliminate an optional form of distribution
provided under Section 6.01 hereof except as may be permitted
by federal law or regulation; and
(d) no amendment to the vesting provision in Section 8.01 hereof
shall become effective with respect to a Participant who has
completed three (3) or more years of Service at the date of
adoption of such amendment unless such Participant is given
the opportunity to elect irrevocably to have his
nonforfeitable benefits computed without regard to such
amendment. The election period shall be a period of sixty
(60) days after the latest of:
(i) the date of adoption of the amendment,
(ii) the effective date of the amendment, and
(iii) the date written notification of the amendment is
furnished such Participant.
An executed copy of any amendment to the Plan shall be furnished the
Trustee as soon as practicable after the date of adoption thereof.
<PAGE>
11.02 Intent to Continue the Plan.
The Employer has established the Plan with the bona fide intention and
expectation that from year to year it will make contributions as
herein provided. However, the Employer realizes that it may become
inadvisable to continue such contributions. The Employer shall have
the right to modify, suspend or discontinue contributions to the Plan
at any time and from time to time, and such action shall not be deemed
to be a termination of the Plan unless it constitutes a complete
discontinuance of Employer contributions to the Plan.
11.03 Termination of the Plan by the Sponsor; Partial Termination.
In the event the Sponsor concludes that it is impossible or
inadvisable to continue the Plan, the Board of Directors of the
Sponsor shall have the right to terminate the Plan by an appropriate
action which shall specify the date of termination. A certified copy
of a writing reflecting such action shall be delivered to the
Committee and to the Trustee, and as soon as possible thereafter the
Committee shall send or deliver to each then Participant a notice of
such action.
If a determination is made that the Plan has experienced a partial
termination, then the rights of the affected Participants, Retired
Participants and Beneficiaries to benefits accrued to the date of such
partial termination shall be nonforfeitable.
11.04 Termination of the Plan Upon Certain Events.
The Plan shall automatically terminate upon the occurrence of any of
the following events:
(a) discontinuance or liquidation of the Sponsor's business;
(b) the merger or consolidation of the Sponsor into any other
entity, unincorporated business organization or corporation,
or the sale by the Sponsor of substantially all of its assets
to any entity, unincorporated business organization, or
corporation which shall fail to adopt and continue the Plan
within ninety (90) days from the effective date of such
consolidation, merger or sale of assets; or
(c) failure of the Sponsor to appoint a successor trustee in
place of a Trustee who has resigned or been removed on or
before the effective date of such resignation or removal as
provided in Section 9.09.
11.05 Distribution of Trust Fund Upon Termination.
Upon complete termination of the Plan, or upon discontinuance of
Employer contributions to the Plan, the balance in each Participant's
or Retired Participant's accounts (after payment of all expenses and
proportional adjustment of Participants' accounts to reflect such
expenses, investment gains or losses and reallocations to the date of
termination) shall become nonforfeitable and each Participant, Retired
Participant or Beneficiary shall be entitled to receive any amounts
then credited to his accounts in the Trust Fund.
The Trustee shall make payment of such amounts in a single sum. Upon
<PAGE>
the distribution of all of the Trust Fund as aforesaid, the Trustee
shall be discharged from all obligations under the Trust and no
Participant, Retired Participant or Beneficiary shall have any further
rights or claim therein.
11.06 Termination of Plan With Respect to an Adopting Employer.
Each Adopting Employer reserves the right to terminate the Plan at any
time with respect to Employees of the Adopting Employer by action of
its Board of Directors. The Adopting Employer shall also have the
right to suspend contributions to the Plan from time to time, and such
suspension of contributions shall not be deemed to be a termination of
the Plan with respect to the Employees of the Adopting Employer unless
it constitutes a complete discontinuance of Employer contributions to
the Plan.
In the event of termination of the Plan only with respect to the
Employees of the Adopting Employer, the Plan Administrator shall
direct that the portion of the Trust Fund attributable to Employees of
the Adopting Employer be segregated by the Trustee into a separate
fund.
The portion of the Trust Fund which is so segregated shall be retained
in a separate trust fund and applied in one of the following methods,
at the discretion of the Committee.
(a) If the Adopting Employer shall demonstrate conclusively,
within the one hundred eighty (180) day period immediately
following termination of the Plan with respect to its
Employees, that it has established a successor retirement
plan and trust for the benefit of its Employees which is
qualified under sections 401(a) and 501(a), respectively, of
the Code, then such assets shall be transferred to the
successor trustee.
(b) If the Adopting Employer shall fail, within the one hundred
eighty (180) day period immediately following termination of
the Plan with respect to its Employees, to establish a
successor retirement plan and trust which is qualified under
sections 401(a) and 501(a), respectively, of the Code, then
such assets shall be distributed for the benefit of the
Employees of the Adopting Employer in accordance with the
method described in Section 11.05 hereof.
At the discretion of the Plan Administrator, the one hundred eighty
(180) day period may be extended.
ARTICLE 12
CERTAIN PROVISIONS AFFECTING THE EMPLOYER
12.01 Duties of the Employer.
The Sponsor shall furnish the Trustee with the information required
herein. Each Employer shall make its contributions as the same may be
appropriated by due action, which contributions may be in cash or in
other property acceptable to the Trustee. The Employer shall keep
accurate books and records with respect to its Employees and their
<PAGE>
compensation.
