<PAGE>
As filed with the Securities and Exchange Commission on May 24, 1996
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
IMMUNEX CORPORATION
(Exact name of Registrant as specified in its charter)
WASHINGTON 51-0346580
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
51 UNIVERSITY STREET
SEATTLE, WASHINGTON 98101
(Address of principal executive offices, including zip code)
IMMUNEX CORPORATION
PROFIT SHARING 401(k) PLAN AND TRUST
(Full title of the plan)
SCOTT G. HALLQUIST, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
IMMUNEX CORPORATION
51 UNIVERSITY STREET
SEATTLE, WASHINGTON 98101
(206) 587-0430
(Name, address and telephone number, including area code, of agent for service)
----------------------
COPY TO:
J. SUE MORGAN, ESQ.
PERKINS COIE
1201 THIRD AVENUE, 40TH FLOOR
SEATTLE, WASHINGTON 98101-3099
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES NUMBER TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE PER SHARE(1) AGGREGATE OFFERING PRICE(1) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 100,000(2) $15.5625 $1,556,250 $537
$.01 per share
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457 under the Securities Act of 1933, as amended. The price per
share is estimated to be $15.5625 based on the average of the high price
($15 3/4) and the low price ($15 3/8) for the Common Stock, as reported on
the Nasdaq National Market on May 21, 1996.
(2) Includes an indeterminate number of additional shares which may be
necessary to adjust the number of shares for issuance pursuant to such plan
as the result of any future stock split, stock dividend or similar
adjustment of the outstanding Common Stock of the Registrant.
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, filed with the Securities and Exchange Commission (the
"Commission") on March 20, 1996, which contains audited financial statements for
the most recent fiscal year for which such statements have been filed.
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the Annual Report on Form
10-K referred to in clause (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on May 12, 1983
under Section 12(b) of the Exchange Act, including any amendments or reports
filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment which indicates that the securities offered hereby have
been sold or which deregisters the securities covered hereby then remaining
unsold shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") authorize a court to award, or a corporation's
board of directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). Under the WBCA, a corporation has the power to indemnify a
director or officer made a party to a proceeding, or advance or reimburse
expenses incurred in a proceeding, under any circumstances, except that no such
indemnification shall be allowed on account of (i) acts or omissions of a
director or officer finally adjudged to be intentional misconduct or a knowing
violation of the law, (ii) conduct of a director or officer finally adjudged to
be an unlawful distribution or (iii) any transaction with respect to which it
was finally adjudged that such director or officer personally received a benefit
in money, property or services to which the director or officer was not legally
entitled. Article XII of the Registrant's Articles of Incorporation provides
for indemnification of the Registrant's directors and officers to the maximum
extent permitted by Washington law.
Section 23B.08.320 of the WBCA authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary damages
for acts or omissions as a director, except in certain circumstances involving
intentional misconduct, self-dealing or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. Article XI of the Registrant's Articles of Incorporation contains
provisions implementing, to the fullest extent permitted by Washington law, such
limitations on a director's liability to the Registrant and its shareholders.
Any amendment or repeal of such Article XI may not adversely affect any right or
protection of a director of the Registrant for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal. The
affirmative vote of 80% of the voting stock of the Registrant is required to
amend, or to adopt any provision inconsistent with, such Article XI.
The Registrant has entered into separate indemnification agreements with
each of its directors and officers. These agreements require the Registrant to,
among other things, indemnify such directors and officers against certain
liabilities that may arise by reason of their status or service as directors or
officers, and to advance their expenses incurred as a result of any proceeding
against them as to which they could be indemnified.
II-1
<PAGE>
Directors and officers of the Registrant are covered by insurance (with
certain exceptions and limitations) that indemnifies them against losses and
liabilities arising from certain alleged "wrongful acts," including alleged
errors or misstatements or misleading statements, or certain other alleged
wrongful acts or omissions constituting neglect or breach of duty.
ITEM 8. EXHIBITS
Exhibit
Number Description
- ------------ -------------------------------------------------------
5.1 Opinion of Perkins Coie regarding legality of the Common Stock
being registered
23.1 Consent of Ernst & Young LLP, Independent Auditors (see Page
II-6)
23.2 Consent of Perkins Coie (included in its Opinion filed as Exhibit
5.1)
24.1 Power of Attorney (see signature page)
99.1 Immunex Corporation Profit Sharing 401(k) Plan and Trust
ITEM 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to
(a) include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) that, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement;
and
(c) include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(a) and (1)(b) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or transferred to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the termination of the
offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE>
C. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that, in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
D. The undersigned Registrant hereby undertakes that the Registrant will
submit the Immunex Corporation Profit Sharing 401(k) Plan and Trust (the "Plan")
and any amendment thereto to the Internal Revenue Service (the "IRS") in a
timely manner and will make all changes required by the IRS to qualify the Plan.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Seattle, State of Washington, on May 23, 1996.
IMMUNEX CORPORATION
By /s/ Scott G. Hallquist
----------------------------------------
Scott G. Hallquist
Senior Vice President and General Counsel
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Douglas
G. Southern and Scott G. Hallquist, or either of them, his or her attorneys-in-
fact, with the power of substitution, for him or her in any and all capacities,
to sign any amendments to this Registration Statement, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on May 23, 1996.
SIGNATURE TITLE
--------- -----
/s/ Edward V. Fritzky Chairman and Chief Executive Officer
- ------------------------------ (Principal Executive Officer)
Edward V. Fritzky
/s/ Douglas G. Southern Senior Vice President, Treasurer
- ------------------------------ and Chief Financial Officer
Douglas G. Southern (Principal Financial and Accounting Officer)
/s/ Kirby L. Cramer Director
- ------------------------------
Kirby L. Cramer
/s/ Michael L. Kranda Director
- ------------------------------
Michael L. Kranda
/s/ Edith W. Martin Director
- ------------------------------
Edith W. Martin
/s/ Douglas E. Williams Director
- ------------------------------
Douglas E. Williams
II-4
<PAGE>
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, as amended, the
persons who administer the Immunex Corporation Profit Sharing 401(k) Plan and
Trust have duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Seattle, State of
Washington, on May 23, 1996.
IMMUNEX CORPORATION
PROFIT SHARING 401(K) PLAN AND TRUST
By: IMMUNEX CORPORATION
By: /s/ Scott G. Hallquist
------------------------------------
Scott G. Hallquist
Senior Vice President and General
Counsel
II-5
<PAGE>
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the Immunex Corporation Profit Sharing 401(k) Plan and
Trust of our report dated January 19, 1996, with respect to the consolidated
financial statements and schedule of Immunex Corporation included in its Annual
Report (Form 10-K) for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Seattle, Washington
May 23, 1996
II-6
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
- ------------ -------------------------------------------------------
5.1 Opinion of Perkins Coie regarding legality of the Common Stock
being registered
23.1 Consent of Ernst & Young LLP, Independent Auditors (see Page
II-6)
23.2 Consent of Perkins Coie (included in its Opinion filed as Exhibit
5.1)
24.1 Power of Attorney (see signature page)
99.1 Immunex Corporation Profit Sharing 401(k) Plan and Trust
II-7
<PAGE>
[Perkins Coie Letterhead]
May 23, 1996
Immunex Corporation
51 University Street
Seattle, Washington 98101
RE: REGISTRATION ON FORM S-8 OF SHARES OF COMMON STOCK, PAR VALUE
$.01 PER SHARE, OF IMMUNEX CORPORATION (THE "COMPANY")
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") pursuant to
the Securities Act of 1933, as amended (the "Act"), which you are filing with
the Securities and Exchange Commission with respect to 100,000 shares of Common
Stock, par value $.01 per share, of the Company (the "Shares") which may be
offered or sold pursuant to the Immunex Corporation Profit Sharing 401(k) Plan
and Trust (the "Plan"). This opinion is limited to those shares of Common Stock
which will be originally issued (the "Shares").
We have examined the Registration Statement and such documents and records
of the Company and other documents as we have deemed necessary for the purpose
of this opinion. In giving this opinion, we are assuming the authenticity of
all instruments presented to us as originals, the conformity with originals of
all instruments presented to us as copies and the genuineness of all signatures.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized and that, upon the due execution by the Company
and the registration by its registrar of such Shares and the issuance and sale
thereof by the Company in accordance with the terms of the Plan, and the receipt
of consideration therefor in accordance with the terms of the Plan, such Shares
will be validly issued, fully paid and nonassessable.
<PAGE>
Immunex Corporation
May 23, 1996
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
PERKINS COIE
<PAGE>
IMMUNEX CORPORATION
PROFIT SHARING 401(k) PLAN AND TRUST
(As Amended and Restated Effective January 1, 1989)
<PAGE>
CONTENTS
I. NAME AND EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Effective Date. . . . . . . . . . . . . . . . . . . . . . . . 2
II. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Accrued Benefit . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Actual Deferral Percentage. . . . . . . . . . . . . . . . . . 3
2.4 Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5 Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.6 Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.7 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . 4
2.8 Computation Period. . . . . . . . . . . . . . . . . . . . . . 5
2.9 Employee. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.10 Employer. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.11 Enrollment Date . . . . . . . . . . . . . . . . . . . . . . . 6
2.12 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.13 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.14 Highly Compensated Employee . . . . . . . . . . . . . . . . . 6
2.15 Hour of Service . . . . . . . . . . . . . . . . . . . . . . . 8
2.16 Investment Fund . . . . . . . . . . . . . . . . . . . . . . . 10
2.17 Investment Manager. . . . . . . . . . . . . . . . . . . . . . 10
2.18 Limitation Year . . . . . . . . . . . . . . . . . . . . . . . 11
2.19 Nonhighly Compensated Employee. . . . . . . . . . . . . . . . 11
2.20 One-Year Break in Service . . . . . . . . . . . . . . . . . . 11
2.21 Participant . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.22 Participant Elected Contribution. . . . . . . . . . . . . . . 11
2.23 Plan or Trust . . . . . . . . . . . . . . . . . . . . . . . . 11
<PAGE>
2.24 Plan Administrator or Committee . . . . . . . . . . . . . . . 11
2.25 Plan Year . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.26 Salary Deferral Agreement . . . . . . . . . . . . . . . . . . 12
2.27 Spouse. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.28 Surviving Spouse. . . . . . . . . . . . . . . . . . . . . . . 12
2.29 Trust Fund or Fund. . . . . . . . . . . . . . . . . . . . . . 12
2.30 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.31 Valuation Date. . . . . . . . . . . . . . . . . . . . . . . . 12
2.32 Year of Service . . . . . . . . . . . . . . . . . . . . . . . 12
III. ELIGIBLE EMPLOYEES. . . . . . . . . . . . . . . . . . . . . . . . . 14
3.1 Participation . . . . . . . . . . . . . . . . . . . . . . . . 14
3.2 Participation on ReEmployment . . . . . . . . . . . . . . . . 14
3.3 Ineligible Employees. . . . . . . . . . . . . . . . . . . . . 14
3.4 Inactive Participants . . . . . . . . . . . . . . . . . . . . 15
3.5 End of Participation. . . . . . . . . . . . . . . . . . . . . 15
IV. CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.1 Plan Contributions. . . . . . . . . . . . . . . . . . . . . . 16
4.2 Limitation on Contributions . . . . . . . . . . . . . . . . . 23
4.3 Employee Contributions. . . . . . . . . . . . . . . . . . . . 23
4.4 Matching Contributions and Employee Contributions . . . . . . 23
4.5 Rollover Contributions. . . . . . . . . . . . . . . . . . . . 25
V. PARTICIPANT ACCOUNTS AND CREDITING OF CONTRIBUTIONS . . . . . . . . 27
5.1 Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.2 Allocation and Crediting of Contributions . . . . . . . . . . 27
5.3 Valuation of Assets . . . . . . . . . . . . . . . . . . . . . 28
5.4 Adjustment of Participants' Accounts. . . . . . . . . . . . . 28
5.5 Limitation on Allocations . . . . . . . . . . . . . . . . . . 28
5.6 Combined Plans. . . . . . . . . . . . . . . . . . . . . . . . 31
-ii-
<PAGE>
5.7 Controlled Groups . . . . . . . . . . . . . . . . . . . . . . 32
5.8 Protection of Accrued Benefits. . . . . . . . . . . . . . . . 32
5.9 Title to Assets in Trustee. . . . . . . . . . . . . . . . . . 33
VI. INVESTMENT FUNDS. . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.1 Separate Funds. . . . . . . . . . . . . . . . . . . . . . . . 34
6.2 Participant Direction . . . . . . . . . . . . . . . . . . . . 34
6.3 Investment Results. . . . . . . . . . . . . . . . . . . . . . 34
VII. PARTICIPANT LOANS . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.1 Loans to Participants . . . . . . . . . . . . . . . . . . . . 35
7.2 Accounting for Loans. . . . . . . . . . . . . . . . . . . . . 38
VIII. NONFORFEITABLE BENEFITS . . . . . . . . . . . . . . . . . . . . . . 39
8.1 Nonforfeitable Interest . . . . . . . . . . . . . . . . . . . 39
8.2 Years of Service. . . . . . . . . . . . . . . . . . . . . . . 39
8.3 No Increase in Pre-break Vesting. . . . . . . . . . . . . . . 40
8.4 Forfeitable Interests . . . . . . . . . . . . . . . . . . . . 40
8.5 Distribution to Separated Participants. . . . . . . . . . . . 42
IX. RETIREMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.1 Retirement Age and Benefit. . . . . . . . . . . . . . . . . . 43
X. DEATH BENEFIT . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.1 Death of Participant. . . . . . . . . . . . . . . . . . . . . 44
10.2 Payments Upon Failure to Designate Beneficiary. . . . . . . . 44
XI. DISABILITY BENEFIT. . . . . . . . . . . . . . . . . . . . . . . . . 45
11.1 Payment Due . . . . . . . . . . . . . . . . . . . . . . . . . 45
11.2 "Permanently Disabled". . . . . . . . . . . . . . . . . . . . 45
XII. DISTRIBUTIONS AND WITHDRAWALS . . . . . . . . . . . . . . . . . . . 46
12.1 Distribution of Benefits. . . . . . . . . . . . . . . . . . . 46
12.2 Required Distributions. . . . . . . . . . . . . . . . . . . . 47
-iii-
<PAGE>
12.3 Distributions to Minors and Incompetents. . . . . . . . . . . 49
12.4 Qualified Domestic Relations Orders . . . . . . . . . . . . . 49
12.5 Hardship Distributions. . . . . . . . . . . . . . . . . . . . 50
12.6 Direct Rollover Distributions . . . . . . . . . . . . . . . . 52
12.7 Waiver of 30-Day Election Period. . . . . . . . . . . . . . . 54
XIII. TOP HEAVY PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . 55
13.1 Applicability . . . . . . . . . . . . . . . . . . . . . . . . 55
13.2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 55
13.3 Minimum Contributions . . . . . . . . . . . . . . . . . . . . 58
13.4 Limitations on Contributions. . . . . . . . . . . . . . . . . 59
13.5 Benefits Under Different Plans. . . . . . . . . . . . . . . . 59
XIV. PROVISION AGAINST ANTICIPATION. . . . . . . . . . . . . . . . . . . 60
XV. ADMINISTRATIVE COMMITTEE - NAMED FIDUCIARY AND ADMINISTRATOR. . . . 61
15.1 Appointment of Committee. . . . . . . . . . . . . . . . . . . 61
15.2 Committee Action. . . . . . . . . . . . . . . . . . . . . . . 61
15.3 Rights and Duties . . . . . . . . . . . . . . . . . . . . . . 61
15.4 Investments . . . . . . . . . . . . . . . . . . . . . . . . . 63
15.5 Information, Reporting and Disclosure . . . . . . . . . . . . 63
15.6 Independent Qualified Accountant. . . . . . . . . . . . . . . 63
15.7 Standard of Care Imposed Upon The Committee . . . . . . . . . 64
15.8 Allocation and Delegation of Responsibility . . . . . . . . . 64
15.9 Bonding . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
15.10 Claims Procedure. . . . . . . . . . . . . . . . . . . . . . . 65
15.11 Unclaimed Account Procedures. . . . . . . . . . . . . . . . . 66
15.12 Funding Policy. . . . . . . . . . . . . . . . . . . . . . . . 67
15.13 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 67
-iv-
<PAGE>
XVI. APPOINTMENT OF INVESTMENT MANAGER . . . . . . . . . . . . . . . . . 68
16.1 Authority for Appointment . . . . . . . . . . . . . . . . . . 68
16.2 Investment Manager Discretion . . . . . . . . . . . . . . . . 68
XVII. INVESTMENT OF TRUST FUNDS BY TRUSTEE. . . . . . . . . . . . . . . . 70
XVIII. POWERS AND DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 71
18.1 Powers of Trustee . . . . . . . . . . . . . . . . . . . . . . 71
18.2 Annual Accounts . . . . . . . . . . . . . . . . . . . . . . . 73
18.3 Notices and Directions. . . . . . . . . . . . . . . . . . . . 73
18.4 Standard of Care Imposed Upon Trustee . . . . . . . . . . . . 74
18.5 Trustee's Acknowledgment of Responsibility. . . . . . . . . . 75
XIX. CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
XX. LIABILITY OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . 77
20.1 Actions of Trustee Conclusive . . . . . . . . . . . . . . . . 77
20.2 Distributions by Trustee. . . . . . . . . . . . . . . . . . . 77
20.3 Expenses of Administration. . . . . . . . . . . . . . . . . . 77
20.4 Indemnity of Trustee. . . . . . . . . . . . . . . . . . . . . 77
XXI. RESIGNATION OR REMOVAL OF TRUSTEE . . . . . . . . . . . . . . . . . 78
21.1 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . 78
21.2 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
21.3 Settlement of Account . . . . . . . . . . . . . . . . . . . . 78
XXII. SUITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
XXIII. MERGERS AND CONSOLIDATIONS. . . . . . . . . . . . . . . . . . . . . 80
XXIV. AMENDMENT AND TERMINATION OF PLAN . . . . . . . . . . . . . . . . . 81
24.1 Right to Amend and Terminate. . . . . . . . . . . . . . . . . 81
24.2 No Revesting. . . . . . . . . . . . . . . . . . . . . . . . . 81
24.3 Exclusive Benefit of Participants . . . . . . . . . . . . . . 81
24.4 Termination and Discontinuance of Contributions . . . . . . . 81
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XXV. RIGHT TO DISCHARGE EMPLOYEES. . . . . . . . . . . . . . . . . . . . 82
XXVI. DECLARATION OF PLAN CONTINGENT UPON
INTERNAL REVENUE SERVICE APPROVAL . . . . . . . . . . . . . . . . . 83
26.1 Internal Revenue Service Approval . . . . . . . . . . . . . . 83
26.2 Mistake of Fact . . . . . . . . . . . . . . . . . . . . . . . 83
26.3 Allowance of Deductibility. . . . . . . . . . . . . . . . . . 83
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<PAGE>
IMMUNEX CORPORATION
PROFIT SHARING 401(k) PLAN AND TRUST
THIS DOCUMENT, made and executed by Immunex Corporation, a State of
Washington corporation, with its principal office and place of business at
Seattle, Washington, hereinafter referred to as the "Employer":
WITNESSETH
WHEREAS, the Employer established its profit sharing plan effective as of
January 1, 1987 and to conform the plan to applicable law, the Employer intends
to amend the plan by complete restatement; and
WHEREAS, the Employer intends that the plan and trust established hereunder
be qualified under Sections 401(a) and 401(k) of the Internal Revenue Code (the
"Code") and to be exempt from federal income taxation under Section 501(a) of
the Code; and
WHEREAS, the form of this plan and trust has been approved by the Employer;
NOW, THEREFORE, it is agreed:
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I. NAME AND EFFECTIVE DATE
1.1 NAME
This Plan shall be known as the IMMUNEX CORPORATION PROFIT SHARING 401(K)
PLAN AND TRUST.
