As filed with the Securities and Exchange Commission on November 30, 1994
Registration No.: 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
___________
CADMUS COMMUNICATIONS CORPORATION
(Exact name of issuer as specified in its charter)
Virginia 54-1274108
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
6620 West Broad Street, Suite 500
Richmond, Virginia 23230
(Address of principal executive offices, including zip code)
CADMUS COMMUNICATIONS CORPORATION 1990 LONG TERM INCENTIVE STOCK PLAN
AND
CADMUS THRIFT SAVINGS PLAN
(Full name of the Plans)
Copy to:
BRUCE V. THOMAS, ESQUIRE JEAN PENICK WATKINS, Esquire
Vice President, General Counsel Mays & Valentine
and Secretary 22nd Floor, NationsBank Center
6620 West Broad Street, Suite 500 P.O. Box 1122
Richmond, Virginia 23230 Richmond, Virginia 23208
(804) 287-5690
(Name, address and telephone number
of agent for service)
___________
Approximate date of proposed commencement of sales pursuant to the Plans:
Upon effectiveness of this Registration Statement.
CALCULATION OF REGISTRATION FEE
<TABLE>
Proposed Proposed
Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
<S> <C> <C> <C> <C>
Common Stock
$.50 par value 1,130,000 $16.25 $18,362,500 $6,331.90
Interests in Cadmus Indeterminate
Thrift Savings Plan
</TABLE>
(1)This registration statement relates to the registration of shares of the
Registrant's Common Stock under two plans, as follows: (i) 380,000 shares under
the Registrant's 1990 Long Term Incentive Stock Plan and (ii) 750,000 shares
under the Cadmus Thrift Savings Plan (collectively, referred to as the "Plans").
In addition to the 750,000 shares of Common Stock being registered for the
Cadmus Thrift Savings Plan, 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 such plan.
(2)Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 on the basis of $16.25 per share, the closing price on the
NASDAQ National Market System of the Registrant's shares on November 28, 1994 as
reported in The Wall Street Journal.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Cadmus Communications Corporation (the "Company") will furnish shareholders
with annual reports containing audited financial statements and with quarterly
reports containing unaudited financial statements for the first three quarters
of each fiscal year. Copies of these documents, and any other communications
sent to the Company's shareholders generally, also will be furnished to all
employees eligible to participate in the Plans.
The Company and the Cadmus Thrift Savings Plan hereby incorporate herein by
reference the following documents filed by the Company with the Commission:
(a) Annual Report on Form 10-K for the fiscal year ended June 30, 1994,
filed pursuant to Section 13 of the 1934 Act;
(b) Quarterly Report on Form 10-Q for the Quarter September 30, 1994
filed pursuant to Section 13 of the 1934 Act; and
(c) The description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A, and any amendment or report filed
subsequent thereto for the purpose of updating such description.
All documents filed by the Company and by the Cadmus Thrift Savings Plan
after the date of this Registration Statement pursuant to Sections 13(a), 13(c),
14 and 15(d) of the 1934 Act, prior to the filing of a post-effective amendment
which indicates that all the Company's Common Stock offered hereby has been sold
or which deregisters such Company Common Stock then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The financial statements and schedules listed in the index on page 12 of
the Company's 1994 Form 10-K Annual Report filed pursuant to Section 13 of the
1934 Act, all of which have been incorporated by reference into this
Registration Statement, have been audited by Coopers & Lybrand, L.L.P.,
independent public accountants, for the fiscal year ended June 30, 1994, whose
report thereon is incorporated in this Registration Statement by reference, and
has been so incorporated herein by reference in reliance upon the report of
Coopers & Lybrand, L.L.P. given upon their authority as experts in accounting
and auditing.
The legality of the Common Stock to be issued by the Company pursuant to
the Plans has been passed upon for the Company by Mays & Valentine, NationsBank
Center, 1111 East Main Street, P.O. Box 1122, Richmond, Virginia 23219. As of
November 23, 1994, lawyers in the firm beneficially owned, directly or
indirectly, 20,953 shares of the Company's Common Stock in the aggregate.
Item 6. Indemnification of Directors and Officers.
The Virginia Stock Corporation Act (the "Virginia Act") permits a
corporation with shareholder approval to indemnify its officers and directors
against liability incurred in all proceedings, including derivative proceedings,
arising out of their service to the corporation as long as they have not engaged
in willful misconduct or a knowing violation of a criminal law. Cadmus'
Articles of Incorporation require Cadmus to indemnify its directors, and permit
it to indemnify officers, in all such proceedings if they have not violated this
standard of conduct.
The Virginia Act places a limit on the liability of a director or officer
in derivative and shareholder proceedings equal to the lesser of: (i) the
amount specified in the corporation's articles of incorporation or
shareholder-approved bylaw; or (ii) the greater of (a) $100,000 or (b) twelve
months of cash compensation received by the officer or director. The limit does
not apply in the event the director or officer has engaged in willful misconduct
or a knowing violation of a criminal law or a federal or state securities law.
The effect of Cadmus' Articles of Incorporation, together with the Virginia Act,
is accordingly to limit liability of directors and officers for money damages to
one dollar in shareholder and derivative proceedings, as long as the required
standard of conduct is met.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
An index of Exhibits appears at page II-6 hereof.
Item 9. Undertakings.
(1) The undersigned hereby undertakes:
a. To file, during any period in which offers or sales are being
made, a post-effective amendment to the registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a) (i) and (a) (ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement;
b. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
c. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(2) The undersigned hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of its annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act, as amended (and,
where applicable, each filing of any employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended)
that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) The undersigned hereby undertakes to deliver or cause to be
delivered, with the prospectus to each Participant to whom the prospectus is
sent or given, a copy of its annual report to shareholders for its last fiscal
year, unless such Participant otherwise has received a copy of such report, in
which case the undersigned shall state in the prospectus that it will promptly
furnish, without charge, a copy of such report on written or oral request of the
Participant. If the last fiscal year of the registrant has ended within 120
days prior to the use of the prospectus, the annual report of the registrant for
the preceding fiscal year may be so delivered, but within such 120-day period
the annual report for the last fiscal year will be furnished to each such
Participant.
(4) The undersigned hereby undertakes to transmit or cause to be
transmitted to all Participants in the Company's 1990 Long Term Incentive Stock
Plan and the Cadmus Thrift Savings Plan, who do not otherwise receive such
material as shareholders of the undersigned, at the time and in the manner such
material is sent to its shareholders, copies of all reports, proxy statements
and other communications distributed to its shareholders generally.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the undersigned pursuant to the provisions set forth in Item 6 or
otherwise, the undersigned has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liability (other than the payment by the undersigned of expenses
incurred or paid by a director, officer or controlling person of the undersigned
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
registered under the registration statement, the undersigned will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(6) Pursuant to Item 8(b) of Form S-8, the undersigned registrant
undertakes that the Company will submit or has submitted the Cadmus Thrift
Savings Plan and any amendment thereto to the Internal Revenue Service (the
"IRS") in a timely manner and has made, or will make, all changes required by
the IRS in order to qualify the Cadmus Thrift Plan.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
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 Richmond, Commonwealth of Virginia, on the 28th day
of November, 1994.
CADMUS COMMUNICATIONS CORPORATION
By /s/ C. Stephenson Gillispie, Jr.
C. Stephenson Gillispie, Jr.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 28th day of November, 1994.
<TABLE>
Signature Title
<S> <C>
President, Chief Executive Officer
/s/ C. Stephenson Gillispie, Jr. and Director (Principal Executive Officer)
C. Stephenson Gillispie, Jr.
Vice President and Chief Financial Officer
/s/ Michael Dinkins (Principal Financial and Accounting Officer)
Michael Dinkins
*/s/ Robert I. Dalton, Jr Director
Robert I. Dalton, Jr.
*/s/ Frank Daniels, III Director
Frank Daniels, III
*/s/ Lee P. Dudley Director
Lee P. Dudley
*/s/ Price H. Gwynn, III Director
Price H. Gwynn, III
*/s/ Frank G. Louthan, Jr. Director
Frank G. Louthan, Jr.
*/s/ John D. Munford, II Director
John D. Munford, II
*/s/ John C. Purnell, Jr. Director
John C. Purnell, Jr.
*/s/ Russell M. Robinson, II. Director
Russell M. Robinson, II
*/s/ John W. Rosenblum Director
John W. Rosenblum
*/s/ Wallace Stettinius Director
Wallace Stettinius
*/s/ Bruce A. Walker Director
Bruce A. Walker
*By: /s/ C. Stephenson Gillispie, Jr.
C. Stephenson Gillispie, Jr.
Attorney-in-Fact
</TABLE>
The Cadmus Thrift Savings Plan
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Plan Administrator of the Cadmus Thrift Savings Plan, has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Richmond, the Commonwealth of Virginia, on this
28th day of November 1994.
CADMUS COMMUNICATIONS CORPORATION
(as Plan Administrator)
By: /s/ C. Stephenson Gillispie, Jr.
C. Stephenson Gillispie, Jr.
President and Chief Executive Officer
<PAGE>
EXHIBIT INDEX
Exhibit 4.1.............. Restated Articles of Incorporation of Cadmus
Communications Corporation, as amended (incorporated
by reference to Exhibit 3.1 included in Cadmus'
Annual Report on Form 10-K for the year ended June
30, 1993).
Exhibit 4.2.............. Restated By-Laws of Cadmus Communications
Corporation (incorporated by reference herein to
Exhibit 3.2 included in Cadmus' Annual Report on
Form 10-K for the year ended June 30, 1994).
Exhibit 4.3.............. Cadmus Communication Corporation 1990 Long Term
Incentive Stock Plan, as amended (incorporated by
reference to Exhibit 10.6 included in Cadmus' Annual
Report on Form 10-K for the year ended June 30,
1994).
Exhibit 4.4.............. Cadmus Thrift Savings Plan, as restated effective
January 1, 1995, filed herewith.
Exhibit 4.5.............. Trust Agreement for the Cadmus Thrift Savings Plan,
filed herewith.
Exhibit 5................ Opinion of Mays & Valentine dated November 29, 1994,
with respect to the validity of the common stock
offered pursuant to the Plans, filed herewith.
Exhibit 23.1............. Consent of Coopers & Lybrand, L.L.P., Independent
Public Accountants dated November 29, 1994, filed
herewith.
Exhibit 23.2............. Consent of Mays & Valentine contained in their
opinion filed as Exhibit 5 hereto.
Exhibit 24.1............. Powers of Attorney of Directors of Cadmus
Communications Corporation relating to the 1990 Long
Term Incentive Stock Plan, filed herewith.
Exhibit 24.2............. Powers of Attorney of Directors of Cadmus
Communications Corporation relating to the Cadmus
Thrift Savings Plan, filed herewith.
Exhibit 4.4
CADMUS THRIFT SAVINGS PLAN
(As Restated Effective January 1, 1995)
TABLE OF CONTENTS
Page
ARTICLE I
Definition of Terms
1.1 Accrued Benefit............................................... 2
1.1(a) ESOP Account.................................................. 2
1.1(b) Matching Account or Matching Accounts......................... 2
1.1(c) Profit Sharing Account or Profit Sharing Accounts............. 2
1.1(d) Rollover Account.............................................. 2
1.1(e) Savings Account............................................... 2
1.1(f) Voluntary Deductible Account.................................. 2
1.1(g) Voluntary Non-deductible Account.............................. 3
1.2 Act........................................................... 3
1.3 Active Participant............................................ 3
1.4 Adjustment Factor............................................. 3
1.5 Administrator................................................. 3
1.6 Affiliate..................................................... 3
1.7 Annuity Starting Date......................................... 3
1.8 Beneficiary................................................... 3
1.9 Benefits Committee............................................ 3
1.10 Board......................................................... 4
1.11 Code.......................................................... 4
1.12 Compensation.................................................. 4
1.13 Compensation Limit............................................ 4
1.14 Contract...................................................... 5
1.15 Covered Matching Participant.................................. 5
1.16 Covered Profit Sharing Participant............................ 5
1.17 Date of Hire.................................................. 5
1.18 Effective Date................................................ 5
1.19 Eligible Employee............................................. 5
1.20 Employee...................................................... 6
1.21 Employer...................................................... 6
1.22 Family Member................................................. 7
1.23 Fund.......................................................... 8
1.24 Highly Compensated Employee................................... 8
1.25 Hour of Service............................................... 10
1.26 Inactive Participant.......................................... 10
1.27 Insurer....................................................... 10
1.28 Investment Manager............................................ 10
1.29 Key Employee.................................................. 11
1.30 Leased Employee............................................... 11
1.31 Non-Highly Compensated Employee............................... 12
1.32 Non-Key Employee.............................................. 12
1.33 Normal Retirement Age......................................... 12
1.34 Participant................................................... 12
1.35 Plan.......................................................... 12
1.36 Plan Sponsor.................................................. 12
1.37 Plan Year..................................................... 12
1.38 Policy........................................................ 13
1.39 QDRO.......................................................... 13
1.40 Spouse........................................................ 13
1.41 Statutory Compensation........................................ 13
1.42 Stock......................................................... 13
1.43 Super Top Heavy Plan.......................................... 13
1.44 Top Heavy Plan................................................ 13
1.45 Total Compensation............................................ 13
1.46 Transferor Plan............................................... 14
1.47 Transferor Plan Participant................................... 14
1.48 Trust Agreement............................................... 14
1.49 Trustee....................................................... 14
1.50 Valuation Date................................................ 14
1.51 Year of Benefit Service....................................... 14
1.52 Year of Broken Service........................................ 15
ARTICLE II
Eligibility and Participation
2.1 Eligibility and Date of Participation......................... 15
ARTICLE III
Funding
3.1 Amount and Timing of Employer Contributions................... 16
3.2 Special Rules for Employer's Share of and Form of Contribution 17
3.3 Participant Savings Contributions............................. 18
3.4 Elective Deferral Dollar Limitation on Savings Contributions.. 18
3.5 Participant Rollover Contributions............................ 18
3.6 Procedure for and Time of Making Participant Contributions.... 19
3.7 Use of Forfeitures and Unallocated Annual Additions........... 20
3.8 No Duty of Trustee to Determine or Enforce Contributions...... 20
ARTICLE IV
Participants' Accounts and Adjustments
4.1 Accounts...................................................... 20
4.2 Allocation of Contributions................................... 21
4.3 Dollar/25% Limitations on Annual Additions.................... 22
4.4 Additional Limitations on Annual Additions Where Employer
Maintains More Than One Plan................................ 22
4.5 Special Account for Unallocated Annual Additions.............. 23
4.6 Valuation of Assets and Allocation of Valuation Adjustments... 24
4.7 Determination of Account Balances............................. 26
4.8 Suspense Accounts............................................. 26
4.9 Equitable Adjustment in Case of Error or Omission............. 27
4.10 Limitation on and Distribution of Savings and Matching
Contributions Made by or on behalf of Highly Compensated
Employees................................................... 28
ARTICLE V
Retirement Dates
5.1 Normal Retirement Date........................................ 28
5.2 Delayed Retirement Date....................................... 28
5.3 Early Retirement Date......................................... 28
5.4 Disability Retirement Date.................................... 28
ARTICLE VI
Vesting
6.1 Vesting at Retirement or Attainment of Normal Retirement Age.. 29
6.2 Vesting at Death.............................................. 29
6.3 Vesting in Matching and Profit Sharing Active Accounts at
Other Times................................................. 29
6.4 Vesting in Accrued Benefit Other Than Matching and Profit
Sharing Active Accounts..................................... 29
6.5 Vesting Service Rules......................................... 29
6.6 Forfeiture and Restoration of Matching and Profit Sharing
Active Accounts............................................. 30
6.7 Vesting Service Definitions................................... 30
ARTICLE VII
Death Benefits
7.1 Death after Benefit Commencement Date......................... 31
7.2 Death before Benefit Commencement Date........................ 31
7.3 Beneficiary Designation....................................... 31
7.4 Consent to Beneficiary Designation............................ 32
ARTICLE VIII
Payment of Benefits
8.1 Time of Payment............................................... 33
8.2 Form of Payment of Vested Accrued Benefit (Other Than Amount
Held in Company Stock Fund) When Participant Is the Initial
Recipient................................................... 35
8.3 Form of Payment of Vested Accrued Benefit (Other Than Amount
Held in Company Stock Fund) When Beneficiary Is the Initial
Recipient................................................... 36
8.4 Lump Sum Payments............................................. 36
8.5 Periodic Installments......................................... 36
8.6 Payment of Vested Accrued Benefit Held in Company Stock Fund.. 37
8.7 Plan to Plan Direct Rollover as a Distribution Option......... 37
8.8 Notice, Election and Consent Procedures Regarding Accrued
Benefit Payment............................................. 38
8.9 Benefit Determination and Payment Procedure................... 40
8.10 Claims Procedure.............................................. 41
8.11 Payments to Minors and Incompetents........................... 42
8.12 Distribution of Benefit When Distributee Cannot Be Located.... 42
8.13 Pre-TEFRA Benefit Designations................................ 42
ARTICLE IX
Withdrawals amd Loans
9.1 In-Service Non-Hardship Withdrawals from Voluntary Deductible
Account, Voluntary Non-deductible Account and/or Rollover
Account..................................................... 42
9.2 In-Service Hardship Withdrawals from Savings and Matching
Accounts.................................................... 42
9.3 In-Service Withdrawal of Entire Accrued Benefit at or after
Normal Retirement Date...................................... 44
9.4 Withdrawal of Entire Savings Account by Former Vaughan
Printers, Inc. Employees.................................... 44
9.5 Diversification Withdrawals or Diversification Transfers from
ESOP Account................................................ 44
9.6 Withdrawal Restrictions and Procedure......................... 44
9.7 Payment of Withdrawals........................................ 45
9.8 No Withdrawal Restoration..................................... 45
9.9 Loans......................................................... 45
9.10 Instructions to Trustee....................................... 47
ARTICLE X
The Fund
10.1 Trust Fund and Exclusive Benefit.............................. 47
10.2 Plan and Fund Expenses........................................ 48
10.3 Reversions to the Employer.................................... 48
10.4 No Interest Other Than Plan Benefit........................... 49
10.5 Payments from the Fund........................................ 49
10.6 Fund Divisions................................................ 49
10.7 Participant Investment Directions............................. 50
10.8 Investment Authority of the Administrator and Benefits
Committee................................................... 51
10.9 Provisions Relating to Insurer................................ 51
ARTICLE XI
Fiduciaries
11.1 Named Fiduciaries and Duties and Responsibilities............. 52
11.2 Limitation of Duties and Responsibilities of Named Fiduciaries 52
11.3 Service by Named Fiduciaries in More Than One Capacity........ 52
11.4 Allocation or Delegation of Duties and Responsibilities by
Named Fiduciaries........................................... 52
11.5 Investment Manager............................................ 52
11.6 Assistance and Consultation................................... 53
11.7 Indemnification............................................... 53
11.8 Funding Policy................................................ 53
11.9 Standard of Conduct........................................... 53
ARTICLE XII
The Trust Fund
12.1 The Trust Fund................................................ 54
12.2 Establishment of Separate Trusts.............................. 54
ARTICLE XIII
Plan Administration
13.1 Appointment of Plan Administrator............................. 55
13.2 Plan Sponsor as Plan Administrator............................ 55
13.3 Compensation and Expenses..................................... 55
13.4 Procedure if a Committee...................................... 55
13.5 Action by Majority Vote if a Committee........................ 55
13.6 Appointment of Successors..................................... 55
13.7 Additional Duties and Responsibilities........................ 55
13.8 Power and Authority........................................... 56
13.9 Availability of Records....................................... 56
13.10 No Action with Respect to Own Benefit......................... 56
13.11 Limitation on Powers and Authority............................ 56
ARTICLE XIV
Amendment and Termination of Plan
14.1 Amendment..................................................... 56
14.2 Merger, Consolidation or Transfer of Assets................... 57
14.3 Plan Permanence and Termination............................... 57
14.4 Lapse in Contributions........................................ 57
14.5 Termination Events............................................ 57
14.6 Termination Allocations and Separate Accounts................. 58
14.7 Holding of Separate Accounts.................................. 59
14.8 Distribution of Separate Accounts after Termination........... 59
14.9 Effect of Employer Merger, Consolidation or Liquidation....... 60
ARTICLE XV
Matters Relating to Stock
15.1 Voting Directions............................................. 60
15.2 Put to Employer............................................... 62
15.3 Sales Prohibited if Registration or Qualification Required.... 62
15.4 Limitation on Insiders' Interests in Stock.................... 62
15.5 No Guarantee of Values........................................ 62
15.6 Legend Regarding Securities Laws Restriction on Sale or
Transfer.................................................... 62
15.7 Independent Appraisals........................................ 62
15.8 Confidentiality of Participant Directions regarding and
Holdings of Stock........................................... 63
ARTICLE XVI
Miscellaneous
16.1 Headings...................................................... 63
16.2 Gender and Number............................................. 63
16.3 Governing Law................................................. 63
16.4 Employment Rights............................................. 63
16.5 Conclusiveness of Employer Records............................ 63
16.6 Right to Require Information and Reliance Thereon............. 63
16.7 Alienation and Assignment..................................... 64
16.8 Notices and Elections......................................... 64
16.9 Delegation of Authority....................................... 64
16.10 Service of Process............................................ 64
16.11 Construction.................................................. 64
ARTICLE XVII
Adoption of the Plan
17.1 Restated Adoption and Failure to Obtain Qualification......... 65
17.2 Adoption by Additional Employers.............................. 65
Appendices
Appendix A - Determination of Hours of Service
Appendix B - Determination of Top Heavy Plan Status
Appendix C - List of Participating Employers
Appendix D - Rules Pertaining to Limitations on Savings and Matching
Contributions
Appendix E - List of Transferor Plans
Appendix F - List of Named Fund Divisions
<PAGE>
THIS PLAN is executed this day of , 1994 by
Cadmus Communications Corporation, a Virginia corporation (the "Plan Sponsor"),
for itself and for other participating employers who may participate in the Plan
as provided herein (collectively or individually hereinafter called the
"Employer");
WITNESSETH:
THAT, WHEREAS, on December 5, 1969, Washburn Graphics, Inc. adopted the
Washburn Graphics, Inc. Profit Sharing Plan and a related trust for its
employees, which Plan and trust have been subsequently amended and restated; and
WHEREAS, effective July 1, 1985, Cadmus Communications Corporation, The
William Byrd Press, Incorporated and Expert Graphics, Inc. adopted the Plan,
Cadmus Communications Corporation assumed sponsorship of the Plan, a "cash or
deferred" thrift savings arrangement was added to the Plan, and the Plan and
trust were restated; and
WHEREAS, effective July 1, 1989, the Plan Sponsor caused the Plan and trust
to be further restated; and
WHEREAS, additional employers have adopted the Plan since its July 1, 1989
restatement and the Plan has been subsequently amended; and
WHEREAS, the Plan Sponsor deems it desirable to further amend and restate
the Plan as hereinafter set forth (sometimes referred to as this "Restatement of
the Plan"); and
WHEREAS, the Plan's trust fund was trusteed in part by First Union National
Bank and in part by T. Rowe Price Trust Company for periods prior to January 1,
1995; and
WHEREAS, by separate agreement, the Plan Sponsor has taken the necessary
steps to cause the assets of the Plan to be held in trust solely by T. Rowe
Price Trust Company as of January 1, 1995; and
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree that the Plan, as it
affects any rights in respect to any person entitled to benefits under the Plan
on or after January 1, 1995, shall be amended and restated in its entirety as
herein set forth, provided, however, that any new provision of this Restatement
of the Plan shall have no force and effect if the Internal Revenue Service
determines that it causes the Plan to cease to meet the applicable qualification
requirements of a defined contribution plan under Section 401 of the Internal
Revenue Code unless the same is amended to so qualify:
(i) The Accrued Benefit (including any benefit considered as an
accrued benefit for purposes of Section 411(d)(6)(B) of the Code) of any
Participant (or the benefit payable to his Beneficiary) shall not be
decreased by virtue of this Restatement of the Plan.