12.02 Right of Employer to Discharge Employees.
The adoption and maintenance of the Plan shall not be deemed to
constitute a contract between the Employer and any Employee, or to be
a consideration for, or an inducement or condition of, the employment
of any person.
12.03 Information to be Furnished.
As soon as practicable after the close of each Plan Year, each
Employer shall deliver to the Plan Administrator a full and complete
list of all Employees entitled to participate in the Plan during such
Plan Year, together with the information required to perform the
allocations described in Article 4 hereof with respect to such Plan
Year.
As soon as possible after the execution of the Plan, and from time to
time thereafter, the Sponsor and the Plan Administrator shall certify
to the Trustee the names and specimen signatures of any
representatives who have authority to act on behalf of the Sponsor
with respect to the Plan.
12.04 Communications from Sponsor to Trustee.
The Trustee may rely upon and shall be protected in acting upon any
information furnished to it by the Sponsor in writing subscribed by a
duly authorized agent of the Sponsor. Any certification by the
Sponsor of the information required or permitted to be certified to
the Trustee pursuant to the provisions of the Plan, shall, for all
purposes of the Plan, be binding upon all parties in interest.
12.05 No Reversion to Employer.
The Employer has no beneficial interest in the Trust Fund, and no part
of the Trust Fund shall ever revert or be repaid to the Employer,
directly or indirectly, except, if, and to the extent, permitted by
the Code and applicable regulations thereunder for the following:
(a) upon initial non-qualification pursuant to Section 14.10
hereof;
(b) in the event that the deduction of an Employer contribution
to the Plan under section 404 of the Code is disallowed, in
which case the contribution (to the extent disallowed) shall
be returned to the Employer, upon the request of the Employer
within one (1) year after the disallowance of the deduction;
or
(c) in the event that the Employer contribution is made by
mistake of fact, in which case the amount of such mistaken
contribution shall be returned to the Employer provided no
more than one (1) year has elapsed since the date of payment
by the Employer of the mistaken contribution.
12.06 Indemnification.
To the extent permitted by law and except in cases of willful
<PAGE>
misconduct or gross negligence, the Sponsor shall indemnify from any
loss or expense the Plan Administrator or any individual member of the
Committee, in connection with the good faith discharge of duties under
the Plan.
12.07 Adoption of Plan by Adopting Employers.
Notwithstanding anything herein to the contrary, with the
authorization of the Board of Directors of the Sponsor any corporation
or entity affiliated with the Sponsor through complete or partial
ownership by the Sponsor or by any owner thereof or which is otherwise
cooperating with the Sponsor for purposes of establishing a retirement
plan may adopt the Plan as an Adopting Employer in a manner
satisfactory to the Board of Directors of the Sponsor. As part of its
adoption of the Plan, each Adopting Employer shall designate, subject
to the agreement and approval of the Sponsor and the provisions of
Code section 413(c), whether or not its participation in the Plan
shall constitute a single plan, within the meaning of the regulations
under section 414(l) of the Code, with the participation in the Plan
of the Sponsor and/or other Adopting Employers. Such designation may
be amended by the Adopting Employer at any subsequent date.
For purposes of the payment of benefits due a Participant from the
Plan:
(a) if the Participant is an Employee of an Employer which has
elected to maintain a plan which is not such a single plan,
only that part of the Trust Fund attributable to the Employer
shall be available;
(b) if the Participant is an Employee of an Employer which has
elected to maintain such a single plan, that part of the
Trust Fund attributable to all Employers maintaining the
single plan shall be available.
An Adopting Employer may terminate participation in the Plan at any
time with respect to Employees of the Adopting Employer by action of
its Board of Directors as provided in Section 11.06 hereof, subject to
the applicable provisions therein depending on whether or not the
Adopting Employer has elected to maintain a single plan with the
Sponsor and/or other Adopting Employers.
All Employers which are Adopting Employers as of January 1, 1994,
shall be deemed to have elected to maintain a single plan with the
plan of the Sponsor.
ARTICLE 13
PROVISIONS APPLICABLE TO A TOP HEAVY PLAN
13.01 Top Heavy Plans.
The provisions of this article are designed to meet the requirements
of section 416 of the Code and shall automatically supersede any
conflicting provisions in the Plan in every Plan Year in which this
Plan is or becomes a Top Heavy Plan. Provided, however, that if the
provisions of this article are in conflict with final regulations
issued by the Secretary of the Treasury with respect to Top Heavy
<PAGE>
Plans, then such final regulations shall supersede the provisions of
this article to the extent not otherwise specifically prohibited by
law.
13.02 Definitions.
For purposes of this article, and only this article, unless a term
defined in this article is the subject of explicit reference elsewhere
in the Plan, the following terms when used herein, unless the context
clearly indicates otherwise, shall have the meanings set forth
hereinafter:
(a) "Compensation" shall mean, for each Employee, Compensation as
that term is defined in Section 4.04 of the Plan, plus
amounts contributed by the Employer pursuant to a salary
reduction agreement which are excludible from the employee's
gross income under section 125, section 402(a)(8), section
402(h) or section 403(b) of the Code. However,
"Compensation" shall not include compensation in excess of
the applicable dollar limits in Section 1.06(e) and 1.06(f).