1.2 EFFECTIVE DATE
The original effective date of the Plan was January 1, 1987. Unless
specifically provided otherwise, the effective date of this Agreement shall
be January 1, 1989. The benefit payable to or on behalf of a Participant
included under the Plan in accordance with the following provisions shall
not be affected by the terms of any amendment to the Plan adopted after
such Participant's service with the Employer terminates, unless the
amendment expressly provides otherwise.
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II. DEFINITIONS
Whenever used herein, unless the context clearly indicates otherwise, masculine,
feminine, and neuter words may be used interchangeably, singular shall mean the
plural and vice versa, and the following words and phrases shall have the
following meanings:
2.1 ACCOUNTS
Accounts means the individual separate Accounts established by the Plan
Administrator in the name of each Participant in accordance with the Plan.
2.2 ACCRUED BENEFIT
Accrued Benefit means the balance of a Participant's Accounts including
investment experience, as of the most recent Valuation Date, plus
accumulated contributions since such date and less any distributions since
such date.
2.3 ACTUAL DEFERRAL PERCENTAGE
Actual Deferral Percentage means with respect to a specified group of
Employees for a Plan Year, the average of the ratios (calculated separately
for each Employee in such group) of the sum of the Employee's elective
contributions (I.E., Participant Elected Contributions) and any qualified
nonelective contributions that the Plan Administrator may, under applicable
Treasury regulations, elect (and does elect) to include in the calculation
for such Plan Year to the Employee's Compensation for such Plan Year.
2.4 AFFILIATE
Affiliate means any member of a controlled group of corporations (within
the meaning of Section 414(b) of the Code, as modified in accordance with
Section 415(h) of the Code for purposes of Sections 5.5 and 5.6), a group
of trades or businesses under common control (within the meaning of Section
414(c) of the Code, as modified in accordance with Section 415(h) of the
Code for purposes of Sections 5.5 and 5.6) or an affiliated service group
(within the meaning of Section 414(m) or (o) of the Code) of which the
Employer is a member.
2.5 BENEFICIARY
Beneficiary means the person or persons designated as such by a Participant
in accordance with Article X.
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2.6 CODE
Code means the Internal Revenue Code of 1986, as amended.
2.7 COMPENSATION
Except as otherwise expressly modified by other provisions of the Plan,
Compensation means an Employee's wages, salary, fees for professional
services and other amounts received during the Plan Year (without regard to
whether or not an amount is paid in cash) for personal services actually
rendered in the course of employment with the Employer to the extent that
such amounts are includible in gross income, including, but not limited to,
overtime, bonuses, commissions, fringe benefits and reimbursements or other
expense allowances under a nonaccountable plan (as defined in Treasury
Regulation Section 1.62-2(c)). Compensation shall not include Employer
contributions to a plan of deferred compensation to the extent that, before
the application of the Section 415 limitations to that plan, the
contributions are not includible in the employee's gross income for the
taxable year in which contributed; deductible Employer contributions to a
simplified employee pension plan described in Section 408(k) of the Code;
distribution from a plan of deferred compensation, regardless of whether
such amounts are includible in the employee's gross income when
distributed; amounts realized from the exercise of a non-qualified stock
option or when restricted stock (or property) held by an employee becomes
freely transferable or is no longer subject to a substantial risk of
forfeiture; amounts realized from the sale, exchange or other disposition
of stock acquired under a qualified stock option; or any other amounts
which receive special tax benefits. Notwithstanding the foregoing,
Compensation shall include amounts excludable from the Employee's gross
income by reason of Section 125, 402(e)(3) (402(a)(8) prior to January 1,
1993), 402(h) or 403(b) of the Code.
C. A Participant's Compensation for any Plan Year shall not exceed the
Compensation Limit in effect under Section 401(a)(17) of the Code for
such Plan Year. For Plan Years beginning after December 31, 1988, and
before January 1, 1994, the Compensation Limit for any Participant
shall be $200,000, plus any cost-of-living adjustment authorized by
the Secretary of the Treasury. For Plan Years beginning after
December 31, 1993, the Compensation Limit shall be $150,000, plus any
cost-of-living adjustment authorized by Section 401(a)(17)(B)(i) of
the Code.
The Compensation Limit in effect for any Plan Year is the Compensation
Limit in effect at the beginning of that Plan Year. For a
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Plan Year of less than 12 months, the Compensation Limit is a prorated
dollar amount, determined by multiplying the Compensation Limit by a
fraction, the numerator of which equals the number of months in the
short period and the denominator of which equals 12.
For purposes of applying the Compensation Limit to any 5 percent owner
or Highly Compensated Employee who is in the group of 10 employees
receiving the greatest Compensation during the Plan Year, pursuant to
Section 414(q)(6) of the Code, the Compensation of a spouse or lineal
descendant who has not attained age 19 before the close of the Plan
Year shall be treated as if paid to the Employee. If, for a Plan
Year, the combined Compensation of such Highly Compensated Employee
and any family members who are Participants entitled to an accrual for
that Plan Year exceeds the Compensation Limit, Compensation for each
such Participant means his Adjusted Compensation. Adjusted
Compensation is the amount that bears the same ratio to the
Compensation Limit as the affected Participant's Compensation (without
regard to the Compensation Limit) bears to the combined Compensation
of all the affected Participants in the family unit.
2.8 COMPUTATION PERIOD
Computation Period shall mean a twelve (12) consecutive month period
designated for purposes of determining an Employee's Years of Service and
One Year Breaks in Service for benefit accrual, and vesting as follows:
ELIGIBILITY COMPUTATION PERIOD shall mean the twelve (12) consecutive
month period beginning on the date on which the Employee first
completes an Hour of Service. The second and subsequent
Eligibility Computation Periods shall be the Plan Year, beginning
with the Plan Year that includes the first anniversary of the
date on which the Employee first completed an Hour of Service.
In the case of an Employee who incurs a One-Year Break in Service
prior to becoming a Participant, a new Eligibility Computation
Period shall begin on the date on which the Employee first
completes an Hour of Service following such One-Year Break in
Service. The second and subsequent Eligibility Computation
Periods for such Employee shall be the Plan Year, beginning with
the Plan Year that includes the first anniversary of the date
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on which the Employee first completed an Hour of Service
following his reemployment.
ACCRUAL COMPUTATION PERIOD shall mean the Plan Year.
VESTING COMPUTATION PERIOD shall mean the Plan Year.
2.9 EMPLOYEE
Employee means any person, including officers, in the service of the
Employer. Employee shall not mean an independent contractor. Employee
shall also mean any leased employee, within the meaning of Section 414(n)
of the Code, unless such leased employee is covered by a plan maintained by
the leasing organization that meets the requirements of Section
414(n)(5)(B) of the Code and leased employees do not constitute more than
20 percent of the Employer's Nonhighly Compensated Employee work force.
2.10 EMPLOYER
Employer means Immunex Corporation and any Affiliate that, with the consent
of Immunex Corporation, elects to adopt the Plan and any organization that
acquires the Employer's business and adopts the Plan.
2.11 ENROLLMENT DATE
Enrollment Date means January 1, April 1, July 1 and October 1 and shall be
the date on which the Employee commences participation in the Plan.
Effective July 1, 1991, the Enrollment Date means January 1 and July 1 and
shall be the date on which the Employee commences participation in the
Plan.
2.12 ERISA
ERISA means the Employee Retirement Income Security Act of 1974, as
amended.
2.13 FISCAL YEAR
Fiscal Year means the Employer's Fiscal Year for Federal income tax
purposes.
2.14 HIGHLY COMPENSATED EMPLOYEE
A. "Highly Compensated Employee" means an Employee who, during the Plan
Year or during the preceding 12-month period:
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1. Is a more than a 5% owner of the Employer (applying the
constructive ownership rules of Section 318 of the Code);
2. Has Compensation in excess of $75,000 (as adjusted by the
Commissioner of Internal Revenue for the relevant year);
3. Has Compensation in excess of $50,000 (as adjusted by the
Commissioner of Internal Revenue for the relevant year) and is
part of the top-paid 20% group of Employees (based on
Compensation for the relevant year);
4. Has Compensation in excess of 50% of the dollar amount prescribed
in Section 415(b)(1)(A) of the Code (relating to defined benefit
plans) and is an officer of the Employer.
If the Employee satisfies the definition in clause (b), (c) or (d) in
the Plan Year but not during the preceding 12-month period and does
not satisfy clause A.1 in either period, the Employee is a Highly
Compensated Employee only if the Employee is one of the 100 most
highly compensated Employees for the Plan Year. The number of
officers taken into account under clause A.4 will not exceed the
greater of 3 and 10% of the total number (after application of
exclusions under Section 414(q) of the Code) of Employees, but no more
than 50 officers. If no Employee satisfies the Compensation
requirement in clause A.4 for the relevant year, the Plan
Administrator will treat the highest paid officer as satisfying clause
A.4 for that year.
B. The Plan Administrator must make the determination of who is a Highly
Compensated Employee, including the determinations of the number and
identity of the top-paid 20% group, the 100 most highly compensated
Employees, the number of officers includible in clause A.4 and the
relevant Compensation, consistent with Section 414(q) of the Code and
regulations issued under that Code Section. The Employer may make a
calendar-year election to determine the Highly Compensated Employees
for the Plan Year, as prescribed by Income Tax Regulations. A
calendar-year election must apply to all plans and arrangements of the
Employer. For purposes of applying any nondiscrimination test
required under the Plan or under the Code the Plan Administrator will
treat, in a manner consistent with applicable Income Tax Regulations,
a Highly Compensated Employee and all of his family member (a spouse,
a lineal ascendant or descendant or a spouse of a lineal ascendant or
descendant) as a single Highly
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<PAGE>
Compensated Employee, but only if the Highly Compensated Employee is a
more than 5% owner or is one of the ten Highly Compensated Employees
with the greatest Compensation for the Plan Year. The aggregation
rule applies to a family member even if that family member is a Highly
Compensated Employee without family aggregation.
C. The term "Highly Compensated Employee" also includes any former
Employee who separated from service (or has a deemed separation from
service, as determined under Treasury Regulations) prior to the Plan
Year, performs no service for the Employer during the Plan Year and
was a Highly Compensated Employee either for the separation year or
any Plan Year ending on or after the Employee's 55th birthday. If the
former Employee's separation from service occurred prior to January 1,
1987, the Employee is a Highly Compensated Employee only if he
satisfied clause A.1 of this Section 2.14 or received Compensation in
excess of $50,000 during (1) the year of his separation from service
(or the prior year) or (2) any year ending on or after his 54th
birthday.
D. The Employer and its Affiliates shall be treated as a single Employer
for purposes of determining the number and identity of Highly
Compensated Employees.
2.15 HOUR OF SERVICE
Hour of Service means the following:
A. Each hour for which an Employee is paid, or entitled to payment, for
the performance of duties for the Employer during the applicable
Computation Period.
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.
Notwithstanding the preceding sentence,
1. No more than 501 Hours of Service shall be credited under this
paragraph to an Employee on account of any single continuous
period during which the Employee performs no duties (whether or
not such period occurs in a single Computation Period);
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2. An hour for which an Employee is directly or indirectly paid, or
entitled to payment, on account of a period during which no
duties are performed is not required to be credited to the
Employee if such payment is made or due under an insured
disability plan or a plan maintained solely for the purposes of
complying with applicable worker's compensation, unemployment
compensation, or disability insurance laws;
3. Hours of Service are not required to be credited for a payment
that solely reimburses an Employee for medically related expenses
incurred by the Employee; and
4. For purposes of this paragraph, a payment shall be deemed to be
made by or due from the Employer, regardless of whether such
payment is made by or due from the Employer directly or
indirectly through a trust fund or insurer to which the Employer
contributes or pays premiums, and, regardless of whether
contributions made or due to the trust fund, insurer or other
entity are for the benefit of particular Employees or are on
behalf of a group of Employees in the aggregate.
C. Each hour for which back pay, irrespective of mitigation of damages,
is either awarded or agreed to by the Employer. The same Hours of
Service shall not be credited both under paragraph A or paragraph B,
as the case may be, and under this paragraph C.
D. Each hour with which an Employee would normally be credited (or eight
hours per normal working day if the Plan is unable to determine the
Employee's hours) during the Employee's absence from work if the
Employee's absence commences in a Plan Year beginning after December
31, 1984, and the absence is because of the Employee's pregnancy, the
birth of the Employee's child, or the placement of a child with the
Employee in connection with the Employee's adoption of the child, or
for the purpose of caring for such child for a period beginning
immediately after the child's birth or placement. An Employee shall
be credited with the Employee's Hours of Service determined under this
paragraph D only for the purpose of determining whether the Employee
has incurred a One-Year Break in Service and the number of Hours of
Service credited to an Employee in connection with such pregnancy or
placement shall not exceed 501. Hours of Service credited under this
paragraph D shall be credited in the Computation Period in which the
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Employee's absence begins or in the next following Computation Period
if the Hours of Service credited under this paragraph are not needed
to prevent the Employee from incurring a One-Year Break in Service in
the earlier Computation Period. The Plan Administrator may establish
reasonable requirements for information to be furnished by the
Employee to show that the Employee's absence is for a reason referred
to under this paragraph and the number of days of such absence. The
Employee shall be credited with the Employee's Hours of Service under
this paragraph only if the Employee provides the required information
on a timely basis.
E. Other than as specifically required under this Section, the
determination of Hours of Service for reasons other than the
performance of duties and the crediting of Hours of Service to
Computation Periods shall be in accordance with Department of Labor
Regulations Section 2530.200b-2(b) and (c), and such rules are hereby
incorporated by reference.
F. For purposes of eligibility and vesting, service with an Affiliate
shall be considered service with the Employer and Hours of Service
shall be credited, in accordance with this Section, for such service.
G. Hours of Service shall also be credited for all purposes under the
Plan to a leased employee, as defined in Section 414(n) of the Code,
for such employee's service to the Employer as a leased employee.
2.16 INVESTMENT FUND
Investment Fund means a separate portion of the Trust Fund established at
the direction of the Plan Administrator to provide investment options for
Participants.
2.17 INVESTMENT MANAGER
Investment Manager means a person, insurance company, corporation,
partnership or association which is appointed by the Plan Administrator to
direct the investment and reinvestment of all or any portion of the Trust
Fund and which qualifies as an "investment manager" under the provisions of
Section 3(38) of ERISA.
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2.18 LIMITATION YEAR
Limitation Year shall mean the 12 consecutive month period corresponding to
the Plan Year and shall be the 12 month period under which the limits of
Section 415 of the Code are applied.
2.19 NONHIGHLY COMPENSATED EMPLOYEE
Nonhighly Compensated Employee shall mean an Employee who is not a Highly
Compensated Employee.
2.20 ONE-YEAR BREAK IN SERVICE
One-Year Break in Service means a Vesting Computation Period during which
an Employee fails to complete more than 500 Hours of Service.
2.21 PARTICIPANT
Participant means an Employee who satisfies the eligibility requirements of
Article III and who commences participation in the Plan.
2.22 PARTICIPANT ELECTED CONTRIBUTION
Participant Elected Contribution means the amounts designated by a
Participant pursuant to Section 4.1A and contributed to the Plan by the
Employer in lieu of payment of an equal amount directly to the Participant
as compensation.
2.23 PLAN OR TRUST
Plan or Trust means this Profit Sharing 401(k) Plan and Trust Agreement and
all subsequent amendments thereto.
2.24 PLAN ADMINISTRATOR OR COMMITTEE
Plan Administrator or Committee means the Administrative Committee as
appointed by Employer pursuant to Section 16.1.
2.25 PLAN YEAR
Plan Year means the twelve (12) consecutive month period ending on the last
day of December. The Plan Year shall be the year on which the records of
the Plan are kept.
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2.26 SALARY DEFERRAL AGREEMENT
Salary Deferral Agreement means the written authorization of a Participant
to the Employer to deduct from the Participant's Compensation an amount or
percentage to be deferred as a Participant Elected Contribution in
accordance with this Plan.
2.27 SPOUSE
Spouse means the lawful husband or wife of the Participant.
2.28 SURVIVING SPOUSE
Surviving Spouse means the Participant's Spouse surviving at the date of
the Participant's death.
2.29 TRUST FUND OR FUND
Trust Fund or Fund means all contributions received by the Trustee for
purposes o the Plan, the investment thereof, and the earnings and
appreciation thereon, less payments made to carry out the Plan.
2.30 TRUSTEE
Effective January 1, 1987, Trustee means Seafirst Bank. Effective May 17,
1988, Trustee means Security Pacific Bank (Rainier Bank). Effective April
22, 1992, Security Pacific Bank merged with Seafirst Bank and Trustee means
Seafirst Bank, or any successor Trustee or Trustees hereunder.