(ii) The non-forfeitable percentage of the Accrued Benefit of any
Participant shall not be decreased by virtue of this Restatement of the
Plan.
(iii) The form of payment of benefits in pay status on December 31,
1995 shall not be affected by virtue of this Restatement of the Plan,
except as may be expressly provided herein in the case of re-employment or
continued employment.
ARTICLE I
Definition of Terms
The following words and terms as used herein shall have the meaning set
forth below, unless a different meaning is clearly required by the context:
1.1 "Accrued Benefit": The sum of the balances of the following
accounts of a Participant under the Plan as of the most recent Valuation Date
(or as otherwise provided herein):
1.1(a) "ESOP Account": The account of a Participant in the Fund
attributable to his accrued benefit transferred to the Plan, effective December
31, 1991, from the Cadmus Employee Stock Ownership Plan.
1.1(b) "Matching Account" or "Matching Accounts": The account or accounts
of a Participant in the Fund attributable to Matching and Supplemental
Contributions by the Employer, consisting of his Matching Active Account and his
Matching Non-forfeitable Account as follows:
(i) "Matching Active Account": The Participant's account in the
Fund attributable to allocations of Matching and Supplemental Contributions
by the Employer made with respect to his service since his most recent
forfeiture and loss of forfeiture restoration rights under the Plan or, if
he has incurred no forfeiture and loss of forfeiture restoration rights
under the Plan, since his commencement of participation in the Plan.
(ii) "Matching Non-forfeitable Account": In the case of a
Participant who has incurred a forfeiture and loss of forfeiture
restoration rights under the Plan, the vested portion of his Matching
Active Account transferred to this account and attributable to allocations
of Matching and Supplemental Contributions by the Employer and made with
respect to his service prior to such forfeiture and loss of forfeiture
restoration rights.
1.1(c) "Profit Sharing Account" or "Profit Sharing Accounts": The account
or accounts of a Participant in the Fund attributable to Profit Sharing,
Supplemental and Top Heavy Contributions by the Employer, consisting of his
Profit Sharing Active Account and his Profit Sharing Non-forfeitable Account as
follows:
(i) "Profit Sharing Active Account": The Participant's account in
the Fund attributable to allocations of Profit Sharing, Supplemental and
Top Heavy Contributions by the Employer made with respect to his service
since his most recent forfeiture and loss of forfeiture restoration rights
under the Plan or, if he has incurred no such forfeiture and loss of
forfeiture restoration rights, since his commencement of participation in
the Plan.
(ii) "Profit Sharing Non-forfeitable Account": In the case of a
Participant who has incurred a forfeiture and loss of forfeiture
restoration rights under the Plan, the vested portion of his Profit Sharing
Active Account transferred to this account and attributable to allocations
of Profit Sharing, Supplemental and Top Heavy Contributions by the Employer
made with respect to his service prior to such forfeiture and loss of
forfeiture restoration rights.
1.1(d) "Rollover Account": The account of a Participant in the Fund
attributable to (i) his Rollover Contributions, other than Rollover
Contributions of accumulated deductible employee contributions within the
meaning of Section 72(o)(5)(B) of the Code or (ii) his voluntary transfer of all
or a portion of his ESOP Account to his Rollover Account in lieu of a
withdrawal.
1.1(e) "Savings Account": The account of a Participant in the Fund
attributable to his Savings Contributions.
1.1(f) "Voluntary Deductible Account": The account of a Participant in
the Fund attributable to his voluntary contributions to the Plan which were
designated pursuant to his election as "qualified voluntary employee
contributions" under Section 219 of the Code made during Plan Years beginning
before January 1, 1987, and to his Rollover Contributions of accumulated
deductible employee contributions within the meaning of Section 72(o)(5)(B) of
the Code.
1.1(g) "Voluntary Non-deductible Account": The account or accounts of a
Participant in the Fund attributable to his voluntary contributions to the Plan
which are not designated as "qualified voluntary employee contributions" under
Section 219 of the Code and to his Savings Contributions which were redesignated
as voluntary non-deductible contributions under the Plan prior to the Effective
Date of the July 1, 1989 Restatement of the Plan.
1.2 "Act": The Employee Retirement Income Security Act of 1974, as the
same may be amended from time to time, or the corresponding sections of any
subsequent legislation which replaces it, and, to the extent not inconsistent
therewith, the regulations issued thereunder.
1.3 "Active Participant": A Participant who is an Eligible Employee.
1.4 "Adjustment Factor": The cost of living adjustment factor
prescribed by the Secretary of the Treasury or his delegate under Section 415(d)
of the Code for years beginning after December 31, 1987, applied to such items
and in such manner as the Secretary of the Treasury or his delegate shall
prescribe.
1.5 "Administrator": The Plan Administrator provided for in ARTICLE
XIII hereof.
1.6 "Affiliate": The Employer and each of the following business
entities or other organizations (whether or not incorporated) which during the
relevant period is treated (but only for the portion of the period so treated
and for the purpose and to the extent required to be so treated) together with
the Employer as a single employer pursuant to the following sections of the Code
(as modified where applicable by Section 415(h) of the Code):
(i) Any corporation which is a member of a controlled group of
corporations (as defined in Section 414(b) of the Code) which includes the
Employer,
(ii) Any trade or business (whether or not incorporated) which is
under common control (as defined in Section 414(c) of the Code) with the
Employer,
(iii) Any organization (whether or not incorporated) which is a
member of an affiliated service group as defined in Section 414(m) of the
Code) which includes the Employer, and
(iv) Any other entity required to be aggregated with the Employer
pursuant to regulations under Section 414(o) of the Code.
1.7 "Annuity Starting Date": With respect to a Transferor Plan
Participant, the first day of the first period for which a benefit is paid as a
life annuity or in any other form (as opposed to the actual date of payment).
Notwithstanding the foregoing, the Annuity Starting Date shall not be considered
delayed because actual benefit payment is delayed for reasonable administrative
reasons as long as all benefits due are actually made. Further, the
Administrator may consider the Annuity Starting Date delayed for notice,
election and consent purposes but not for payment purposes (which means that
payment may be made retroactively to the Annuity Starting Date once the notice,
election and consent requirements are satisfied).
1.8 "Beneficiary": The person or persons designated by a Participant
or otherwise entitled pursuant to paragraph 7.3 to receive benefits under the
Plan attributable to such Participant after the death of such Participant.
1.9 "Benefits Committee": The standing committee of the Board of
Directors of the Plan Sponsor having responsibility over the Plan, which
committee currently is known as the Benefits and Investment Committee, unless
otherwise determined by the Board; or if no such committee is so serving at any
time, the Board of the Plan Sponsor.
1.10 "Board": The present and any succeeding Board of Directors of the
Plan Sponsor, unless such term is used with respect to a particular Employer and
its Employees, in which event it shall mean the present and any succeeding Board
of Directors of that Employer.
1.11 "Code": The Internal Revenue Code of 1986, as the same may be
amended from time to time, or the corresponding section of any subsequent
Internal Revenue Code, and, to the extent not inconsistent therewith,
regulations issued thereunder.
1.12 "Compensation": An Employee's total cash compensation, including
wages, salary, overtime pay, bonuses, commissions, employee elective salary
reduction or similar contributions under a cafeteria plan described in Section
125 of the Code and employee elective salary reduction or similar contributions
(such as Savings Contributions) under a cash or deferred arrangement described
in Section 401(k) of the Code (to the extent not already included therein), but
not including any contribution by the Employer to or benefits under this Plan or
other employee benefit plan or trust in connection therewith, nor any amount
otherwise paid as compensation but finally determined not to be deductible as
compensation in determining the Employer's federal taxable income, payable to
the Employee for services as an Eligible Employee and while a Participant,
directly from the Employer (but not from any Affiliate which is not a
participating employer unless otherwise expressly provided) for a Plan Year.
Any such compensation in excess of the Compensation Limit for a Plan Year shall
be disregarded.
1.13 "Compensation Limit":
1.13(a) $150,000 (as adjusted in $10,000 increments by the applicable
Adjustment Factor determined on the basis of a base period of the calendar
quarter beginning October 1, 1993).
1.13(b) In determining the Compensation (or other amounts which may refer
to the Compensation Limit) of any Employee who is a Highly Compensated Employee
for purposes of applying the Compensation Limit, the Compensation (or other
amounts which may refer to the Compensation Limit) of his Family Members who are
his spouse or any of his lineal descendants who have not attained the age of
nineteen (19) by the end of the Plan Year (or other stated computation period)
shall be aggregated with and treated as part of the Employee's Compensation (or
any other amounts which may refer to the Compensation Limit). When Compensation
(or any other amount which may refer to the Compensation Limit) is limited by
the Compensation Limit, it shall be disregarded in the following order,
determined on a Plan Year by Plan Year basis:
(i) First, Compensation (or other amounts which may refer to the
Compensation Limit) of Employees who are not participants in any qualified
retirement plan maintained by any Affiliate shall be disregarded; and
(ii) Then, Compensation (or other amounts which may refer to the
Compensation Limit) shall be disregarded proportionately based on the
applicable amount determined without regard to the Compensation Limit.
1.13(c) For purposes of applying the Compensation Limit:
(i) The Compensation Limit applicable to each Plan Year (or other
applicable computation period) shall be the Compensation Limit in effect
for each such Plan Year (or other applicable computation period),
determined without increases in the Compensation Limit for subsequent
periods.
(ii) If any Plan Year is a period of less than twelve (12) months,
then any dollar limitation referred to in this paragraph shall be prorated
by multiplying the otherwise applicable dollar limitation for such
Plan Year by a fraction, the numerator of which is the number of months in
such Plan Year and the denominator of which is twelve (12).
(iii) The Compensation Limit shall be applied on a plan by plan
basis, except that a group of plans which are treated as a single plan for
applicable non-discrimination purposes under Section 410(b) of the Code
shall share a single Compensation Limit.
1.14 "Contract": A group annuity contract, deposit administration
contract, immediate participation guarantee contract, or other
investment-oriented or funding contract or agreement issued by an Insurer to
hold the assets of the Plan.
1.15 "Covered Matching Participant": With respect to a Plan Year, a
Participant:
(i) Who is credited with a Year of Benefit Service for such Plan
Year and who is an Eligible Employee on the last day of such Plan Year, or
(ii) Who died or retired under the Plan while an Eligible Employee
during such Plan Year.
1.16 "Covered Profit Sharing Participant": With respect to a Plan Year,
a Participant:
(i) Who is credited with a Year of Benefit Service for such Plan
Year and who is an Eligible Employee on the last day of such Plan Year, or
(ii) Who died or retired under the Plan while an Eligible Employee
during such Plan Year.
1.17 "Date of Hire": The date on which an Employee is first credited
with an Hour of Service, determined without regard to any cessation of
employment.
1.18 "Effective Date":
(i) The Effective Date of the Plan is January 1, 1969.
(ii) The Effective Date of this Restatement of the Plan is January
1, 1995.
(iii) With respect to any employer adopting the Plan as a
participating employer as of a date after the Effective Date of this
Restatement of the Plan, the Effective Date of the Plan as to such Employer
is the same as may be set forth in its adoption agreement or in the Plan.
The Administrator shall maintain as Appendix C to the Plan a list of the
Effective Dates of participation of all Employers participating in the Plan.
1.19 "Eligible Employee":
1.19(a) Any common law employee of the Employer other than:
(i) An employee who is a non-resident alien and who receives no
earned income (within the meaning of Section 911(d)(2) of the Code) from
the Employer which constitutes income from sources within the United States
(within the meaning of Section 861(a)(3) of the Code),
(ii) An employee who is included in a unit of persons covered by a
collective bargaining agreement between representatives of such unit and
the Employer, unless such collective bargaining agreement provides for
participation in the Plan, or
(iii) An employee who is classified by the Employer under its
standard personnel policies and practices as a straight-time hourly paid
employee or a homeworker.
1.19(b) For purposes hereof:
(i) A "straight-time hourly paid employee" generally is an employee
whose pay is calculated on an hourly basis and who is not regularly
compensated for time off.
(ii) A "homeworker" generally is an employee who is employed other
than in a sales, financial, management or administrative capacity and whose
principal place of work is not at any of the facilities of the Employer or
its Affiliates.
1.19(c) In no event shall Leased Employees be considered as Eligible
Employees or be eligible to actively participate in the Plan.
1.20 "Employee": Any individual employed in the service of the Employer
as a common law employee, any sole proprietor or partner of a partnership
constituting an Affiliate, and any Leased Employee (but only for the purpose and
to the extent treated under Section 414(n) of the Code as an employee of the
Employer).
1.21 "Employer":
1.21(a) The Plan Sponsor and each other employer heretofore or hereafter
executing or adopting the Plan as a participating employer, collectively unless
the context otherwise indicates, for as long as it remains a participating
employer; and with respect to any Employee, any one or more of such Employers by
which he is at any time employed (unless or to the extent otherwise specified by
resolution of the Board or in a merger or acquisition agreement or plan approved
by the Board or in any applicable asset transfer, plan merger or consolidation
or adoption agreement). The Administrator shall maintain as Appendix C to the
Plan a list of all such Employers who are, from time to time, participating
employers in the Plan.
1.21(b) For purposes of determining:
(i) Service for all purposes of the Plan (other than for purposes
of determining non-Top Heavy Plan benefit accrual, Eligible Employees,
Covered Participants and Years of Benefit Service unless otherwise
specifically provided) and commencement of service and termination of
employment with the Employer,
(ii) Employees, Family Members, Highly Compensated Employees, Key
Employees, and Leased Employees,
(iii) Top Heavy Plan status, contributions and benefits,
(iv) Statutory Compensation and Total Compensation,
(v) Any limitations of contributions and forfeitures or on loans
hereunder, and
(vi) Maintenance of or participation in other qualified plans under
Section 401(a) of the Code, tax sheltered annuities under Section 403(b) of
the Code, simplified employee pensions under Section 408(k) of the Code,
and any other plan required or, as applicable, permitted to be aggregated
with this Plan for purposes of the Code,
the term "Employer" shall include each Affiliate which during any year
commencing after December 31, 1975 is treated as an Affiliate and each
predecessor employer which maintained this Plan (but not beyond the time it
ceased to maintain the Plan) within the meaning of Section 414(a) of the Code,
but only for the portion of any such year or years so treated and for the
purpose and to the extent required to be so treated.
1.21(c) For purposes of determining compensation and service with any
business entity, or predecessor thereto, which is merged into an Employer, or a
predecessor thereto, or all or substantially all the assets or the operating
assets acquired by an Employer, or predecessor thereto, compensation from and
service with such business entity and predecessor thereto shall be treated as
compensation from and service with an Employer to the extent provided by
resolution of the Board or in any corporation or plan merger, consolidation or
asset transfer agreement or any adoption agreement approved by the Board.
1.21(d) For purposes of determining, where applicable, service under the
Plan, the term "Employer" shall include:
(i) Charlotte Letter Writing, Inc., a North Carolina corporation,
for the period February 23, 1979 to June 30, 1980, which corporation was a
subsidiary of and was liquidated and merged into Washburn Graphics, Inc.
(ii) Bru-EL Graphics, Inc., a District of Columbia corporation,
Geographics, Inc., a Virginia corporation, and Santype-Byrd, Inc., a
Virginia corporation, which corporations were subsidiaries of and were
liquidated and merged into The William Byrd Press, Incorporated or one of
its subsidiaries.
(iii) For employees ("Dataset Employees") who were hired by The
William Byrd Press, Incorporated on September 4, 1987 in connection with
its acquisition of the assets of Dataset Communications, Inc., a Delaware
corporation, ("Dataset") on that same date and who were employees of
Dataset on September 3, 1987, the date each such Dataset Employee last
became employed by Dataset prior to September 4, 1987.
1.21(e) For purposes of determining, where applicable, service for purposes
of determining eligibility to become a Participant and Years of Vesting Service
(but not for Compensation or benefit accrual) under the Plan, the term
"Employer" shall include Waverly, Inc., a Maryland corporation, but only for
Former Waverly, Inc. Employees and only for service before the date the Former
Waverly, Inc. Employee first becomes an Employee on or after the Waverly Closing
Date. For purposes hereof:
(i) The term "Waverly Closing Date" means the date in November,
1993 as of which the Plan Sponsor or an Affiliate acquired the assets of
the printing division of Waverly, Inc. pursuant to that certain Asset
Purchase Agreement made as of September 29, 1993 between, among others,
Cadmus Communications Corporation and Waverly, Inc. or any modifications
thereto, which date is scheduled to be November 1, 1993.
(ii) A "Former Waverly, Inc. Employee" is an employee of Waverly,
Inc., a Maryland corporation, either:
(A) On the day before the Waverly Closing Date who becomes an
Employee of a participating Employer on the Waverly Closing Date in
connection with the acquisition of the assets of the printing
division of Waverly, Inc. by the Plan Sponsor or an Affiliate on the
Waverly Closing Date, or
(B) On any day in 1994 which immediately precedes his becoming
an Employee of a participating Employer at the request of the
participating Employer in connection with the acquisition of the
assets of the printing division of Waverly, Inc. by the Plan Sponsor
or an Affiliate in November, 1993.
1.22 "Family Member":
1.22(a) With respect to a Plan Year, an individual (whether or not himself
a Highly Compensated Employee) who is considered a family member described in
Section 414(q)(6)(A) of the Code with respect to an Employee; and, to the extent
not inconsistent therewith, an individual who is a member of the family
(consisting, with respect to an Employee, of such Employee's spouse and lineal
ascendants and descendants and the spouses of lineal ascendants and descendants)
on any day of the Determination Year or Look-Back Year with respect to such Plan
Year of a Highly Compensated Employee who is either (i) a more than five percent
(5%) owner of the Employer or (ii) in the group consisting of the ten (10)
Highly Compensated Employees with the greatest Statutory Compensation for the
relevant Determination Year or Look-Back Year.
1.22(b) For purposes hereof, the terms "Determination Year", "Look-Back
Year", and "more than five percent (5%) owner of the Employer" have the same
meaning provided herein for purposes of determining Highly Compensated
Employees.
1.22 "Fund": The trust fund, including any separate trusts, created
under and subject to the Trust Agreement. The Fund shall be held in divisons
(sometimes referred to as "divisions of the Fund", "Fund divisions" or
"investments funds" herein) as described in paragraph 10.6 and Appendix F to the
Plan.
1.24 "Highly Compensated Employee":
1.24(a) With respect to a Plan Year, an individual who is considered a
"highly compensated employee" with respect to the Employer within the meaning of
Section 414(q) of the Code; and, to the extent not inconsistent therewith, any
Employee who is considered a Highly Compensated Active Employee or a Highly
Compensated Former Employee for the Determination Year ending with or within
such Plan Year, defined as follows:
(i) The term "Highly Compensated Active Employee" means, with
respect to a Determination Year, an Employee who is an Active Employee
during the Determination Year and who during the Determination Year or the
Look-Back Year either:
(A) Was at any time a more than five percent (5%) owner of the
Employer (as defined for purposes of determining Key Employees);
(B) Received Statutory Compensation in excess of $75,000 (as
adjusted by the Adjustment Factor);
(C) Received Statutory Compensation in excess of $50,000 (as
adjusted by the Adjustment Factor), and was a member of the twenty
percent (20%) top-paid group of Employees; or
(D) Was one of the fifty (50) (or if less, the greater of three
(3) or ten percent (10%) of total Employees) officers of the
Employer having the largest annual Statutory Compensation and having
Statutory Compensation in excess of $45,000 (or fifty percent (50%)
of any other amount, as adjusted by the Adjustment Factor, in effect
under Section 415(b)(1)(A) of the Code), provided, however, that if
no officers received Statutory Compensation for either such Plan
Year in excess of such dollar amount, then the officer receiving the
largest annual Statutory Compensation shall be a Highly Compensated
Active Employee.
Notwithstanding the foregoing, an Employee shall not be considered
described in clauses (i)(B), (C) and (D) of this subparagraph for a
Determination Year (although he may for a Look-Back Year) unless he also is
one of the one hundred (100) Active Employees who receive the greatest
Statutory Compensation for the Determination Year.
(ii) The term "Highly Compensated Former Employee" means:
(A) With respect to a Determination Year, a Former Employee who
has had a Separation Year prior to the Determination Year and who
was a Highly Compensated Active Employee for either such Separation
Year or any Determination Year ending on or after his attainment of
the age of fifty-five (55).
(B) Notwithstanding the foregoing, an Employee shall not be
treated as a Highly Compensated Former Employee by reason of having
a Deemed Separation Year after such Employee actually separates from
service with the Employer if, after such Deemed Separation Year and
before his Actual Separation Year, his services for the Employer and
Statutory Compensation for a Determination Year increase
significantly so that the Employee is treated as having a Deemed
Resumption of Employment.
1.24(b) For purposes hereof:
(i) The term "Active Employee" means, with respect to a
Determination Year, a current Employee who performs services for the
Employer as an Employee at any time during the Determination Year.
(ii) The term "Deemed Resumption of Employment" means an increase in
both services performed for the Employer as an Employee and Statutory
Compensation, based on the facts and circumstances, and at a minimum shall
include an increase in Statutory Compensation to the extent that such
increased Statutory Compensation would not result in a Deemed Separation
Year.
(iii) The term "Determination Year" means the Plan Year.
(iv) The term "Former Employee" means, with respect to a
Determination Year, a current or former Employee who performs no services
for the Employer as an Employee during the Determination Year.
(v) The term "Look-Back Year" means, with respect to a
Determination Year, the immediately preceding year to the Determination
Year in question, provided, however, that if the Determination Year is the
calendar year and the Administrator elects in accordance with Section
414(q) of the Code to determine the status of individuals as Highly
Compensated Employees on the basis of a Look-Back Year and Determination
Year which are the same year, then the Look-Back Year shall be the
Determination Year.