(b) "Determination Date" shall mean, with respect to any Plan
Year subsequent to the first Plan Year, the last day of the
preceding Plan Year. For the first Plan Year of the Plan,
the Determination Date shall be the last day of such Plan
Year.
(c) "Key Employee" shall mean any Employee or former Employee (or
Beneficiary of such Employee) who, at any time during the
determination period, was (i) an officer of the Employer
having an annual Compensation greater than fifty percent
(50%) of the maximum dollar limitation in effect under
section 415(b)(1)(A) of the Code for any such Plan Year, (ii)
an owner of one (1) of the ten (10) largest interests in the
Employer if such interest is greater than one-half percent
(1/2%) and such individual's Compensation exceeds the maximum
dollar limitation under section 415(c)(1)(A) of the Code,
(iii) a five percent (5%) or more owner of the Employer or
(iv) a one percent (1%) or more owner of the Employer who has
an annual Compensation of more than one hundred and fifty
thousand dollars ($150,000). The term "determination period"
shall mean the Plan Year containing the Determination Date
and the four (4) preceding Plan Years. The determination of
who is a Key Employee shall be made in accordance with
section 416(i)(1) of the Code and regulations thereunder.
For purposes hereof, the term "officer" shall mean an
administrative executive who is in regular and continued
service. An Employee who merely has the title of an officer,
but not the authority of an officer, is not to be considered
an officer hereunder. Furthermore, for purposes hereof, at
any time during a determination period, no more than fifty
(50) Employees of all members of a Controlled Group, or, if
lesser, the greater of three (3) individuals or ten percent
(10%) of such Employees, shall be treated as officers
hereunder. The officers subject to these preceding
limitations shall be comprised of the individual officers
selected from the group of all individuals who were officers
in the current Plan Year of the determination period or any
of the four (4) preceding Plan Years in the determination
<PAGE>
period, who had the largest average annual compensation
throughout the total of those five (5) Plan Years in the
determination period. For purposes of (ii) herein, if two
(2) employees have the same interest in the Employer, the
Employee having the greater annual Compensation (without
regard to the dollar limitation of Section 13.02(a) hereof)
from the Employer shall be treated as having a larger
interest. Likewise, for purposes hereof, the term "owner"
shall mean an individual considered to be an owner within the
meaning of section 318 of the Code; provided, however, that
subparagraph (c) of section 318(a)(2) shall be applied by
substituting "5 percent" for "50 percent".
(d) "Non-Key Employee" shall mean any Employee who is not a Key
Employee.
(e) "Permissive Aggregation Group" shall mean the Required
Aggregation Group of plans plus any other plan or plans of
the Employer, as selected by the Employer, which, when
considered as a group with the Required Aggregation Group,
would continue to satisfy the requirements of sections
401(a)(4) and 410 of the Code.
(f) "Present Value" shall mean, if the Employer also now or ever
maintains a qualified defined benefit pension plan, the
present value of a benefit based only on the interest and
mortality rates specified in that plan.
(g) "Required Aggregation Group" shall mean as follows:
(1) each qualified plan of the Employer in which at least
one (1) Key Employee participates or participated at
any time during the determination period (regardless of
whether or not the plan terminated), and
(2) any other qualified plan of the Employer which enables
a plan described in the preceding subsection (1) to
meet the requirements of sections 401(a)(4) or 410 of
the Code.
(h) "Super Top Heavy Plan" shall mean, for any Plan Year, the
Plan if it would be a Top Heavy Plan under subsection
13.02(i) hereof if the words "ninety percent (90%)" were
substituted for the words "sixty percent (60%)" in subsection
13.02(i) hereof.
(i) "Top Heavy Plan" shall mean, for any Plan Year, the Plan if
any of the following conditions exists.
(1) If the Top Heavy Ratio for this Plan exceeds sixty
percent (60%) and this Plan is not part of any Required
Aggregation Group or Permissive Aggregation Group of
plans.
(2) If this Plan is a part of a Required Aggregation Group
of plans, but not part of a Permissive Aggregation
Group, and the Top Heavy Ratio for the Required
Aggregation Group of plans exceeds sixty percent (60%).
<PAGE>
(3) If this Plan is a part of a Required Aggregation Group
and also is a part of a Permissive Aggregation Group of
plans, and the Top Heavy Ratio for the Permissive
Aggregation Group exceeds sixty percent (60%).
(j) "Top Heavy Ratio" shall mean as follows.
(1) If the Employer maintains one (1) or more defined
contribution plans (including any simplified employee
pension plan under section 408(k) of the Code), and the
Employer has never maintained any defined benefit plan
which has covered or could cover a Participant in this
Plan, then the Top Heavy Ratio is a fraction, the
numerator of which is the sum of the account balances
of all Key Employees as of the Determination Date
(including any part of any account balance distributed
in the five (5) year period ending on the Determination
Date), and the denominator of which is the sum of all
account balances (including any part of any account
balance distributed in the five (5) year period ending
on the Determination Date) of all Participants as of
the Determination Date. Both the numerator and
denominator of the Top Heavy Ratio are adjusted to
reflect any contribution which is due but unpaid as of
the Determination Date.