2.31 VALUATION DATE
Valuation Date means the last day of each Plan Year and such other date or
dates as may be designated by the Plan Administrator.
2.32 YEAR OF SERVICE
Year of Service means:
A. ELIGIBILITY SERVICE
For purposes of determining an Employee's eligibility to participate
in the Plan, Year of Service shall mean the completion of 1,000 or
more Hours of Service during an Eligibility Computation Period.
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B. BENEFIT ACCRUAL SERVICE
For purposes of determining an Employee's benefit accrual, Year of
Service shall mean the completion of 1,000 or more Hours of Service
during an Accrual Computation Period while a Participant.
B. VESTING SERVICE
For purposes of determining an Employee's nonforfeitable interest in
the Employee's Accrued Benefit, Year of Service shall mean the
completion of 1,000 or more Hours of Service during a Vesting
Computation Period.
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III. ELIGIBLE EMPLOYEES
3.1 PARTICIPATION
A. Subject to the provisions of paragraph 3.1B and Section 3.3, an
Employee shall participate in this Plan on the Enrollment Date that
coincides with or immediately follows the date on which the Employee
first performs one Hour of Service with the Employer.
B. Effective July 1, 1995, an Employee who is regularly scheduled to work
less than thirty (30) hours per week shall participate in this Plan on
the Enrollment Date that coincides with or immediately follows the
date on which such Employee completes one Year of Eligibility Service
or attains age twenty-one (21), whichever occurs later.
C. An Employee who is participating in the Plan immediately prior to the
effective date of this Agreement shall continue to participate in the
Plan subject to the provisions hereunder.
3.2 PARTICIPATION ON REEMPLOYMENT
A. Subject to the provisions of Section 3.3, a former Participant shall
resume participation in the Plan upon the date of the Participant's
reemployment by the Employer if the Participant had a nonforfeitable
interest under the Plan to any Accrued Benefit derived from Employer
contributions at the time of the Participant's earlier separation from
service or the number of the Employee's consecutive One-Year Breaks in
Service is fewer than the greater of five (5) or the aggregate number
of the Employee's Years of Service prior to such Break.
B. A former Participant who does not resume participation under paragraph
A of this Section shall be required to again complete the eligibility
requirement of Section 3.1 before participating in the Plan.
3.3 INELIGIBLE EMPLOYEES
Notwithstanding the provisions of Section 3.1 and Section 3.2, the
following classes of Employees shall not participate in the Plan:
A. An Employee who is a member of a collective bargaining unit for which
retirement benefits have been the subject of good faith bargaining
between employee representatives and the Employer, unless the
bargaining agreement specifically requires participation in this Plan.
In
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applying the preceding sentence, the term "employee representatives"
shall not include an organization of which more than one-half of the
members are owners, officers, or executives of the Employer.
B. A leased employee, within the meaning of Section 414(n) of the Code.
C. Prior to July 1, 1995, an Employee who routinely will perform services
for less than thirty (30) hours a week.
D. A summer intern.
3.4 INACTIVE PARTICIPANTS
In the event a Participant transfers to an ineligible class of employees,
such Employee's participation in the Plan for purposes of benefit accrual
shall cease as of the date of such transfer.
In the event an ineligible Employee transfers to the eligible class, such
Employee shall participate in the Plan immediately if the Employee is a
former Participant or the Employee has previously satisfied the
requirements of Section 3.1 and would have previously been admitted to
participation if the Employee had been in the eligible class.
3.5 END OF PARTICIPATION
Active participation ends upon suspension of contributions or termination
of employment. Participation ends when the employee has no further account
balances under the Plan.
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IV. CONTRIBUTIONS
4.1 PLAN CONTRIBUTIONS
A. PARTICIPANT ELECTED CONTRIBUTIONS
1. ELECTION TO DEFER COMPENSATION
Each Participant may elect, effective as of any January 1 or July
1 (January 1, April 1, July 1 or October 1 prior to July 1, 1991)
coincident with or following the Participant's Enrollment Date,
by filing a Salary Deferral Agreement with the Plan Administrator
within such time as the Plan Administrator may determine, to
defer any whole percentage of the Participant's Compensation not
to exceed 15%, but in any event, the amount of deferral shall not
exceed $7,000 (or such amount as adjusted under Section 402(g) of
the Code) during any calendar year. Such deferred amounts shall
be contributed to the Plan by the Employer and designated for
such Participant's Deferral Account. Contributions shall be made
by payroll deduction as authorized by the Participant on the
Participant's Salary Deferral Agreement. The Participant may, in
accordance with rules established by the Plan Administrator
increase or decrease his elective deferrals effective as of
January 1 or July 1 (January 1, April 1, July 1 or October 1
prior to July 1, 1991); provided, however, a Participant shall
only be entitled to defer those amounts of Compensation that are
not currently available to the Participant.
2. PAYMENT TO TRUSTEE
The Employer shall transmit the Participant Elected Contributions
to the Trustee as soon as reasonably practical and, in any event,
no later than 90 days after the date the amount has been withheld
from the Participant.
3. LIMITATION ON DEFERRAL OF COMPENSATION
The Participant Elected Contributions (together with any
qualified nonelective contributions that the Plan Administrator
may, under applicable Treasury Regulations, elect (and does
elect) to include in the calculation) for a Plan Year shall
satisfy one of the following tests:
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a. The Actual Deferral Percentage of the eligible Highly
Compensated Employees may not be greater than the Actual
Deferral Percentage of the eligible Nonhighly Compensated
Employees multiplied by 1.25; or
b. The Actual Deferral Percentage of the eligible Highly
Compensated Employees may not be greater than the Actual
Deferral Percentage of the eligible Nonhighly Compensated
Employees multiplied by 2. However, the excess of the
Actual Deferral Percentage of the eligible Highly
Compensated Employees over that of the eligible Nonhighly
Compensated Employees may not be greater than two (2.0)
percentage points.
The Plan is subject to Section 401(k) of the Code and the
regulations thereunder, which are hereby incorporated in this
Document by reference. The above tests (and any necessary
correction pursuant to Section 4.1A.4) shall be performed in
accordance with such Code Section and regulations. For purposes
of determining the Actual Deferral Percentage for a specified
group of Employees for a Plan Year, the Employee's Compensation
includes Compensation for the entire Plan Year or Compensation
while the Participant was eligible to participate. The Plan
Administrator shall select the method to be used for the Plan
Year and the same method shall be applied to each Participant for
that year. In order to satisfy the above requirements, the Plan
Administrator may, in its sole discretion, require the Employer
to reduce future deferrals elected by the Highly Compensated
Employees and/or return a portion of the amounts deferred by the
Highly Compensated Employees in accordance with Section 4.1A.4.
A Participant's Participant Elected Contribution shall be taken
into account for a Plan Year for purposes of the foregoing tests
only if it is considered allocated as of a date within that Plan
Year. A Participant's Participant Elected Contribution is
considered allocated as of a date within the Plan Year only if:
a. The allocation is not contingent upon the Participant's
participation in the Plan or performance of services on any
date subsequent to that date; and
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b. The elective contribution is actually paid to the Trust no
later than the end of the twelve-month period immediately
following the Plan Year to which the contribution relates.
Likewise, a Participant's Participant Elected Contribution shall
be taken into account for a Plan Year for purposes of the
foregoing tests only if it relates to Compensation that either:
a. Would have been received by the Participant in the Plan Year
but for the Participant's election to defer; or
b. Is attributable to services performed by the Participant in
the Plan Year and, but for the Participant's election to
defer, would have been received by the Participant within
two and one-half months after the close of the Plan Year.
If an amount is returned to an Employee because the Employee's
elective deferrals for the calendar year exceed $7,000 (or such
amount as adjusted under Section 402(g) of the Code), such excess
deferrals shall nevertheless be counted in determining the
Employee's Actual Deferral Percentage for the Plan Year in which
such excess deferrals were made.
If two or more cash or deferred arrangements (as determined under
Section 401(k) of the Code) are treated as a single plan for
purposes of Sections 401(a)(4) or 410(b) of the Code, such
arrangements shall be treated as a single plan for purposes of
the limitations of this Section. If a Highly Compensated
Employee participates in two or more cash or deferred
arrangements (as determined under Section 401(k) of the Code)
maintained by the Employer or an Affiliate, all of such cash or
deferred arrangements shall be treated as a single plan for
purposes determining the Actual Deferral Percentage of such
Employee.
4. RETURN OF EXCESS DEFERRALS
a. NONDISCRIMINATION TEST
If amounts contributed by the Employer for the Highly
Compensated Employees cause the Plan to fail to meet the
requirements of paragraph (3) of this Section 4.1A and
Section 401(k) of the Code for a Plan Year, then, to the
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extent that such amounts are in excess of such limitations,
the excess amounts (called excess contributions) shall be
returned to the Highly Compensated Employees, together with
income allocable thereto for the Plan Year in which the
excess contributions were made, no later than the close of
the following Plan Year. (The Employer will incur an excise
tax equal to 10 percent of the amount of the excess
contributions for a Plan Year that are not returned to the
appropriate Highly Compensated Employees during the first 2-
1/2 months of the following Plan Year.) The identity of the
Highly Compensated Employees to whom excess contributions
must be returned and the amount of the excess contributions
to be returned to each such Highly Compensated Employee
shall be determined by starting with the Highly Compensated
Employee(s) who has the greatest Actual Deferral Percentage,
reducing his Actual Deferral Percentage (but not below the
Actual Deferral Percentage of the Highly Compensated
Employee with the next highest Actual Deferral Percentage),
and then, if necessary, reducing the Actual Deferral
Percentage of the Highly Compensated Employee(s) at the next
highest Actual Deferral Percentage level (including the
Actual Deferral Percentage of the Highly Compensated
Employee(s) whose Actual Deferral Percentage has already
been reduced) in the same manner as described above, and
continuing in this manner until the requirements of Section
401(k) of the Code are satisfied. If the Highly Compensated
Employee is part of an aggregated family group, the Plan
Administrator, in accordance with the applicable Treasury
Regulations, will determine each aggregated family member's
allocable share of the excess contributions assigned to the
family unit.
The amount of excess contributions to be returned with
respect to any Participant for a Plan Year shall be reduced
by any excess deferrals previously distributed to such
Participant for the Participant's taxable year ending with
or within such Plan Year. The amount of excess deferrals
that must be returned to a Participant for a taxable year
shall be reduced by any excess contributions previously
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distributed with respect to such Participant for the Plan
Year beginning with or within such taxable year of the
Employer.
The income allocable to any excess contributions is equal to
the allocable gain or loss for the Plan Year for which the
excess contributions were made and shall be determined in
accordance with Treasury Regulation Section
1.401(k)-1(f)(4)(ii)(B).
b. $7,000 LIMIT
If a Participant's elective deferrals (E.G., Participant
Elected Contributions) under Section 401(k) of the Code
exceed $7,000 (or such amount as adjusted under Section
402(g) of the Code) for a calendar year (such excess being
called excess deferrals), the Plan Administrator shall
distribute such excess deferrals, together with any income
allocable thereto for the calendar year in which the excess
deferrals were made, no later than April 15 of the following
calendar year. If a Participant makes elective deferrals
under the Plan and under any other plan or arrangement
described in Section 402(g)(3) of the Code for a Plan Year,
and the total of such elective deferrals exceeds the
limitations of Section 402(g) of the Code, such Participant
shall notify the Plan Administrator in writing on the
prescribed form by March 1 of the succeeding Plan Year of
the portion of the excess deferrals that he has allocated to
the Plan and the Plan Administrator shall distribute the
amount of excess deferrals allocated to this Plan, together
with any income allocable thereto, to the Participant no
later than April 15 of the calendar year following calendar
year for which the excess deferrals were made.
The income allocable to any excess deferrals is equal the
sum of the allocable gain or loss for the calendar year in
which the excess deferrals were made and shall be calculated
in accordance with Treasury Regulation Section
1.402(g)-1(e)(5)(ii).
5. SUSPENSION OF DEFERRALS
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A Participant may, upon thirty (30) days' prior written notice
filed with the Plan Administrator, suspend the Participant's
election under Section 4.1A to have a portion of the
Participant's Compensation deferred. In the event of such a
suspension, a Participant shall not be entitled to again elect to
have Participant Elected Contributions made hereunder until the
next following January l or July 1 (January 1, April 1, July 1 or
October 1 prior to July 1, 1991). The Participant shall,
nevertheless, be considered a Participant hereunder for all other
purposes during such period of time if the Participant's service
with the Employer continues during that time.
B. EMPLOYER MATCHING CONTRIBUTIONS
1. BASIC MATCHING CONTRIBUTION
As soon as practicable following each pay period, the Employer
shall make a contribution for each Participant who has
Compensation deferred during that period. Prior to January 1,
1993, the contribution shall be equal to 25% of the amount
deferred by the Participant. Effective January 1, 1993, the
contribution shall be equal to 100% of the first 2% of
Compensation deferred by the Participant, plus, for Employees
with less than five years of service, 50% of the amount deferred
by the participant that is between 2% and 6% of Compensation, and
for Employees with five or more years of service, 75% of the
amount deferred by the Participant that is between 2% and 6% of
Compensation.
2. SPECIAL MATCHING CONTRIBUTION
For the Plan Year ending December 31, 1993, the Employer shall
make a special matching contribution for each Employee who was
employed by the Employer prior to January 1, 1987 and who
deferred Compensation under the Plan on or after January 1, 1987
in an amount equal to $1,500 times such Participant's years of
employment prior to January 1, 1987. For purposes of this
paragraph B.2, a Participant shall be credited with one year of
employment for each calendar year prior to 1987 in which he
completed at least one Hour of Service with the Employer. Any
portion of this contribution that cannot be made on behalf of an
Employee for the Plan Year ending December 31, 1993 due to
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the limitations imposed by Section 415 of the Code shall be made
on such Participant's behalf for the Plan Year ending December
31, 1994 (or the first subsequent Plan Year in which such
contribution shall not result in a violation of such
limitations); provided, however, that no contribution shall be
made for the Plan Year ending December 31, 1994 (or for any
subsequent Plan Year) on behalf of an individual who is not
employed by the Employer on the date on which such contribution
would otherwise have been made. The Employer shall pay the
special matching contribution to the Trustee no later than the
due date (including extensions thereof) for the filing of its
federal income tax return for the Fiscal Year for which such
contribution is made.
3. FORFEITURES
Forfeited amounts derived from the Employer Matching Account of a
Participant who separates from the Employer's service shall be
reallocated to remaining Participants in a nondiscriminatory
manner as determined by the Employer for the Plan Year in which
the forfeited amounts become available. Effective January 1,
1991, forfeited amounts derived from the Employer Matching
Account of a Participant who separates from the Employer's
service shall be used to reduce the Employer's matching
contribution for the Plan Year in which the forfeited amount
becomes available and in subsequent years, if necessary.
C. EMPLOYER'S PROFIT SHARING CONTRIBUTION
1. DISCRETIONARY CONTRIBUTION
For any Plan Year, the Employer shall have the right to
contribute an amount that the Employer, in its sole discretion,
shall determine. The Employer's determination of its
discretionary contribution shall be binding on all Participants,
the Plan Administrator and the Employer. In making a
discretionary contribution, the Employer shall have the
discretionary authority to declare that a portion or all of the
contribution for the Plan Year shall be a qualified nonelective
contribution as defined in Section 401(m)(4)(C) of the Code,
which will be allocated as provided in Section 5.2C.
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2. DATE OF PAYMENT
The Employer shall pay its discretionary contribution to the
Trustee no later than the due date (including extensions thereof)
for the filing of its federal income tax return for the Fiscal
Year for which such contribution is made.
4.2 LIMITATION ON CONTRIBUTIONS
In no event shall the sum of the contributions made by the Employer, in
respect of any Plan Year pursuant to this Article IV, be greater than
fifteen percent (15%) of compensation (as such term is used in Section 404
of the Code) paid to the Participants for the Fiscal Year in question.
4.3 EMPLOYEE CONTRIBUTIONS
Other than wage or salary deferrals allowed under Section 4.1A,
contributions by an Employee under the Plan are not permitted.
4.4 MATCHING CONTRIBUTIONS AND EMPLOYEE CONTRIBUTIONS
In the case of Employer Matching Contributions and any other contributions
that the Employer may elect to include as permitted under Treasury
Regulations, such contributions shall satisfy one of the following tests:
A. The Contribution Percentage of the eligible Highly Compensated
Employees shall be not greater than the Contribution Percentage of the
eligible Nonhighly Compensated Employees multiplied by 1.25; or
B. The Contribution Percentage of the eligible Highly Compensated
Employees shall be not greater than the Contribution Percentage of the
eligible Nonhighly Compensated Employees multiplied by 2. However,
the excess of the Contribution Percentage of the eligible Highly
Compensated Employees over that of the eligible Nonhighly Compensated
Employees shall be not greater than two (2.0) percentage points.
If a Highly Compensated Employee participates in a plan or plans maintained
by the Employer or an Affiliate under which the Highly Compensated Employee
is eligible to make elective contributions subject to the requirements of
Section 401(k) of the Code and one or more of such plans is also subject to
Section 401(m) of the Code, the tests applied to the contributions for the
Highly Compensated Employee shall be performed in accordance with
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Section 401(m) of the Code and the regulations thereunder to prevent the
multiple use of the alternative limitation as provided in Section 401(m) of
the Code.
If two or more plans are aggregated for purposes of Section 410(b) of the
Code or a Highly Compensated Employee participates in two or more plans of
the Employer and its Affiliates to which matching contributions or employee
after-tax contributions are made, all such contributions shall be
aggregated to the extent required under Treasury Regulation Section
1.401(m)-1(f)(1)(ii)(B) to apply the requirements of this Section.
The "Contribution Percentage" for a specified group of Employees for a Plan
Year shall be the average of the ratios (calculated separately for each
Employee in such group) of the sum of the Employer Matching Contributions
(and such other contributions as permitted (or required) to be included in
the calculation under Treasury Regulations) to the Employee's compensation
as defined under Section 414(s) of the Code, for the entire Plan Year or
compensation while the Participant was eligible to participate. The Plan
Administrator shall select the method to be used for the Plan Year and the
same method shall be applied to each Participant for that year.