(vi) The term "Separation Year" means:
(A) An "Actual Separation Year" which is a Determination Year
in which a Former Employee last performed services for the Employer
as an Employee prior to becoming a Highly Compensated Former
Employee; or
(B) A "Deemed Separation Year" which is a Determination Year
prior to the Employee's attainment of the age of fifty-five (55) in
which he is an Active Employee and in which his Statutory
Compensation is less than fifty percent (50%) of his average annual
Statutory Compensation for the three (3) consecutive calendar years
preceding the Determination Year during which his Statutory
Compensation was the highest (or the total period of the Employee's
service with the Employer if less). A Deemed Separation Year is
relevant for purposes of determining whether an Employee is a Highly
Compensated Former Employee after he has an Actual Separation Year,
but is not relevant for purposes of identifying him as an Active or
Former Employee.
1.24(c) For purposes hereof:
(i) The Adjustment Factor for a Determination Year or a Look-Back
Year shall be applied on the basis of the calendar year in which such
Determination Year or Look-Back Year begins.
(ii) The Administrator may adopt any rounding or tie-breaking rules
it desires in making relevant determinations so long as such rules are
reasonable, non-discriminatory and uniformly and consistently applied.
(iii) An Employee is a member of the twenty percent (20%) top-paid
group for a year if he is one of the top twenty percent (20%) of Active
Employees for the year when ranked on the basis of descending Statutory
Compensation for such year (whether or not the Employee in question is
excluded in determining the number of Employees in the twenty percent (20%)
top-paid group). For this purpose, if bargaining unit Employees are not
taken into account in determining the number of Employees in the twenty
percent (20%) top-paid group pursuant to clause (iv)(E) of this
subparagraph, they also shall not be taken into account in determining
other Employees who are in twenty percent (20%) top-paid group.
(iv) For purposes of determining the number of persons in the twenty
percent (20%) top-paid group and the number of persons who may be
considered officers for a year, the following rules shall apply:
(A) The number of Employees who are in the twenty percent (20%)
top-paid group for a year is twenty percent (20%), rounded to the
nearest integer, of the total number of Active Employees who are not
excluded Employees for such year.
(B) The number of Employees equal to ten percent (10%) of total
Employees for a year is ten percent (10%), rounded to the nearest
integer, of the total number of Active Employees who are not
excluded Employees for such year.
(C) All Former Employees for the year are excluded.
(D) Employees who are non-resident aliens and who receive no
earned income (within the meaning of Section 911(d)(2) of the Code)
from the Employer that constitutes income from sources within the
United States for the year are excluded.
(E) Employees who are in a unit of employees covered by a
collective bargaining agreement between the Employer and employee
representatives for the year are excluded if and only if ninety
percent (90%) or more of the total Employees for the year are
covered by a collective bargaining agreement with the Employer and
the Active Participants in the Plan do not include any such
bargaining unit Employees.
(F) Employees shall not be excluded on the basis of age or
length of prior service.
1.25 "Hour of Service":
(i) Each hour for which an Employee is paid by the Employer, or
entitled to payment, for the performance of duties for the Employer or for
periods during which no duties are required to be performed, including each
hour for which credit has not theretofore been given and for which back
pay, irrespective of mitigation of damages, has either been awarded or
agreed to by the Employer, and
(ii) Solely for purposes of determining Years of Broken Service,
each hour of absence from work for which credit is expressly given under
the Plan,
all as more specifically provided in Appendix A.
1.26 "Inactive Participant": A Participant who is not an Eligible
Employee.
1.27 "Insurer": Any insurance company which issues a Contract to hold
assets of the Plan or a Policy to provide for payment of benefits under the
Plan.
1.28 "Investment Manager": A fiduciary of the Plan appointed to manage
all or part of the assets of the Fund and serving pursuant to ARTICLE XI and
qualifying as an "investment manager" within the meaning of Section 3(38) of the
Act.
1.29 "Key Employee":
1.29(a) With respect to a Plan Year, any Employee or former Employee (or
his Beneficiary if he is deceased) considered to be a "key employee" with
respect to the Employer at the time in question within the meaning of Section
416(i)(1) of the Code; and to the extent not inconsistent therewith, any
Employee or former Employee (or his Beneficiary if he is deceased) who at any
time during such Plan Year, or any of the preceding four (4) Plan Years, is
either:
(i) One of the fifty (50) (or if less, the greater of three (3) or
ten percent (10%) of total Employees, as determined for purposes of
determining Highly Compensated Employees) officers of the Employer having
the largest annual Statutory Compensation during any such Plan Year and
having Statutory Compensation in excess of $45,000 (or fifty percent (50%)
of any other amount, as adjusted by the Adjustment Factor, in effect for
the relevant Plan Year under Section 415(b)(1)(A) of the Code);
(ii) One of the ten (10) Employees having Statutory Compensation in
excess of $30,000 (or any other amount, as adjusted by the Adjustment
Factor, in effect for the relevant Plan Year under Section 415(c)(1)(A) of
the Code) and owning more than a one-half percent (.5%) interest in the
Employer, who owns the largest interests in the Employer, provided that if
two such Employees have the same interest in the Employer, the Employee
having the greater Statutory Compensation shall be treated as having a
larger interest;
(iii) A more than five percent (5%) owner of the Employer; or
(iv) A more than one percent (1%) owner of the Employer having an
annual Statutory Compensation of more than $150,000.
1.29(b) In determining ownership in the Employer for purposes hereof the
constructive ownership rules of Section 318 of the Code (as modified by Section
416(i)(1)(B)(iii) of the Code) shall apply, and the rules of Sections 414(b),
(c), (m) and (o) of the Code shall not apply.
1.30 "Leased Employee":
1.30(a) An individual who is considered a leased employee of the Employer
within the meaning of Section 414(n)(2) of the Code and, to the extent not
inconsistent therewith, any person:
(i) Who, pursuant to an agreement between the recipient Employer
and any other person (the "leasing organization"), has performed services
for the recipient Employer or for the recipient Employer and related
persons (determined in accordance with Section 414(n)(6) of the Code),
(ii) Whose services are performed on a substantially full-time basis
for a period of at least one year, and
(iii) Whose services are of a type historically performed by
employees in the business field of the recipient Employer.
1.30(b) Notwithstanding the foregoing, if such leased employees constitute
less than twenty percent (20%) of the Employer's non-highly compensated work
force within the meaning of Section 414(n)(1)(C)(ii) of the Code, individuals
otherwise considered to be Leased Employees shall not include those leased
employees covered by a plan described in Section 414(n)(5) of the Code (unless
otherwise provided by the terms of the Plan) and, to the extent not inconsistent
therewith, which:
(i) Is maintained by the leasing organization,
(ii) Is a money purchase pension plan with a non-integrated
employer contribution rate of at least ten percent (10%) of compensation,
(iii) Provides full and immediate vesting, and
(iv) Provides for immediate participation by each employee of the
leasing organization (other than employees who perform substantially all
their services for the leasing organization or whose compensation from the
leasing organization in each of the four (4) Plan Years ending with the
Plan Year in question is less than $1,000).
For purposes hereof, "compensation" means compensation as defined in Section
415(c)(3) of the Code but without regard to Sections 125, 402(e)(3) and
402(h)(1)(B) of the Code and without regard to employer contributions made
pursuant to salary reduction agreements under Section 403(b) of the Code.
1.31 "Non-Highly Compensated Employee": Any Employee who is not a
Highly Compensated Employee.
1.32 "Non-Key Employee": Any Employee (including the Beneficiary of
such Employee) who is not a Key Employee.
1.33 "Normal Retirement Age": The age of sixty-five (65) years.
1.34 "Participant": An Eligible Employee or other person qualified to
participate in the Plan for so long as he is considered a Participant as
provided in ARTICLE II hereof.
1.35 "Plan": This Plan and Trust agreement, including the Appendices
hereto, as contained herein or duly amended. The plan maintained pursuant
hereto shall be known as the "Cadmus Thrift Savings Plan".
1.36 "Plan Sponsor": Cadmus Communication Corporation, a Virginia
corporation (or its corporate successor).
1.37 "Plan Year":
(i) For periods before January 1, 1984, the year commencing upon
the first day of January of each year.
(ii) For the period beginning January 1, 1984, the six-month period
commencing on January 1, 1984 and ending on June 30, 1984.
(iii) For periods beginning after June 30, 1984 and before July 1,
1989, the year commencing on the first day of July of each year.
(iv) For the period beginning July 1, 1989, the six-month period
commencing on July 1, 1989 and ending on December 31, 1989.
(v) For periods beginning after December 31, 1989, the year
commencing on the first day of January of each year.
In the case of a Plan Year containing less than twelve (12) months, for those
provisions of the Plan containing or requiring the application of a specified
dollar amount or limit, a specified Hour of Service amount or limit or some
other specified amount or limit determined on the basis of a Plan Year (or
Limitation Year), each such amount or limit shall be prorated by multiplying the
otherwise applicable amount or limit by a fraction the numerator of which is the
number of months in such Plan Year (or Limitation Year) and the denominator of
which in twelve (12).
1.38 "Policy": A group or individual policy, contract or other
agreement (including a certificate) issued by an Insurer which is not a Contract
and which is obtained to provide for the accumulation and/or payment of benefits
under the Plan.
1.39 "QDRO": A qualified domestic relations order within the meaning of
Section 206(d)(3) of the Act and Section 414(p) of the Code and as determined by
the Administrator pursuant to the Plan.
1.40 "Spouse":
1.40(a) With respect to a Participant who is not a Transferor Plan
Participant, for the purpose of qualifying as a Beneficiary or to receive death
benefits under the Plan and consenting to a Beneficiary designation, the
individual to whom the Participant was married on the date of his death.
1.40(b) With respect to a Participant who is a Transferor Plan Participant,
for the purpose of:
(i) Qualifying to receive survivor annuity benefits under paragraph
8.2, the individual to whom the Participant is married on his Annuity
Starting Date, or
(ii) Otherwise qualifying as a Beneficiary or to receive death
benefits under the Plan and consenting to a Beneficiary designation, the
individual to whom the Participant was married on the date of his death.
1.40(c) The determination of the marital status of a Participant shall be
made pursuant to applicable local law; provided, however, that a Participant's
former spouse shall continue to be considered married to the Participant, and a
Participant's current spouse shall be considered not married to the Participant,
to the extent provided under a QDRO.
1.41 "Statutory Compensation": An Employee's Total Compensation plus
employee elective salary reduction or similar contributions excluded from Total
Compensation by reason of Sections 125, 402(e)(3), 402(h), 403(b), 414(h)(2) and
457(b) of the Code. Statutory Compensation for a Plan Year (or other applicable
computation period) shall be limited by the Compensation Limit for all purposes
other than determining Family Members, Highly Compensated Employees and Key
Employees.
1.42 "Stock": The common stock of the Plan Sponsor.
1.43 "Super Top Heavy Plan": The Plan, if it would still be considered
a Top Heavy Plan if ninety percent (90%) were substituted for sixty percent
(60%) in each place it appears in the definition of a Top Heavy Plan.
1.44 "Top Heavy Plan": The Plan, for any Plan Year beginning after
December 31, 1983, if the sum of the present values of the cumulative Accrued
Benefits of Key Employees under the Plan, and the present values of the
cumulative accrued benefits of Key Employees under all plans aggregated with it,
exceeds sixty percent (60%) of the aggregate of the present value of the
cumulative Accrued Benefits under this Plan and accrued benefits under such
plan(s) at the applicable determination date. For purposes hereof, aggregation,
accrued benefits (including Accrued Benefits) taken into account, the
determination date and all other standards and criteria for determining
top-heaviness under this Plan and such other plan(s) shall be determined under
Section 416 of the Code. Subject to the foregoing, more specific rules for
determining whether the Plan is a Top Heavy Plan are provided in Appendix B.
1.45 "Total Compensation": The total compensation from the Employer
received by or made available to an Employee during any Plan Year or, for
purposes of paragraph 4.3 and the limitations imposed by Section 415 of the
Code, any Limitation Year (as defined in paragraph 4.3):
(i) Including, but not limited to, wages, salary, earned income
(in the case of self-employed individuals), vacation pay, sick pay,
overtime pay, bonuses and commissions, and as reportable to the Internal
Revenue Service on Form W-2 (or its successor), where applicable, for
federal income tax purposes, but
(ii) Excluding paid or reimbursed expenses, contributions or
benefits under a simplified employee pension plan, contributions (to the
extent not includible in the Employee's gross income when contributed) or
benefits under this or any other plan of deferred compensation (other than
an unfunded, non-qualified plan), contributions or benefits under any other
employee benefit plan or arrangement (to the extent excludible from or not
includible in gross income), now, heretofore or hereafter adopted, amounts
paid or received or deemed received in connection with stock options or
rights, other amounts which receive special tax benefits, or any amount
otherwise paid as compensation but finally determined not to be deductible
as compensation in determining the Employer's federal taxable income.
1.46 "Transferor Plan": A plan qualified under Section 401(a) of the
Code which provides or is required to provide life annuities to its participants
in accordance with Section 401(a)(11) of the Code as the normal form of payment,
provided that all or a portion of the assets of such plan are transferred
directly or indirectly (other than by Rollover Contribution) to the Fund and
made a part of this Plan and such plan is designated as a Transferor Plan. The
Administrator shall maintain as Appendix E to the Plan a list of all Transferor
Plans.
1.47 "Transferor Plan Participant": A participant in a Transferor Plan
who becomes a Participant in this Plan and whose account balance or accrued
benefit under the Transferor Plan is transferred directly or indirectly (other
than by Rollover Contribution) to this Plan.
1.48 "Trust Agreement": The agreement(s) by and between the Plan
Sponsor and the Trustee under which the Fund is maintained. As of the Effective
date of this restatement of the Plan, there is only one such agreement in
effect, which agreement is known as the "Trust Agreement for the Cadmus Thrift
Savings Plan".
1.49 "Trustee": T. Rowe Price Trust Company for so long as and to the
extent it is serving under the Trust Agreement; or any Separate Trustees (as
provided in paragraph 12.2), any Co-Trustee (as provided in subparagraph
15.1(e)), or any successor or additional person(s) or entity(ies) appointed
pursuant to the Trust Agreement as trustee of the Fund and currently serving.
1.50 "Valuation Date": Each business day (based on the days the
underlying investment funds are valued and transactions are effectuated in the
applicable financial markets) of the Plan Year, or such other dates (which must
be at least annually) as the Administrator may designate from time to time.
1.51 "Year of Benefit Service":
1.51(a) For purposes of determining Covered Matching Participants, a Plan
Year (which is the computation period) during which an Employee is credited with
at least one thousand (1,000) Hours of Service as an Eligible Employee
(excluding service with any Affiliate which is not a participating employer
unless otherwise expressly provided). Notwithstanding the foregoing, if the Plan
Year in question is the Plan Year containing the Participant's Date of Hire, the
one thousand (1,000) Hours of Service requirement shall be reduced to the
following number of Hours of Service as an Eligible Employee (excluding service
with any Affiliate which is not a participating employer unless otherwise
expressly provided), based on the month in the Plan Year in which the
Participant's Date of Hire occurs:
Month of Employment Number of Hours Required
January 1,000
February 916
March 833
April 750
May 666
June 583
July 500
August 416
September 333
October 250
November 166
December 83
1.51(a) For purposes of determining Covered Profit Sharing Participants, a
Plan Year (which is the computation period) during which an Employee is credited
with at least one thousand (1,000) Hours of Service as an Eligible Employee
(excluding service with any Affiliate which is not a participating employer
unless otherwise expressly provided).
1.52 "Year of Broken Service": A Plan Year (which is the computation
period), commencing with or after the date an individual becomes an Employee,
during which such Employee is not credited with more than five hundred (500)
Hours of Service.
ARTICLE II
Eligibility and Participation
2.1 Eligibility and Date of Participation.
2.1(a) Each individual who is a Participant in the Plan on the day before
the Effective Date of this Restatement of the Plan shall continue to be a
Participant in the Plan at the Effective Date of this Restatement of the Plan.
2.1(b) Each other Eligible Employee who is not a Participant at the
Effective Date of this Restatement of the Plan shall become a Participant on the
earlier of the following dates:
(i) The first day of the first calendar month (A) which occurs
three months after his Date of Hire and (B) on which he is an Eligible
Employee, or
(ii) If he is not an Eligible Employee on the date referred to in
clause (i) above, on the first day he becomes an Eligible Employee
thereafter.
2.1(c) An individual who was, but ceased to be, a Participant shall again
be a Participant if and when he again becomes an Eligible Employee.
2.1(d) An individual who becomes a Participant shall be or remain a
Participant for so long as he remains an Eligible Employee and thereafter while
he is entitled to future benefits under the terms of the Plan.
ARTICLE III
Funding
3.1 Amount and Timing of Employer Contributions.
3.1(a) With respect to each Plan Year, each Employer shall make a Matching
Contribution to the Fund on behalf of each Participant who is a Covered Matching
Participant for such Plan Year and who has made Savings Contributions to the
Plan at any time during such Plan Year in the amount equal to a designated
percentage, determined annually by the Plan Sponsor, of the excess (the "Matched
Contribution Amount") of:
(i) The lesser of (A) the Covered Matching Participant's Savings
Contribution for the Plan Year or (B) six percent (6%) of his Compensation
for such Plan Year for periods during which he is not suspended from and is
otherwise eligible to make Savings Contributions to the Plan, over
(ii) The amount of the Covered Matching Participant's in-service
withdrawals, if any, while an Employee from his Savings Account during the
Plan Year pursuant to ARTICLE IX (other than pursuant to paragraph 9.3).
The Plan Sponsor shall determine the discretionary designated percentage of the
Matching Contribution for a Plan Year no later than twelve (12) months after the
end of the Plan Year and no later than the date, including extensions thereof,
on which its federal income tax return is due for its taxable year in which the
Plan Year ends.
3.1(b) With respect to each Plan Year, each Employer's Profit Sharing
Contribution to the Fund shall be such amount, if any, as such Employer may
determine.
3.1(c) For any Plan Year for which the Plan is a Top Heavy Plan, the Plan
Sponsor shall cause a Top Heavy Contribution by the Employer to be made on
behalf of each Non-Key Employee who is a Participant for such Plan Year, who is
an Eligible Employee on the last day of such Plan Year and who is not covered by
a collective bargaining agreement under which retirement benefits were the
subject of good faith bargaining with the Employer so that the total allocation
of contributions by the Employer (other than Supplemental Contributions to the
Plan and similar contributions to other plans) and forfeitures for each such
Non-Key Employee is at least equal to the lesser of:
(i) Three percent (3%) of his Top Heavy Compensation for such Plan
Year, or
(ii) Such lesser percentage of his Top Heavy Compensation for such
Plan Year which is equal to the percentage of Top Heavy Compensation of the
Key Employee for such Plan Year for whom an allocation of contributions by
the Employer (other than Supplemental Contributions to this Plan and
similar contributions to other plans) and forfeitures under this Plan and
any other qualified defined contribution plan or simplified employee
pension plan maintained by the Employer is made which is the highest such
percentage for such Plan Year (calculated by aggregating all such
contributions and forfeitures); provided, however, that this clause (ii)
shall not apply if this Plan enables a defined benefit plan to meet the
requirements of Section 401(a)(4) or 410 of the Code.
For purposes hereof, contributions considered made by the Employer which are
attributable to a salary reduction or similar arrangement (such as Savings
Contributions) and matching contributions within the meaning of Section 401(m)
of the Code (such as Matching Contributions) shall only be taken into account
for purposes of determining the highest percentage of any Key Employee pursuant
to clause (ii) of this subparagraph. For purposes hereof, "Top Heavy
Compensation" means a Participant's Total Compensation, not in excess of the
Compensation Limit, for a Plan Year.
3.1(d) With respect to each Plan Year, the Employer shall make a
Supplemental Contribution to the Fund on behalf of Participants in such amount
as may be required pursuant to paragraph 6.6.
3.1(e) In no event shall the sum of the Matching, Profit Sharing and Top
Heavy Contributions made by the Employer and the Savings Contributions
considered made by the Employer for purposes of Section 404 of the Code for any
taxable year of the Employer exceed the maximum amount deductible from the
Employer's income for such taxable year under the Code, including the maximum
amount deductible under the "carry over" provisions relating to contributions in
previous years of more or less than the maximum amount permissible and any
amount deductible as a contribution on behalf of an Affiliate, in which latter
case any such contribution shall be deemed, for purposes of this Plan, to have
been made by such Affiliate. Each contribution by the Employer shall be
conditioned on its deductibility. If a reduction is thereby required, the
excess amount shall be reduced in the following manner:
(i) First, to the extent directed by the Plan Sponsor by the date,
including extensions thereof, on which its federal income tax return is due
to be filed for such taxable year, the Savings Contributions for such
taxable year of the Eligible Participants (as defined in Appendix D to the
Plan) who are Highly Compensated Employees for such taxable year shall
first be refunded to such Eligible Participant and shall be considered as
gross income to the Participant. Among such Participants, the reduction
shall be effected by reducing contributions in order of the highest
Deferral Percentages (as defined in Appendix D to the Plan),
(ii) Then, the Profit Sharing Contribution for such taxable year
shall be reduced,
(iii) Then, the Matching Contribution for such taxable year shall be
reduced,
(iv) Then, the Top Heavy Contribution for such taxable year shall be
reduced, and
(v) Then the Supplemental Contributions for such taxable year shall
be reduced,
to the extent necessary to reduce the excess amount to zero. Unless otherwise
directed by the Plan Sponsor, any such reductions (other than those referred to
in clause (i) of this subparagraph) shall be effected pro rata based on the
entire class of contributions for such taxable year to be reduced.
3.1(f) The contribution by the Employer for any Plan Year may be made in
one or more payments at any time, subject to the prohibition of paragraph 4.5,
provided that the total amount of the contribution with respect to any taxable
year of the Employer shall be paid not later than the date, including extensions
thereof, on which the Employer's federal income tax return for such taxable year
is due to be filed. Notwithstanding the foregoing, if a contribution is not
timely made, it may still be allocated as a contribution for the Plan Year for
which contributed if so directed by the Plan Sponsor.
3.2 Special Rules for Employer's Share of and Form of Contribution.
3.2(a) Unless some other allocation of the contributions by the Employer
is directed by the Plan Sponsor, each Employer shall contribute to the Fund for
each Plan Year:
(i) That portion of the Matching Contribution made with respect to
each Participant's Savings Contribution for each Plan Year determined by
multiplying the Matching Contribution Amount for such Participant for such
Plan Year by a fraction, the numerator of which is the Savings Contribution
made by such Participant out of his Compensation payable by it for such
Plan Year and the denominator of which is the aggregate Savings
Contributions of such Participant for such Plan Year; plus
(ii) That portion of the Profit Sharing Contribution for a Plan Year
determined to be made by it; plus
(iii) That portion of the Supplemental and Top Heavy Contribution for
a Plan Year equal to its proportion of the Matching Contribution made by it
for such Plan Year.
3.2(b) Notwithstanding the foregoing allocation provisions of
subparagraph 3.2(a), if or to the extent an Employer is unable for any reason to
make its share of the contribution for a Plan Year, such share or portion
thereof shall be made by the other participating Employers for such Plan Year
either in proportion to their relative shares of their otherwise due
contribution for such Plan Year or in such proportion or amount as the Plan
Sponsor otherwise directs.