(2) If the Employer maintains one (1) or more defined
contribution plans (including any simplified employee
pension plan under section 408(k) of the Code), and the
Employer maintains or has maintained one (1) or more
defined benefit pension plans which have covered or
could cover a Participant in this Plan, then the Top
Heavy Ratio is a fraction, the numerator of which is
the sum of account balances under the defined
contribution plans for all Key Employees and the
present value of accrued benefits under the defined
benefit pension plans for all Key Employees, and the
denominator of which is the sum of the account balances
under the defined contribution plans for all
Participants and the present value of accrued benefits
under the defined benefit pension plans for all
Participants. Both the numerator and denominator of
the Top Heavy Ratio are adjusted for any distribution
of an account balance or an accrued benefit made in the
five (5) year period ending on the Determination Date
and any contribution due, but unpaid, as of the
Determination Date.
(3) For purposes of the preceding subsections (1) and (2),
the value of account balances and the present value of
accrued benefits shall be determined as of the most
recent Top Heavy Valuation Date that falls within or
ends with the twelve (12) month period ending on the
Determination Date. The account balances and accrued
benefits of a Participant who is a Non-Key Employee,
but who was a Key Employee in a prior year, or who has
not been credited with at least one (1) Hour of Service
with any Employer maintaining the Plan at any time
during the preceding five (5) year period ending on the
<PAGE>
Determination Date, shall be disregarded. The
calculation of the Top Heavy Ratio, and the extent to
which distributions, rollovers and transfers are taken
into account shall be made in accordance with section
416 of the Code and the regulations thereunder.
Distributions shall include distributions under a
terminated plan which if it had not been terminated
would have been included in the Required Aggregation
Group. When aggregating plans, the value of account
balances and accrued benefits shall be calculated with
reference to the determination dates that fall within
the same calendar year.
(k) "Top Heavy Valuation Date" shall mean, with respect to any
Plan Year, for this Plan, the Determination Date, and shall
mean with respect to any Plan Year for a defined benefit
pension plan maintained by the Employer, if any, the day
within the twelve (12) month period ending on the
determination date for such defined benefit pension plan as
of which the actuarial determination of the minimum funding
standard is calculated.
13.03 Minimum Allocations in Single Plan.
Notwithstanding the provisions of Section 4.01 hereof, and before any
contributions are allocated thereunder, minimum Employer Contributions
shall be made and allocated pursuant to this section in a Plan Year in
which the Plan is a Top Heavy Plan.
(a) The minimum Employer contribution for a Participant who is a
Non-Key Employee for any Plan Year in which the Plan is a Top
Heavy Plan shall not be less than the lesser of (i) three
percent (3%) of his Compensation or (ii) the percentage at
which Employer contributions (including salary deferral
contributions and Employer matching contributions) are made
for the Plan Year in respect of the Key Employee for whom
such percentage is the highest for the Plan Year, taking into
account such Key Employee's Compensation.
This minimum allocation shall be made even though, under
other Plan provisions, the Participant would not otherwise be
entitled to receive an allocation, or would have received a
lesser allocation for the Plan Year because of the following:
(1) the Participant's failure to complete one thousand
(1,000) hours of Service.
(2) the Participant's failure to make mandatory Employee
contributions, if any, required for participation in
the Plan; or
(3) the Participant's Compensation was less than any stated
required amount.
This subsection shall not apply, however, to any Participant
who was not employed by the Employer on the last day of the
Plan Year.
In determining Employer contributions under this section,
<PAGE>
contributions or benefits under Chapter 2 of the Code
(relating to taxes on self-employed income), Chapter 21 of
the Code (relating to the Federal Insurance Contribution Act)
or any other Federal or State laws (including Title II of the
Social Security Act) shall not be taken into account. In
determining Employer contributions under this section for a
Non-Key Employee, salary deferral contributions and Employer
matching contributions needed to satisfy the actual
contribution percentage nondiscrimination test pursuant to
Section 3.04 or the actual deferral percentage
nondiscrimination test pursuant to Section 3.03 shall not be
taken into account.
The minimum allocations required hereunder (to the extent
required to be nonforfeitable under section 416(b) of the
Code) shall not be forfeitable under sections 411(a)(3)(B)
(regarding the suspension of benefits upon reemployment of a
retiree) or 411(a)(3)(D) (regarding withdrawal of mandatory
contributions) of the Code.
(b) Any Employer contributions and Forfeitures remaining
unallocated shall be allocated pursuant to the provisions of
Section 4.01 hereof; provided, however, that all allocations
under the Plan pursuant to Section 4.01 shall be determined
with respect to Compensation as that term is defined in
Section 1.07 hereof, but subject to the dollar limitation set
forth in subsection 13.02(a) hereof.