Contributions that cause the Contribution Percentage of the eligible Highly
Compensated Employees to exceed the limits of this Section shall be
distributed to the applicable Participant if vested, or forfeited if
forfeitable, together with income allocable thereto, before the close of
the following Plan Year. Such excess contributions shall be called excess
aggregate contributions. (The Employer will incur an excise tax equal to
10 percent of the amount of the excess contributions for a Plan Year that
are not returned to the appropriate Highly Compensated Employees during the
first 2-1/2 months of the following Plan Year.) The identity of the Highly
Compensated Employees to whom excess aggregate contributions must be
returned and the amount of the excess aggregate contributions to be
returned to each such Highly Compensated Employee shall be determined by
starting with the Highly Compensated Employee(s) who has the greatest
Contribution Percentage, reducing his Contribution Percentage (but not
below the Contribution Percentage of the Highly Compensated Employee with
next highest Contribution Percentage), and then, if necessary, reducing the
Contribution Percentage of the Highly Compensated Employee(s) at the next
highest Contribution Percentage level (including the Contribution
Percentage of the Highly Compensated Employee(s) whose Contribution
Percentage has already been reduced) in the same manner as described above,
and continuing in this manner until the
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requirements of Section 401(m) of the Code are satisfied. If the Highly
Compensated Employee is part of an aggregated family group, the Plan
Administrator, in accordance with the applicable Treasury Regulations, will
determine each aggregated family member's allocable share of the excess
aggregate contributions assigned to the family unit. Forfeited amounts may
not be reallocated to a Highly Compensated Employee whose contributions for
such Plan Year are reduced by reason of this Section.
The income allocable to any excess aggregate contributions is equal to the
allocable gain or loss for the Plan Year for which the excess aggregate
contributions were made and shall be determined in accordance with Treasury
Regulation Section 1.401(m)-1(e)(3)(ii)(B).
Section 401(m) of the Code and the regulations thereunder are hereby
incorporated in this Document by reference and the limitations of this
Section shall be carried out in accordance with such law and regulations.
4.5 ROLLOVER CONTRIBUTIONS
A. Prior to January 1, 1993, subject to the approval of the Plan
Administrator, the Plan may accept a transfer from an Employee who is
a Participant, or who is expected to become a Participant, if such
transfer represents an earlier distribution to the Participant from a
qualified trust (the "Other Plan") that was described in Section
401(a) of the Code and exempt from tax under Section 501(a) of the
Code, provided, that the following conditions are met:
1. The Participant received the earlier distribution from the Other
Plan in one or more distributions that constituted a qualified
total distribution (as defined in Section 402(a)(5)(E)(i) of the
Code);
2. The amount transferred does not exceed the fair market value of
all the property the Participant received in the earlier
distribution, reduced by the Participant's contributions, if any;
and
3. The transfer occurs on or before the 60th day following the
Participant's receipt of the distribution from the Other Plan.
B. Effective January 1, 1993, subject to the approval of the Plan
Administrator, the Plan may accept an "eligible rollover
distribution," as defined in Section 12.6A, with respect to an
Employee who is a Participant, or who is expected to become a
Participant, provided, that
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the contribution is received on or before the 60th day following its
distribution from the prior qualified plan or individual retirement
account.
C. Any rollover contribution accepted by the Plan shall be separately
accounted for and the Participant shall have a nonforfeitable interest
in such account called the Participant's Rollover Account at all
times. The Participant's Rollover Account shall be adjusted with its
pro rata share of net earnings, losses, appreciation, or depreciation
as of each Valuation Date. If not earlier withdrawn, the total amount
of a Participant's Rollover Account shall be paid to the Participant
in the same form and at the same time as the Participant's Employer-
derived Accrued Benefit.
D. If an Employee has not yet become a Participant at the time he makes a
rollover contribution to the Plan, he shall be deemed to be a
Participant only for purposes of the investment and distribution of
such contribution. He shall not be permitted to make Participant
Elected Contributions or share in Employer Matching Contributions or
Employer Profit Sharing Contributions until he has become an active
Participant pursuant to Article III.
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V. PARTICIPANT ACCOUNTS AND CREDITING OF CONTRIBUTIONS
5.1 ACCOUNTS
The Plan Administrator shall establish in the name of each Participant such
Accounts as are necessary to properly account for the types of
contributions made on behalf of a Participant.
5.2 ALLOCATION AND CREDITING OF CONTRIBUTIONS
A. CREDITING OF PARTICIPANT ELECTED CONTRIBUTIONS
Employer contributions arising from a Participant's election to defer
Compensation shall be credited to the Participant's Employee Deferral
Account.
B. CREDITING OF EMPLOYER MATCHING CONTRIBUTIONS
Employer Matching Contributions shall be credited to the Employer
Matching Account of the Participant for whom the Employer Matching
Contribution is made in accordance with Section 4.1B.
C. ALLOCATION OF THE EMPLOYER'S PROFIT SHARING CONTRIBUTION
A share of the Employer's Profit Sharing Contribution shall be
allocated to the Employer Profit Sharing Account of a Participant who
is in the service of the Employer on the last day of the Plan Year for
which such contribution is made, and who completes 1,000 or more Hours
of Service during such Plan Year, provided, that a Participant who
retires, dies, or becomes Permanently Disabled, as defined in Section
11.2, during the Plan Year shall share in the contributions for such
Plan Year to the extent provided herein on the basis of the amount of
the Participant's Compensation during such Plan Year prior to the
Participant's termination of service. In the case of a Participant
who otherwise qualifies for a Profit Sharing Contribution but who
enters an ineligible class of Employees during the Plan Year, or in
the case of a Participant who begins participation during the Plan
Year, such Participant shall share in the contributions for such Plan
Year to the extent of the amount of the Participant's Compensation
paid or accrued during the time the Participant was in an eligible
class of employees and participated in the Plan.
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The amount allocated to the Employer Profit Sharing Account of a
Participant shall be a sum as shall bear the same ratio to the total
contribution as the ratio such Participant's Compensation bears to the
Compensation of all Participants eligible to share in the Profit
Sharing Contribution.
Prior to January 1, 1991, forfeitable amounts derived from the
Employer Profit Sharing Account of a Participant who separates from
the Employer's service shall be allocated among the Participants
eligible to share in the Profit Sharing Contribution for the Plan Year
in which the forfeitable amount becomes available. The forfeitable
amount shall be allocated in the same manner as a Profit Sharing
Contribution.
Effective January 1, 1991, forfeitable amounts derived from the
Employer Profit Sharing Account of a Participant who separates from
the Employer's service shall be used to reduce future Employer Profit
Sharing or Employer Matching Contributions.
If the Employer designates some portion or all of its Profit Sharing
Contribution as a qualified nonelective contribution, the qualified
nonelective contribution shall be allocated among the Participants who
are Nonhighly Compensated Employees based on the ratio that each such
Participant's Compensation for the Plan Year bears to the Compensation
of all such Participants for the Plan Year.
5.3 VALUATION OF ASSETS
As of each Valuation Date, the Trustee shall value the assets of the Trust
at the then current fair market value.
5.4 ADJUSTMENT OF PARTICIPANTS' ACCOUNTS
As of each Valuation Date, the Participants' Accounts shall be
proportionately adjusted to reflect the income received, distributions
made, profits and losses, and expenses of the Trust Fund, in the ratio that
each Participant's Accounts bears to the total of the Accounts of all
Participants.
5.5 LIMITATION ON ALLOCATIONS
Notwithstanding any other provision of the Plan, the annual addition to a
Participant's Accounts for a Limitation Year shall not exceed an amount
equal to:
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A. LIMITATION. The lesser of:
1. $30,000, or, if greater, one-fourth of the dollar limitation in
effect under Section 415(b)(1)(A) of the Code, as adjusted
pursuant to Section 415(d) of the Code, or
2. Twenty-five percent (25%) of the Compensation paid by the
Employer to the Participant during the Limitation Year.
B. ADDITIONS
For purposes of imposing the limitations of Section 415 of the Code,
"annual additions" shall mean the sum of the following credited to the
Participant for the Limitation Year:
1. Employer contributions;
2. The Participant's contributions other than a rollover
contribution (as defined under Section 402(a)(5) of the Code);
3. Forfeitures;
4. Amounts allocated to a separate account under a pension or
annuity plan for a key employee (as defined under Section 416(i)
of the Code) in Plan Years beginning after March 31, 1984, to
provide post-retirement medical benefits to such Participant and
the Participant's spouse and dependents, and amounts paid after
December 31, 1985, in tax years ending after that date to a
separate account under a welfare benefit plan (as defined under
Section 419(e) of the Code) of the Employer for a Participant who
is or was a key employee (as defined under Section 416(i) of the
Code) to provide post-retirement medical benefits to such
Participant; and
5. Amounts allocated to a separate account under a pension or
annuity plan for a Participant and the Participant's spouse and
dependents, under which benefits described in Section 401(h) of
the Code are payable.
C. COMPENSATION
For purposes of imposing the limitations of Section 415 of the Code, the
definition of "Compensation" set forth in Section 2.8 shall be modified to
exclude
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amounts excludable from the Employee's gross income by reason of Section 125,
402(e)(3) (402(a)(8) prior to January 1, 1993), 402(h) or 403(b) of the Code.
D. AGGREGATION OF PLANS
All defined contribution plans maintained by the Employer, including
voluntary employee contribution accounts in a defined benefit plan,
Key employee accounts under a welfare benefit plan described in
Section 419 of the Code, and any Employer contributions allocated to
an individual retirement account, shall be treated as a single plan
for purposes of the limitations of this Section.
E. EXCESS ADDITION
If the annual addition to the Account of a Participant exceeds the
limitation of this Section during a Plan Year, then such excess amount
shall be eliminated first by returning, to the extent necessary to
satisfy these limitations, the Participant's Participant Elected
Contributions for such Plan Year, as adjusted for allocable income
(together with forfeiting any related Matching Contribution), and then
(if the limitations of this Section are still not satisfied) by
reducing, to the extent necessary to satisfy these limitations, the
Employer's contribution to the Participant's Account made for any
other reason. The amount of the reduction (hereafter called the
excess amount) shall be used to reduce the Employer's contribution for
the next Plan Year, and each succeeding Plan Year, for that
Participant if covered by the Plan as of the end of such Plan Year.
If the Participant is not covered by the Plan as of the end of the
Plan Year, then the excess amount shall be held unallocated in a
suspense account for the Plan Year and allocated and reallocated in
the next Plan Year, to the extent possible, to reduce the Employer's
contribution for such Year. If a suspense account is in existence
during a Plan Year, other than the Year in which it is established,
the Employer shall make no contribution to the Plan until all amounts
in the suspense account have been allocated and reallocated to
Participants. No investment gains or losses or other income or
expense shall be allocated to a suspense account. In the event a
suspense account is in existence at the time the Plan terminates, any
amount in the suspense account that cannot then be allocated to
Participants shall be returned to the Employer.
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5.6 COMBINED PLANS
In any case in which an individual is or has been a Participant in both a
defined benefit plan and a defined contribution plan maintained by the
Employer, the sum of the defined benefit plan fraction and the defined
contribution plan fraction for any Limitation Year may not exceed 1.00.
A. DEFINED BENEFIT FRACTION
For purposes of this Section, the defined benefit plan fraction for
any year is a fraction:
1. The numerator of which is the projected annual benefit of the
Participant under the Plan (determined as of the close of the
Limitation Year), and
2. The denominator of which is the lesser of:
a. The product of 1.25, multiplied by the dollar limitation in
effect under Section 415(b)(1)(A) of the Code for such
Limitation Year, or
b. The product of 1.4, multiplied by the percentage of a
Participant's average compensation that may be taken into
account under Section 415(b)(1)(B) of the Code with respect
to such individual under the Plan for such Limitation Year.
B. DEFINED CONTRIBUTION FRACTION
For purposes of this Section, the defined contribution plan fraction
for any year is a fraction:
1. The numerator of which is the sum of the annual additions to the
Participant's Accounts as of the close of the Limitation Year,
and
2. The denominator of which is the sum of the lesser of the
following amounts determined for such Limitation Year and for
each prior Limitation Year with the Employer:
a. The product of 1.25, multiplied by the dollar limitation in
effect under Section 415(c)(1)(A) of the Code for such
Limitation Year, or
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b. The product of 1.4, multiplied by the percentage of a
Participant's average compensation that may be taken into
account under Section 415(c)(1)(B) of the Code with respect
to such individual under the Plan for such Limitation Year.
C. EXCESS FRACTIONS
In the case of a Participant whose combined plan fractions exceed the
limitation of this Section, such Participant's annual benefit or
annual addition shall be reduced to meet such limitation by making the
necessary reduction in the following sequence:
FIRST - The Participant's voluntary nondeductible contribution shall
be returned, to the extent necessary, to comply with this Section.
NEXT - The Participant's annual benefit under the defined benefit plan
shall be limited, to the extent necessary, to comply with this
Section.
NEXT - The annual addition for a Participant in a plan in which the
contribution is discretionary shall be reduced, to the extent
necessary, to comply with this Section.
NEXT - The annual addition for a Participant in a plan in which the
contribution is mandatory shall be reduced, to the extent necessary,
to comply with this Section.
5.7 CONTROLLED GROUPS
In applying the limitations of Sections 5.5 and 5.6, the Employer and its
Affiliates shall be treated as a single employer.
5.8 PROTECTION OF ACCRUED BENEFITS
With the exception of an amendment described under Section 412(c)(8) of the
Code, no amendment to the Plan shall reduce the Accrued Benefit of a
Participant determined as of the date immediately preceding the adoption of
the amendment. In the event that an amendment either directly or
indirectly reduces or restricts a protected benefit under Section 411(d)(6)
of the Code, such benefit for a Participant is presumed as of the later of
the adoption date or the effective date of the amendment. In the case of
an amendment adopted after July 30, 1984 that, with respect to benefits
attributable to service before the amendment, eliminates or reduces an
early retirement benefit or a
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retirement-type subsidy (as defined by the Secretary of the Treasury), such
amendment shall not reduce the Accrued Benefit of a Participant, determined
immediately prior to the adoption of the amendment and determined without
regard to the amendment, if the Participant, either before or after the
amendment but before termination of service, satisfies the preamendment
requirements for the benefit. An amendment described in the preceding
sentence shall not eliminate optional benefit forms (except as permitted by
the Secretary of the Treasury) with respect to the Accrued Benefit of a
Participant accrued as of the date immediately preceding the adoption of
the amendment. The availability of any protected benefit of a Participant
provided under the Plan, as defined in Section 411(d)(6) of the Code, shall
not be subject to the Employer's consent or discretion.
5.9 TITLE TO ASSETS IN TRUSTEE
Title to all assets under the Plan shall be vested in the Trustee which
shall hold the Trust Fund and the income as a part thereof and make
payments therefrom as provided in the Plan.
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VI. INVESTMENT FUNDS
6.1 SEPARATE FUNDS
The Plan Administrator, in its discretion, shall select Investment Funds to
be offered to Participants for investment of their Accounts, and the Plan
Administrator shall direct the Trustee to establish accounts for the
Investment Funds as determined by the Plan Administrator.
6.2 PARTICIPANT DIRECTION
A Participant shall designate the percentage of investment among the funds
for contributions allocated to the Participant's Employee Deferral Account,
Employer Matching Account and Rollover Account. A Participant's
designation shall be filed in writing with the Plan Administrator and shall
designate percentages in multiples of not less than 25 percent (10 percent,
effective July 1, 1994). A Participant may upon such prior written notice
as the Plan Administrator may require, change the Participant's investment
designation with respect to future contributions and/or existing Account
balances (other than the Participant's Employer Profit Sharing Account) as
of any Valuation Date. The Participant's Employer Profit Sharing Account
will be invested by the Trustee as directed by the Plan Administrator.
6.3 INVESTMENT RESULTS
As of each Valuation Date, the investment results obtained in the
Investment Funds shall be allocated only to the Account balances of
Participants who have invested in the fund.
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VII. PARTICIPANT LOANS
Effective July 1, 1992, the Plan will allow Participant Loans. The Plan
Administrator, upon the application of a Participant, may direct the Trustee to
make a loan or loans to such Participant. The Plan Administrator shall follow a
uniform and nondiscriminatory policy in approving such loans and loans shall be
made available to Participants on a reasonably equivalent basis.
7.1 LOANS TO PARTICIPANTS
A. AVAILABILITY OF LOANS
Upon application by a Participant, the Plan Administrator may direct
the Trustee to make a loan to the Participant from the Participant's
Employee Deferral Account and Rollover Account. Such borrowing rules
must be formulated and administered so that the requirements of
Section 72(p) of the Code for non-taxable loans, the applicable
Department of Labor Regulations on plan loans, and the following
provisions of this section are satisfied. Any loan hereunder will
bear a reasonable rate of interest and will be evidenced by a
promissory note signed by the Participant in such form as the Plan
Administrator may require. The amount of any such loan will be
withdrawn from the Participant's Employee Deferral Account and
Rollover Account and the Investment Fund or Funds in which such
Accounts are invested in the manner specified in the Plan
Administrator's borrowing rules.
B. PLAN ADMINISTRATOR'S BORROWING RULES
The Plan Administrator may adopt borrowing rules for loans hereunder
and may revise such rules from time to time. The rules may contain
such requirements pertaining to loans as the Plan Administrator deems
necessary or desirable and that are not specified herein. The
borrowing rules may govern the procedures and cut-off dates for
applying for loans hereunder and the terms of such loans, including
(i) the number of loans that a Participant may request in any year and
the number of loans that may be outstanding at any time to a
Participant, (ii) any restrictions on reborrowing not stated in this
Section, (iii) the interest rate in effect from time to time for loans
or the method of ascertaining such interest rate, and (iv) the
repayment schedule for loans or the method for determining the
repayment schedule.
C. AMOUNT OF LOANS
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The minimum loan amount is $1,000 or such lesser amount as the Plan
Administrator may from time to time set forth in its borrowing rules.
The maximum aggregate loan amount is based upon the vested balance in
the Participant's Accounts. No Participant loan will exceed the
smallest of (i) the amount in the Participant's Employee Deferral
Account and Rollover Account, (ii) one-half of the Participant's
vested Account balances, or (iii) $50,000 (reduced by the highest
outstanding loan balance to the Participant during the 12 months
preceding the loan). For purposes of applying such limits, Account
values as the Valuation Date coincident with or immediately preceding
the date on which the loan is made will be used.