3.2(c) The contributions made by the Employer for any Plan Year may be
made in cash and in cash, Stock or some combination thereof, as determined by
the Plan Sponsor. If a contribution is made by the Employer in cash, the Plan
Sponsor may direct the Trustee to treat the cash contribution as a contribution
made for the purpose of acquiring Stock by directing that it be allocated to the
Company Stock Fund; and such cash contributions shall be considered to be Stock
contributions for purposes of allocations under the Plan. It is the intent that
Stock contributions (and cash contributions treated as Stock contributions)
shall be allocated to the Company Stock Fund without regard to any Participant
contribution investment direction otherwise then in effect.
3.3 Participant Savings Contributions.
3.3(a) Each Participant may make Savings Contributions to the Plan through
payroll deduction deposits while he is an Eligible Employee who is not suspended
from active participation under the Plan.
(i) The aggregate amount of a Participant's Savings Contributions
for any payroll period shall be an amount equal to the product obtained by
multiplying (A) such Participant's rate of contribution by (B) his
Compensation for such payroll period.
(ii) A Participant's rate of contribution may be any rate, in whole
multiples of one percent (1%), from two percent (2%) through twelve percent
(12%), inclusive.
3.3(b) All Savings Contributions are intended to be payments to the Plan
by the Employer under a cash or deferred arrangement described in Section 401(k)
of the Code, and any reference herein to such contributions as employee or
Participant contributions is for convenience only and is not intended as a
designation of such contributions as employee contributions within the meaning
of Section 414(h)(1) of the Code.
3.4 Elective Deferral Dollar Limitation on Savings Contributions. The
aggregate amount of a Participant's Savings Contributions made to the Plan for a
Plan Year shall not exceed the applicable limits thereon under Section 402(g) of
the Code and in Appendix D to the Plan.
3.5 Participant Rollover Contributions.
3.5(a) A Participant who is an Eligible Employee may make a Rollover
Contribution either by a "rollover contribution payment" or by a "direct plan to
plan rollover transfer" in the form of a lump sum in cash, or cash attributable
to a sale of property, distributable from an eligible retirement plan.
Notwithstanding the foregoing, no Rollover Contribution may consist of any
amount constituting "accumulated deductible employee contributions" within the
meaning of Section 72(o)(5)(B) of the Code.
3.5(b) For purposes hereof, a "rollover contribution payment" is a
qualifying rollover contribution under Section 402 of the Code, and a "direct
plan to plan rollover transfer" is a direct plan to plan transfer of an eligible
rollover distribution under Section 401(a)(31) of the Code.
3.5(c) The Administrator may require as a condition of any such Rollover
Contribution that the Participant, and/or the trustee, custodian or issuer of
any plan, trust, bond, annuity or account from which the amount to be rolled
over or transferred is attributable, make such certification as the
Administrator deems necessary respecting the qualification of the distributing
or transferor plan, trust, or annuity, the amount and nature of the distribution
or transfer, the qualification of the Rollover Contribution as a rollover amount
with respect to this Plan, and any other information the Administrator may
reasonably require.
3.5(d) In the event it is discovered that any Rollover Contribution made
by or on behalf of a Participant is not a qualifying rollover amount or an
eligible rollover distribution or otherwise is a contribution or transfer which
is not permitted to be received as a Rollover Contribution under the Plan, the
Accrued Benefit of the Participant attributable to such non-qualifying Rollover
Contribution shall be returned to the Participant (or if deceased, his
Beneficiary).
3.6 Procedure for and Time of Making Participant Contributions.
3.6(a) A Participant's contributions which may be made by payroll deposit
shall commence to be made starting as of the effective date of his application
to make such contribution. A Participant who is an Eligible Employee may
commence making payroll deposit contributions initially as of the date he first
becomes a Participant and thereafter he may commence, change the rate or
recommence his payroll deposit contributions as of the first day of any calendar
month (or at such other time as the Administrator may permit on a uniform and
non-discriminatory basis) by delivering a payroll deposit election to the
Administrator no later than the fifteenth (15th) day of the calendar month
immediately preceding the date it is to become effective (or such shorter period
as the Administrator may permit on a uniform and non-discriminatory basis) and
prior to the time the amounts in question are payable or otherwise made
available to the Participant.
3.6(b) A Participant may terminate his payroll deposit contributions as of
the end of any payroll period by delivering an election to the Administrator at
least fifteen (15) days (or such other period as the Administrator may permit on
a uniform and non-discriminatory basis) before the end of the payroll period
such contributions will be terminated, which notice shall specify the date of
termination. A Participant who has voluntarily terminated his payroll deposit
contributions to the Plan may recommence his payroll deposit contributions as of
the first day of any calendar month (or at such other time as the Administrator
may permit on a uniform and non-discriminatory basis) which follows the
effective date of his termination of Savings Contributions by at least six (6)
months by delivering a new payroll deposit election to the Administrator no
later than the fifteenth (15th) day of the calendar month immediately preceding
the date it is to become effective (or such shorter period as the Administrator
may permit on a uniform and non-discriminatory basis) and prior to the time that
the amounts in question are payable or otherwise made available to the
Participant.
3.6(c) If a Participant ceases to be an Eligible Employee, his
contributions to the Plan shall cease to be made. Except as otherwise
prohibited herein, if such individual again becomes an Eligible Employee, he
shall again be entitled to recommence his payroll deposit contributions at a
rate designated by him as of the date he again becomes an Eligible Employee by
delivering a new payroll deposit election to the Administrator no later than the
fifteenth (15th) day of the calendar month immediately preceding the date it is
to become effective (or such shorter period as the Administrator may permit on a
uniform and non-discriminatory basis) and prior to the time that the amounts in
question are payable or otherwise made available to the Participant.
3.6(d) A Participant's Rollover Contributions shall be made by delivering
the same to the Administrator together with an appropriate contribution
election.
3.6(e) Each Participant shall when electing to make contributions
designate the rate of contribution in the applicable election.
3.6(f) Participant contributions received by the Administrator or withheld
by the Employer shall be paid over to the Trustee as soon as is reasonably
practical after the applicable election is received in the case of lump sum
contributions and as soon as is reasonably practical after the amount can be
segregated from the general assets of the Employer and in no event later than
ninety (90) days after such segregation, in the case of payroll deposit
contributions; provided, however, that Savings Contributions shall be paid over
to the Trustee not later than the end of the Plan Year immediately following the
Plan Year for which withheld by the Employer.
3.6(g) Notwithstanding anything to the contrary herein, the Administrator
may on a non-discriminatory basis at any time and from time to time:
(i) Permit changes by Participants in the rate of their payroll
deposit contributions prospectively, and/or
(ii) Unilaterally and prospectively limit Savings Contributions
which may be made to the Plan,
to the extent considered advisable by the Administrator in order to satisfy the
requirements of paragraphs 4.3 and/or 4.10 and/or to prevent the sum of Savings
Contributions by Participants and Matching, Profit Sharing and Top Heavy
Contributions by the Employer for a taxable year of the Employer from exceeding
the amount thereof deductible for such taxable year by the Employer for federal
income tax purposes.
3.7 Use of Forfeitures and Unallocated Annual Additions. Forfeitures
shall be held in the Fund and applied to reduce the next due contributions by
the Employer on a pro rata basis without regard to which Employer's
contributions the forfeitures are attributable as hereinafter provided until
exhausted, and to the extent thus used to reduce contributions by the Employer
shall be treated as a contribution by the Employer for purposes of administering
the Plan. In lieu of the foregoing use of forfeitures, forfeitures may be used
to pay Plan administrative expenses if so directed by the Plan Sponsor. In no
event shall any such forfeitures be used to otherwise increase the benefits to
which a Participant is entitled under the Plan. In the event that the amount of
forfeitures at any time exceed the required contribution, such excess
forfeitures shall be held in the special account in the Fund provided for in
subparagraph 4.5 and applied to reduce future contributions by the Employer.
3.8 No Duty of Trustee to Determine or Enforce Contributions. The
Trustee shall not be required to determine the amount of any contribution for
any Plan Year or to enforce the duty of the Employer to make or pay over such
contributions; but the Trustee shall provide the Employer with such information
as it may reasonably require to determine the amount of its contribution.
ARTICLE IV
Participants' Accounts and Adjustments
4.1 Accounts.
4.1(a) The Administrator shall establish and maintain on the books of the
Fund for all Participants and all other persons having an interest therein
separate accounts reflecting the Accrued Benefit of each Participant. Such
accounts of each Participant shall be separate with respect to the Accrued
Benefit of such Participant represented by his accounts in each Fund division.
4.1(b) As of each Valuation Date (or as otherwise provided herein),
accounts shall generally be adjusted in accordance with the applicable
provisions of the Plan as follows:
(i) Benefit payments, withdrawals and other distributions and
transfers out of the Fund shall be determined and allocated.
(ii) The net increase or decrease in value of accounts and Fund
divisions shall be determined and allocated.
(iii) Contributions, amounts held in the special account under
paragraph 4.5 and direct transfers shall be allocated.
(iv) Stock acquisitions by purchase or internal adjustment shall be
determined and allocated.
(v) Other adjustments required under the Plan shall be made.
4.1(c) The Administrator shall establish procedures for, and may
thereafter from time to time modify such procedures for, accounting for
interests in each Fund division. Such procedures may include dollar or unit
accounting for one or more of the Fund divisions
4.1(d) The Administrator shall establish procedures for, and may
thereafter from time to time modify such procedures for, making the adjustments
to accounts required under the Plan. Such procedures shall include records of
the cost or other basis of Stock.
4.1(e) Whenever the Plan's Valuation Date is daily, the Administrator may
utilize such rules as it deems appropriate for crediting adjustments to
Participants' accounts and the Fund divisions and for determining balances
therein which reflect the time amounts are actually received or charged, rather
than the time as of which an allocation is normally provided for under the Plan.
4.1(f) If the Administrator determines in making any valuation, allocation
or other adjustments to any Participant's account under the provisions of the
Plan that the strict application of the provisions of the Plan will not produce
equitable and non-discriminatory allocations among the Participants' accounts,
it may modify any procedures specified in the Plan for the purpose of achieving
an equal and non-discriminatory allocation in accordance with the general
concepts and purposes of the Plan; provided, however, that any such modification
shall not be inconsistent with the provisions of Section 401(a)(4) and, where
applicable, Section 409 of the Code and other qualification and excise tax
sections of the Code applicable to the Plan.
4.2 Allocation of Contributions. Subject to the applicable limitations
contained herein:
4.2(a) The Employer's Matching Contribution to the Fund made on behalf of
a Covered Matching Participant for a Plan Year shall be allocated to the
Matching Active Account of such Participant as of the last Valuation Date of
such Plan Year for which such contribution is made.
4.2(b) Each Employer's Profit Sharing Contribution to the Fund for a Plan
Year shall be allocated as of the last Valuation Date of such Plan Year among
the Profit Sharing Active Accounts of the Covered Profit Sharing Participants
for such Plan Year in proportion to their Compensation received from such
Employer during each calendar month of such Plan Year which begins at least
twelve (12) months after the Participant's date of Hire.
4.2(c) Each Participant's Savings Contributions to the Fund for a Plan
Year shall be allocated to his Savings Account as of the last Valuation Date of
the period in such Plan Year for which such contributions are made.
4.2(d) Each Participant's Rollover Contribution shall be allocated to his
Rollover Account when made.
4.2(e) The Employer's Top Heavy Contribution to the Fund made on behalf of
a Participant for a Plan Year shall be allocated to the Profit Sharing Active
Account of such Participant as of the last Valuation Date of such Plan Year.
4.2(f) Each Employer's Supplemental Contribution made to the Fund on
behalf of a Participant for each Plan Year and amounts repaid to the Plan by the
Participant pursuant to paragraph 6.6 shall be allocated to the account of such
Participant as of the last Valuation Date of such Plan Year and when repaid,
respectively, from which forfeited or distributed.
4.2(g) If a contribution by the Employer is made in cash and Stock, the
same proportions of each shall be allocated to each Participant receiving an
allocation of the contribution in question.
4.3 Dollar/25% Limitations on Annual Additions.
4.3(a) Notwithstanding any other provision of the Plan, the sum of all
Annual Additions (as defined in subparagraph 4.3(c)) allocated to the accounts
of any Participant for any Limitation Year may not exceed the lesser of:
(i) $30,000 (referred to herein as the "Dollar Limitation"), or
(ii) Twenty-five percent (25%) of such Participant's Total
Compensation for such Limitation Year,
which limitations are jointly referred to herein as the "Dollar/25%
Limitations".
4.3(b) The Dollar Limitation shall be automatically adjusted by the
Adjustment Factor, from time to time, to reflect any annual cost of living
adjustments and any such adjustment (which with the original Dollar Limitation
is referred to herein as the "adjusted Dollar Limitation") shall be effective
for the Limitation Year which ends with or within the calendar year for which
such increase is effective.
4.3(c) The term "Annual Additions" means the sum of the following amounts
allocated to a Participant's account under the Plan for a Limitation Year:
(i) All contributions by the Employer other than Supplemental
Contributions;
(ii) All forfeitures other than those used to restore accounts
pursuant to paragraph 6.6;
(iii) All Participant Savings Contributions; and
(iv) Any other amounts defined as "annual additions" under Section
415 of the Code.
Notwithstanding anything to the contrary herein, amounts repaid by a Participant
pursuant to paragraph 6.6 in order to have a forfeiture restored and amounts
which are excluded from being "annual additions" under Section 415 of the Code
shall not be considered Annual Additions for purposes hereof.
4.3(d) For purposes hereof, the term "Limitation Year" means the Plan
Year.
4.3(e) For purposes hereof, the rules of Section 415 of the Code are
incorporated by reference for purposes of determining "Annual Additions" and
applying the "Dollar/25% Limitations".
4.4 Additional Limitations on Annual Additions Where Employer Maintains
More Than One Plan.
4.4(a) If any Participant is or has been a participant in another
Qualified Defined Contribution Plan or in a Qualified Defined Benefit Plan
(whether or not terminated), the limitations contained in paragraph 4.3 shall be
appropriately adjusted when and as required by Section 415 of the Code, as
modified where applicable by Section 416 of the Code, which provisions are
incorporated by reference and shall control over any contrary or omitted or
inconsistent provisions in the Plan.
4.4(b) If any Participant is or has been a participant in more than one
Qualified Defined Contribution Plans (whether or not terminated), the
limitations under Section 415 of the Code apply as if all such Qualified Defined
Contribution Plans were one plan. The following rules shall also apply:
(i) In the event that the Dollar/25% Limitations would otherwise be
exceeded for a Limitation Year, the applicable limitation shall be applied
for such Participant by limiting the allocation of Annual Additions to the
accounts of such Participant in the following order: first, allocations
under all plans not hereinafter described, then profit sharing plan
allocations, then stock bonus plan allocations, then money purchase
pension plan allocations, then target benefit plan allocations, then
employee stock ownership plan allocations, then tax credit employee stock
ownership plan allocations, and lastly welfare benefit fund and individual
medical benefit account allocations.
(ii) If such Participant is a participant in two or more plans of
the same type, the applicable limitation shall be applied to
non-contributory plans or aspects thereof first and thereafter to
contributory plans or aspects thereof and shall be applied pro rata among
such plans or aspects thereof in the same limitation category on the basis
of allocations thereunder before operation of the applicable limitation.
4.4(c) If any Participant is or has been a Participant in both a Qualified
Defined Benefit Plan and a Qualified Defined Contribution Plan, then the Annual
Additions for such Participant shall be reduced (after the accrued benefit, the
annual benefit, the projected annual benefit and the rate of accrual under all
Qualified Defined Benefit Plans are reduced) to the extent necessary so that the
sum of the defined benefit plan fraction (not to exceed one) and the defined
contribution plan fraction (not to exceed one) determined pursuant to section
415(e) of the Code shall not exceed 1.0 for such Participant for any Plan Year
and in order to achieve the objective of compliance with the applicable rules of
limitation contained in Section 415(e) of the Code and, if the Plan is a Top
Heavy Plan or a Super Top Heavy Plan, in Section 416(h) of the Code.
4.4(d) Solely for purposes of paragraphs 4.3, 4.4 and 4.5, the following
words and terms shall have the meaning set forth below in this subparagraph:
(i) The term "Qualified Defined Contribution Plan" means any plan
maintained by the Employer or portion thereof described or treated as a
defined contribution plan within the meaning of Sections 414(i) and 415(k)
of the Code, including, but not limited to, defined contribution plans
qualified under Section 401(a) of the Code, tax sheltered annuity contracts
described in Section 403(b) of the Code, simplified employee pension plans
described in Section 408(k) of the Code, any employee contribution portion
of and any cost-of-living protection arrangement under a defined benefit
plan qualified under Section 401(a) of the Code, any individual medical
account under a pension or annuity plan within the meaning of Section
415(l) of the Code, and any welfare benefit fund within the meaning of
Section 419(e) of the Code.
(ii) The term "Qualified Defined Benefit Plan" means any plan
maintained by the Employer or portion thereof described or treated as a
defined benefit plan within the meaning of Sections 414(j) and 415(k) of
the Code.
4.4(e) In complying with the limitations of Section 415 of the Code, all
other transitional rules under any law enacting or amending Section 415, or
Section 416 as applicable to Section 415, of the Code shall be applicable as
determined by the Plan Sponsor.
4.5 Special Account for Unallocated Annual Additions.
4.5(a) In the event a Participant's Annual Additions for a Plan Year
exceed his Dollar/25% Limitations of paragraph 4.3, the excess Annual Additions
of such Participant shall be eliminated by refunding to him that amount of his
Savings Contribution, if any, (adjusted in each case for any income or loss in
value, if any, allocable thereto) for the Plan Year which are included in the
Annual Additions taken into account under the provisions of paragraph 4.3, and
by the loss of Matching Contributions otherwise to be allocated to him with
respect to such Savings Contributions, to the extent necessary to achieve
compliance with the Dollar/25% Limitations of paragraph 4.3. Any such Savings
Contributions so returned shall be disregarded for purposes of determining
Excess Elective Deferrals in Appendix D to the Plan, actual deferral percentages
under Section 401(k) of the Code (and Deferral Percentages in Appendix D to the
Plan) and, if ever recharacterized and then returned, actual contribution
percentages under Section 401(m) of the Code (and Contribution Percentages in
Appendix D to the Plan). After the return to such Participant of any Savings
Contributions and loss of Matching Contributions pursuant to the preceding
provisions of this subparagraph, any elimination of allocations to his accounts
made in accordance with this subparagraph shall be made first from Profit
Sharing Contributions allocated to him, and then from Top Heavy Contributions
allocated to him for such Plan Year.
4.5(b) Any Annual Additions allocable to Participants' accounts for the
Plan Year which consist of the Profit Sharing Contribution and which exceed the
Dollar/25% Limitations of paragraph 4.3 shall be reallocated among the other
Participants as though such excess Annual Additions were a Profit Sharing
Contribution; provided, however, that no such reallocation shall cause the
Annual Additions to the accounts of any such Participant for the Plan Year to
exceed the Dollar/25% Limitations.
4.5(c) If, because of the Dollar/25% Limitations provided in paragraph
4.3, no other Participant is eligible to receive any reallocation of the Profit
Sharing Contribution hereunder, or any part thereof, such amount, or part
thereof, and all other contributions by the Employer for such Plan Year which
are excess Annual Additions shall be retained as an undesignated account on the
books of the Fund for allocation among the accounts of the Participants as a
part of the Employer's contribution next due for the next following Plan Year.
Any such amounts so used shall be treated for allocation purposes of the Plan as
a part of the contribution by the Employer.
4.5(d) The undesignated special account maintained pursuant to this
paragraph shall be adjusted at each Valuation Date for its share of net increase
or decrease in value of the Fund, and such account shall be held in such Fund
divisions as the Administrator shall direct.
4.5(e) Notwithstanding any other provisions of the Plan, no contributions
by the Employer which would constitute amounts subject to the Dollar/25%
Limitations of paragraph 4.3 for a Plan Year may be made to the Plan until any
balance at the beginning of such Plan Year in the undesignated account
maintained pursuant to this paragraph 4.5 has been allocated among the accounts
of Participants.
4.6 Valuation of Assets and Allocation of Valuation Adjustments.
Earnings, losses and valuation change adjustments (referred to herein
collectively as the "net increase or decrease in value" or as the "valuation
adjustments") shall be made at least annually to Participants' accounts as
hereinafter provided.
4.6(a) As of and within a reasonable time after each Valuation Date and as
of the date of any transfer out of or benefit payment from a segregated account
in the Loan Fund, the Trustee shall value the assets held in each such affected
segregated account in the Loan Fund and the Administrator shall adjust each such
account to reflect its net increases and decreases in value since the last
valuation thereof. Expenses incurred and paid out of Plan assets in connection
with the administration and investment by such a segregated account shall be
charged to the segregated account incurring the same in such non-discriminatory
manner as determined by the Administrator.
4.6(b) Within a reasonable time after each Valuation Date, the Trustee
shall determine the value of assets (including Stock based, where applicable, on
a valuation made by an independent appraiser as provided in paragraph 15.7) held
by the Fund in unsegregated accounts in each Fund division other than the Loan
Fund as of such Valuation Date and the Administrator shall then adjust each such
account on the books of the Fund proportionately to reflect the net increase or
decrease in such value since the last Valuation Date. Such valuation and
adjustments shall be made separately with respect to each such Fund division and
with respect to each of the Participant's accounts in such Fund division.
Solely for purposes of determining such net increase or decrease in value and
the proportionate adjustment to each such account, the rules set forth in either
(i) or (ii) below will apply with respect to "post-valuation additions" and
"post-valuation reductions". "Post-valuation additions" are the amounts of the
following additions or allocations made to such accounts as of a date after the
last Valuation Date: contributions by the Employer; transfers from accounts in
another Fund division; Participant contributions; Participant loan repayments;
and direct transfers. "Post-valuation reductions" are the amounts of
distributions or other payments which have been made from the Fund and charged
to such accounts and transfers to accounts in another Fund division since the
last Valuation Date.
(i) Except as otherwise provided in clause (ii) of this
subparagraph, in determining such values and in making such adjustments
there shall not be taken into consideration any post-valuation additions or
reductions.
(ii) Notwithstanding the foregoing provisions of clause (i), if the
Administrator shall so determine, the determination of such values and
adjustments shall be made by considering a portion of any one or more
individual items of post-valuation additions which have not been
distributed or otherwise paid out of the Fund since the last Valuation Date
and a portion of any one or more individual items of post-valuation
reductions for transfers to accounts in another Fund division on a uniform
and non-discriminatory basis to reflect their contribution to the net
increase or decrease in value. The portion of any such item taken into
account for such purposes shall be determined in one of the following two
ways:
(A) By multiplying such item by a fraction, the numerator of
which is the number of whole calendar months (or payroll periods or
calendar weeks or days as determined by the Administrator) since the
last Valuation Date during which such item was held in an account in
the Fund and the denominator of which is the number of whole
calendar months (or payroll periods or calendar weeks or days) since
the last Valuation Date; or
(B) By multiplying such item by a fraction, the numerator of
which is one and the denominator of which is the number of whole
calendar months since the last Valuation Date.