13.04 Minimum Vesting Schedules.
Notwithstanding the provisions of Section 8.01 hereof, the
nonforfeitable interest of each Participant in his Employer Account in
a Plan Year in which this Plan is a Top Heavy Plan shall be the vested
percentage set forth in the following table (or the vested percentage
determined in accordance with Section 8.01, if greater):
Years of Vested
Vesting Service Percentage
Less than 3 0%
3 or more 100
If the vesting schedules under the Plan shift in or out of the
preceding schedule for any Plan Year because of a change in the Plan's
Top Heavy status, then such shift shall be considered an amendment to
the relevant vesting schedule and the election rule for Participants
with three (3) or more years of Service set forth in Section 11.01(d)
hereof shall apply. Furthermore, any contributions that become
nonforfeitable under this minimum vesting schedule for a Top Heavy
Plan shall remain nonforfeitable if the Plan shifts out of Top Heavy
status.
The minimum vesting schedule applies to all benefits within the
meaning of section 411(a)(7)(A) of the Code (except those attributable
to voluntary Participant contributions, if any), including benefits
accrued before the effective date of section 416 of the Code and
benefits accrued before the Plan became a Top Heavy Plan. Further, no
reduction in nonforfeitable benefits may occur in the event the Plan's
status as a Top Heavy Plan changes for any Plan Year. However, this
section does not apply to the account balances of any Participant who
<PAGE>
does not have an hour of Service after the Plan has initially become a
Top Heavy Plan, and the nonforfeitable percentage and such
Participant's Employer Account shall be determined without regard to
this section.
13.05 Special Limitations and Allocation in Multiple Plans.
If for any Plan Year the Plan is a Top Heavy Plan, and the Employer
maintains, or has ever maintained, a qualified defined benefit pension
plan which is part of a Required or Permissive Aggregation Group, as
appropriate, then the provisions of this section shall apply.
If none of the Employer's plans are considered a Super Top Heavy Plan,
then the Employer shall provide each Participant who would receive an
allocation under Section 13.03 hereof and who is a participant also in
the qualified defined benefit pension plan an allocation pursuant only
to Section 13.03 hereof in lieu of accruing a benefit that year under
the pension plan, but substituting in subsection 13.03(a) hereof the
term "seven and one-half percent (7-1/2%)" for the term "three percent
(3%)". The Employer shall provide each Participant who would receive
an allocation under Section 13.03 hereof, but who is not a participant
also in the qualified defined benefit pension plan, an allocation
pursuant to Section 13.03 hereof, but substituting in subsection (a)
thereof the term "four percent (4%)" for the term "three percent
(3%)".
If any of the Employer's plans are considered a Super Top Heavy Plan,
then in applying the limitations of Section 4.04 hereof, the term "one
(1)" shall be substituted for the term "one and twenty-five hundredths
(1.25)" in both the defined benefit fraction and the defined
contribution fraction, as such terms are defined in Section 4.04
hereof. Furthermore, the Employer shall provide each Participant who
would receive an allocation under Section 13.03 hereof and who is a
participant also in the defined benefit pension plan an allocation
pursuant only to Section 13.03 hereof in lieu of accruing a benefit
that year under the pension plan, but substituting in subsection
13.03(a) hereof the term "five percent (5%)" for the term "three
percent (3%)". The Employer shall provide each Participant who would
receive an allocation under Section 13.03 hereof, but who is not a
participant also in the defined benefit pension plan, an allocation
only pursuant to Section 13.03 hereof.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.01 Allocation of Responsibility among Fiduciaries for Plan and Trust
Administration.
Each Fiduciary shall have only those specific powers, duties,
responsibilities and obligations as are specifically given it under
the Plan. Each Fiduciary warrants that any directions given,
information furnished, or action taken by it shall be in accordance
with the provisions of the Plan authorizing or providing for such
direction, information or action. Furthermore, each Fiduciary may
rely upon any such direction, information or action of any other
Fiduciary as being proper under the Plan and is not required to
<PAGE>
inquire into the propriety of any such direction, information or
action. It is intended that each Fiduciary shall be responsible for
the proper exercise of its own powers, duties, responsibilities and
obligations under the Plan and shall not be responsible for any act or
failure to act of another Fiduciary. No Fiduciary guarantees the
Trust Fund in any manner against investment loss or depreciation in
asset value.
Each Fiduciary shall discharge its duties set forth in the Plan solely
in the interests of the Participants, Retired Participants and their
Beneficiaries:
(a) for the exclusive purpose of:
(1) providing benefits to such persons; and
(2) defraying reasonable expenses of administering the
Plan;
(b) with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a
like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like
aims.
14.02 Alienation or Assignment of Benefits (QDRO's).
The right of any Participant, Retired Participant or Beneficiary in
any benefit or to any payment hereunder or to any segregated account
may not be anticipated, conveyed, assigned, mortgaged or encumbered
either by voluntary or involuntary action or by operation of law nor
shall any such right or interest be in any manner subject to levy,
attachment, execution, garnishment or any other seizure under legal,
equitable or other process, except pursuant to a qualified domestic
relations order, as defined in section 414(p) of the Code, or pursuant
to a domestic relations order entered before January 1, 1985, under
which payment of benefits under that order has commenced as of
January 1, 1985. Otherwise, such interest in this Plan shall be
payable only in accordance with the provisions hereof; provided,
however, that distributions pursuant to a qualified domestic relations
order may be made without regard to the age or employment status of
the Participant.