D. MAXIMUM REPAYMENT PERIOD
1. OTHER THAN RESIDENTIAL LOANS
Except as provided in paragraph 2 immediately below, the maximum
term of a loan will be 5 years (provided that the Plan
Administrator may establish a shorter repayment period for small
loans).
2. RESIDENTIAL LOANS
If a Participant requests a loan for the acquisition or
construction of the Participant's principal residence, the
repayment period will be determined by reference to bank loans
for the same purpose but may not exceed 10 years.
E. SECURITY FOR REPAYMENT
Each loan hereunder will be a Participant-directed investment for the
benefit of the Participant requesting such loan; accordingly, any
default in the repayment of principal or interest of any loan
hereunder will reduce the amount available for distribution to such
Participant (or the Participant's Beneficiary). Thus, any loan
hereunder will be secured by up to 50 percent of the vested amount in
the Participant's Accounts. The Plan Administrator acting under its
borrowing rules may require other security for repayment of a loan in
any instance. A Participant receiving a loan must execute such
instruments as the Plan Administrator requests and must pay any fees
for filings required by the Plan Administrator to perfect any security
interest in the Participant's Accounts or other security.
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F. REPAYMENT
The Plan Administrator may require a Participant to execute an
agreement to repay the principal and interest of a loan through
regular payroll deduction payments from the Participant's
compensation. The Plan Administrator may establish back-up repayment
procedures for Participants who do not make payroll deduction
repayment. Except as otherwise may be permitted under Treasury
regulations, any repayment procedure must provide for substantially
level amortization payments made quarterly or more frequently. Any
loan hereunder may be prepaid, in whole or in part, at any time
without penalty. If a Participant's service as an employee is
terminated for any reason, the entire unpaid principal and interest of
any loan then outstanding to such Participant will become immediately
due and payable.
G. ACTION UPON DEFAULT
If a Participant defaults on any payment of interest or principal of a
loan hereunder or defaults upon any other obligation relating to such
loan, the Plan Administrator may take (or direct the Trustee to take)
such action or actions as it determines to be necessary to protect the
interests of the Plan. Such actions may include commencing legal
proceedings against the Participant, or foreclosing on any security
interest in the Participant's Accounts or other security given in
connection with a loan hereunder; however, the Plan Administrator will
not direct foreclosure on the Participant's Employee Deferral Accounts
at a time when the Participant would not be entitled to receive a
distribution or withdrawal from such Account.
H. DISTRIBUTION TO PARTICIPANT WITH LOAN
In the case of any Participant with a loan outstanding hereunder, the
amount available for distribution to such Participant (or such
Participant's Beneficiary) will consist of the portion of his Accounts
invested in the Investment Funds of the Trust Fund. In addition, the
Participant's note will be distributed to the Participant (or the
Participant's Beneficiary), and the Trustee will report the value of
the note for income tax purposes as the amount of unpaid principal and
interest due thereon at the date of distribution.
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7.2 ACCOUNTING FOR LOANS
A. SOURCE OF LOAN
The Plan Administrator will establish procedures and ordering rules
for liquidating the Participant's Accounts to make a loan to him.
B. LOAN ACCOUNT
The Plan Administrator will establish and maintain a loan account for
each borrowing Participant. The unpaid principal and accrued but
unpaid interest on the loans to a Participant will be reflected for
Plan accounting purposes in the Participant's loan account.
Repayments by the Participant will be credited to the Participant's
loan account. The Plan Administrator will establish uniform
procedures for transferring repayment amounts from his loan account to
the Participant's other accounts.
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VIII. NONFORFEITABLE BENEFITS
8.1 NONFORFEITABLE INTEREST
A Participant shall have a nonforfeitable interest in the Participant's
Accounts based on the Participant's Years of Service for vesting. The
Participant's Years of Service shall be determined in accordance with
Section 8.2, and the Participant's nonforfeitable interest shall be
determined as follows:
A. EMPLOYEE DEFERRAL ACCOUNT AND ROLLOVER ACCOUNT
A Participant shall have a nonforfeitable interest in the
Participant's Employee Deferral Account and Rollover Account at all
times.
B. EMPLOYER MATCHING ACCOUNT AND EMPLOYER PROFIT SHARING ACCOUNT
A Participant's nonforfeitable interest in the Participant's Employer
Matching Account and Employer Profit Sharing Account shall be
determined under the following schedule:
COMPLETED YEARS NONFORFEITABLE
OF SERVICE PERCENTAGE
Less than 1 0
1 but less than 2 20
2 but less than 3 40
3 but less than 4 60
4 but less than 5 80
5 or more 100
In the event the Employer designates some part or all of a Profit
Sharing Contribution for a Plan Year as a qualified nonelective
contribution, a Participant to whom such a contribution is allocated
shall have nonforfeitable interest in such contribution at all times.
8.2 YEARS OF SERVICE
The following rules shall be applied in determining the number of a
Participant's Years of Service using the Vesting Computation Period to
credit Years of Service and One-Year Breaks in Service. All of an
Employee's Years
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of Service with the Employer shall be counted except the following Years of
Service shall be disregarded:
A. Years of Service prior to a One-Year Break in Service until the
Employee completes a Year of Service following the Participant's
return to the service of the Employer.
B. Years of Service completed prior to a One-Year Break in Service if the
Employee does not have any nonforfeitable interest under the Plan to
an Accrued Benefit derived from Employer contributions and the number
of the Employee's consecutive One-Year Breaks in Service equals or
exceeds the greater of five (5) or the aggregate number of the
Employee's Years of Service prior to such Break; provided, that in the
case of Plan Years beginning prior to January 1, 1985, a nonvested
Employee's Years of Service prior to a One-Year Break in Service
(incurred in a Plan Year beginning prior to 1985) shall not be counted
if the number of the Employee's consecutive One-Year Breaks in Service
equals or exceeds the aggregate number of the Employee's Years of
Service prior to such Break. In applying the rules of this paragraph,
if any Years of Service are disregarded by reason of any earlier One-
Year Break in Service, such Years of Service shall not be aggregated
when determining whether Years of Service are to be disregarded by
reason of a subsequent One-Year Break in Service.
8.3 NO INCREASE IN PRE-BREAK VESTING
In the case of a Participant who incurs five (5) consecutive One-Year
Breaks in Service, Years of Service completed by such Participant after
such Break period shall not be counted to increase the Participant's
nonforfeitable interest in the Participant's Accounts as determined prior
to such Break period.
8.4 FORFEITABLE INTERESTS
Upon separation from the Employer's service for any reason, a Participant's
forfeitable interest in the Participant's Accrued Benefit shall be
forfeited in accordance with the following rules, whichever is applicable.
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A. ZERO PERCENT VESTED
In the event a Participant's service with the Employer terminates and
such Participant does not have any nonforfeitable interest in the
Participant's Accrued Benefit, the Participant shall be deemed to have
received a distribution of such nonforfeitable Accrued Benefit and the
forfeitable portion of the Accrued Benefit shall be forfeited at the
time of the Participant's separation from service. If a Participant
is deemed to receive a distribution in accordance with this paragraph
and the Participant resumes service with the Employer or an Affiliate
before the date on which the Participant incurs five consecutive One-
Year Breaks in Service, the amount of the forfeited Accrued Benefit
shall be restored.
B. PARTIALLY VESTED
1. FIVE-YEAR BREAK IN SERVICE
In the event a Participant's service with the Employer and its
Affiliates terminates and such Participant has a nonforfeitable
interest in the Participant's Accrued Benefit but is not paid the
entire nonforfeitable portion of the Participant's Account, a
separate account shall be established for the Participant's
remaining Accrued Benefit and the forfeitable interest the
Participant shall be forfeited as of the end of the Plan Year in
which the Participant incurs five (5) consecutive One-Year Breaks
in Service. The Participant's nonforfeitable interest in the
Participant's separate Account at any time prior to incurring 5
consecutive One-Year Breaks in Service shall be an amount "X"
determined under the formula X = P(AB + (R x D)) - (R x D), where
P is the vested percentage at the relevant time; AB is the
Account balance at the relevant time; D is the amount of the
distribution; R is the ratio of the Account balance at the
relevant time to the Account balance after distribution; and the
relevant time is the time at which, under the Plan, the vested
percentage in the Account cannot increase.
2. CASH OUT RULE
In the event a Participant's service with the Employer and its
Affiliates terminates and such Participant is paid the
Participant's entire nonforfeitable interest prior to incurring 5
consecutive
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One-Year Breaks in Service, the forfeitable interest of the
Participant shall be forfeited at the time the payment is made.
If the Participant returns to the Employer's (or an Affiliate's)
service before incurring 5 consecutive One-Year Breaks in Service
and repays to the Plan the full amount of the earlier
distribution, the forfeited amount, unadjusted by any investment
increases or decreases, shall be restored to the Participant's
Account. To obtain a restoration of a forfeited amount, the
Participant's repayment must be made before the earlier of the
date on which the Participant incurs five consecutive One-Year
Breaks in Service or the end of the five year period beginning
with the date on which the Participant resumes employment with
the Employer or an Affiliate. If the Participant's earlier
distribution was made for any reason other than separation of
service with the Employer and its Affiliates, the forfeited
amount shall be restored only if the Participant repays the
earlier distribution before the date five years after the date of
the distribution.
8.5 DISTRIBUTION TO SEPARATED PARTICIPANTS
In the case of a Participant who separates from the service of the Employer
and its Affiliates, the Participant's nonforfeitable interest in the
Participant's Accounts shall be payable in accordance with the provisions
of Article XII.
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IX. RETIREMENT
9.1 RETIREMENT AGE AND BENEFIT
A. NORMAL RETIREMENT
A Participant shall attain normal retirement age upon reaching age 65.
The Participant shall have a nonforfeitable interest in the
Participant's Accrued Benefit upon attaining normal retirement age.
Payment of the Participant's Accounts shall be made in accordance with
the provisions of Article XII.
B. POSTPONED RETIREMENT
A Participant may not be required to retire involuntarily under this
Plan simply because the Participant attains normal retirement age.
Subject to Section 12.2A, no payment of a Participant's Accounts shall
be made under the Plan until a Participant actually retires and ceases
employment. Upon actual retirement, payment of the Participant's
Accounts shall be made in accordance with the provisions of Article
XII.
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X. DEATH BENEFIT
10.1 DEATH OF PARTICIPANT
A Participant who dies while in the service of the Employer shall be 100
percent vested in the Participant's Accounts upon the Participant's death.
Upon a Participant's death, the nonforfeitable portion of the Participant's
Accounts shall be payable to the Participant's Surviving Spouse, or the
Participant's designated Beneficiary if the Participant has no Surviving
Spouse at the time of death or the Spouse consents to the designation of a
Beneficiary other than the Surviving Spouse. The designation of a
Beneficiary to whom the Spouse has consented shall not be changed without
the Spouse's consent to such change unless the Spouse's earlier consent
expressly permits designations by the Participant without any requirement
of further consent by the Spouse. A Spouse's consent must be in writing,
it must acknowledge the effect of the Beneficiary designation and it must
be witnessed by a notary public or a Plan representative. A Spouse's
consent to a Beneficiary designation as provided for under this Section is
effective only with respect to that Spouse. Payment of the death benefit
shall be made in accordance with the provisions of Article XII, provided
that the Surviving Spouse may require that the payment be made within a
reasonable time following the Participant's death.
10.2 PAYMENTS UPON FAILURE TO DESIGNATE BENEFICIARY
Any portion of the amount payable that is undisposed of because of the
failure to designate a Beneficiary or the failure of the Beneficiary to
survive the Participant shall be paid in order of survivorship to:
A. The Participant's Surviving Spouse;
B. The Participant's descendants, per stirpes; and
C. If none are surviving, the Participant's estate.
Notwithstanding the above, if the Plan Administrator is unable to locate
any of the persons listed in (A) or (B) within three (3) months, the Plan
Administrator may pay the death benefits to the Participant's estate.
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XI. DISABILITY BENEFIT
11.1 PAYMENT DUE
If a Participant becomes Permanently Disabled while in the service of the
Employer, the Participant shall be 100 percent vested in the Participant's
Accounts as of the date of the Participant's disability. Payment of the
Participant's entire interest shall be made in accordance with the
provisions of Article XII.
11.2 "PERMANENTLY DISABLED"
"Permanently Disabled" means that the Participant is unable by reason of
any medically determinable physical or mental impairment to substantially
perform the regular material duties of the same occupations for which the
Participant has been employed by the Employer, and such disability is
expected to be of long, continued and indefinite duration. Permanent
disability shall be established by the certification of a physician,
selected by the Participant and approved by the Plan Administrator that the
Participant has suffered a permanent disability, or if the physician
selected by the Participant shall not be approved by the Plan
Administrator, by a majority of three physicians, one selected by the
Participant (or the Participant's Spouse, child, parent or legal
representative in the event of the Participant's inability to select a
physician), one by the Plan Administrator, and the third by the two
physicians selected by the Participant and the Plan Administrator. The
decision of the majority of such three physicians shall be final and
conclusive.
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XII. DISTRIBUTIONS AND WITHDRAWALS
12.1 DISTRIBUTION OF BENEFITS
A. FORMS OF DISTRIBUTION
Subject to subsection C below, any amounts payable under the terms of
the Plan with respect to a Participant who retires after attaining
normal retirement age as defined in Section 9.1(A), becomes
Permanently Disabled or dies shall, at the election of the Participant
or Beneficiary (as applicable), be paid as a single-sum distribution
of cash, or in a series of payments over a period not to extend beyond
the life expectancy of the Participant (or the Beneficiary, as
applicable) or the joint life expectancy of the Participant and the
Participant's Beneficiary. Any amounts payable under the terms of the
Plan with respect to a Participant who separates from service for any
other reason shall be paid as a single-sum distribution of cash. No
annuities shall be payable from the Plan. Each optional form of
benefit offered under the Plan shall be available to all Participants
on a nondiscriminatory basis.
B. TIME OF DISTRIBUTION
1. DISTRIBUTION DATES
Subject to paragraph 2 of this subsection B, subsection C below
and Section 12.2, benefits due to a Participant or Beneficiary,
as applicable, shall be paid or commence to be paid within an
administratively reasonable time following the Valuation Date
elected by the Participant or Beneficiary, as applicable. A
Participant or Beneficiary may elect to commence distributions as
of any Valuation Date coinciding with or following the
Participant's separation from service with the Employer and its
Affiliates. In the case of a payment to a Participant, the
payment shall not be made without the consent of the Participant,
to the extent required by law, if the value of the Participant's
nonforfeitable interest in the Participant's Accounts exceeds
$3,500 as of the date of distribution (or exceeded such amount as
of the date of any previous distribution).
2. CONSENT TO DISTRIBUTION
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Unless a Participant elects in writing to receive the
Participant's benefit at a later date, payment to a Participant
shall be made no later than sixty (60) days after the close of
the Plan Year in which the latest of the following events occurs:
a. The Participant attains age sixty-five (65);
b. The 10th anniversary of the date on which the Participant
first became a Participant; or
c. The termination of the Participant's service with the
Employer.
C. SMALL BENEFIT CASH-OUT
If the Participant's nonforfeitable interest in his Accounts does not
exceed $3,500 as of the date of distribution (and did not exceed such
amount as of the date of any previous distribution), that interest
shall be distributed as a lump sum within an administratively
reasonable time following the Valuation Date coinciding with or
immediately following the Participant's separation from service with
the Employer and its Affiliates.
D. VALUATION OF ACCOUNTS FOR DISTRIBUTION
For purposes of determining the value of a Participant's Accounts
under this Section, the value shall be determined as of the Valuation
Date immediately preceding the date of distribution.
12.2 REQUIRED DISTRIBUTIONS
Notwithstanding any other provision of this Plan to the contrary, the
following shall apply:
A. The entire interest of a Participant shall be distributed commencing
no later than April 1 following the calendar year in which the
Participant attains age seventy and one-half (70-1/2), provided, that
the distribution of a Participant's benefit need not commence earlier
than the April 1 following the calendar year in which the Participant
retires if the Participant attained age seventy and one-half (70-1/2)
before January 1, 1988 and such Participant is not a 5 percent owner
(as defined under Section 416(i) of the Code) at any time during the
Plan Year ending
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with or within the calendar year in which the Participant attained age
sixty-six and one-half (66-1/2) or during any subsequent Plan Year.
B. The Participant's interest shall be distributed over a period that
does not exceed the life expectancy of the Participant (or the
Beneficiary) or the life expectancy of the Participant and the
Participant's designated Beneficiary, provided, that if the
distributions are for a period measured by the life expectancy of the
Participant or the joint life expectancy of the Participant and the
Participant's Spouse, if applicable, such life expectancies shall be
recalculated annually, if the Participant so elects. If the
Participant's designated Beneficiary is someone other than his Spouse,
then the Participant's life expectancy may be recalculated, but the
Beneficiary's may not. Distributions to the Participant or the
Participant and the Participant's designated Beneficiary shall meet
the minimum annual distribution requirements and the incidental death
benefit rules of Section 401(a)(9) of the Code and the regulations
thereunder, including Treasury Regulation Section 1.401(a)(9)-2, which
are incorporated into this Document by reference.
C. If payments have commenced to the Participant and the Participant dies
before the Participant's entire interest is distributed, the
Participant's remaining interest shall be distributed to the
Participant's Beneficiary at least as rapidly as under the method of
distribution to the Participant as of the date of the Participant's
death.
D. If a Participant dies before distribution of the Participant's
interest has commenced, the Participant's entire interest shall be
distributed within five (5) years of the Participant's death,
provided, that if the Participant has designated a Beneficiary to
receive a part or all of the Participant's interest and if payment to
the Beneficiary commences no later than one (1) year after the
Participant's death, the portion payable to such Beneficiary may be
paid over a period that does not exceed the Beneficiary's life
expectancy. In the event the Participant's designated Beneficiary is
the Participant's Spouse, payment to the Spouse need not commence
earlier than the date on which the Participant would have attained age
seventy and one-half (70-1/2). If a deceased Participant's designated
Beneficiary is the Participant's Spouse and the Spouse dies before
payments commence, the Participant's entire interest shall be
distributed by applying the rules of this paragraph as though the
deceased Spouse were the Participant.