4.6(c) The valuation adjustment contemplated by this paragraph shall be
made before amounts are forfeited from accounts each Plan Year.
4.6(d) Notwithstanding anything to the contrary in the foregoing:
(i) In making such adjustments, expenses of the Plan and Fund in
connection with any Participant or Beneficiary (such as for loan fees or
charges) may, after direction of the Administrator on a uniform and
non-discriminatory basis and then only if permitted by the Act and the
Code, be charged directly to the account of the Participant or Beneficiary
to whom the expense relates.
(ii) In making such adjustments, expenses allocable to each Fund
division as a whole shall be borne by such Fund division as a whole, and
expenses allocable to the Fund as a whole shall be borne by each Fund
division on a pro rata basis (determined on the basis of account balances
to which such adjustments are made). Such allocation of expenses shall be
made in the manner determined by the Administrator.
(iii) At each Valuation Date, the Administrator in its discretion
shall cause any negative balance in each Participant's account in the Fund
to be eliminated by means of a transfer thereto of amounts held in the same
classification of account of the Participant in another Fund division, and
a corresponding pro rata transfer from the accounts of other Participants
between Fund divisions.
(iv) Promissory notes of Participants or Beneficiaries held by the
Trustee in the Loan Fund shall be valued at the face amount of their unpaid
principal balances and, in the event the accrual method of accounting is
used for such purpose, any interest accrued but unpaid thereon; and other
assets of the Fund shall be valued at their fair market value as of each
Valuation Date or other valuation thereof.
4.6(e) The Administrator shall select the method of accounting (either the
cash method or the accrual method or some permissible combination thereof) to be
used for purposes hereof.
4.6(f) The value of the assets shall be at their fair market value as of
the Valuation Date and such other valuation thereof; provided, however, that the
value of some or all Policies and Contracts may be their cash surrender value as
of their respective last anniversary or other valuation date coinciding with or
immediately preceding the Valuation Date if so directed by the Administrator.
4.7 Determination of Account Balances.
4.7(a) The value of any account on the books of the Fund at any time shall
be that amount determined by adding the amount of all contributions which have
been allocated to such account and all adjustments and transfers (including all
acquisitions of Stock made by cash purchase) by which such account has been
increased, and further by subtracting all amounts forfeited from such account,
all adjustments by which such account has been decreased and all distributions,
other payments and transfers (including all cash payments from it to purchase
Stock) made from such account, all as provided in the Plan.
4.7(b) In determining account balances in the Company Stock Fund:
(i) As of each Valuation Date, the Administrator shall allocate to
each such account the number of full shares and the fractional interest
(calculated to the second, third or fourth decimal place, as determined by
the Administrator) of Stock transferred to or acquired by the account and
shall decrease the number thereof at the last preceding Valuation Date by
the shares or interest sold by, distributed from or otherwise removed from
such account.
(ii) In the event of a Stock dividend or Stock split or a change in
the number of shares of Stock held by the Plan as a result of a
reorganization or other recapitalization of the Plan Sponsor, there shall
be credited to each affected account a proportionate number of full and
fractional shares of Stock received by the Plan as a result of such
dividend, split or other change based on the number of shares and fraction
thereof in such account as of the Valuation Date (or such date as the
Administrator may direct) coinciding with or next following the ex-dividend
or record date as applicable.
4.7(c) A record of the basis of the shares of Stock and fractions thereof
shall be maintained as follows unless another method permitted by Section 402 of
the Code is directed to be used by the Administrator:
(i) The basis of Stock purchased by the Trustee shall be the actual
cost of the Stock to the Trustee. The basis of all other Stock acquired by
the Trustee (including Stock contributed by the Employer to the Fund) shall
be the fair market value of the Stock on the date of the acquisition.
(ii) All shares of Stock that are held unallocated in the special
account maintained pursuant to paragraph 4.5 shall retain their original
basis, without regard to when the shares are allocated to the accounts of
the Participants.
(iii) As of each Valuation Date, the basis of all Stock that is made
available for allocation to the accounts of the Participants shall be
calculated by averaging the basis of all Stock to be allocated as of that
date, as determined pursuant to clauses (i) and (ii) above.
(iv) The basis of all Stock allocated to an account of a Participant
shall be calculated by averaging the basis of all Stock allocated to such
account as of that date, determined as hereinabove provided.
4.7(d) Unless otherwise directed by the Administrator for Plan
administrative purposes such as making benefit payments or causing substantially
the same proportions of each account balance in the Company Stock Fund to be
held in cash and in Stock, acquisitions and dispositions of Stock by
Participants' accounts shall generally be effected pro rata based on account
balances held in the Company Stock Fund and available for the period used.
4.8 Suspense Accounts.
4.8(a) If any in-service withdrawal or other distribution of an Accrued
Benefit is made to a Participant from his Matching or Profit Sharing Active
Account before such Participant has a non-forfeitable right to his entire
Accrued Benefit and before such Participant has permanently forfeited and lost
his restoration rights under the Plan pursuant to subparagraph 6.6(b) (referred
to herein as the "requisite break in service"), the balance of such Matching or
Profit Sharing Active Account after each such distribution shall be maintained
as a suspended portion of his Matching or Profit Sharing Active Account until
either:
(i) Such Participant has incurred the requisite break in service,
in which event his non-forfeitable interest in each such suspended portion
shall be designated as or added to his Matching or Profit Sharing
Non-forfeitable Account pursuant to subparagraph 6.3(c), or
(ii) Such Participant has become entitled to a non-forfeitable
interest in his entire Accrued Benefit, in which event such portion shall
no longer be suspended.
In no event shall any contributions or forfeitures be allocated to that part of
a Participant's Matching or Profit Sharing Active Account which has been so
suspended, but such suspended portion shall nevertheless be adjusted to reflect
the increases or decreases in the value of the Fund pursuant to paragraph 4.6.
4.8(b) A Participant's non-forfeitable interest at any relevant time in
any suspended portion of his Matching or Profit Sharing Active Account shall be
determined by first determining:
(i) A "factor", which is the ratio of the value of such suspended
portion at such relevant time to the value of the balance in such suspended
portion immediately after such distribution, and
(ii) The "adjusted distribution", which is the product obtained by
multiplying such factor by the sum of the last adjusted distribution, if
any, plus the amount of the distribution which brought about the suspension
of such portion of such account.
The Participant's non-forfeitable interest in any suspended portion of his
Matching or Profit Sharing Active Account at any relevant time shall equal the
excess of:
(iii) The product obtained by multiplying such Participant's
non-forfeitable percentage, determined under subparagraph 6.3 at such relevant
time, by the sum obtained by adding the adjusted distribution to the value of
the suspended portion at such relevant time, over
(iv) The adjusted distribution.
4.9 Equitable Adjustment in Case of Error or Omission.
4.9(a) When an error or omission is discovered in the account of a
Participant, the Administrator shall be authorized to make such equitable
adjustments as are practical and as are determined by it as of the Plan Year in
which the error or omission is discovered or corrected, including but not
limited to actual retroactive reallocations, reallocations based on reasonable
estimates, and other corrections described in this paragraph.
4.9(b) In the event that the error or omission is the erroneous forfeiture
from a Participant's account or the failure to permit contributions to be made
or to properly allocate contributions, forfeitures or valuation adjustments to a
Participant's account, the Plan Sponsor in its sole discretion may contribute or
cause there to be contributed by any Employer funds or assets to the Plan or may
permit a make-up contribution by the Participant to be made to correct such
error or omission and such funds, assets or contributions shall be allocated to
the account or accounts of any such affected Participant as the Administrator
may direct the Trustee in writing. Any such contributed amounts (other than the
portion thereof intended to compensate for previously unallocated investment
gain which shall not be considered an allocation subject to the Dollar/25%
Limitations of paragraph 4.3) shall be considered allocated to the Participant's
account for the Plan Year or Limitation Year to which they relate, rather than
the Plan Year or Limitation Year in which actually made, for purposes of such
limitations.
4.9(c) In the event that the error or omission is the understatement or
overstatement of Fund earnings and losses, the Administrator is expressly
authorized to determine the appropriate equitable adjustment on the basis of a
standard of materiality therefor. If the understatement or overstatement does
not exceed the standard, the Administrator may direct that no correction in the
allocation for the valuation period of the understatement or overstatement be
made and that such error or omission be corrected solely by treating the amount
of the understatement or overstatement as additional earnings or loss for a
subsequent valuation period (which generally shall be the valuation period
immediately following the valuation period as of which both the error or
omission is discovered and a determination is made of the equitable adjustment
to correct the error or omission). Unless otherwise determined in writing by
the Administrator, the standard of materiality for purposes hereof for a monthly
valuation period shall be an aggregate amount (determined on a monthly basis)
equal to the greater of Three Dollars ($3.00) per Participant in the affected
Fund division or one tenth of one percent (.1%) of the fair market value of the
affected Fund division at the Valuation Date of the understatement or
overstatement. This subparagraph shall apply to all such errors or omissions
not yet corrected as of the Effective Date of this Restatement of the Plan.
4.10 Limitation on and Distribution of Savings and Matching
Contributions Made by or on behalf of Highly Compensated Employees. Savings and
Matching Contributions made by or on behalf of Highly Compensated Employees
shall be subject to the non-discrimination rules of Sections 401(k) and (m) of
the Code and shall be limited, refunded or forfeited as provided in Appendix D
to the Plan.
ARTICLE V
Retirement Dates
5.1 Normal Retirement Date. The Normal Retirement Date of a
Participant shall be the first day of the calendar month coinciding with or next
following the date on which the Participant attains his Normal Retirement Age.
5.2 Delayed Retirement Date. A Participant who continues in the active
employment of the Employer beyond his Normal Retirement Date shall continue to
participate in the Plan, and his Delayed Retirement Date shall be the first day
of the calendar month coinciding with or next following the date of termination
of his employment with the Employer.
5.3 Early Retirement Date.
5.3(a) A Participant who has attained the age of fifty-five (55) years or
more while an Eligible Employee and has completed at least ten (10) years of
service as determined for vesting purposes under the Cadmus Pension Plan, a
defined benefit plan maintained by the Plan Sponsor, may retire from the
employment of the Employer prior to his Normal Retirement Date and his Early
Retirement Date shall be the first day of the calendar month coinciding with or
next following the date of such retirement.
5.3(b) Notwithstanding the foregoing, a Participant shall not be eligible
for or be considered to be on Early Retirement if such Participant terminated
employment with the Employer (whether voluntarily or involuntarily) as a result
of misconduct or in order to compete with the Plan Sponsor or any Affiliate as
provided in the Cadmus Pension Plan. The Administrator shall determine on a
uniform and non-discriminatory basis whether the termination of employment
resulted from misconduct or was in order to compete with the Plan Sponsor or an
Affiliate.
5.4 Disability Retirement Date. A Participant who retires on
disability retirement under the Cadmus Pension Plan, a defined benefit plan
maintained by the Plan Sponsor, shall be considered to retire on Disability
Retirement for purposes of this Plan and his Disability Retirement Date shall be
the first day of the calendar month coinciding with or next following the date
of such retirement.
ARTICLE VI
Vesting
6.1 Vesting at Retirement or Attainment of Normal Retirement Age. Upon
either:
(i) A Participant's having attained his Normal Retirement Age while
employed by the Employer,
(ii) His satisfaction of the age and service requirements for Early
Retirement while an Eligible Employee, or
(iii) His retirement from the employment of the Employer on his
Disability Retirement Date,
the Accrued Benefit of such Participant shall be fully vested and
non-forfeitable.
6.2 Vesting at Death. If a Participant dies while employed by the
Employer, the Accrued Benefit of such Participant shall be fully vested and
non-forfeitable.
6.3 Vesting in Matching and Profit Sharing Active Accounts at Other
Times. At any time when a Participant is not fully vested in his Matching and
Profit Sharing Active Accounts under paragraphs 6.1 or 6.2, he shall have a
non-forfeitable interest in a percentage of his Matching and Profit Sharing
Active Accounts depending upon the number of full years of Vesting Service with
which he is credited at such time in accordance with the applicable schedule
below:
Years of Vesting Service Non-Forfeitable Percentage
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
6.4 Vesting in Accrued Benefit Other Than Matching and Profit Sharing
Active Accounts. A Participant shall at all times have a fully vested and
non-forfeitable interest in his Accrued Benefit other than his Matching and
Profit Sharing Active Accounts.
6.5 Vesting Service Rules. For purposes of computing a Participant's
non-forfeitable right to his Matching and Profit Sharing Active Accounts, all
periods of Vesting Service, whether or not consecutive, shall be included,
subject to the following rules which shall apply:
6.5(a) Any period of Vesting Service by an Employee prior to a Break in
Service shall be disregarded if he has, at the end of any Break in Service:
(i) No non-forfeitable right to an Accrued Benefit derived from the
Employer's contributions to this Plan, and
(ii) The consecutive number of his Breaks in Service is equal to or
greater than the number of his full years of Vesting Service, whether or
not consecutive, before such Break in Service, and
(iii) For service computations in Plan Years beginning on or after
July 1, 1985, five (5) consecutive Breaks in Service.
For purposes of this subparagraph, an Employee's aggregate periods of Vesting
Service shall not include Vesting Service which is at any time excluded by the
application of the provisions of this subparagraph or which were excluded at
June 30, 1985 by the application of the comparable provision of the Plan as then
in effect to his service at June 30, 1985.
6.5(b) A Participant's Vesting Service shall not include any period of
employment before January 1, 1976, which would have been disregarded under the
break in service provisions of the Plan as in effect from time to time before
that date.
6.6 Forfeiture and Restoration of Matching and Profit Sharing Active
Accounts.
6.6(a) The balance of a Participant's Matching and Profit Sharing Active
Accounts in excess of his non-forfeitable interest therein shall be forfeited as
of the earlier (his "forfeiture date") of the date he dies or the date he
receives payment of his entire non-forfeitable Accrued Benefit under the Plan (a
"cash-out"). After a Participant's forfeiture date (and the loss of his right
of restoration described in subparagraph 6.6(b), if applicable), his
non-forfeitable interest in his Matching or Profit Sharing Active Account shall
then be designated as or added to his Matching or Profit Sharing Non-forfeitable
Account and no further allocations of any part of the Matching, Profit Sharing
or Top Heavy Contributions by the Employer or of any forfeitures shall be made
to such account thereafter.
6.6(b) If a Participant incurs a forfeiture date and again becomes an
Employee prior to the termination of the Plan (the date of which is referred to
herein as the "Re-employment Date"), an amount equal to such forfeited account
balance (without increase or decrease for valuation adjustments in the Fund
after the forfeiture) shall be restored to his Matching and Profit Sharing
Active Accounts through a Supplemental Contribution made by the Employer for
such Plan Year in which both:
(i) While an Employee, he repays to the Fund the amount of the
distributions from his Matching and Profit Sharing Accounts, and
(ii) Such repayment is made before the earlier of (A) the date he
incurs five (5) consecutive Years of Broken Service after the date of his
forfeiture or (B) the date which is five (5) years after his Re-employment
Date (at which earlier date his restoration right expires).
6.6(c) For purposes of this paragraph, a Participant who has no
non-forfeitable interest in his Accrued Benefit shall be deemed to have been
cashed-out pursuant to the provisions of this paragraph upon his ceasing to be
an Employee and shall be deemed to have repaid such cashed-out benefit upon his
Re-employment Date provided that such Re-employment Date occurs before his
restoration right expires.
6.6(d) If a Participant incurs a forfeiture date, and if he later is
entitled to an allocation of Matching, Profit Sharing or Top Heavy Contributions
or forfeitures, new Matching and Profit Sharing Active Accounts shall be
established for such Participant.
6.6(e) If a Participant's restoration rights with respect to a separately
established Matching or Profit Sharing Account expire, Years of Vesting Service
after the expiration of his restoration rights shall not be taken into
consideration in determining the amount of such Participant's vested interest in
such separately established Matching and Profit Sharing Active or
Non-forfeitable Accounts.
6.7 Vesting Service Definitions. The following definitions and rules
shall apply in determining a Participant's vesting and forfeitures under the
Plan:
6.7(a) "Vesting Service" means an Employee's continuous and uninterrupted
employment in the service of the Employer. An Employee's Vesting Service shall
not be considered to have been interrupted by or during, and shall include, sick
leave, disability leave, temporary layoff before the expiration of recall
rights, the first year of a Maternity or Paternity Absence, leave of absence
approved by the Employer and periods of absence from work not otherwise taken
into consideration hereunder before an Employee's termination of employment with
the Employer. In the event an Employee separates from the service of the
Employer for any reason and is re-employed by the Employer within twelve (12)
months of such separation, such Employee's Vesting Service shall not be
interrupted by and shall include the period of time between such separation from
service and such re-employment. Separate periods of Vesting Service shall be
aggregated on the basis that three hundred sixty-five (365) days equals a full
or whole year.
6.7(b) "Break in Service" means a twelve (12) continuous month period
commencing on the later of:
(i) An Employee's separation from the employment of the Employer
for any reason, or
(ii) If the Employee incurs a Maternity or Paternity Absence, the
second anniversary of the first day of such Maternity or Paternity Absence
and during which he is not employed by the Employer and similar twelve (12)
continuous month periods thereafter. For purposes hereof, any individual who
does not return to the active employment of the Employer at the end of a period
of vacation, sick leave, military or other leave of absence shall be deemed to
have terminated his employment at the end of such period.
6.7(c) "Maternity or Paternity Absence" means an absence commencing after
June 30, 1985 on account of (i) the pregnancy of the Employee, (ii) the birth of
a child of the Employee, (iii) the placement of a child with the Employee in
connection with the adoption of such child by the Employee, or (iv) the caring
of such child for a period beginning immediately after such birth or adoption,
provided the Employee furnishes to the Administrator such timely information as
the Administrator may reasonably require to establish the occurrence and time of
such maternity or paternity.
6.7(d) Nothing contained in the service counting provisions of the Plan
shall be construed to alter, amend, modify, invalidate, impair or supersede any
law of the United States or any valid rule or regulation issued under any such
law so as to deny an individual credit for service in the employment of the
Employer where such credit is required by any federal law other than the Act.
ARTICLE VII
Death Benefits
7.1 Death after Benefit Commencement Date. If a Participant dies after
his Accrued Benefit has begun to be paid to him, the only benefits payable under
the Plan after his death shall be those, if any, provided under the form of
payment being made to him at his death.
7.2 Death before Benefit Commencement Date. If a Participant dies
before his Accrued Benefit has begun to be paid to him, his non-forfeitable
Accrued Benefit under the Plan shall be paid to his Beneficiary at the time and
in the manner described in ARTICLE VIII.
7.3 Beneficiary Designation.
7.3(a) Subject to the rights of the Spouse of a Transferor Plan
Participant to receive a survivor life annuity under paragraph 8.2 (for which
purposes the Transferor Plan Participant's Spouse shall be considered a
Beneficiary), each Participant shall have the right to notify the Administrator
in writing of any designation of a Beneficiary to receive, if alive, benefits
under the Plan in the event of his death. Such designation may be changed from
time to time by notice in writing to the Administrator. Notwithstanding anything
to the contrary in the foregoing, the Beneficiary of any Participant who dies on
or after August 23, 1984 shall be the Participant's surviving Spouse, if any,
and no contrary Beneficiary designation shall be given effect unless the
Beneficiary designation is consented to by the Participant's Spouse.
7.3(b) If a Participant dies without having designated a Beneficiary, or
if the Beneficiary so designated has predeceased the Participant or, except when
his Beneficiary is his Spouse, cannot be located by the Administrator within one
year after the date when the Administrator commenced making a reasonable effort
to locate such Beneficiary, then his surviving Spouse, or if none, then his
descendants, per stirpes, or if none, then the executor or the administrator of
his estate shall be deemed to be his Beneficiary.
7.3(c) Any Beneficiary designation may include multiple, contingent or
successive Beneficiaries and may specify the proportionate distribution to each
Beneficiary. If a Beneficiary shall survive the Participant, but shall die
before the entire benefit payable to such Beneficiary has been distributed, then
absent any other provision by the Participant, the unpaid amount of such benefit
shall be distributed to the estate of the deceased Beneficiary. If multiple
Beneficiaries are designated, absent provisions by the Participant, those named
or the survivors of them shall share equally any benefits payable under the
Plan. Any Beneficiary, including the Participant's spouse, shall be entitled to
disclaim any benefit otherwise payable to him under the Plan.
7.4 Consent to Beneficiary Designation. Any Beneficiary designation by
the Participant for purposes of paragraph 7.3 and shall be subject to the
following rules:
7.4(a) Such Beneficiary designation shall not be given effect unless
either:
(i) The Participant's Spouse consents in writing to the designation
and the Spouse's consent acknowledges the effect of the designation and is
witnessed by a representative of the Plan or a notary public (or the
equivalent) or both if required by the Administrator, or
(ii) It is established to the satisfaction of the Administrator that
such consent may not be attained because there is no Spouse, because the
Spouse cannot be located, because the Participant has been abandoned by the
Spouse (which fact shall be determined under applicable law and evidenced
by a court order so specifying), or because of such other circumstances as
may be provided under Section 417(a)(2)(B) of the Code.
For purposes hereof, a representative of the Plan is any officer of the
Employer, the Administrator or any other person designated as such in writing by
any of the foregoing.
7.4(b) If a Spouse consents to a Participant's Beneficiary designation,
such consent shall either be in the form of:
(i) A limited consent which acknowledges any specific non-spouse
Beneficiary or class of non-spouse Beneficiaries (including any multiple,
contingent or successive Beneficiary or class of Beneficiaries), if any, or
(ii) If permitted by the Administrator on a uniform
non-discriminatory basis, a general consent which acknowledges the Spouse's
right (and awareness thereof) to limit consent only to a specific
Beneficiary or class of Beneficiaries and in which the Spouse voluntarily
elects to relinquish such right.
7.4(c) If a Spouse consents to a Participant's Beneficiary designation,
any change of the Beneficiary thereunder (other than a revocation altogether of
the designation) by the Participant shall require the further consent of his
Spouse in accordance with the applicable provisions of this subparagraph (unless
the consent of the Spouse expressly permits such change by the Participant
without any requirement of further consent by the Spouse). However,
reaffirmation of the Spouse's consent to the designation shall not be required.
7.4(d) Any such consent by a Spouse, or the establishment that the consent
of a Spouse may not be obtained, shall be effective only with respect to such
Spouse.
7.4(e) Any such consent by a Spouse shall continue to be effective for so
long as the Participant's designation remains in force and may not be revoked by
the Spouse.
ARTICLE VIII
Payment of Benefits
8.1 Time of Payment.
8.1(a) Except as provided in clause (iii) below, the non-forfeitable
Accrued Benefit of a Participant shall become payable to the Participant, if
then alive, or otherwise to his Beneficiary, no earlier than his cessation of
employment with the Employer and at a time determined by the Administrator in
accordance with the following rules:
(i) The non-forfeitable Accrued Benefit of the Participant shall
normally commence to be paid as soon as practicable after:
(A) The Participant separates from the service of the Employer
for any reason; or
(B) If later, and the Participant's non-forfeitable Accrued
Benefit exceeds or at the time of any prior distribution exceeded,
$3,500, the earlier of (I) the date on which the Participant
delivers to the Administrator a written consent to payment, or (II)
the date on which the Participant attains age sixty-five (65).