In the event that a Participant's benefits are garnished or attached
by a court order which the Plan Administrator does not find to
constitute such an order, the Plan Administrator may bring an action
for declaratory judgment in a court of competent jurisdiction to
determine the proper recipient of Plan benefits; during the pendency
of such action, any benefits payable on behalf of the Participant may
be paid into the court for distribution to the proper recipient
pursuant to the judgment of the court.
14.03 Headings.
The headings and sub-headings of articles and sections are included
solely for convenience of reference, and if there be any conflict
between such headings and the text of the Plan, the text shall
control.
<PAGE>
14.04 Construction of the Plan.
In the construction of the Plan, the masculine gender shall include
the feminine, the feminine gender shall include the masculine, and the
singular shall include the plural, unless the context clearly
indicates otherwise.
14.05 Correction of Errors.
If any error or change in records results in any Participant, Retired
Participant or Beneficiary receiving from the Plan more or less than
he would have been entitled to receive had the records been correct or
had the error not been made, the Plan Administrator, upon discovery of
such error, shall correct the error by adjusting, as far as
practicable, the payments in such a manner that the benefits to which
such person was correctly entitled shall be paid.
14.06 Legally Incompetent.
If any Participant, Retired Participant or Beneficiary is a minor or
is otherwise legally incapable of personally receiving and giving a
valid receipt for any payment due him hereunder, the Plan
Administrator shall direct that such payment be made to the guardian
or conservator of such person duly appointed by a court of competent
jurisdiction. Any payment so made shall be, to the extent of the
payment, a complete discharge to the Employer and Trustee of any
liabilities under the Plan.
14.07 Successor Organization.
In the event of a merger or consolidation of any Employer into, or
transfer of all or substantially all of its assets to, any legal
entity, unincorporated business organization or corporation, provision
may be made by such successor legal entity, unincorporated business
organization or corporation for its election of the continuance of
this Plan as to such successor entity. Such successor shall, upon its
election to continue this Plan, be substituted in place of the
transferor Employer by an instrument duly authorizing such
substitution and duly executed by such Employer and its successor.
Upon notice of such substitution, accompanied by a certified copy of
the resolutions or other appropriate written instrument of the
governing body of such Employer and its successor authorizing such
substitution and delivered to the Trustee, the Trustee shall be
authorized to recognize such successor in place of the transferor
Employer.
14.08 Minimum Benefit in Successor Plan.
In the event of any merger or consolidation of the Plan with, or the
transfer of assets or liabilities of the Plan to, any other qualified
plan or trust, each Participant, Retired Participant and Beneficiary
shall be entitled upon termination of the successor plan or trust
immediately after the merger, consolidation or transfer to a benefit
in an amount not less than he would have been entitled to receive if
the Plan had terminated immediately before the merger, consolidation
or transfer.
14.09 Application of Plan Provisions.
<PAGE>
The provisions of the Plan shall apply only to Employees who terminate
Service, or incur Breaks in Service, on or after the Effective Date.
Any retirement plan rights and benefits of former Employees shall be
determined in accordance with the provisions of any predecessor plan
as in effect on the respective dates of termination of Service or
Break in Service of such former Employees. However, unless
specifically otherwise stated in the Plan, the provisions of this
amendment, restatement and continuation of the Plan shall apply only
to Employees who have Service with the Employer on or after the
effective date of this amendment, restatement and continuation of the
Plan.
14.10 Qualification of the Plan.
The adoption of the Plan by each Employer is contingent on the receipt
of a written, initial determination letter by the Internal Revenue
Service that the Plan and Trust, with any modifications or amendments
thereto requested by the Internal Revenue Service and agreed to by the
Sponsor, constitute a qualified plan and trust under sections 401(a)
and 501(a), respectively, of the Code. In the event no such
determination letter is received, no Participant, Retired Participant
or Beneficiary shall have any right or claim to the assets of the
Trust Fund or to any benefit under the Plan, all contributions made by
the Employer and Participants in accordance with the terms of the Plan
shall be returned to the respective parties, the Plan and Trust shall
be terminated forthwith with respect to such Employer, and the Trustee
shall be discharged from all obligation pursuant to adoption of the
Plan by the Employer.
14.11 Fiduciary Liability.
Effective January 1, 1994 this Plan is an ERISA Section 404(c) Plan,
meaning that it is intended to utilize the fiduciary liability
protections offered by Section 404(c) of the Employee Retirement
Income Security Act of 1974 ("ERISA"). To the extent that the Plan is
actually administered within the requirements of Department of Labor
Regulations Section 2550.404c-1, the following provisions shall apply:
(a) a Participant exercising control over the assets in his account
shall not be deemed a fiduciary by virtue of his exercise of such
control; and (b) no person who is otherwise a fiduciary shall be
liable for any loss, or by reason of any breach, which results from
such exercise of control.
14.12 Severability of Provisions.
The provisions of this Plan are several, and should any provision be
ruled illegal, unenforceable or void, all other provisions not so
ruled shall remain in full force and effect.