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12.3 DISTRIBUTIONS TO MINORS AND INCOMPETENTS
If any Participant or Beneficiary entitled to receive benefits hereunder is
a minor or, in the judgment of the Plan Administrator, unable to take care
of his affairs because of mental condition, illness or accident, any
payment due such person may, in the sole discretion of the Plan
Administrator (unless prior claim therefor shall have been made by a
qualified guardian or other legal representative), be paid for the benefit
of such Participant or Beneficiary: (a) to such person's legal
representative appointed by proceedings satisfactory to the Plan
Administrator; (b) to such person (other than a minor) directly even though
he is not then able to exercise control over such payment; and/or (c) to
any custodian under the Uniform Gifts to Minors Act or similar statutes or
guardian of such person or of his property with whom such person is making
his home. Neither the Trustee, the Plan Administrator nor the Employer
shall be required to see to the application of any such distribution so
made to any of said persons, but said person's receipt shall be a full
discharge of the Trustee's, the Plan Administrator's and the Employer's
duties.
12.4 QUALIFIED DOMESTIC RELATIONS ORDERS
A. DISTRIBUTIONS
In the event a person (hereafter called the "alternate payee") is
designated by a qualified domestic relations order, as defined under
Section 414(p) of the Code, as having a right to receive all, or a
portion of, the benefits payable under the Plan to a Participant,
payment to the alternate payee may, to the extent provided by such
order, begin at a time not permitted for distributions to the
Participant. Payment to the alternate payee may be made as though the
Participant had retired on the date on which the order requires
payment to begin considering the present value of benefits accrued by
the Participant up to such date (but disregarding an Employer subsidy
for early retirement). Payment may be made in any form permitted by
the Plan other than in the form of a joint and survivor annuity with
respect to the alternate payee and the alternate payee's spouse.
B. SEPARATE ACCOUNT PERIOD
If it is being determined whether a domestic relations order received
in connection with a Participant is a qualified domestic relations
order, the Plan Administrator shall separately account for the amounts
that would have been paid to the alternate payee during the period of
determination
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if the order was a qualified one. If the order is determined to be a
qualified order at any time during the eighteen (18) month period
beginning on the date on which the first payment would be required to
be made under the qualified domestic relations order, the Plan
Administrator shall pay the segregated amounts, including interest
thereon, to the persons entitled to the amounts under the order. If
it is determined that the order is not a qualified order or if at the
end of the eighteen (18) month period it is still undetermined whether
the order is a qualified order, the segregated amounts, including
interest thereon, shall be paid to the persons who would have been
entitled to the payments had there been no order. In the event it is
determined that the order is a qualified order only after the eighteen
(18) month period has elapsed, the application of the order shall be
applied prospectively only, beginning as of such determination date.
12.5 HARDSHIP DISTRIBUTIONS
The Plan will allow hardship distributions. A distribution of all or a
portion of the Participant's Elected Contributions Account (other than
earnings credited thereto after December 31, 1988) and, effective November
8, 1991, the Participant's Rollover Account may be made to a Participant
upon the Participant's request if it is established that the Participant
has an immediate and heavy financial need and the distribution is necessary
to satisfy such need. The Plan Administrator shall establish the existence
of the Participant's immediate and heavy financial need and the
Participant's necessity for a distribution to satisfy such need by applying
the following standards:
A. IMMEDIATE AND HEAVY FINANCIAL NEED
A need will be deemed to be an immediate and heavy financial need if
it is to pay for one or more of the following:
1. Medical expenses described in Section 213(d) of the Code incurred
by the Participant, the Participant's Spouse, or any dependent of
the Participant (a dependent shall be determined under Section
152 of the Code) or necessary for such persons to receive medical
care, as defined in Section 213(d) of the Code;
2. Purchase (excluding mortgage payments) of a principal residence
for the Participant;
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3. Payment of tuition and related educational fees for the next 12
months of post-secondary education for the Participant or the
Participant's Spouse, children or dependents;
4. The need to prevent the eviction of the Participant from the
Participant's principal residence or foreclosure on the mortgage
of the Participant's principal residence; or
5. Any other reason recognized to constitute an immediate and heavy
financial need by the Commissioner of the Internal Revenue
Service in a revenue ruling, notice or other document of general
applicability. A need otherwise determined to constitute an
immediate and heavy financial need will not fail to be such a
need merely because the need is foreseeable or voluntarily
incurred by the Participant.
B. DISTRIBUTION NECESSARY TO SATISFY THE FINANCIAL NEED
A distribution will be necessary to satisfy the immediate and heavy
financial need only if all of the following requirements are
satisfied:
1. The amount distributed does not exceed the amount of the heavy
and immediate financial need, increased by any amounts necessary
to pay any federal, state or local income taxes or penalties
reasonably anticipated to result from the distribution;
2. The Participant has obtained all distributions (other than
hardship distributions) and all nontaxable loans currently
available to the Participant under the Plan and under all other
qualified plans maintained by the Employer; and
3. The requirements of subsection C immediately below are satisfied.
C. RESTRICTIONS
The following restrictions will apply to a Member who receives a
hardship withdrawal:
1. Upon receiving a distribution under this Section, the
Participant's elective contributions (E.G., Participant Elected
Contributions) and employee contributions under this Plan and all
other plans
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maintained by the Employer or an Affiliate will be suspended for
at least 12 months; and
2. A Participant who receives a distribution under this Section may
not make elective contributions (E.G., Participant Elected
Contributions) under the Plan or any other plans maintained by
the Employer or an Affiliate for the Participant's taxable year
(immediately following the taxable year of the hardship
distribution) in excess of the $7,000 limit (as indexed) for such
taxable year less the amount of the Participant's elective
contributions for the taxable year of the hardship distribution.
D. ADDITIONAL RULES
The following rules shall apply to each request for a hardship
distribution by a Participant.
1. The Participant's request for a hardship distribution shall be
made on such forms as are provided by the Plan Administrator from
time to time and the Participant shall furnish the Plan
Administrator with such information as the Plan Administrator
requests in its evaluation of the Participant's request;
2. The amount distributed, if any, shall in no event exceed the
balance of the Participant's Employee Deferral Contributions
Account (excluding earnings credited thereto after December 31,
1988) and Rollover Account; and
3. A Participant's request for a hardship distribution shall not be
honored to the extent it requires the distribution of an amount
serving as security for a loan to the Participant
12.6 DIRECT ROLLOVER DISTRIBUTIONS
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 distributee
in a direct rollover.
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A. 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 a 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).
B. 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.
C. 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.
D. DIRECT ROLLOVER
A direct rollover is a payment by the Plan to the eligible retirement
plan specified by the distributee.
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12.7 WAIVER OF 30-DAY ELECTION PERIOD
Effective for distributions made on or after January 1, 1994, if the
distribution is one to which Sections 401(a)(11) and 417 of the Code do not
apply, such distribution may commence less than 30 days after the notice
required by Income Tax Regulation Section 1.411(a)-11(c) is given provided
(i) the Committee clearly informs the Participant that the Participant has
a right to a period of at least 30 days after receiving the notice to
consider the decision of whether or not to elect a distribution or a direct
rollover, and (ii) the Participant, after receiving the notice,
affirmatively elects a distribution or a direct rollover.
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XIII. TOP HEAVY PROVISIONS
13.1 APPLICABILITY
Notwithstanding any other provision of the Plan to the contrary, the
provisions of this Article shall apply for any Plan Year, beginning after
December 31, 1983, in which the Plan is a Top-Heavy Plan as defined in
Section 416(g) of the Code.
13.2 DEFINITIONS
A. AGGREGATION GROUP
Aggregation Group includes each plan maintained by the Employer or an
Affiliate in which a Key Employee participates and each other plan
maintained by the Employer or an Affiliate which enables any plan in
which a Key Employee participates to meet the requirements of Sections
401(a)(4) or 410 of the Code. In addition, the Employer may elect to
include other plans in the Aggregation Group which satisfy the
requirements of Sections 401(a)(4) and 410 of the Code when considered
together with the plans that are required to be aggregated. Any plan,
however, that is or may be permissively included in the Aggregation
Group upon an election by the Employer shall not be subject to the
provisions of this Article.
B. DETERMINATION DATE
Determination Date shall be the last day of the preceding Plan Year
or, if such Plan Year is the first Plan Year of the Plan, the last day
of such Plan Year. In the case of plans included in an Aggregation
Group, the present value of accrued benefits or accounts shall be
combined for all aggregated plans that have a Determination Date that
falls in the same calendar year.
C. KEY EMPLOYEE
Key Employee means an Employee or a former Employee (or the
beneficiary of such an Employee) who during the Plan Year ending on
the Determination Date or during the four (4) preceding Plan Years is,
as determined under Section 416(i) of the Code:
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1. An officer of the Employer having an annual compensation greater
than 50 percent of the amount in effect under Section
415(b)(1)(A) of the Code;
2. One of the ten Employees having annual compensation from the
Employer greater than the amount in effect under Section
415(c)(1)(A) of the Code and owning (or considered as owning
within the meaning of Section 318 of the Code) the largest
interest in the Employer;
3. A five (5) percent owner; or
4. A one (1) percent owner who has annual compensation from the
Employer in excess of $150,000.
Section 416(i) of the Code is hereby incorporated in the Plan by
reference for the purpose of determining whether an Employee is a Key
Employee, a former Key Employee, or a Non-Key Employee.
D. NON-KEY EMPLOYEE
Non-Key Employee means an Employee or a former Employee (or the
beneficiary of such an Employee) who during the Plan Year ending on
the Determination Date or during the four (4) preceding Plan Years is
not a Key Employee or former Key Employee as defined under Section
416(i) of the Code.
E. SUPER TOP-HEAVY
A plan or plans required to be included in the Aggregation Group shall
be Super Top-Heavy for a Plan Year if on the Determination Date for
such Plan Year the Top-Heavy Ratio exceeds ninety percent (90%).
F. TOP-HEAVY
A plan or plans required to be included in the Aggregation Group shall
be Top-Heavy for a Plan Year if on the Determination Date for such
Plan Year the Top-Heavy Ratio exceeds sixty percent (60%).
G. TOP-HEAVY RATIO
Top-Heavy Ratio means the ratio determined from dividing the present
value of accrued benefits and accounts for Key Employees by the total
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value of accrued benefits and accounts for Key Employees and Non-Key
Employees. The value of accrued benefits and accounts shall be
determined as prescribed under paragraph H below.
H. VALUATION OF ACCRUED BENEFIT
1. DEFINED CONTRIBUTION PLAN
The present value of an accrued benefit under a defined
contribution plan is the account balance derived from Employer
and nondeductible Employee contributions as of the most recent
valuation date within the twelve (12) month period ending on the
Determination Date, plus any contributions actually made since
such date or, in the case of a plan subject to minimum funding
requirements, contributions required to be made as of the
Determination Date. All defined contribution plans required to
be included or permissively included in the Aggregation Group
shall be treated as a single plan.
2. DEFINED BENEFIT PLAN
The present value of an accrued benefit under a defined benefit
plan is the value of the monthly retirement benefit derived from
Employer or nondeductible Employee contributions, determined as
of the most recent valuation date within the twelve (12) month
period ending on the Determination Date, and determined as though
the individual terminated service as of such valuation date. The
benefit of Employee, other than a Key Employee, shall be treated
as accruing under the method that is used for accrual purposes
for all plans of the Employer and its Affiliates or, if there is
no such method, as if such benefit accrued not more rapidly than
the slowest accrual rate permitted under Section 411(b)(1)(C) of
the Code. Reasonable actuarial assumptions shall be used to
determine the value of the benefit under the plan; provided, that
assumptions as to future withdrawal or future salary increases
shall not be used. All defined benefit plans required to be
included or permissively included in the Aggregation Group shall
be treated as a single plan and the same actuarial assumptions
shall be used to value benefits under each of the plans included
in the Aggregation Group.
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3. DISTRIBUTIONS INCLUDED
In determining the present value of any accrued benefits and the
amount of any account to be used to determine the Top-Heavy
Ratio, distributions within the period of five (5) consecutive
Plan Years ending on the Determination Date, and such rollover
accounts as prescribed by regulation by the Secretary of the
Treasury, shall be added to the value of accrued benefits as of
such Determination Date. The accrued benefits of a former Key
Employee and the accrued benefits of an individual who has not
performed any services for the Employer maintaining the Plan at
any time during the five (5) year period ending on the
Determination Date shall, however, be disregarded.
13.3 MINIMUM CONTRIBUTIONS
For any Plan Year in which the Plan's Aggregation Group is Top-Heavy, the
Employer contribution and forfeitures allocated to a Participant who is a
Non-Key Employee in the employ of the Employer on the last day of the Plan
Year shall be not less than the lesser of:
A. Three percent (3%) of the Participant's compensation (within the
meaning of Section 415 of the Code); or
B. The percentage at which contributions are made under the Plan for
the Key Employee for whom such percentage is the highest for the
Plan Year. For Plan Years beginning prior to January 1, 1989,
this percentage shall be determined for such Key Employee by
dividing the contributions and forfeitures for such Employee by
so much of his total compensation for the Year as does not exceed
$200,000, or such other amount as is determined by the Secretary
of the Treasury under Section 416(d)(2) of the Code to be in
effect for that year.
In determining the contribution rate for a Key Employee or the
contribution allocated to a Non-Key Employee, Employee elective
contributions under a plan qualified under Section 401(k) of the
Code shall be counted for all purposes.
If the Plan is required to be included in an Aggregation Group
and the Plan allows a defined benefit plan required to be in such
Group to meet the requirements of Section 401(a)(4) or 410 of
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the Code, the minimum contribution, in such circumstances, shall
be not less than three (3) percent of the Participant's
Compensation for the Plan Year. All defined contribution plans
required to be included in the Aggregation Group shall be treated
as a single plan.
13.4 LIMITATIONS ON CONTRIBUTIONS
In any Plan Year in which the Plan's Aggregation Group is Top-Heavy, the
combined Plan limits imposed by Sections 5.6A.2.a and 5.6B.2.a shall be
applied by substituting 1.0 for 1.25 unless the following conditions are
met:
A. The Plan's Aggregation Group is not Super Top-Heavy; and
B. The minimum contribution required for a non-Key Employee is at
least equal to the amount set forth in Section 13.3 calculated by
substituting four percent (4%) for three percent (3%) in Section
13.3B.
13.5 BENEFITS UNDER DIFFERENT PLANS
If the Employer maintains one or more defined contribution plans (which
shall be treated as a single defined contribution plan for purposes of this
Article) in addition to a defined benefit plan and a Non-Key Employee
participates in both types of plans, the Employer shall provide such
Participant with the minimum benefit required under the defined benefit
pension plan, offset, however, by any benefit provided under the Employer's
defined contribution plan.
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XIV. PROVISION AGAINST ANTICIPATION
Until distribution pursuant to the terms hereof, no Participant shall have the
right or power to alienate, anticipate, commute, pledge, encumber or assign any
of the benefits, proceeds or avails set aside for him under the terms of the
Plan, and no such benefits, proceeds or avails shall be subject to seizure by
any creditor of the Participant or the Employer under any writ or proceedings at
law or in equity, provided, that the terms of this Section shall not prohibit
the creation, assignment or recognition of a right to any benefit payable with
respect to a Participant if such creation, assignment or recognition of a right
is made under a qualified domestic relations order as defined under Section
414(p) of the Code.
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XV. ADMINISTRATIVE COMMITTEE - NAMED FIDUCIARY AND ADMINISTRATOR
15.1 APPOINTMENT OF COMMITTEE
The Employer shall appoint an Administrative Committee comprised of one or
more persons (herein referred to as the Committee) to serve for such terms
as the Employer may designate or until a successor has been appointed or
until removal by the Employer. The Employer shall advise the Trustee in
writing of the names of the members of the Committee and any changes
thereafter made in the membership of the Committee. Vacancies due to
resignation, death, removal or other causes shall be filled by the
Employer. Members shall be bonded except as may otherwise be allowed by
law. A member of the Committee may be paid reasonable compensation for the
member's service, provided, that a member who is a full-time employee of
the Employer shall serve without compensation. All reasonable expenses of
the Committee shall be paid by the Employer. The number of the Committee
may be changed by the Employer at any time.
15.2 COMMITTEE ACTION
The Committee shall appoint a secretary who shall keep minutes of the
Committee's proceedings and all data, records and documents pertaining to
the Committee's administration of the Plan. The Committee shall act by
majority vote of its members in office at that time, such vote to be taken
at a meeting or, in writing, without a meeting. The Committee may, by such
majority action, authorize its secretary or any one or more of its members
to execute any document or documents on behalf of the Committee, in which
event the Committee shall notify the Trustee in writing of such action and
the name or names of those so designated. The Trustee shall accept and
rely conclusively upon any direction or document executed by such
secretary, member or members as representing action by the Committee until
the Committee shall file with the Trustee a written revocation of such
designation. A member of the Committee who is also a Participant hereunder
shall not vote or act upon any matter relating solely to such member.
15.3 RIGHTS AND DUTIES
The Committee shall be the Plan Administrator and Named Fiduciary of the
Plan within the meaning of ERISA. The Committee, on behalf of the
Participants and their Beneficiaries, shall have the authority to control
and manage the operation and administration of the Plan and shall have all
powers
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necessary to accomplish those purposes. It will interpret and apply all
Plan provisions and may correct any defect, supply any omission or
reconcile any inconsistency or ambiguity in such manner as it deems
advisable. It will make all final determinations concerning eligibility,
benefits and rights hereunder, and all other matters concerning plan
administration and interpretation. All determinations and actions of the
Committee will be conclusive and binding upon all persons, except as
otherwise provided herein or by law, and except that the Committee may
revoke or modify a determination or action previously made in error. Any
action or omission by the Committee will be subject to review (by a court
or otherwise) only for an abuse of discretion. The Committee will exercise
all powers and authority given to it in a nondiscriminatory manner, and
will apply uniform administrative rules of general application in order to
assure similar treatment of persons in similar circumstances. The
responsibility and authority of the Committee shall include, but shall not
be limited to, the following:
A. Determining all questions relating to the eligibility of Employees to
participate;
B. Computing and certifying to the Trustee the amount and kind of
benefits payable to Participants, their Spouses and/or their
Beneficiaries;
C. Authorizing all disbursements by the Trustee from the Trust;
D. Maintaining all necessary records for the administration of the Plan
other than those that the Trustee has specifically agreed to maintain;
E. Interpreting the provisions of the Plan and publishing such rules for
the regulation of the Plan as are deemed necessary and not
inconsistent with the terms of the Plan;
F. Establishing reasonable procedures to determine the qualified status
of domestic relations orders and to administer distributions under
such qualified orders;
G. Notifying the Participant and any other alternate payee, as defined
under Section 414(p)(8) of the Code, of the receipt of a domestic
relations order, the Plan's procedures for determining the qualified
status of such an order, and the determination made in connection with
such order;
H. Directing the Trustee to make distributions from the Trust Fund to
Participants, former Participants, and beneficiaries of the Trust in
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accordance with the provisions of the Plan and this Trust Agreement.