Notwithstanding the foregoing, a Participant who retires under the terms of
the Plan may elect pursuant to the procedures of paragraph 8.8 to have his
Accrued Benefit commence to be paid at a date designated by the Participant
which is not later than the end of the calendar year following the calendar
year in which he separates from the service of the Employer.
(ii) Notwithstanding the foregoing, the non-forfeitable Accrued
Benefit of a Participant shall not commence to be paid later than the
sixtieth (60th) day after the end of the Plan Year in which occurs the
later of the:
(A) The date on which the Participant attains the earlier of
(I) his Normal Retirement Age or (II) the age of sixty-five (65), or
(B) The date he ceases to be employed by the Employer.
(iii) Notwithstanding the foregoing, in the event that a Participant
attains the age of seventy and one-half (70-1/2) while employed by the
Employer, the non-forfeitable Accrued Benefit of such Participant shall
commence to be paid by the April 1 following the calendar year in which the
Participant attains the age seventy and one-half (70-1/2), and the
non-forfeitable Accrued Benefit for each Plan Year thereafter shall
commence to be paid as soon as possible after each such Plan Year.
(iv) Notwithstanding the foregoing other than clause (iii), except
as provided in ARTICLE IX, the non-forfeitable Accrued Benefit of a
Participant shall not commence to be paid before the earlier of:
(A) The date such Participant ceases to be employed by the
Employer by reason of death, disability, retirement or other
separation from service,
(B) The date of transfer of such Participant to the employment
of a corporate employer which is not an Affiliate acquiring by sale
or other disposition of substantially all the assets used in a trade
or business conducted by a selling corporate Affiliate which
employed the Participant,
(C) The date of sale or other disposition of a corporate
Affiliate's interest in a subsidiary to an entity or person which is
not an Affiliate when such Participant continues employment with
such subsidiary, or
(D) The date of termination of the Plan without the
establishment of a successor plan as determined for purposes of
Section 401(k) of the Code. A "successor plan" generally means any
other defined contribution plan (other than an employee stock
ownership plan as defined in Section 409 or 4975(e)(7) of the Code,
other than a simplified employee pension plan described in Section
408(k) of the Code, and other than a plan under which fewer than two
percent (2%) of the Employees eligible to participate in the Plan at
the date of its termination are or were eligible to participate at
any time during the twenty-four (24) month period beginning twelve
(12) months before its termination) maintained by the Employer which
is in existence at the date of termination of the Plan or
established within the 12-month period after all benefits under the
Plan are distributed.
Clauses (iv)(B), (C) and (D) of this subparagraph shall not apply unless
the distribution occurring by reason of an event described therein is a
Lump Sum Payment. Clauses (iv)(B) and (C) of this subparagraph shall not
apply unless the Plan continues to be maintained by the selling Affiliate
or any other Affiliate after the sale or other disposition referred to
therein, unless the purchaser does not after the sale or other disposition
adopt or maintain the Plan or another plan with the Plan is merged or
consolidated or to which Plan assets are transferred (other than by means
of a rollover contribution), and unless the distribution occurs in
connection with the sale or other disposition (which means that the
distribution normally is made no later than the end of the second calendar
year after the calendar year in which the sale or other disposition
occurred).
8.1(b) The non-forfeitable Accrued Benefit of a Participant who dies
before such Accrued Benefit commences to be paid to him shall become payable to
his Beneficiary as soon as practicable after the Participant's death; provided,
however, the Beneficiary of a Participant who dies while an Employee or who dies
after retirement under the Plan may elect pursuant to the procedures of
paragraph 8.8 to have the Participant's Accrued Benefit commence to be paid at a
date designated by the Beneficiary which is not later than the end of the
calendar year following the calendar year in which the Participant dies.
8.1(c) The non-forfeitable Accrued Benefit of a Participant which is
payable to an "alternate payee" (as defined in Section 414(p) of the Code) who
is the Participant's spouse (including a former spouse) pursuant to a QDRO may
be paid in a Lump Sum Payment (as defined in paragraph 8.4), but not any other
form of payment, as soon as practicable after the QDRO is delivered to the
Administrator and determined to be a QDRO or at such later time as may be
provided in such QDRO, where the Participant has neither attained the earliest
retirement age under Section 414(p) of the Code or separated from the service of
the Employer.
8.1(d) Notwithstanding the foregoing provisions of this paragraph, unless
another time of payment is elected by a Participant or Beneficiary pursuant to
the terms of the Plan or unless the Participant declines to consent to payment
as provided in clause (i)(B) of subparagraph 8.1(a), payment of the
Participant's ESOP Account shall commence not later than the end of the Plan
Year in which occurs:
(i) The first (1st) anniversary of the Participant's separation
from the service of the Employer by reason of retirement under the Plan
(including but not limited to retirement after his Normal Retirement Age or
due to disability) or death, or
(ii) Otherwise, the sixth (6th) anniversary of the Participant's
separation from the service of the Employer, provided that this clause
shall be inapplicable with respect to such termination if the Participant
again becomes an Employee prior to the end of the fifth (5th) Plan Year
following the Plan Year of his termination.
8.1(e) Notwithstanding the foregoing provisions of this paragraph, payment
may be delayed for a reasonable period in the event the recipient cannot be
located or is not competent to receive the benefit payment, there is a dispute
as to the proper recipient of such benefit payment, additional time is needed to
complete the Plan valuation adjustments and allocations, or additional time is
necessary to properly explain the recipient's options.
8.2 Form of Payment of Vested Accrued Benefit (Other Than Amount Held
in Company Stock Fund) When Participant Is the Initial Recipient. The
non-forfeitable Accrued Benefit (other than the amount held in the Company Stock
Fund, except as provided in subparagraph 8.6(c)) of a Participant payable to him
pursuant to paragraph 8.1 shall be paid to him in the applicable manner
described in this paragraph. Payments continuing after a Participant's death
shall be made to his Beneficiary.
8.2(a) If the Participant's entire non-forfeitable Accrued Benefit
(currently and at the time of all prior distributions and, for this purpose
alone, including the amount held in the Company Stock Fund) is $3,500 or less,
such non-forfeitable Accrued Benefit shall be paid in the form of a Lump Sum
Payment (as defined in paragraph 8.4).
8.2(b) If such non-forfeitable Accrued Benefit is not paid pursuant to
subparagraph 8.2(a) but is paid to a Participant who ceases to be employed by
the Employer for reasons other than retirement under the terms of the Plan, such
Accrued Benefit shall be paid in the form of a Lump Sum Payment (as defined in
paragraph 8.4).
8.2(c) Where payment is not made pursuant to subparagraph 8.2(a) or (b), a
Participant who is not a Transferor Plan Participant shall by written
designation filed with the Administrator determine the form in which such
non-forfeitable Accrued Benefit is to be paid; provided that payment shall be
made in the form of a Lump Sum Payment if the Participant fails to elect a form
of payment. Such Accrued Benefit shall be paid either:
(i) In a Lump Sum Payment (as defined in paragraph 8.4).
(ii) In Periodic Installments (as defined in paragraph 8.5) over a
term certain not extending beyond five (5) years.
8.2(d) Where payment is not made pursuant to subparagraph 8.2(a) or (b), a
Participant who is a Transferor Plan Participant shall by written designation
filed with the Administrator determine the form in which such non-forfeitable
Accrued Benefit is to be paid; provided that payment shall be made in the form
of a Lump Sum Payment if the Participant fails to elect a form of payment. Such
Accrued Benefit shall be paid either:
(i) In a Lump Sum Payment (as defined in paragraph 8.4).
(ii) In Periodic Installments (as defined in paragraph 8.5) over a
term certain not extending beyond five (5) years.
(iii) In either of the following life annuities, provided that if the
Participant has a Spouse the normal form of life annuity payment shall be
the Joint and 50% Spouse Survivor Annuity:
(A) If the Transferor Plan Participant has a Spouse, in a joint
and survivor annuity which provides for the payment to the
Transferor Plan Participant entitled thereto of equal monthly
amounts on the first day of each calendar month during his lifetime
and continuing thereafter for the lifetime of his Spouse at the rate
of fifty percent (50%) of such monthly amounts payable to the
Participant as determined pursuant to subparagraph 8.9(c). This
annuity is sometimes referred to herein as a "Joint and 50% Spouse
Survivor Annuity".
(B) If the Transferor Plan Participant does not have a Spouse
or if the Transferor Plan Participant elects this form of payment
with the consent of his Spouse, in a single annuity for the life of
the Transferor Plan Participant, payable in equal monthly amounts on
the first day of each calendar month during the lifetime of such
Transferor Plan Participant as determined pursuant to subparagraph
8.9(c). This annuity is sometimes referred to herein as a "Single
Life Annuity".
If a Transferor Plan Participant elects a Joint and 50% Spouse Survivor
Annuity form of payment and if his Spouse dies before the Participant's
Annuity Starting Date, such form of payment shall not be given effect and
such Participant's Accrued Benefit shall be paid in the form otherwise
applicable to or subsequently elected by him.
8.2(e) If a Participant commences to be paid his Accrued Benefit on
account of his attainment of age seventy and one-half (70-1/2), any Accrued
Benefit (other than the amount held in the Company Stock Fund) to which he is
entitled after the first such payment shall be added to and paid in the same
form as his first such payment; provided, however, that if he was being paid in
the form of a life annuity and he died, such payment shall be made as a Lump Sum
Payment (as defined in paragraph 8.4).
8.3 Form of Payment of Vested Accrued Benefit (Other Than Amount Held
in Company Stock Fund) When Beneficiary Is the Initial Recipient. In the event
of a Participant's death before his Accrued Benefit commences to be paid to him,
the Participant's non-forfeitable Accrued Benefit (other than the amount held in
the Company Stock Fund) payable pursuant to paragraph 8.1 shall be paid to his
Beneficiary in the applicable manner described in this paragraph. Payments
continuing after a Beneficiary's death shall be made to the successor
Beneficiary.
8.3(a) If the Participant's entire non-forfeitable Accrued Benefit
(currently and at the time of all prior distributions and, for this purpose
alone, including the amount held in the Company Stock Fund) is $3,500 or less,
or if the Participant ceases to be an Employee for reasons other than retirement
or death, such non-forfeitable Accrued Benefit shall be paid in the form of a
Lump Sum Payment (as defined in paragraph 8.4).
8.3(b) Where payment is not made pursuant to subparagraph 8.3(a), the
Beneficiary shall by written designation filed with the Administrator determine
the form in which such non-forfeitable Accrued Benefit is to be paid. Such
Accrued Benefit shall be paid either:
(i) In a Lump Sum Payment (as defined in paragraph 8.4).
(ii) In Periodic Installments (as defined in paragraph 8.5) over a
term certain not extending beyond the end of the fifth (5th) calendar year
following the calendar year of the Participant's death.
8.4 Lump Sum Payments. The term "Lump Sum Payment" generally means a
single payment of the entire non-forfeitable Accrued Benefit or, when combined
with another form of payment, the designated portion of the entire
non-forfeitable Accrued Benefit. A non-forfeitable Accrued Benefit of a
Participant payable in the form of a Lump Sum Payment shall be determined as of
the Valuation Date (or other time of valuation hereunder) immediately preceding
the date of payment to which shall be added any contributions or other
adjustments allocated after such Valuation Date (or other time of valuation
hereunder) and from which shall be subtracted any distributions or other
adjustments since such Valuation Date (or other time of valuation hereunder).
In the event an Accrued Benefit is to be paid in a Lump Sum Payment and the
amount thereof has not been determined, the Administrator is authorized to make
one or more interim payments prior to the time the amount of such Lump Sum
Payment is finally determined.
8.5 Periodic Installments.
8.5(a) The term "Periodic Installments" means periodic payments in amounts
determined by the Administrator and paid in monthly, quarterly or semi-annual
installments (as selected by the initial recipient). Each installment paid to a
Participant or to a Beneficiary shall be determined pursuant to a fractional
method under which the amount of each installment is equal to the quotient
obtained by dividing the amount of such Participant's non-forfeitable Accrued
Benefit determined as though a Lump Sum Payment were being made as of the last
Valuation Date (or other time of valuation hereunder) immediately preceding the
date of payment of the first installment for such Plan Year, by the number of
installment payments then remaining to be made.
8.5(b) In the event an Accrued Benefit is to be paid in the form of
Periodic Installments and the amount of any installment has not been determined,
the Administrator is authorized to make one or more interim payments prior to
the time the amount of such installment is finally determined.
8.5(c) Upon the death of a Participant after his non-forfeitable Accrued
Benefit becomes payable in Periodic Installments, the amounts of any Periodic
Installments remaining unpaid shall be paid to his Beneficiary over the
remaining term certain for such installments subject to such advance or
acceleration thereof permitted hereunder.
8.5(d) Notwithstanding the foregoing, if a Participant dies before the
April 1 following the calendar year in which he reaches or would reach age
seventy and one-half (70-1/2) and is receiving Periodic Installments at the time
of his death, the amount of any Periodic Installment shall be redetermined to
the extent required to satisfy the minimum distribution requirement of Section
401(a)(9) of the Code.
8.5(e) If distribution of a Participant's non-forfeitable Accrued Benefit
is being made from the Fund in the form of Periodic Installments, payment of all
or part of any such remaining Accrued Benefit payable in Periodic Installments
may be made to the Participant or to the Beneficiary entitled to benefits prior
to the scheduled time for payment upon written application delivered to the
Administrator. Only one such request shall be permitted in any Plan Year.
8.6 Payment of Vested Accrued Benefit Held in Company Stock Fund.
8.6(a) All payments of a Participant's non-forfeitable Accrued Benefit
held in the Company Stock Fund shall be made in the form of a Lump Sum Payment
by the transfer of either cash or whole shares of Stock and cash in lieu of a
fractional share, as follows:
(i) If the number of shares which would otherwise be distributed is
less than forty (40) (as adjusted automatically from time to time to
reflect Stock dividends or splits or other capitalization changes occurring
after June 1, 1987), payment shall normally be made entirely in cash.
(ii) If the number of shares to be distributed is forty (40) (as
adjusted automatically from time to time to reflect Stock dividends or
splits or other capitalization changes occurring after June 1, 1987) or
more, payment shall normally be made in whole shares and cash in lieu of a
fractional share.
(iii) Notwithstanding the normal form of payment, the recipient shall
be entitled to elect either method of payment. Such election shall be
filed with the Administrator at least thirty (30) days (or such shorter
period as the Administrator may permit on a uniform and non-discriminatory
basis) before the benefit payment date. Any election may be revoked and
another election made any number of times.
8.6(b) Any whole shares of Stock which are converted to cash for payment
purposes shall be disposed of at current fair market value at or about the time
of payment by sale to the Plan Sponsor or on the open market or transfer to
other Participants' accounts. Any whole or fractional shares which are acquired
with the portion of the account which normally would be paid in cash shall be
acquired at current fair market value at or about the time of payment by
purchase from the Plan Sponsor or on the open market or transfer from other
Participants' account. Notwithstanding the provisions of paragraphs 4.6 and
4.7, the basis attributable to the Stock acquired with the cash portion from a
stockholder other than the Plan or from the Plan Sponsor shall not be determined
pursuant to paragraphs 4.6 and 4.7, but shall equal its cost, if so directed by
the Administrator.
8.6(c) Notwithstanding the foregoing, if a Participant who is a Transferor
Plan Participant elects to receive a life annuity as provided in subparagraph
8.2(d), then the portion of his nonforfeitable Accrued Benefit held in the
Company Stock Fund shall be liquidated and included in the life annuity payment
and shall not be paid pursuant to the foregoing subparagraphs of this paragraph.
8.7 Plan to Plan Direct Rollover as a Distribution Option.
8.7(a) Notwithstanding any contrary provision of the Plan, but subject to
any de minimis or other exceptions or limitations provided for under Section
401(a)(31) of the Code, any prospective recipient (whether a Participant, a
surviving spouse, a current or former spouse who is an alternate payee under a
QDRO or any other person eligible to make a roll over) of a distribution from
the Plan which constitutes an "eligible rollover distribution" (to the extent
otherwise includible in the recipient's gross income) may direct the Trustee to
pay the distribution directly to an "eligible retirement plan".
8.7(b) For purposes hereof, the following terms have the meanings assigned
to them in Section 401(a)(31) of the Code and, to the extent not inconsistent
therewith, shall have the following meanings:
(i) The term "eligible retirement plan" means a defined
contribution plan which is either an individual retirement account
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code (other than an endowment contract),
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 prospective
recipient's eligible rollover distribution; provided, however, that in the
case of an eligible rollover distribution payable to a Participant's
surviving spouse, an "eligible retirement plan" means only an individual
retirement account or individual retirement annuity.
(ii) The term "eligible rollover distribution" means any
distribution other than:
(A) A distribution which is one of a series of substantially
equal periodic payments (not less frequently than annually) made
either for the life (or life expectancy) of the recipient or the
joint lives (or joint life expectancies) of the recipient and his
beneficiary who is an individual or for a specified period of ten
(10) or more years, or
(B) A distribution to the extent it is required under the
minimum distribution requirement of Section 401(a)(9) of the Code.
8.7(c) Any such direction shall be filed with the Administrator in such
form and at such time as the Administrator may require and shall adequately
specify the eligible retirement plan to which the payment shall be made.
8.7(d) The Trustee shall make payment as directed only if the proposed
transferee plan will accept the payment.
8.7(e) Any such plan to plan transfer shall be considered a distribution
option under this Plan and shall be subject to all the usual distribution rules
of this Plan (including but not limited to the requirement of spousal consent,
where applicable, and an advance explanation of the option).
8.7(f) The Administrator is authorized in its discretion, applied on a
uniform and non-discriminatory basis, to apply any discretionary de minimis or
other discretionary exceptions or limitations provided for under Section
401(a)(31) of the Code in effecting or declining to effect plan to plan
transfers hereunder.
8.7(g) Within a reasonable time (generally not more than ninety (90) nor
less than thirty (30) days) before the benefit payment date of a prospective
recipient of an eligible rollover distribution from the Plan, the Administrator
shall provide the prospective recipient with a written explanation of the
rollover and tax rules required by Section 402(f) of the Code.
8.8 Notice, Election and Consent Procedures Regarding Accrued Benefit
Payment.
8.8(a) Any election authorized by subparagraph 8.2(c), 8.2(d) and 8.3(b)
and any designation or consent to a date of payment by a Participant or
Beneficiary shall be in writing, shall clearly indicate the election or
designation being made or the consent being given, and shall be filed with the
Administrator (not more than ninety (90) days prior to the payment date) and in
accordance with the procedures provided in the following subparagraphs to this
paragraph.
8.8(b) In the case of any benefit payment:
(i) Within a reasonable time (generally not more than ninety (90)
nor less than thirty (30) days) before the Annuity Starting Date, the
Administrator shall by mail or personal delivery provide the Participant or
his Beneficiary, as the case may be, with a written explanation of:
(A) The recipient's right to delay receipt of the Participant's
non-forfeitable Accrued Benefit until such later date allowed under
paragraph 8.1, including the right to modify or revoke any election
thereunder.
(B) The terms and conditions of the applicable forms of
payment, including his normal form of payment, and including the
relative financial effects of the applicable forms of payment.
(C) The recipient's right to make, and the effect of, an
election to waive his normal form of payment by electing another
form of payment.
(C) The rights of the Participant's Spouse (if any) regarding
any such election.
(D) The recipient's right to make, and the effect of, a
revocation of an election to waive his normal form of payment.
(ii) Any election by a Transferor Plan Participant to receive a
Single Life Annuity as opposed to a Joint and 50% Spouse Survivor Annuity
where consent by his Spouse is specifically required shall be subject to
the following rules:
(A) Such election shall not be given effect unless either:
(I) The Participant's Spouse consents in writing thereto
and the Spouse's consent acknowledges the effect of such
election and is witnessed by a representative of the Plan or a
notary public (or the equivalent) or both if required by the
Administrator, or
(II) It is established to the satisfaction of the
Administrator that such consent may not be obtained because
there is no Spouse, because the Spouse cannot be located,
because the Participant has been abandoned by the Spouse (which
fact shall be determined under applicable law and evidenced by a
court order so specifying), or because of such other
circumstances as may be provided under Section 417(a)(2)(B) of
the Code.
For purposes hereof, a representative of the Plan is any officer of
the Employer, the Administrator or any other person designated as
such in writing by any of the foregoing.
(B) Any such consent by a Spouse may not be revoked by such
Spouse but shall be automatically revoked in connection with a
revocation or election change by the Participant.
(C) Any such consent by a Spouse, or the establishment that the
consent of a Spouse need not be obtained, shall be effective only
with respect to such Spouse.
(iii) A Participant's designation of, consent to or election of
payment under paragraph 8.1 and his election of his form of payment
(together with any necessary consent by his Spouse) must be filed with the
Administrator during the ninety (90) day period ending on his Annuity
Starting Date. If the written explanation required by clause (i) of this
subparagraph is not provided to the Participant at least thirty (30) days
before the scheduled Annuity Starting Date, the Annuity Starting Date may
be deferred by the Administrator until at least thirty (30) days after the
written explanation is provided. Any designation, consent or election by
the Beneficiary may be revoked in writing during such election period, and
another designation, consent or election may be made during such election
period, at any time and any number of times.
(iv) A Beneficiary's designation of, consent to or election of
payment under paragraph 8.1 and his election of his form of payment must be
filed with the Administrator during the ninety (90) day period ending on
his Annuity Starting Date, and normally forty-five (45) days (or such
shorter time as the Administrator may permit) before the payment. Any
designation, consent or election by the Beneficiary may be revoked in
writing during such election period, and another designation, consent or
election may be made during such election period, at any time and any
number of times.
8.8(c) If a distribution is one to which Sections 401(a)(11) and 417 of
the Code do not apply (and it is intended that those sections do not apply to
distributions from this Plan), such distribution may commence to be made less
than thirty (30) days after any required notice pursuant to this paragraph or
paragraph 8.5 is given so long as:
(i) The Administrator clearly informs the recipient that, where
applicable, the recipient has a right to a period of at least thirty (30)
days after receiving the notice to consider the decision of whether or not
to elect or consent to a distribution (and, if applicable, a particular
distribution option), and
(ii) The recipient, after receiving the notice, affirmatively elects
a distribution.
8.9 Benefit Determination and Payment Procedure.
8.9(a) The Administrator shall make all determinations concerning
eligibility for benefits under the Plan, the time or terms of payment, and the
forms or manner of payment to the Participant or the Participant's Beneficiary,
in the event of the death of a Participant. The Administrator shall promptly
notify the Trustee of each such determination that benefit payments are due or
should cease to be made and provide to the Trustee all other information
necessary to allow the Trustee to carry out said determination, whereupon the
Trustee shall pay or cease to pay such benefits from the Fund in accordance with
the Administrator's determination.