14.13 Applicable Law.
The provisions of the Plan shall be interpreted and construed
according to the laws of the state of Mississippi, unless federal law
is exclusively controlling, and the parties hereto expressedly submit
themselves to the jurisdiction of the courts of the state of
Mississippi and the federal district courts for that state, with
respect to any action instituted either in law or in equity arising
out of or related to the breach or enforcement, or both, of the terms
and conditions set forth in the Plan.
<PAGE>
14.14 Nonassignability of Duties.
Unless provided herein, the duties and responsibilities of the
Fiduciaries of the Plan shall be nonassignable.
14.15 Entire Plan.
This Plan constitutes the entire qualified profit sharing plan of the
Sponsor, and no modifications or alterations to this Plan shall be
enforceable unless properly and validly made pursuant to the amendment
provisions of Article 11 hereof.
IN WITNESS WHEREOF, the Sponsor, the Adopting Employer and the Trustee
have each caused this Plan and Trust to be executed by its duly authorized
representative on this ______ day of ______________, 1994.
SPONSOR:
Mississippi Chemical Corporation
Attest:_________________________
By:_____________________________
Title:__________________________
ADOPTING EMPLOYER:
Mississippi Potash, Inc.
Attest:_______________________
By:___________________________
Title:________________________
TRUSTEE:
NationsBank of South Carolina, NA
Attest:_______________________
By:___________________________
Title (if appropriate):_______
The Plan may be executed in several counterparts, each of which shall be
deemed an original.
<PAGE>
FIRST AMENDMENT
TO THE
MISSISSIPPI CHEMICAL CORPORATION THRIFT PLAN PLUS
The Mississippi Chemical Corporation Thrift Plan Plus is hereby amended as
follows:
1. The last sentence of Section 1.30 is amended, effective July 1, 1994,
to read as follows:
As of July 1, 1994, Portability Group Members are Mississippi
Chemical Corporation, Triad Chemical and Newsprint South, Inc.
2. Subsection (a) of Section 3.01 is amended, effective January 1, 1989,
as follows:
The reference to Section 4.01(c) in the sixth line of such
subsection (a) shall be changed to Section 4.01(b).
3. Subsection (a) of Section 13.02 is amended, effective January 1, 1989,
as follows:
The references to Sections 1.06(e) and 1.06(f) in the sixth line
of such subsection (a) shall be changed to Subsections 1.07(d)
and 1.07(e).
4. Section 5.03 is amended, effective January 1, 1995, to read as
follows:
5.03 Loans to Participants.
Loans to Participants and Beneficiaries may be made upon written
application of the Participant or Beneficiary to the Thrift
Committee, provided loans are available to all Participants and
Beneficiaries on a reasonably equivalent basis; are not available
to highly paid employees, officers or shareholders in an amount
greater than the amount made available to other employees; bear a
reasonable rate of interest; and are adequately secured. The
Thrift Committee shall develop nondiscriminatory rules and
procedures to implement and administer the loan program
consistent with the requirements set forth above.
5. Section 6.02 is amended, effective January 1, 1989, to read as
follows:
6.02 Commencement of Benefit Rule
Notwithstanding any other provisions of the Plan, but in addition
to such provisions (as applicable), unless the Participant elects
otherwise in writing, distribution of benefits shall begin no
later than the sixtieth (60th) day after the close of the Plan
Year in which the latest of the following events occurs:
(a) the date the Participant attains sixty-five (65) years of
age;
<PAGE>
(b) the date which is the tenth (10th) anniversary of the first
(1st) day of the Plan Year in which the Participant
commenced participation in the Plan; or
(c) the date the Participant terminates Service with the
Employer.
Notwithstanding the above, a Participant whose Service has
terminated shall have the right to elect to defer receipt of his
benefits until 30 days after the end of the Plan Year in which
the Participant attains age 69, at which time the entire Accounts
of the Participant must be distributed. Such a Participant who
reaches age 65 without having elected to withdraw his Accounts
will be deemed to have elected to leave his Accounts in the Plan
until 30 days after the end of the Plan Year in which the
Participant attains age 69. Such participant shall have the
right to elect payment of his Accounts at any time before the
above mandatory distribution date, and payment shall be made as
soon as administratively feasible after such election.
If the amount of the payment required to commence on the date
determined under this section cannot be ascertained by such date,
or if it is not possible to make such payment on such date
because the Committee has been unable to locate the Participant
after making reasonable efforts to do so, then a payment
retroactive to such date may be made no later than sixty (60)
days after the earliest date on which the amount can be
ascertained under the Plan or the date on which the Participant
is located (whichever is applicable).
IN WITNESS WHEREOF, this First Amendment to the Mississippi Chemical
Corporation Thrift Plan Plus is hereby executed by its duly authorized
officer this ____ day of _________, 1994.