The Trustee shall withhold from such distributions any amount required
to be withheld pursuant to Section 3405 of the Code unless the
recipient of such distributions has made an appropriate election under
Section 3405(a)(2) or 3405(b)(3) of the Code.
15.4 INVESTMENTS
The Committee may appoint, in writing, an Investment Manager or Managers to
manage and control all or part of the investments of the Plan. No
appointment of an Investment Manager shall be effective until the
Investment Manager has acknowledged in writing that the Investment Manager
is a fiduciary of the Plan, and that the Investment Manager has complied
with the bonding requirements of ERISA.
15.5 INFORMATION, REPORTING AND DISCLOSURE
To enable the Committee to perform its functions, the Employer shall supply
full and timely information to the Committee on all matters relating to the
Compensation of all Participants; their continuous, regular employment;
their retirement, death or cause for termination of employment; and such
other pertinent facts as the Committee may require, and the Committee shall
furnish the Trustee such information as may be pertinent to the Trustee's
administration of the Trust. The Committee, as Plan Administrator, shall
have the responsibility of complying with the reporting and disclosure
requirements of ERISA and, to the extent applicable, any other federal or
state law.
15.6 INDEPENDENT QUALIFIED ACCOUNTANT
Unless the Plan is exempt from the requirement by applicable law or
regulation, the Committee shall engage, on behalf of all Participants, an
independent qualified public accountant who shall conduct such examinations
of the financial statements of the Plan and of other books and records of
the Plan as the accountant may deem necessary to enable the accountant to
form an opinion as to whether the financial statements and schedules
required by law to be included in any reports are presented fairly and in
conformity with generally accepted accounting principles applied on a basis
consistent with that of any preceding year.
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15.7 STANDARD OF CARE IMPOSED UPON THE COMMITTEE
The Committee shall discharge its duties with respect to the Plan solely in
the interest of the Participants and Beneficiaries; and
A. For the exclusive purpose of providing benefits to Participants and
their Beneficiaries and defraying reasonable expenses of the Plan;
B. With the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent person, acting in a like capacity and
familiar with such matters, would use in the conduct of an enterprise
of like character and with like aims; and
C. In accordance with the Plan provisions insofar as such provisions are
consistent with the provisions of ERISA.
15.8 ALLOCATION AND DELEGATION OF RESPONSIBILITY
The Committee may, by written rule promulgated under Section 15.3 above,
allocate fiduciary responsibilities among Committee members and may
delegate to persons other than Committee members the authority to carry out
fiduciary responsibilities under the Plan, provided that no such
responsibility shall be allocated or delegated to the Trustee without its
written consent. As used in this part, the term "fiduciary responsibility"
shall not include any responsibility provided in this Trust Agreement to
manage or control the assets of the Plan.
The Committee, in making the above allocation of fiduciary
responsibilities, may provide that a person or group of persons may serve,
with respect to the Plan, in more than one fiduciary capacity.
The Committee or, so long as the Committee shall have made written
approval, persons to whom fiduciary responsibilities have been delegated by
the Committee may employ one or more persons to render advice with regard
to any responsibility such fiduciary has under the Plan.
In the event a fiduciary responsibility is allocated to a Committee member,
no other Committee member shall be liable for any such act or omission of
the person to whom the responsibility is allocated except as may be
otherwise required by law. If a fiduciary responsibility is delegated to a
person other than a Committee member, the Committee shall not be
responsible or liable for
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an act or omission of such person in carrying out such responsibility
except as may otherwise be required by law.
15.9 BONDING
Each fiduciary of the Plan and every person handling Plan funds shall be
bonded unless exempt from such requirement by law. It shall be the
obligation of the Committee to assure compliance with applicable bonding
requirements. The Trustee shall not be responsible for assuring that
bonding requirements are complied with and such responsibility is
specifically allocated to the Committee.
15.10 CLAIMS PROCEDURE
A. BENEFIT APPLICATION
All applications for Plan benefits shall be sent to the Committee on
forms prescribed by the Committee and signed by the Participant or, if
for a death benefit, by the Participant's Beneficiary. Such
application shall be acted on within ninety (90) days after receipt,
unless special circumstances require additional time and the Committee
notifies the applicant of the extension prior to the expiration of the
original ninety (90) day period. In no event shall the extension
exceed an additional ninety (90) days. If any application is denied
in whole or in part, the Committee shall: notify the applicant;
advise the applicant of the right to review; and set forth in a manner
calculated to be understood by the applicant specific reasons for such
denial, specific references to the Plan provisions on which the denial
is based, a description of any additional information or material
necessary for the applicant to perfect an appeal, an explanation of
why such material is necessary and an explanation of the Plan's review
procedure.
B. BENEFIT DENIALS
In the case of any person whose application for benefits is denied in
whole or in part, the applicant or the duly authorized representative
may appeal such denial to the Committee for a full and fair review
thereof by sending to the Committee a written request for review
within ninety (90) days after receiving notice of denial. The
Committee shall give the applicant an opportunity to review pertinent
documents in preparing the applicant's request for review. The
request shall set forth all grounds on which it is based, supporting
facts and other matters that the applicant
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deems pertinent. The Committee may require the applicant to submit
such additional facts, documents or other material as it deems
necessary or advisable in making its review and shall act upon such
request within sixty (60) days after the receipt thereof, unless
special circumstances require further time and the Committee notifies
the applicant of the extension prior to the expiration of the original
sixty (60) day period. In no event shall the extension exceed an
additional sixty (60) days. If the Committee confirms the denial in
whole or in part, the Committee shall notify the applicant, setting
forth in a manner calculated to be understood by the applicant,
specific reasons for denial and specific references to Plan provisions
on which the decision was based.
15.11 UNCLAIMED ACCOUNT PROCEDURES
If a Participant or the Participant's Surviving Spouse or Beneficiary, if
applicable, does not claim the Participant's vested Accrued Benefit, the
Participant's vested Accrued Benefit shall be forfeited and applied in
accordance with the provisions of Section 4.1B.3 or 5.2, as applicable. An
unclaimed vested Accrued Benefit shall be forfeited on the later of the
date that is 6 months after the date the Plan Administrator notifies the
Participant, Surviving Spouse or Beneficiary, as applicable, by certified
or registered mail addressed to his last known address, that he is entitled
to a benefit or the date on which occurs the earlier of the Participant's
attainment of normal retirement age (as defined in Section 9.1A) or death,
provided that the Participant, Surviving Spouse or Beneficiary has not made
his whereabouts known prior to such date.
If a Participant's vested Accrued Benefit is forfeited pursuant to this
Section 15.11 and the Participant, Surviving Spouse or Beneficiary, as
applicable, subsequently makes a claim for benefits, the forfeited Accrued
Benefit shall be restored to the same dollar amount as was forfeited,
unadjusted for any gains or losses occurring after the date on which it was
forfeited. Such restoration shall be made first from the amount, if any,
of Participant forfeitures occurring during the year of reinstatement. If
such forfeitures are insufficient, restoration will be made from a special
Employer contribution earmarked for that purpose. The reinstated vested
Accrued Benefit shall be distribute to the Participant, Surviving Spouse or
Beneficiary in accordance with the preceding provisions of the Plan.
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15.12 FUNDING POLICY
The Committee shall be responsible for establishing and carrying out a
funding policy for the Plan. In establishing such a policy, the short-term
liquidity needs of the Plan shall be determined, to the extent possible, by
considering, among other factors, the anticipated retirement date of
Participants, turnover and contributions to be made by the Employer. The
funding policy and method so established shall be considered by the
Committee in selecting Investment Funds pursuant to Section 6.1A and
communicated by the Committee to any other fiduciary responsible for
investment, including the Trustee and any Investment Manager, as
applicable.
15.13 INDEMNIFICATION
The Employer does hereby indemnify and hold harmless each Committee member
from any loss, claim or suit arising out of the performance of obligations
imposed hereunder and not arising from said Committee member's willful
neglect, misconduct or gross negligence.
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XVI. APPOINTMENT OF INVESTMENT MANAGER
16.1 AUTHORITY FOR APPOINTMENT
The Plan Administrator shall have the authority prescribed in ERISA Section
402(c)(3) to appoint one or more Investment Managers and contract with each
for management of any part of the Fund. Selection and retention of an
Investment Manager shall be in the Plan Administrator's discretion. Each
Investment Manager shall have the power to manage, acquire and dispose of
that part of the Fund designated by the Plan Administrator. The Investment
Manager has no responsibility for Plan operation or administration.
16.2 INVESTMENT MANAGER DISCRETION
Without limitation of the foregoing and if an Investment Manager is
appointed:
A. The Trustee, on Plan Administrator direction, shall segregate the Fund
or any part thereof into one or more Investment Manager accounts. The
Plan Administrator shall appoint an Investment Manager for each
account and designate to the Trustee the part of the Fund to be
managed by each Investment Manager. The Trustee shall send directly
to the Investment Manager the proxies under the direction of the
Investment Manager, who shall then vote such proxies at their
discretion.
B. Upon request, the Plan Administrator shall advise others that the
Investment Manager is authorized to enter orders for such Investment
Manager's account, but the Trustee shall always have custody of
account assets. The Trustee shall give the Investment Manager copies
of, or extracts from, such portions of its records relating to such
accounts as are necessary for the exercise of such Investment
Manager's functions.
C. The Trustee shall neither question nor inquire about any action,
direction or failure to give directions of any Investment Manager and
shall not review the securities held in any Investment Manager account
nor make any suggestions to the Investment Manager with respect to
investment of, or disposition of, investments in any Investment
Manager account. The Trustee shall not be liable for any act or
omission of an Investment Manager or be under any obligation to invest
or otherwise manage any asset of the Fund that is subject to the
management of an Investment Manager. The Trustee shall not be liable
for loss due to action or inaction complying with or in the absence of
the Investment Manager's directions.
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D. The Plan Administrator, by notice to the Trustee and the Investment
Manager, may terminate at any time the authority of an Investment
Manager to manage the account. In such event or upon resignation of
an Investment Manager, the Plan Administrator shall either appoint a
successor Investment Manager for the account or, with the Trustee's
consent, direct the Trustee to assume responsibility for the
investment management of the assets in the account, in which case such
assets shall no longer be segregated from the other assets of the
Fund. Until receipt of notice of such termination or resignation, the
Trustee shall rely on the latest prior notice of the appointment of an
Investment Manager.
E. Each Investment Manager to whom any fiduciary responsibility with
respect to the Plan or Trust Fund is delegated shall discharge such
responsibility in accordance with the standards set forth in ERISA
Section 404(a).
F. Upon written direction of an Investment Manager received by the
Trustee, the Trustee is authorized to purchase or sell stock, bonds,
commercial paper, mortgages, or other securities or indebtedness of
the Trustee or any of its affiliates.
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XVII. INVESTMENT OF TRUST FUNDS BY TRUSTEE
The Trustee shall exercise authority or discretion in the management and control
of the assets of the Plan, except to the extent the selection of Investment
Funds for investment by Participants is made by the Committee and except to the
extent the management of any part of the Trust Fund has been delegated to any
Investment Manager pursuant to Article XVI. Without limiting the generality of
the foregoing, the Trustee shall invest and reinvest the principal and income of
the Trust Fund in common Investment Funds, real estate, real estate contracts,
government, municipal or corporation bonds, debentures or notes, including notes
secured by deeds of trust, common and preferred stocks, or other forms of
property whether real, personal or mixed, including investments for which
interest is guaranteed by a bank, insurance company or other financial
institution. In the event the Trustee invests any assets of the Plan in a
common Investment Fund maintained by the Trustee or any bank affiliated with the
Trustee (within the meaning of Section 1504 of the Code), the terms of such
common fund are hereby adopted as part of the Plan and such terms are, by this
reference, incorporated as part of this Document.
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XVIII. POWERS AND DUTIES OF TRUSTEE
18.1 POWERS OF TRUSTEE
The Trustee shall have the following powers with regard to Trust assets.
If investment discretion is exercised by a fiduciary or fiduciaries other
than the Trustee, to the extent any of the following powers involve the
exercise of investment discretion, the Trustee shall exercise such power at
the direction of the investment fiduciary or fiduciaries.
A. To sell, convey, transfer, mortgage, pledge, lease or otherwise
dispose of Trust assets without the approval of any court and without
obligation upon any person dealing with the Trustee to see to the
application of any money or other property delivered to it;
B. To exchange property or securities for other property or securities;
C. To keep any or all securities or other property in the name of a
nominee, to deposit securities in a securities depository and hold
them in the name of its nominee, and to hold securities in book entry
form at a Federal Reserve Bank;
D. To vote, either in person or by proxy, any shares of stock held as
part of the assets of the Trust, provided the Trustee shall forward
proxies to the appropriate investment fiduciary, if the Trustee does
not exercise investment discretion with respect to the security to be
voted;
E. To collect, as the same shall become due and payable, the principal or
income of the Trust and, if necessary, to take such legal proceedings
as may deem advisable in the best interest of the Trust to collect any
sum of money due the Trust. The Trustee shall be under no obligation
to commence suit unless it shall have been first indemnified by the
Trust Fund or the Employer with respect to expenses or losses to which
it may be subjected through taking such action;
F. To borrow money for purposes of the Trust and to have power to execute
and deliver notes, mortgages, pledges or other instruments as may be
necessary in connection therewith;
G. To pay the expenses of the Trust out of the Fund, including any taxes
and reasonable compensation for its services as Trustee, if and to the
extent that the Employer does not pay such expenses and compensation;
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H. To receive and hold in safekeeping the assets of the Trust, provided
assets invested in a registered mutual fund or in any similar pooled
fund for which the Trustee is not the custodian shall be held in
safekeeping by the custodian of such fund, and the Trustee shall not
be responsible for their safekeeping;
I. To employ agents and to utilize the services of affiliates in
performing its duties hereunder;
J. To deposit Trust funds in an interest-bearing account with a bank or
similar financial institution, including the Trustee, provided such
deposits shall bear a reasonable rate of interest;
K. To determine the fair market value of the Trust assets on an annual
and other periodic basis. The Trustee shall perform such valuation in
a reasonable and consistent manner in accordance with generally
accepted accounting principles. The Trustee may utilize and shall be
entitled to rely upon published quotation and pricing services that it
considers reliable. In the event that the Committee or an Investment
Manager directs investment into assets for which no published pricing
information is available, the Trustee may obtain their fair market
value from the Committee, the Investment Manager, or an appraiser
selected by them, and shall be entitled to rely completely upon the
value provided. If the Committee or Investment Manager is unable to
unwilling to provide such valuation, the Trustee may engage an
appraiser or other expert to determine the fair market value, and the
fee for such service shall be an administrative expense of the Trust;
and
L. Upon direction of the Committee or an Investment Manager, acquire and
maintain deposit administration contracts, insurance company
investment contracts, individual annuities, or group annuity policies
("Contracts"). The Trustee shall execute the application for a
Contract and a Contract in such form as the investment fiduciary and
the Trustee shall agree. The Trustee shall be the legal owner of all
Contracts held in the Trust. Upon the direction of the investment
fiduciary, the Trustee shall pay from the Trust the premiums,
assessments, charges, or other costs to acquire and maintain
Contracts. The Trustee shall have no duty to make such payment unless
the Trustee receives such direction. If the cash available in the
Trust is not sufficient to pay all the sums the investment fiduciary
has directed the Trustee to pay, the Trustee shall promptly notify the
investment fiduciary of the deficiency, and the
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Trustee shall have no duty to make any such payment until it receives
sufficient cash to make the payment. Upon direction of the investment
fiduciary, the Trustee shall collect and receive dividends or other
income of the Contract or leave the income with the issuing company;
convert from one form of Contract to another; designate a mode of
settlement of the proceeds of a Contract; sell or assign a Contract;
surrender a Contract for cash; agree with the issuing company to any
release, modification, reduction, or amendment thereof; and without
limitation exercise any other right, option, or privilege that belongs
to the legal owner of a Contract. The Trustee shall have no
discretion with respect to the exercise of any of the foregoing powers
or any other action permitted by a Contract held in the Trust, but it
shall exercise such powers or take such action only upon the direction
of the investment fiduciary.
M. Generally, with relation to the assets of the Trust, to do all such
acts, execute all such instruments, take all such proceedings and
exercise all such rights and privileges as it deems necessary to carry
out its obligations hereunder to the extent consistent with the rights
of Participants and Beneficiaries and the standard of care imposed by
Section 18.4;
18.2 ANNUAL ACCOUNTS
The Trustee, within a reasonable period following the close of each Plan
Year (not to exceed 120 days), shall render to the Plan Administrator a
certified account of its administration of the Trust during the preceding
year, which shall include such information maintained by the Trustee
necessary to enable the Plan Administrator to comply with the reporting
requirements of federal law. The Plan Administrator shall promptly review
the Trustee's accountings and shall file any exceptions within 120 days of
receipt. In the event it files no exception within such 120-day period,
the accounting shall be deemed settled for the period covered by it.
18.3 NOTICES AND DIRECTIONS
Whenever a notice or direction is given to the Trustee, the instrument
shall be signed by a person or persons duly authorized by resolution,
minutes, or similar action to act on behalf of the Employer, the Plan
Administrator, an Investment Manager, or any other person or agent with
authority to direct the Trustee ("Authorized Person"). The Trustee shall
be protected in acting upon any such notice, resolution, order,
certificate, opinion, telegram, letter or other
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document believed to be genuine and to have been signed by the proper party
or parties, and may act thereon without notice to any Participant and
without considering the rights of any Participant.