8.9(b) In making the determinations described in subparagraph 8.9(a), the
Administrator shall take into account the terms of any QDRO received with
respect to the non-forfeitable Accrued Benefit of the Participant. The time and
form of payment with respect to the QDRO and the time and form of payment chosen
by the Participant or his Beneficiary or required by the Plan shall not be
altered by the terms of the QDRO (except as required under Section 414(p)(4) of
the Code or, if payment is made in the form of a Lump Sum Payment (as defined in
paragraph 8.4), as permitted under subparagraph 8.1(c)). The Administrator shall
make all determinations regarding benefit payments to be made pursuant to a
QDRO. Any benefit payment which may be subject to the terms of a domestic
relations order received by the Administrator shall be suspended during the
period the Administrator is considering whether the order is a QDRO. In the
event that benefits are in pay status at the time that a domestic relations
order is received, the Administrator shall promptly notify the Trustee of the
amount, if any, of the benefit payments that must be suspended for the period
required by the Administrator to determine the status of the order. Upon the
completion of the Administrator's review or other determination of the status of
the order, the Administrator shall promptly notify the Trustee of the time
benefit payments are to commence or resume, and of the identity of, and the
amount and form of benefits to be paid to the person or persons to whom payment
is to be made.
8.9(c) The amount of monthly payments to be made under the annuity forms
of payment provided hereunder shall be determined by using the entire amount of
the Transferor Plan Participant's non-forfeitable Accrued Benefit, determined as
though a Lump Sum Payment were being made, to purchase a non-variable, unisex
priced annuity Policy issued by the Insurer and by distributing such Policy to
the Transferor Plan Participant or his Spouse entitled thereto. No assets of
the Fund shall be applied to the payment of any such annuity plan except as
provided in this subparagraph.
8.9(d) The Administrator shall have the right to direct the Trustee to
purchase from an Insurer and distribute to any Transferor Plan Participant or
his Beneficiary entitled thereto a Policy which will provide the annuity or
other benefits under the Plan to which such Participant or his Beneficiary is
entitled or elects to receive, provided proper application therefor is delivered
to the Trustee. In the event such Policy provides for a deferred, as opposed to
an immediate, annuity, it shall provide annuity or other benefits at the time
and in the form required under the Plan, together with an election as to each
time and form of payment provided in the Plan (unless otherwise determined by
the Administrator), which election shall be subject where applicable to the
requirement of spousal consent described in paragraphs 8.2 and 8.8 and shall be
consistent with the other applicable requirements of paragraph 8.1, 8.2, 8.3,
8.4, 8.5, 8.7 and 8.8 determined as of the annuity starting date under the
Policy. Each such Policy shall be owned by and transferable only by the Trustee
and, after distributed, shall provide that the Transferor Plan Participant or
his Beneficiary entitled thereto is the retirement payee and death beneficiary
thereunder. Any such Policy may contain such feature or features, including,
but not limited to, whether guaranteed or not guaranteed or participating or not
participating, as the Administrator deems advisable in its discretion.
8.9(e) To the extent the payment provisions of the Plan are inconsistent
with and violative of the requirements of Section 401(a)(9) of the Code, the
provisions of Section 401(a)(9) of the Code are hereby incorporated by reference
and shall control.
8.10 Claims Procedure.
8.10(a) A Participant or Beneficiary (the "claimant") shall have the right
to request any benefit under the Plan by filing a written claim for any such
benefit with the Administrator on a form provided by the Administrator for such
purpose. The Administrator shall give such claim due consideration and shall
either approve or deny it in whole or in part. Within ninety (90) days
following receipt of such claim by the Administrator, notice of any approval or
denial thereof, in whole or in part, shall be delivered to the claimant or his
duly authorized representative or such notice of denial shall be sent by mail to
the claimant or his duly authorized representative at the address shown on the
claim form or such individual's last known address. The aforesaid ninety (90)
day response period may be extended to one hundred eighty (180) days after
receipt of the claimant's claim if special circumstances exist and if written
notice of the extension to one hundred eighty (180) days indicating the special
circumstances involved and the date by which a decision is expected to be made
is furnished to the claimant within ninety (90) days after receipt of the
claimant's claim. Any notice of denial shall be written in a manner calculated
to be understood by the claimant and shall:
(i) Set forth a specific reason or reasons for the denial,
(ii) Make specific reference to the pertinent provisions of the Plan
on which any denial of benefits is based,
(iii) Describe any additional material or information necessary for
the claimant to perfect the claim and explain why such material or
information is necessary, and
(iv) Explain the claim review procedure of subparagraph 8.10(b).
If a notice of approval or denial is not provided to the claimant within the
applicable ninety (90) day or one hundred eighty (180) day period, the
claimant's claim shall be considered denied for purposes of the claim review
procedure of subparagraph 8.10(b).
8.10(b) A Participant or Beneficiary whose claim filed pursuant to
subparagraph 8.10(a) has been denied, in whole or in part, may, within sixty
(60) days following receipt of notice of such denial, or following the
expiration of the applicable period provided for in subparagraph 8.10(a) for
notifying the claimant of the decision on the claim if no notice of denial is
provided, make written application to the Administrator for a review of such
claim, which application shall be filed with the Administrator. For purposes of
such review, the claimant or his duly authorized representative may review Plan
documents pertinent to such claim and may submit to the Administrator written
issues and comments respecting such claim. The Administrator may schedule and
hold a hearing. The Administrator shall make a full and fair review of any
denial of a claim for benefits and issue its decision thereon promptly, but no
later than sixty (60) days after receipt by the Administrator of the claimant's
request for review, or one hundred twenty (120) days after such receipt if a
hearing is to be held or if other special circumstances exist and if written
notice of the extension to one hundred twenty (120) days is furnished to the
claimant within sixty (60) days after the receipt of the claimant's request for
a review. Such decision shall be in writing, shall be delivered or mailed by
the Administrator to the claimant or his duly authorized representative in the
manner prescribed in subparagraph 8.10(a) for notices of approval or denial of
claims, and shall:
(i) Include specific reasons for the decision,
(ii) Be written in a manner calculated to be understood by the
claimant, and
(iii) Contain specific references to the pertinent Plan provisions on
which the decision is based.
The Administrator's decision made in good faith shall be final.
8.11 Payments to Minors and Incompetents. If a Participant or
Beneficiary entitled to receive any benefits hereunder is a minor or is adjudged
to be legally incapable of giving valid receipt and discharge for such benefits,
or is deemed so by the Administrator, benefits will be paid to such person as
the Administrator may designate for the benefit of such Participant or
Beneficiary. Such payments shall be considered a payment to such Participant or
Beneficiary and shall, to the extent made, be deemed a complete discharge of any
liability for such payments under the Plan.
8.12 Distribution of Benefit When Distributee Cannot Be Located. The
Administrator shall make all reasonable attempts to determine the identity
and/or whereabouts of a Participant or Participant's Spouse or a Participant's
Beneficiary entitled to any other benefit under the Plan, including the mailing
by certified mail of a notice to the last known address shown on the Employer's,
the Administrator's or the Trustee's records. If the Administrator is unable to
locate such a person entitled to benefits hereunder, or if there has been no
claim made for such benefits, the Trustee shall continue to hold the benefit due
such person, subject to any applicable statute of escheats.
8.13 Pre-TEFRA Benefit Designations. Notwithstanding anything in this
paragraph to the contrary, the benefit payment of a Participant or his
Beneficiary entitled to benefits under the Plan who filed a written designation
of the time and form of payment of his benefits under the Plan with the
Administrator before January 1, 1984 (or any later date permitted under any
transitional rule under any law enacting or pertaining to Section 401(a)(9) of
the Code) shall not be limited by the rules of clause (iii) of subparagraph
8.1(a), but shall be governed by such written designation, subject however where
necessary to consent by the Participant's Spouse to any time or form of payment
for which consent is specifically required by any other provision of the Plan.
Any such designation shall be subject to the right to the Participant (or, if
deceased his Beneficiary) to accelerate the time for payment if it determines
that such acceleration is necessary to preserve the qualification of the Plan
under Section 401 of the Code. Any such designation may be revoked by the
Participant or, if the Participant is deceased, by his Beneficiary.
ARTICLE IX
Withdrawals and Loans
9.1 In-Service Non-Hardship Withdrawals from Voluntary Deductible
Account, Voluntary Non-deductible Account and/or Rollover Account. A
Participant who is employed by the Employer may make non-hardship withdrawals in
whole or in part from his Voluntary Deductible Account, Voluntary Non-deductible
Account and/or Rollover Account.
9.2 In-Service Hardship Withdrawals from Savings and Matching Accounts.
9.2(a) A Participant who is employed by the Employer and who suffers a
Severe Hardship may, upon written request approved by the Administrator, make a
hardship withdrawal of his Matching Account (to the extent vested) and all or
that portion of the balance of his Savings Account as of December 31, 1988 plus
his Savings Contributions then considered held in his Savings Account, which the
Administrator deems appropriate to relieve such hardship. Severe Hardship
withdrawals shall be made first from the Participant's Savings Account and then
from his Matching Account.
9.2(b) "Severe Hardship" of a Participant for purposes of this paragraph
shall be determined by the Administrator upon review of each situation and in
accordance with the following objective standard and means an immediate and
heavy need for financial assistance in meeting obligations incurred or to be
incurred by the Participant, taking into account the Participant's other
reasonably available resources, as provided below. A Severe Hardship shall be
considered to exist only where the conditions of both of the following clauses
(i) and (ii) are satisfied:
(i) The immediate and heavy need requirement shall be considered
satisfied only where the need is on account of any of the following:
(A) Medical expenses (to the extent not reimbursable or
compensable by any plan, program, insurance or otherwise) described
in Section 213(d) of the Code of the Participant, the Participant's
spouse or any of the Participant's dependents (as defined in Section
152 of the Code).
(B) Acquisition (excluding mortgage payments) of a dwelling
unit which within a reasonable time is to be used (determined at the
time the withdrawal is made) as the principal residence of the
Participant.
(C) Payment of tuition and related educational fees for the
next twelve (12) months of post-secondary education for the
Participant, the Participant's spouse, the Participant's children or
any of the Participant's dependents (as defined in Section 152 of
the Code).
(D) Prevention of eviction of the Participant from his
principal residence or the foreclosure on the mortgage of the
Participant's principal residence.
The amount of the immediate and heavy financial need may include any
amounts necessary to pay any federal, state or local income taxes or
penalties reasonably anticipated to result from the Severe Hardship
distribution.
(ii) The other available resources requirement shall be considered
satisfied only when the Administrator can reasonably rely on the
Participant's representation that the immediate and heavy financial need
(which may be considered to include the projected income tax liability on
the amount to be withdrawn) cannot be relieved through:
(A) Reimbursement or compensation by insurance or other
sources;
(B) Reasonable liquidation of the Participant's assets or the
Participant's spouse's or minor children's assets to the extent
available to the Participant and to the extent the liquidation would
not cause an immediate and heavy financial need;
(C) Cessation of Elective Deferrals (as defined in clause
(ii)(B) of subparagraph 1.1(b) of Appendix D) to this Plan and all
other qualified plans maintained by the Employer;
(D) Other currently available distributions, other than Severe
Hardship and comparable hardship distributions under other qualified
plans, under this Plan and all other qualified plans maintained by
the Employer;
(E) Currently available non-taxable loans (if any) under this
Plan and all other qualified plans maintained by the Employer; or
(F) Commercial borrowing.
Subject to the anti-cutback requirements of Section 411(d)(6) of the Code, the
Administrator is authorized to modify the list of events or circumstances
constituting a Severe Hardship whenever the applicable provisions of Section
401(k) of the Code, or rulings or other announcements by the Internal Revenue
Service pertaining thereto, permit.
9.3 In-Service Withdrawal of Entire Accrued Benefit at or after Normal
Retirement Date. A Participant who is employed by the Employer may make a
withdrawal of his entire Accrued Benefit at any time at of after his Normal
Retirement Date. Notwithstanding any other provision of the Plan, a Participant
shall only make one such withdrawal during his life.
9.4 Withdrawal of Entire Savings Account by Former Vaughan Printers,
Inc. Employees. A Participant who is not employed by the Employer, who was an
Employee of Vaughan Printers, Inc. on March 31, 1993, and who both ceased to be
an Employee on March 31, 1993 and immediately thereafter became an employee of
Central Florida Press, L.C. may make a withdrawal of his entire Savings Account
balance attributable to contributions through March 31, 1993 at any time after
he has reached the age of fifty-nine and one-half (59-1/2).
9.5 Diversification Withdrawals or Diversification Transfers from ESOP
Account.
9.5(a) A Participant who is employed by the Employer may make
"diversification" withdrawals from his ESOP Account. Such withdrawals shall be
made only in twenty-five percent (25%) increments and only once in any Plan
Year.
9.5(a) Effective January 1, 1995 (or such later date as the Administrator
determines to implement the provisions of this subparagraph, but in no event
later than December 31, 1995), in lieu of making a "diversification" withdrawal
from his ESOP Account, a Participant who is employed by the Employer may make
"diversification" transfers. Under a "diversification" transfer, the directed
portion of the Participant's ESOP Account shall be transferred to his Rollover
Account, shall no longer be subject to the Plan's provisions pertaining to ESOP
Accounts and shall thereafter be subject to all applicable Participant account
balance investment directions and other Plan provisions applicable to Rollover
Accounts. "Diversification" transfers shall be made only in twenty-five percent
(25%) increments and may be made as of any Valuation Date for the Company Stock
Fund.
9.6 Withdrawal Restrictions and Procedure.
9.6(a) A Participant shall not make more than two (2) non-hardship
withdrawals (excluding ESOP Account withdrawals) in any Plan Year. Withdrawals
from more than one account made at the same time shall only count as one
withdrawal.
9.6(b) The amount of any withdrawal from any such account shall not be
less than $100, unless the Participant's account balance is less than $100 in
which case the then balance in the account may only be withdrawn or unless such
withdrawal would require a suspension from active participation in which case
the amount which would not cause a suspension may be withdrawn.
9.6(c) All withdrawals shall be made only by filing a written withdrawal
request form with the Administrator in which the amount of withdrawal and the
account(s) and the Fund division(s) from which the withdrawal is to be made and,
if applicable, the Severe Hardship and such other information (including but not
limited to certifications regarding no other cash resources and/or no other
resources for purposes of determining the existence of a Severe Hardship)
pertaining thereto as the Administrator may deem appropriate are stated.
9.6(d) Notwithstanding any of the other provisions of this ARTICLE IX, the
Administrator may on a uniform and non-discriminatory basis at any time and from
time to time suspend or limit the withdrawal rights under this ARTICLE IX
(except to the extent prohibited by Section 411(d)(6) of the Code).
9.7 Payment of Withdrawals.
9.7(a) All non-hardship withdrawals shall be made within a reasonable time
and at such time or times as are determined by the Administrator after the
Participant's non-hardship withdrawal request is delivered to the Administrator
or his hardship withdrawal request is approved by the Administrator, as the case
may be, and shall be made in cash.
9.7(b) The amount of any withdrawal shall be determined on the basis of
the value of the Participant's accounts from which the withdrawal is made as of
the most recent Valuation Date for which the valuation adjustments under
paragraph 4.5 have been completed prior to the date of payment of the
withdrawal, decreased by any withdrawals or other distributions since such
Valuation Date and increased, only in the event of a withdrawal of the
Participant's entire Accrued Benefit under paragraph 9.3, by the amount of
contributions allocated to his accounts (and not withdrawn or distributed) since
such Valuation Date.
9.7(c) Unless otherwise determined by the Administrator from time to time
on a uniform and non-discriminatory basis applied prospectively or, to the
extent otherwise permitted by the Administrator, as specifically designated by
the Participant in his withdrawal request, each withdrawal by a Participant
shall be made pro rata from the values of the respective available Fund
divisions in the Participant's accounts from which withdrawn, and the withdrawal
shall be considered made from the Participant's available accounts and Fund
divisions to the extent permitted hereinabove, with availability being
determined on the basis of the circumstances (such as hardship, severe hardship,
non-hardship, the age of the Participant, the time contributions have been in
the Plan, the length of the Participant's active participation in the Plan as
provided herein) surrounding the withdrawal.
9.7(d) All withdrawals from the Company Stock Fund shall be made pursuant
to the payment rules of paragraph 8.6.
9.7(e) All withdrawals shall be subject to the plan to plan rollover
transfer distribution option provided in paragraph 8.7.
9.8 No Withdrawal Restoration. No restoration of amounts withdrawn
shall be permitted.
9.9 Loans.
9.9(a) Loans from the Fund may be made to Participants (such term for
purposes of this paragraph is intended to include deceased Participants'
Beneficiaries who are entitled to the Participant's non-forfeitable Accrued
Benefit for purposes of making loans from the Plan) who are employed by the
Employer or who otherwise are "parties in interest" (as defined in Section 3(14)
of the Act) on written application therefor delivered to the Administrator,
subject to the following rules:
(i) Loans must be adequately secured, which may include or consist
of use of a Participant's non-forfeitable Accrued Benefit as security,
provided however that:
(A) Not more than fifty percent (50%) of a Participant's
non-forfeitable Accrued Benefit may be considered adequate security
for such purpose, and
(B) Any pledge and assignment of a Participant's
non-forfeitable Accrued Benefit shall be ineffective and void for
any period of time during which the loan fails to comply with the
provisions of Section 4975(d)(1) of the Code and Section 408(b)(1)
of the Act.
(ii) Loans must be approved by the Administrator in accordance with
a uniform, non-discriminatory policy established, and which thereafter may
be modified or suspended from time to time, by the Administrator. The
Administrator's loan policy shall be considered a part of the Plan and
shall at a minimum contain:
(A) A procedure for applying for loans,
(B) The basis on which loans will be approved or denied,
(C) Limitations, if any, on the types and amounts of loans
available,
(D) The procedure for determining a reasonable interest rate,
(E) The types of collateral which may secure a loan,
(F) The events constituting a default and the steps that will
be taken to preserve the Plan assets in the event of a default.
(iii) Loans must be available to all Participants on a reasonably
equivalent basis.
(iv) Loans must not be made available to Highly Compensated
Employees in an amount of and/or percentage of their non-forfeitable
Accrued Benefits or some combination thereof greater than that made
available to other Participants.
(v) Loans must not exceed with respect to any Participant (when
added to the outstanding balance of all loans to the Participant from the
Plan and all other qualified employer plans of the Employer and of each
Affiliate) the lesser of:
(A) $50,000, reduced by the excess of (I) the Participant's
highest aggregate outstanding balance in the preceding twelve (12)
months under this Plan and such other plans over (II) his aggregate
outstanding balance under this Plan and such other plans on the date
on which the loan in question is made,
(B) One-half of the sum of the Participant's non-forfeitable
Accrued Benefit under this Plan and non-forfeitable accrued benefits
(exclusive of his Voluntary Deductible Account and his other
accumulated deductible employee contributions within the meaning of
Section 72(o)(5)(B) of the Code) under such other plans, or
(C) With respect to loans from this Plan only, his vested
Accrued Benefit (exclusive of his Voluntary Deductible Account and
his ESOP Account) which is not held in the Loan Fund.
(vi) Loans must bear a reasonable rate of interest (which means a
commercially reasonable rate of interest), which may be fixed or variable
and which may vary between Participants based on the term of the loan, the
security provided and such other considerations deemed desirable by the
Administrator.
(vii) Notwithstanding the foregoing, unless the Secretary of Labor or
his delegate grants an administrative exemption from the prohibited
transaction rules with respect to such loan, no loan shall be made to any
Participant who is a shareholder-employee (as defined in Section 1379 of
the Code, as in effect on the day before the date of enactment of the
Subchapter S Revision Act of 1982) of the Employer or who is a member of
the family (as defined in Section 267(c)(4) of the Code) of such a
shareholder-employee.
9.9(b) The loan policy of the Administrator shall include considerations
such as creditworthiness and may include financial need and any other
considerations deemed desirable by the Administrator.
9.9(c) All loans shall require repayment by substantially level
amortization with payments not less frequently than quarterly and shall
otherwise be repaid in the manner and within a specified period of time as
determined by the Administrator, but in no event to exceed five (5) years.
9.9(d) The Employer shall cooperate with the Administrator and the Trustee
in enforcing prompt repayment of all such loans and installments thereon. The
entire balance of principal and interest then due on all such loans upon which a
Participant is then liable shall be deducted from any distributions or benefits
paid to or with respect to such Participant and shall be applied to the payment
of such balance.
9.9(e) Every loan applicant shall receive a clear statement of the charges
involved in each loan transaction. This statement shall include the dollar
amount and annual interest rate of the finance charge.
9.9(f) Notwithstanding the foregoing, the Administrator may on a
non-discriminatory basis, among other things, set minimum loan amounts (not to
exceed $1,000), minimum repayment amounts, more restrictive loan limits, and/or
a maximum number of outstanding loans for any Participant at any one time, may
impose a loan processing and/or administrative charge, may restrict accounts
from which loans are made, may require repayment by payroll deduction, and may
suspend loan rights from time to time.
9.9(g) Upon the making of a loan to a Participant pursuant to this
paragraph, the Trustee shall transfer to a segregated account for the
Participant in the Loan Fund an amount equal to the principal amount of such
loan (unless otherwise determined by the Administrator from time to time on a
uniform and non-discriminatory basis applied prospectively and stated in the
Plan's loan policy):
(i) First from his accounts in the following order:
(A) First his Voluntary Non-deductible Account,
(B) Then his Rollover Account,
(C) Then his Savings Account,
(D) Then his Profit Sharing Account (to the extent vested),
with transfers being made first from his Profit Sharing
Non-forfeitable Account and then from his Profit Sharing Active
Account, and
(E) Then his Matching Account (to the extent vested), with
transfers being made first from his Matching Non-forfeitable Account
and then from his Matching Active Account, and
(ii) Then with the transfers being made from the Fund division(s)
(other than the Loan Fund) in each such tier of accounts on a pro rata
basis.
9.10 Instructions to Trustee. The Administrator, upon determination
that a requested withdrawal or loan is permissible under the Plan, shall
immediately notify the Trustee, who shall pay from the Fund the amount of the
withdrawal or loan in accordance with the Administrator's instructions and, in
the case of a withdrawal, shall deduct the amount thereof from the Participants'
account in the Fund or transfer the amount to a segregated account in the Fund
as designated by the Administrator.
ARTICLE X
The Fund
10.1 Trust Fund and Exclusive Benefit. The Trustee shall receive all
contributions under and all assets transferred to the Plan and shall invest and
administer them as a trust fund (the "Fund") for the exclusive benefit of the
Participants and Beneficiaries hereunder in accordance with the Plan. Except as
otherwise expressly provided herein, no part of the corpus or income of the Fund
shall revert to or be used or enjoyed by the Employer or be used for, or
diverted to, purposes other than the exclusive benefit of the Participants or
their Beneficiaries and the defrayal of reasonable expenses of the Plan and
Fund. The rights of all persons hereunder are subject to the terms of the Plan.