MISSISSIPPI CHEMICAL CORPORATION
By:________________________________
Charles O. Dunn, President
<PAGE>
SECOND AMENDMENT
TO THE
MISSISSIPPI CHEMICAL CORPORATION THRIFT PLAN PLUS
The Mississippi Chemical Corporation Thrift Plan Plus is hereby amended,
effective July 1, 1995, as follows:
1. Section 3.02 is amended by deleting the last sentence from the seventh
paragraph thereof, and substituting the following:
As a condition precedent for accepting a Participant's salary
deferral agreement, the Employer also may, at any time, as of any
time, and from time to time, amend, terminate or revoke the
salary deferral agreement of a Participant who is a Highly
Compensated Employee in order to comply with the coverage and
discrimination requirements of Section 3.03 hereof, or for other
reasons deemed appropriate by the Thrift Committee.
2. Section 4.08 is amended in its entirety to read as follows:
4.08 Election of Investment Fund.
The Plan Administrator may direct the Trustee to establish, and
the Trustee at such direction shall establish, any number of
separate investment funds. If such separate investment funds are
created, then each Participant may direct the investment of the
funds in such Participant's Account among the available
investment funds, in accordance with rules established by the
Thrift Committee. Such investment funds shall remain a part of
the Trust Fund, but shall be separately invested, with all
investment income on such investments credited to the investment
funds and all disbursements to, or on behalf of, the Participant
charged thereto. The Plan Administrator may, at its election,
designate one of the investment funds as the Employer Stock Fund.
Such investment fund, if established, shall be for the purpose of
investing primarily in the common stock of the Employer.
Each Participant shall elect to have his Participant
contributions and Employer contributions invested in the
available investment funds in any combination of whole
percentages that totals one hundred percent (100%). Provided,
however, that the maximum percentage of contributions that may be
invested in the Employer Stock Fund shall be twenty percent
(20%).
All elections hereunder shall be effective for the entire amount
of both his Participant contributions and Employer contributions.
The form and manner of all elections under this section shall be
prescribed by the Thrift Committee.
A Participant may make or revoke such election for the future
investment of contributions made under this Plan provided for
under this Section 4.08 as of the first day of any future pay
period, provided sufficient notice is provided to allow the
modification to be made. Such election shall remain effective
for all subsequent contributions allocated on behalf of the
<PAGE>
Participant to the investment funds until the election is
effectively modified or revoked.
The transfer of existing balances in the Accounts of Participants
between investment funds shall be permitted once each calendar
month. Such election shall be made on forms provided by the
Thrift Committee, shall be in accordance with rules and
procedures established by the Thrift Committee, and shall become
effective on the first day of the calendar month immediately
following the date of election; all other elections shall be
void. Notwithstanding the foregoing, the election by a
Participant to transfer between the investment funds shall be
restricted as provided below, subject to the rules and procedures
established by the Thrift Committee:
- limits or restrictions imposed by mutual fund or other
companies responsible for the respective investment
funds shall be adhered to;
- no transfer shall be permitted which would, as a result
of the transfer, produce a balance in the Participant's
Employer Stock Fund which represented more than twenty
percent (20%) of the Participant's total Account,
determined under rules established by the Thrift
Committee.
3. Section 7.02 is amended by adding the following at the end of the
second paragraph thereof:
Provided, however, that the Beneficiary may elect to defer
receipt of the death benefit, but not beyond the last day of the
Plan Year following the Plan Year in which the Participant died.
4. Subsection (b) of Section 10.02 is amended by deleting the phrase
"except as provided in Section 6.02 hereof" and substituting therefor
the phrase "except as otherwise provided in the Plan."
5. Subsection (h) of Section 10.02 is amended in its entirely to read as
follows:
(h) Except as otherwise provided herein, the Trustee may,
through any duly authorized officer or proxy, vote any share
of stock which the Trustee may own from time to time. Each
Participant or Beneficiary shall be entitled to direct the
Trustee to vote the shares of stock of the Sponsor in his or
her Account. If the records of the Plan are maintained in a
manner such that the number of shares of such stock is not
readily identifiable, then the number of shares to be voted
shall be determined in accordance with the following
formula: multiply the total number of shares of such stock
held by the Trustee by a fraction, the numerator of which is
the Account balance of such Participant or Beneficiary
invested in the Employer Stock Fund, and the denominator of
which is the total Account balances of all Participants and
Beneficiaries invested in the Employer Stock Fund.
6. Section 10.02 is amended by adding the following subsection (o) at the
end thereof:
<PAGE>
(o) The Trustee may invest up to one hundred percent (100%) of
the Trust Fund in Qualifying Employer Securities. For
purposes of this section, the term Qualifying Employer
Securities shall mean Employer securities (or securities of
a member of the Controlled Group of the Employer) which are
stock or marketable obligations, such as bonds, debentures,
notes or certificates, or other evidence of indebtedness, as
defined in section 401(d)(5) of ERISA.
IN WITNESS WHEREOF, the Sponsor and the Trustee have each caused this Second
Amendment to the Mississippi Chemical Corporation Thrift Plan Plus to be
executed by its duly authorized officer this ____ day of __________, 1995.
SPONSOR: TRUSTEE:
Mississippi Chemical Corporation NationsBank of South Carolina, NA
Attest:_______________________________ Attest:_______________________
By:___________________________________ By:___________________________
Title:________________________________ Title ( if appropriate):______