An Authorized Person may give, and the Trustee may rely upon, facsimile
instructions. An Authorized Person is responsible to verify that facsimile
instructions delivered to the Trustee are legible in form, clear in
content, and properly executed. The Trustee shall not be liable for the
security measures followed by an Authorized Person with respect to
transmission of facsimile instructions. Should any person request
disbursement by wire, the Trustee may require as a condition to such
disbursement that such person conform to Trustee's standard policies and
procedures for funds transfer and execute Trustee's standard funds transfer
agreement.
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 send checks and other papers to such
persons at addresses as may be furnished it by the Plan Administrator.
18.4 STANDARD OF CARE IMPOSED UPON TRUSTEE
The Trustee shall discharge its responsibilities under the Plan and Trust
solely in the interests of the Participants and Beneficiaries; and
A. For the exclusive purpose of providing benefits to Participants and
their Beneficiaries and defraying reasonable expenses of administering
the Plan;
B. With care, skill, prudence and diligence under the circumstances then
prevailing that a prudent person, acting in a like capacity and
familiar with such matters, would use in the conduct of an enterprise
of a like character and with like aims;
C. To the extent it exercises investment discretion, by diversifying the
investments of the Plan so as to minimize the risk of large losses,
unless under the circumstances it is clearly prudent not to do so; and
D. In accordance with the terms of this Plan and Trust Agreement insofar
as such provisions are consistent with the provisions of ERISA.
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18.5 TRUSTEE'S ACKNOWLEDGMENT OF RESPONSIBILITY
The Trustee appointed under the Plan and Trust shall acknowledge and accept
its appointment by signing this Document or by signing a separate document
of acceptance which incorporates the Plan and Trust by reference. The
Trustee's acknowledgment or acceptance of any modification of this Document
shall be necessary if such modification changes the duties of the Trustee
in any way.
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<PAGE>
XIX. CONSTRUCTION
This Agreement shall be construed in accordance with the Code, ERISA and
regulations issued thereunder and, to the extent not superseded thereby, the
laws of the State of Washington.
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XX. LIABILITY OF TRUSTEE
20.1 ACTIONS OF TRUSTEE CONCLUSIVE
In the performance of its duties under the Trust, the Trustee shall
exercise good faith and comply with the standard of care imposed upon it
and with the terms of this Agreement. The Trustee shall have the authority
to interpret its responsibilities hereunder, and, in the absence of fraud
or breach of fiduciary responsibility, the Trustee's interpretation shall
be conclusive. In case any dispute or doubt arises as to the Trustee's
rights, liabilities or duties hereunder, the Trustee may employ counsel and
take the advice of such counsel as it may select and shall be fully
protected in acting upon and following such advice, except to the extent
otherwise provided by law. The Trustee shall be entitled to reimburse
itself from the Trust Fund for reasonable expenses thereby incurred, to the
extent such expenses are not paid by the Employer.
20.2 DISTRIBUTIONS BY TRUSTEE
Until the Trustee receives written notice of any agreement or occurrence
having effect upon any rights hereunder, including but not limited to
birth, marriage, divorce, death and/or agreements between Spouses, the
Trustee shall incur no liability for distributions made.
20.3 EXPENSES OF ADMINISTRATION
In the event the Employer files for reorganization or protection from
creditors under the bankruptcy laws, or files a petition in bankruptcy, or
an assignment of assets for creditors, the Trustee shall pay from Trust
assets any unpaid expenses for services rendered to the Plan, including but
not limited to administration, actuarial and consulting services.
20.4 INDEMNITY OF TRUSTEE
The Employer shall indemnify and hold harmless the Trustee from any loss or
liability (including reasonable attorneys' fees) incurred as a result of
(a) following any direction (or not acting in the absence of direction)
from the Employer, the Plan Administrator, an Investment Manager, or any
other person authorized by the Employer to issue direction to the Trustee;
and (b) its good faith performance of its duties hereunder, except for its
own negligence, breach of fiduciary duty, or willful misconduct.
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XXI. RESIGNATION OR REMOVAL OF TRUSTEE
21.1 RESIGNATION
The Trustee may resign at any time by giving the Employer at least sixty
(60) days written notice of such resignation sent by registered mail. In
such event, the Employer shall designate a successor Trustee within sixty
(60) days, and failing in which, the Trustee may petition an appropriate
court to designate a successor Trustee, which successor Trustee may be a
corporate Trustee or an individual Trustee.
21.2 REMOVAL
The Employer may remove a Trustee with or without cause by giving the
Trustee at least sixty (60) days' written notice and by appointing a
successor Trustee, Trustees, corporate or individual, or any combination of
Trustees.
21.3 SETTLEMENT OF ACCOUNT
Upon the resignation or removal of the Trustee, all right, title and
interest of such Trustee in the assets of the Trust and all rights and
privileges under this Agreement theretofore vested in such Trustee, shall
vest in the successor Trustee, and thereupon, all future liability of such
Trustee shall terminate; provided, however, that the Trustee shall execute,
acknowledge and deliver all documents and written instruments which are
necessary to transfer and convey the right, title and interest in the Trust
assets and all rights and privileges to the successor Trustee.
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XXII. SUITS
If any person or party to this Agreement shall request the Trustee to bring any
action at law or suit in equity to determine any of the provisions or rights
arising out of this Agreement, the Trustee shall not be obligated to bring such
suit unless the Trustee is fully indemnified for all costs of such action,
including a reasonable sum for attorneys' fees.
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XXIII. MERGERS AND CONSOLIDATIONS
In the case of any merger or consolidation with any other plan or a transfer of
assets or liabilities to any other plan, each Participant shall be entitled to
be credited with a benefit immediately after such merger, consolidation or
transfer which is equal to the benefit to which he would have been entitled
immediately before such merger or consolidation had the Plan then terminated.
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XXIV. AMENDMENT AND TERMINATION OF PLAN
24.1 RIGHT TO AMEND AND TERMINATE
The Employer represents that the Plan is intended to be a continuing and
permanent program for Participants but reserves the right to terminate the
Plan at any time. The Employer may modify, alter or amend the Plan in
whole or in part, at any time and for any reason.
24.2 NO REVESTING
No termination, modification, alteration or amendment shall have the effect
of revesting in the Employer any of its contributions or the income derived
therefrom.
24.3 EXCLUSIVE BENEFIT OF PARTICIPANTS
At no time during the existence hereof or at its termination may the Plan
assets be used for or directed to purposes other than for the exclusive
benefit of Participants or their Beneficiaries.
24.4 TERMINATION AND DISCONTINUANCE OF CONTRIBUTIONS
The Employer shall have the right, at any time, to discontinue its
contributions hereunder and to terminate, or partially terminate, this
Agreement and the Trust hereby created by delivering to the Trustee written
notice of such discontinuance or termination. Upon complete discontinuance
of the Employer's contributions or full or partial termination of the
Trust, the Accounts and rights to benefits of all affected Participants
shall become fully vested and shall not thereafter be subject to
forfeiture, except to the extent that law or regulations may preclude such
vesting in order to prevent discrimination in favor of Highly Compensated
Employees. Upon final termination of the Trust, the Plan Administrator
shall direct the Trustee to distribute to the Participants all assets
remaining in the Trust after payment of any expenses properly chargeable
against the Trust in accordance with the value credited to such
Participants, as of the date of such termination, in cash or in kind and in
such manner as the Plan Administrator shall determine.
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XXV. RIGHT TO DISCHARGE EMPLOYEES
Neither the establishment of the Plan, nor any modification thereof, nor the
payment of any benefit shall be construed as giving any Participant or any other
person any legal or equitable right against the Employer or the Trustee, unless
the same shall be specifically provided for in the Plan, nor as giving any
Employee or Participant the right to be retained in the employ of the Employer.
All Employees shall remain subject to discharge by the Employer to the same
extent as if the Plan had never been adopted.
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XXVI. DECLARATION OF PLAN CONTINGENT UPON INTERNAL REVENUE SERVICE APPROVAL
26.1 INTERNAL REVENUE SERVICE APPROVAL
The Employer intends to apply to the Internal Revenue Service for a
determination letter that the Plan, as adopted by the Employer, is a
qualified Plan under Section 401(a) of the Code. In the event the Employer
receives an unfavorable determination, and if the Employer does not effect
an amendment that will cure the defect, the Plan shall be terminated and
all contributions, less expenses, shall be returned to the Employer.
26.2 MISTAKE OF FACT
In the event a contribution is made by reason of a mistake of fact, the
amount that would not have been contributed had the mistake not occurred
may be returned to the Employer if the amount is returned within one year
of the mistaken contribution.
26.3 ALLOWANCE OF DEDUCTIBILITY
All contributions to the Plan are conditioned upon their deductibility
under Section 404 of the Code. Notwithstanding any provision herein to the
contrary, to the extent a deduction is disallowed, the deduction shall be
returned to the Employer if the Employer so requests and the amount is
returned within one year of the disallowance.
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IN WITNESS WHEREOF, the parties hereto have caused this Document to be
executed this 20th day of December, 1995.
IMMUNEX CORPORATION
By: /s/ Douglas G. Southern
------------------------------------
Title Senior Vice President
-----------------------------
SEATTLE FIRST NATIONAL BANK, as
Trustee,
by BANKAMERICA STATE TRUST
COMPANY, its Authorized Agent
By /s/ Robert Holleman
------------------------------------
Its Senior Trust Officer
-------------------------------
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<PAGE>
AMENDMENT NO. 1
TO
IMMUNEX CORPORATION
PROFIT SHARING 401(k) PLAN AND TRUST
This Amendment No. 1 is made to the Immunex Corporation Profit Sharing
401(k) Plan and Trust (the "Plan"), which was originally effective January 1,
1987, and most recently amended and restated effective January 1, 1989. The
following amendments to the Plan are effective as of January 1, 1996, except as
specifically provided otherwise below. All terms defined in the Plan shall have
the same meaning when used herein. All provisions of the Plan not amended by
this Amendment No. 1 shall remain in full force and effect.
1. THE FIRST PARAGRAPH OF SECTION 2.7 IS AMENDED TO READ AS FOLLOWS AND
THE LETTER "C" WHICH APPEARS NEXT TO THE SECOND PARAGRAPH OF SECTION 2.7 IS
DELETED:
Except as otherwise expressly modified by other provisions of the Plan,
Compensation means an Employee's wages, salary, fees for professional
services and other amounts received during the Plan Year (without regard to
whether or not an amount is paid in cash) for personal services actually
rendered in the course of employment with the Employer to the extent that
such amounts are incredible in gross income, including, but not limited to,
overtime, bonuses and commissions, but excluding fringe benefits and
reimbursements or other expense allowances under a nonaccountable plan (as
defined in Treasury Regulation Section 1.62-2(c)). Compensation shall not
include Employer contributions to a plan of deferred compensation to the
extent that, before the application of the Section 415 limitations to that
plan, the contributions are not includible in the employee's gross income
for the taxable year in which contributed; deductible Employer
contributions to a simplified employee pension plan described in Section
408(k) of the Code; distribution from a plan of deferred compensation,
regardless of whether such amounts are includible in the employee's gross
income when distributed; amounts realized from the exercise of a non-
qualified stock option or when restricted stock (or property) held by an
employee becomes freely transferable or is no longer subject to a
substantial risk of forfeiture; amounts realized from the sale, exchange
or other disposition of stock acquired under a qualified stock option; or
any other amounts which receive special tax benefits. Notwithstanding the
foregoing, Compensation shall include amounts excludable from the
Employee's
<PAGE>
gross income by reason of Section 125, 402(e)(3)(402(a)(8) prior to January
1, 1993), 402(h) or 403(b) of the Code.
2. SECTION 3.1(B) IS AMENDED TO READ AS FOLLOWS:
B. An Employee who is regularly scheduled to work less than twenty (20)
hours per week shall participate in this Plan on the Enrollment Date
that coincides with or immediately follows the date on which such
Employee completes one Year of Eligibility Service or attains age
twenty-one (21), whichever occurs later.
3. SUBSECTION (C) OF SECTION 3.3 IS DELETED IN ITS ENTIRETY, SUBSECTION
(D) IS RENUMBERED AS SUBSECTION (C) THEREOF, AND ALL CROSS-REFERENCES THERETO
ARE RENUMBERED ACCORDINGLY.
4. EFFECTIVE JULY 1, 1996, SECTION 4(A)(1) IS AMENDED TO READ AS FOLLOWS:
1. ELECTION TO DEFER COMPENSATION
Each Participant may elect, effective as of any January 1, April 1,
July 1 or October 1, coincident with or following the Participant's
Enrollment Date, by filing a Salary Deferral Agreement with the Plan
Administrator within such time as the Plan Administrator may
determine, to defer any whole percentage of the Participant's
Compensation not to exceed 15%, but in any event, the amount of
deferral shall not exceed $7,000 (or such amount as adjusted under
Section 402(g) of the Code) during any calendar year. Such deferred
amounts shall be contributed to the Plan by the Employer and
designated for such Participant's Deferral Account Contributions shall
be made by payroll deduction as authorized by the Participant on the
Participant's Salary Deferral Agreement. The Participant may, in
accordance with rules established by the Plan Administrator, increase
or decrease his elective deferrals effective as of any January 1,
April 1, July 1 or October 1; provided, however, a Participant shall
only be entitled to defer those amounts of Compensation that are not
currently available to the Participant.
5. EFFECTIVE JULY 1, 1996, SECTION 4.1(A)(5) IS AMENDED TO READ AS
FOLLOWS:
5. SUSPENSION OF DEFERRALS
A Participant may, upon thirty (30) days' prior written notice filed
with the Plan Administrator, suspend the Participant's election under
Section 4.1A to have a portion of the Participant's Compensation
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deferred. In the event of such a suspension, a Participant shall not
be entitled to again elect to have Participant Elected Contributions
made hereunder until the next following January 1, April 1, July 1 or
October 1. The Participant shall, nevertheless, be considered a
Participant hereunder to all other purposes during such period of time
if the Participant's service with the Employer continues during that
time.
6. SECTION 5.2(C) IS AMENDED BY DELETING THE THIRD AND FOURTH PARAGRAPHS
THEREOF IN THEIR ENTIRETY AND REPLACING THEM WITH THE FOLLOWING NEW PARAGRAPH:
Forfeitable amounts derived from the Employer Profit Sharing Account of a
Participant who separates from the Employer's service shall be used to
reduce future Employer Matching Contributions.
7. EFFECTIVE JULY 1, 1996, SECTION 6.2 IS AMENDED TO READ AS FOLLOWS:
6.2 PARTICIPANT DIRECTION
In the event that the Plan Administrator authorized the use of more
than one Investment Fund, each Participant shall designate the
percentage of the future contributions to be allocated to his Accounts
that will be invested in each of the Investment Funds available under
the Plan. Any such designation shall be made in such increments, in
such manner and pursuant to such other rules and limitations as the
Plan Administrator shall prescribe. A Participant's investment
designation shall remain in effect until changed by the Participant
(or the Beneficiary, if applicable). A Participant (or Beneficiary,
as applicable) may change his investment designation with respect to
the future contributions to be allocated to, and/or the existing
balances in, his Accounts at such times, in such increments and
pursuant to such other rules and limitations as the Plan
Administrator shall prescribe.
8. SECTION 7.1(A) IS AMENDED TO READ AS FOLLOWS:
A. AVAILABILITY OF LOANS
Upon application by a Participant, the Plan Administrator may direct
the Trustee to make a loan to the Participant from the vested balances
in the Participant's Employee Deferral Account, Rollover Account and
Employer Matching Account. Such borrowing rules must be formulated
and administered so that the requirements of Section 72(p) of the Code
for non-taxable loans, the applicable Department of Labor regulations
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<PAGE>
on plan loans, and the following provisions of this Section are
satisfied. Any loan hereunder will bear a reasonable rate of interest
and will be evidenced by a promissory note signed by the Participant
in such form as the Plan Administrator may require. The amount of any
such loan will be withdrawn from the vested balances in the
Participant's Employee Deferral Account, Rollover Account and Employer
Matching Account and from the Investment Fund or Funds in which such
Accounts are invested in the manner specified in the Plan
Administrator's borrowing rules.
9. SECTION 7.1(C) IS AMENDED TO READ AS FOLLOWS:
C. AMOUNT OF LOANS
The minimum loan amount is $1,000 or such lesser amount as the Plan
Administrator may from time to time set forth in its borrowing rules.
The maximum aggregate loan amount is based upon the vested balances in
the Participant's Accounts. No Participant loan will exceed the
smallest of (i) the amount of the vested balances in the Participant's
Employee Deferral Account, Rollover Account and Employer Matching
Account, (ii) one-half of the Participant's vested Account balances,
or (iii) $50,000 (reduced by the highest outstanding loan balance to
the Participant during the 12 months preceding the loan). For
purposes of applying such limits, Account values as the Valuation Date
coincident with or immediately preceding the date on which the loan is
made will be used.
10. EFFECTIVE JULY 1, 1996, SECTION 12.1 IS AMENDED BY ADDING THE
FOLLOWING NEW SENTENCE AT THE END THEREOF:
Notwithstanding the foregoing, if the Plan Administrator establishes an
Investment Fund that is designed to invest primarily in the common stock of
Immunex Corporation, a Participant (or Beneficiary, as applicable) may
elect to receive such whole shares of Immunex Corporation common stock as
are allocated to that portion of the Participant's vested Accounts that is
invested in such Investment Fund (with cash for any fractional shares), in
lieu of receiving cash for such portion of the Participant's Accounts.
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11. EFFECTIVE JULY 1, 1996, SECTION 15.12 IS AMENDED BY ADDING THE
FOLLOWING NEW SENTENCE IMMEDIATELY AFTER THE SECOND SENTENCE THEREOF:
In addition, all or a portion of the Plan's assets can be invested in
"qualifying employer securities," within the meaning of Section 407(d)(5)
of ERISA, including, but not limited to, common stock of Immunex
Corporation.
The Employer has caused this Amendment to be executed on the date indicated
below.
IMMUNEX CORPORATION
Dated: 17 May 1996 By /s/ Douglas G. Southern
------------------- -------------------------------------
Its Senior Vice President
-------------------------------
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