10.2 Plan and Fund Expenses.
10.2(a) Unless or to the extent not paid by the Employer without being
advanced subject to reimbursement (which shall make such payments as directed by
the Plan Sponsor) or unless prohibited by the Act or the Code, all expenses of
the Plan and the Fund, including reasonable legal, accounting, custodial,
brokerage, consulting and other fees and expenses incurred in the establishment,
amendment, administration and termination of the Plan or the Fund and/or the
compensation of the Trustee and other fiduciaries of the Plan to the extent
provided under the Plan, and all taxes of any nature whatsoever, including
interest and penalties, assessed against or imposed upon the Fund or the income
thereof shall be paid out of the Fund and shall constitute a charge upon the
Fund. The Plan Sponsor may cause the Employer to advance any or all such
expenses and/or taxes on behalf of the Fund, subject to the Employer's right of
reimbursement from the Fund if so directed by the Plan Sponsor and to the
applicable prohibited transaction provisions of the Act and the Code.
10.2(b) As reimbursement for the expenses of administration of the ESOP
Accounts for each Plan Year, the Plan Sponsor may direct the Trustee to pay from
the assets of the Fund held in ESOP Accounts only so much of the amounts paid or
incurred during such Plan Year as expenses of administering the ESOP Accounts as
is not in excess of the lesser of:
(i) The sum of ten percent (10%) of the first $100,000 and five
percent (5%) of any amount in excess of $100,000 of the income from
dividends paid to the Plan with respect to Stock held in ESOP Accounts
during such Plan Year, or
(ii) $100,000.
10.3 Reversions to the Employer.
10.3(a) If a contribution by the Employer is made under a mistake of fact,
upon written direction by the Plan Sponsor, the Trustee shall return to the
Employer an amount equal to such mistaken contribution, less any losses
attributable to such mistaken contribution, within one year after payment of
such contribution. If a contribution by the Employer is made conditioned upon
its deductibility for federal income tax purposes and there is a final
determination of the disallowance of a deduction under Section 404 of the Code
for such contribution or portion thereof, upon written direction by the Plan
Sponsor, the Trustee shall return to the Employer an amount equal to the amount
of such contribution or portion thereof so disallowed, less any losses
attributable to such contribution, within one year after such final
determination. Notwithstanding anything to the contrary in the foregoing, any
such return shall be limited to an amount which would not cause the balance of
any Participant's account to be reduced to less than the balance such
Participant's account would have been had such amount not been contributed.
10.3(b) If the Internal Revenue Service determines that the Plan does not
initially qualify under Section 401 of the Code with respect to any Employer
which has adopted the Plan provided it has submitted an application for a
determination within one year after its adoption of the Plan, the Trustee shall
return to such Employer (unless otherwise directed to be distributed to
Participants or, if deceased, their Beneficiaries) and to its Participants (or
if deceased, their Beneficiaries) within one year after the date of notice of
such disqualification, all assets attributable to contributions which the
Trustee has received from such Employer and its Participants, respectively, and
shall return to the predecessor funding agent or distribute to Participants or,
if deceased, their Beneficiaries, all assets attributable to funds of any
predecessor plan received by the Trustee, all as directed by the Plan Sponsor.
Upon such return, the Plan shall terminate with respect to such Employer.
10.3(c) After the termination of the Plan as a whole and after all fixed
and contingent liabilities of the Fund to Participants and their Beneficiaries
have been satisfied, any remaining assets of the Fund held pursuant to paragraph
4.5 shall be distributed to the Employer as the Plan Sponsor may direct.
10.4 No Interest Other Than Plan Benefit. Nothing contained herein
shall be deemed to give any Participant or Beneficiary any interest in any
specific part of the Fund or any interest other than his right to receive
benefits in accordance with the provisions of the Plan.
10.5 Payments from the Fund. The Trustee shall make all payments from
the Fund which become due hereunder in accordance with the written instructions
or directions of the Administrator. In directing the Trustee to make any
payments or deliveries out of the Fund, the Administrator shall follow the
provisions of the Plan. The Trustee acting in accordance with such instructions
or directions shall be fully protected and indemnified by the Employer in
relying upon any such written instruction or direction which the Trustee
reasonably and in good faith believes to be proper.
10.6 Fund Divisions.
10.6(a) The Fund shall be held in divisions (sometimes referred to as
"divisions of the Fund", "Fund divisions" or "investments funds" herein) as
hereinafter provided, and each account under the Plan shall be subdivided to
reflect its interest in each Fund division.
10.6(b) The Fund divisions which shall be maintained in the Fund are as
follows:
(i) Company Stock Fund - The Company Stock Fund shall consist of
and be invested primarily in Stock and such short-term temporary
investments and such cash balances as the Trustee deems appropriate. It is
generally expected that the Company Stock Fund will represent approximately
at least 70% to 80% of total assets, and cash reserves and temporary
investments represent the remaining assets. The Benefits Committee shall
have the duty to direct the Trustee from time to time as to the percentage
(or percentage range) of total assets of the Company Stock Fund which are
invested in Company Stock.
(ii) Loan Fund - The Loan Fund shall consist of loans made to
Participants pursuant to paragraph 9.9, which shall be considered directed
investments of each such Participant, of principal and interest payments
thereon.
(A) As provided in paragraph 9.9, an amount equal to the
principal amount of a loan to a Participant shall be segregated from
such Participant's account or accounts within the other Fund
divisions.
(B) Payments of the principal of and payments of interest on a
loan to a Participant shall be transferred upon payment pro rata:
(I) To the Participant's unsegregated accounts in the Fund
in the reverse order from which funds were transferred from such
accounts to the Participant's segregated account in the Loan
Fund for purposes of making such loan, and
(II) To the Fund divisions determined on the basis of the
Participant's contribution investment direction then in effect
under paragraph 10.7.
(iii) Named Fund Divisions in Appendix F - The regulated investment
companies, collective trust funds and/or mutual funds authorized for
investment as provided in Appendix F to the Plan, which appendix may be
modified from time to time by the Benefits Committee.
10.7 Participant Investment Directions.
10.7(a) Except as otherwise provided in the applicable plan asset transfer
or merger agreement, in the case of the direct transfer of assets to the Plan on
behalf of a Participant, such transferred assets (or the proceeds from the sale
thereof) which are allocated to his Directable Accounts shall initially be
invested in the Available Fund divisions, in whole multiples of the Permitted
Direction Percentage (but not exceeding one hundred percent (100%) in the
aggregate), as directed by the Participant (or, if deceased, his Beneficiary)
for whom transferred in accordance with the direction filing requirements
therefor established by the Administrator.
10.7(b) Upon becoming a Participant without a contribution investment
direction in force, or upon a Participant's making a Rollover Contribution or
repayment pursuant to paragraph 6.6 without a contribution investment direction
in force, he may direct that such contribution or repayment and his allocable
share of future Directable Contributions be invested, in whole multiples of the
Permitted Direction Percentage (but not exceeding one hundred percent (100%) in
the aggregate), in the Available Investment Funds by filing a "contribution
investment direction" with the Administrator at such time.
10.7(c) In accordance with procedures established by the Administrator from
time to time:
(i) Contribution Investment Direction - A Participant may make a
"contribution investment direction" by directing that whole multiples of
the Permitted Direction Percentage (but not exceeding one hundred percent
(100%) in the aggregate) of his allocable share of future Directable
Contributions be invested in the Available Fund Divisions. Any such
contribution investment direction shall be effected for contributions made
as of each subsequent Contribution Investment Direction Change Date for
which such direction is timely delivered to the Administrator (or its
designee); and/or
(ii) Account Balance Investment Direction - A Participant (or, if
deceased, his Beneficiary) may make an "account balance investment
direction" by directing that whole multiples of the Permitted Direction
Percentage (but not exceeding one hundred percent (100%) in the aggregate)
of his Directable Accounts be invested in the Available Fund Divisions.
Any such account balance investment direction shall be effective as of and
for the Account Balance Investment Direction Change Date for which such
direction is timely delivered to the Administrator (or its designee).
10.7(d) If or to the extent a Participant (or if deceased, his Beneficiary)
has no investment direction in effect, his Directable Contributions and
Directable Accounts shall be invested in the Balanced Fund.
10.7(e) Notwithstanding anything to the contrary herein, it is the intent
that:
(i) All ESOP Accounts and all valuation adjustments pertaining
thereto shall be invested in the Company Stock Fund without regard to any
contribution or account balance investment direction otherwise applicable
(other than a "diversification" transfer pursuant to paragraph 9.5).
(ii) All direct transfers to the Company Stock Fund (not held in the
ESOP Account) and all contributions by the Employer in Stock or in cash
where directed to be treated as a Stock contribution pursuant to paragraph
3.2 shall initially be invested in the Company Stock Fund without regard to
any contribution investment direction, but shall thereafter be subject to
account balance investment directions.
10.7(f) For purposes of this paragraph and subject to the provisions of
subparagraph 10.7(e):
(i) The term "Account Balance Investment Direction Change Date"
means each Valuation Date.
(ii) The term "Available Fund Divisions" means the Company Stock
Fund and the named investment funds listed in Appendix F.
(iii) The term "Directable Accounts" means all accounts, or parts of
accounts, of the Participant other than those parts held in the ESOP
Account, the Loan Fund or the Transferor Fund.
(iv) The term "Directable Contributions" means (A) all contributions
made by the Participant and (B) all contributions made by the Employer
(except as provided in subparagraph 10.7(e)).
(v) The term "Contribution Investment Direction Change Date" means
each Valuation Date.
(vi) The term "Permitted Direction Percentage" means one percent
(1%).
10.8 Investment Authority of the Administrator and Benefits Committee.
10.8(a) The Administrator may on a uniform and non-discriminatory basis
require the entire Accrued Benefit (other than that held in the ESOP Account) of
one or more Participants and/or Beneficiaries be invested in the Balanced Fund
in the event that the person cannot be located or is not competent to make an
investment direction, or that there is a dispute as to the proper recipient of
the Participant's Accrued Benefit.
10.8(b) The Benefits Committee shall have the right to direct the
investment of any or all of the Fund (including but not limited to purchases or
sales of Stock), other than that part of the Fund managed by an Investment
Manager, by written notice thereof to the Trustee and may similarly direct the
Trustee to change the investment of any or all of the assets of the Fund, other
than that part of the Fund managed by an Investment Manager. Purchases of Stock
for the Company Stock Fund shall be made on the open market or from the Plan
Sponsor, as determined by the Benefits Committee from time to time. The
Employer agrees to indemnify the Trustee for any liability for loss of any kind
which may result by reason of action taken by it in accordance with any
investment direction of the Benefits Committee or by reason of any inaction on
its part to the extent its investment powers have been limited by any such
direction. The Benefits Committee shall be governed by the powers and
restrictions imposed on the Trustee in its exercising its investment direction
rights hereunder.
10.8(c) The Administrator may on a uniform and non-discriminatory basis
from time to time may set or change the advance notice requirement for effecting
investment directions, may limit the number of investment direction changes made
in a Plan Year, may limit investment directions which be can made by telephone,
and generally may change any of the investment direction procedures.
10.8(d) The Benefits Committee in its discretion may suspend from time to
time and at any time the maintenance and/or offering of any Fund division as an
investment alternative hereunder, whereupon, and notwithstanding anything to the
contrary herein, no investment directions pursuant hereto shall be permitted in
such Fund division for the period of any such suspension.
10.9 Provisions Relating to Insurer.
10.9(a) No Insurer shall be deemed a party to the Plan or responsible for
the validity thereof.
10.9(b) No Insurer shall be required to determine either:
(i) That a person for whom the Trustee applies for a Policy is, in
fact, eligible for participation or entitled to benefits under the Plan,
(ii) Any fact necessary for the proper issuance of any Policy or
Contract, or
(iii) The proper distributions or further application of any moneys
paid by it to the Trustee in accordance with the written direction of the
Trustee;
and with respect to each of the foregoing, the Insurer shall be fully
indemnified and protected in relying upon the advice and direction of the
Trustee.
10.9(c) Any notice, direction, application or other communication
whatsoever shall be accepted by the Insurer as duly authorized and executed if
signed by the Trustee. The Insurer shall be fully protected in assuming that
the Trustee is as shown in the latest notification received by it at its home
office.
ARTICLE XI
Fiduciaries
11.1 Named Fiduciaries and Duties and Responsibilities. Authority to
control and manage the operation and administration of the Plan shall be vested
in the following, who, together with their membership, if any, shall be the
Named Fiduciaries under the Plan with those powers, duties, and responsibilities
specifically allocated to them by the Plan:
11.1(a) Trustee - The Trustee in connection with its fiduciary obligations
relating to the Plan and the Fund.
11.1(b) Plan Sponsor - The Plan Sponsor in connection with its fiduciary
obligations and rights relating to the Plan and the Fund.
11.1(c) Plan Administrator - The Plan Administrator in connection with its
fiduciary obligations and rights relating to the Plan and the Fund.
11.1(d) Board - The Board in connection with its fiduciary obligations and
rights relating to the Plan and the Fund.
11.1(e) Benefits Committee - The Benefits Committee in connection with its
fiduciary obligations and rights relating to the Plan and the Fund.
11.2 Limitation of Duties and Responsibilities of Named Fiduciaries.
The duties and responsibilities, and any liability therefor, of the Named
Fiduciaries provided for in paragraph 11.1 shall be severally limited to the
duties and responsibilities specifically allocated to each such Named Fiduciary
in accordance with the terms of the Plan, and there shall be no joint duty,
responsibility, or liability among any such groups of Named Fiduciaries in the
control and management of the operation and administration of the Plan.
11.3 Service by Named Fiduciaries in More Than One Capacity. Any person
or group of persons may serve in more than one Named Fiduciary capacity with
respect to the Plan (including both service as Trustee and Plan Administrator).
11.4 Allocation or Delegation of Duties and Responsibilities by Named
Fiduciaries. By written agreement filed with the Plan Administrator and the
Plan Sponsor, the duties and responsibilities of the Trustee with respect to
the management and control of the assets of the Fund may, with the written
consent of the Plan Sponsor, be allocated among the Trustees (if there are two
or more persons so serving) and any other duties and responsibilities of any
Named Fiduciary may be allocated among Named Fiduciaries or may, with the
consent of the Plan Sponsor, be delegated to persons other than Named
Fiduciaries. The delegation permitted under this paragraph includes the
Trustee's right to select a custodian to hold the assets of the Fund. Any
written agreement shall specifically set forth the duties and responsibilities
so allocated or delegated, shall contain reasonable provisions for termination,
and shall be executed by the parties thereto.
11.5 Investment Manager.
11.5(a) The Board may appoint one or more Investment Managers to manage all
or any portion of the Fund. The appointment of any such Investment Manager
shall be by written agreement, which shall specify the scope of the powers and
duties of such Investment Manager, shall contain reasonable provisions for the
termination of such appointment, may require or allow any Investment Manager to
perform or to select the person performing asset custodial services for all or
part of the Fund, and shall be executed by the parties thereto and acknowledged
by the Trustee. An Investment Manager appointed pursuant to any such agreement
shall acknowledge therein its status as a fiduciary with respect to the Plan.
11.5(b) In the event an Investment Manager is appointed for all or part of
the assets of the Fund, the Trustee shall follow the directions of the
Investment Manager in managing and controlling the assets of the Fund subject to
the direction and control of the Investment Manager. The Investment Manager
shall be governed by the powers and restrictions imposed on the Trustee in its
management and control of the Fund.
11.6 Assistance and Consultation. A Named Fiduciary, and any delegate
named pursuant to paragraph 11.4, may engage agents to assist in its duties and
may consult with counsel, who may be counsel for the Employer, with respect to
any matter affecting the Plan or its obligations and responsibilities hereunder,
or with respect to any action or proceeding affecting the Plan. All
compensation and expenses of such agents and counsel shall be paid or reimbursed
from the Fund, except to the extent prohibited by the Act or the Code and except
to the extent paid or reimbursed by the Employer.
11.7 Indemnification. The Employer shall indemnify and hold harmless
any individual who is a Named Fiduciary or a member of a Named Fiduciary under
the Plan and any other individual to whom duties of a Named Fiduciary are
delegated pursuant to paragraph 11.4, to the extent permitted by law, from and
against any liability, loss, cost or expense arising from their good faith
action or inaction in connection with their responsibilities under the Plan.
11.8 Funding Policy. The Board shall establish and communicate to the
Trustee a funding policy consistent with the current and long-term financial
needs of the Plan with respect to the ages of the Participants in the Plan and
other such relevant information; provided, however, that nothing in this
subparagraph shall be construed as granting to the Board any power or authority
with respect to the control and management of the Fund.
11.9 Standard of Conduct.
11.9(a) The Named Fiduciaries and all other fiduciaries under the Plan
shall each discharge their duties with respect to the Plan and the Fund solely
in the interest of the Participants and Beneficiaries, in accordance with the
applicable provisions of the Act and the Code and:
(i) For the exclusive purpose of providing benefits to Participants
and Beneficiaries, and defraying reasonable expenses of administering the
Plan and the Fund to the extent permitted by the Plan and the Trust
Agreement;
(ii) With the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of
a like character and with like aims;
(iii) By diversifying investments of the Fund in accordance with the
requiremetns of the Act so as to minimize the risk of large losses, unless
under the circumstances it is clearly prudent not to do so; and
(iv) In accordance with the terms of the Plan and the Trust
Agreement insofar as they are consistent with the Act.
11.9(b) In the exercise of their authority under the plan and the Trust
Agreement, the Named Fiduciaries and all other fiduciaries under the Plan shall
take cognizance of and be inhibited by those limitations and prohibitions
contained in Section 406 of the Act and the prohibited transaction provisions of
Section 4975 of the Code, for which no exemption is applicable.
11.9(c) The Named Fiduciaries under the Plan are hereby specifically
authorized, pursuant to and in accordance with Section 408(e) of the Act to
acquire from or sell to any "party in interest" as defined in Section 3(14) of
the Act any stock or securities of the Employer which constitutes "qualifying
employer securities" as defined in Section 407(d)(5) of the Act if such
acquisition or sale is for adequate consideration (or in the case of the
acquisition by the Plan, at a price not less favorable to the Plan than the fair
market value of such securities at the time of acquisition) and if no commission
is charged the Plan with respect thereto. The Benefits Committee and the Board
of the Plan Sponsor are each authorized to determine on behalf of the Plan and
the Fund what is adequate consideration. Unless otherwise determined, the
closing sale price per share of Stock as reported in The Wall Street Journal or
other authoritative sources for the day on which a purchase or sale is to take
place shall be adequate consideration with respect to Stock if Stock is
considered readily tradable on an established market. If such price is not
supplied by The Wall Street Journal or other authoritative sources, then the
price per share will be determined pursuant to the valuation method or procedure
determined by the Board of the Plan Sponsor, the Benefits Committee or the Plan
Sponsor in good faith.
ARTICLE XII
The Trust Fund
12.1 The Trust Fund.
12.1(a) All assets of the Plan shall be held and invested in the Fund in
accordance with the provisions of this Plan and the Trust Agreement.
12.1(b) The Fund may be held and invested as part of a master trust
arrangement established and maintained for defined benefit plans maintained by
the Plan Sponsor. For such period as the Fund is part of such master trust
arrangement, all references in this Plan to the Fund shall be considered to
refer to the interest of this Plan in the master trust, all references to Trust
Agreement shall be considered to refer to the agreement under which such master
trust arrangement is maintained, and all references to the Trustee shall be
deemed to refer to the trustee designated under such agreement.
12.2 Establishment of Separate Trusts.
12.2(a) The Board or Benefits Committee may establish one or more separate
trusts and appoint a bank with trust powers, a trust company or any other person
(including any Trustee) as a Separate Trustee for the custody and/or investment
of all or a portion of the assets of the Fund and enter into a separate trust
agreement with such bank, trust company or other person and the Trustee shall
thereafter deliver assets of the Fund to such bank, trust company or other
person for such custody and/or investment in accordance with such separate trust
agreement and any written directions of the Board or Benefits Committee. If
agreed to by the parties, this Agreement shall be considered a separate trust
agreement for the purpose of establishing one or more separate trusts pursuant
to this paragraph. Otherwise, any such trust agreement shall be attached to the
Plan.
12.2(b) For purposes hereof:
(i) The duties and responsibilities of the Separate Trustee with
respect to the assets of the Fund held pursuant to the separate trust
agreement shall be allocated solely to such Separate Trustee, and such
Separate Trustee shall have no duties or responsibilities with respect to
the other assets of the Fund by reason of its appointment pursuant to this
subparagraph; and
(ii) Conversely, any Trustee which is not appointed as such Separate
Trustee for such assets of the Fund shall have no duties and
responsibilities with respect to the assets of the Fund held by such
Separate Trustee pursuant to this subparagraph.
12.2(c) Any appointment of a Separate Trustee pursuant to this subparagraph
is intended to be an establishment of a separate trust as described in Section
405(b)(3) of the Act. Upon the establishment of such a separate trust, any
Trustee currently serving shall automatically become a Separate Trustee in
accordance with the provisions of this paragraph.
12.2(d) The Administrator shall be notified by the Board or Benefits
Committee of any appointment of a Separate Trustee pursuant to this paragraph.
12.2(e) Prior to January 1, 1995, T. Rowe Price Trust Company, with offices
in Baltimore, Maryland, and First Union National Bank were Separate Trustees
with respect to the respective portions of the Fund held by each pursuant to the
Trust Agreements in effect as of December 31, 1994. As of January 1, 1995, T.
Rowe Price Trust Company has been appointed as the sole Trustee for the Fund.
ARTICLE XIII
Plan Administration
13.1 Appointment of Plan Administrator. The Board may appoint one or
more persons to serve as the Plan Administrator (the "Administrator") for the
purpose of carrying out the duties specifically imposed on the Administrator by
the Plan, the Act and the Code. In the event more than one person is appointed,
the persons shall form an administrative committee for the Plan. The person or
committeemen serving as Administrator shall serve for indefinite terms at the
pleasure of the Board, and may, by thirty (30) days prior written notice to the
Board, terminate such appointment. The Board shall inform the Trustee of any
such appointment or termination and the Trustee may assume that any person
appointed continues in office until notified of any change.
13.2 Plan Sponsor as Plan Administrator. In the event that no
Administrator is appointed or in office pursuant to paragraph 13.1, the Plan
Sponsor shall be the Administrator.
13.3 Compensation and Expenses. Unless otherwise determined and paid by
the Employer (as directed by the Plan Sponsor), the person or committeemen
serving as the Administrator shall serve without compensation for service as
such. All expenses of the Administrator shall be paid as provided in paragraph
10.2, provided no compensation shall be paid the Administrator from the Fund to
the extent prohibited by the Act or the Code.
13.4 Procedure if a Committee. If the Administrator is a committee, it
shall appoint from its members a Chairman and a Secretary. The Secretary shall
keep records as may be necessary of the acts and resolutions of such committee
and be prepared to furnish reports thereof to the Trustee. Except as otherwise
provided, all instruments executed on behalf of such committee may be executed
by its Chairman or Secretary and the Trustee may assume that such committee, its
Chairman or Secretary are the persons who were last designated as such to the
Trustee in writing by the Plan Sponsor.
13.5 Action by Majority Vote if a Committee. If the Administrator is a
committee, its action in all matters, questions and decisions shall be
determined by a majority vote of its members qualified to act thereon. They may
meet informally or take any action without the necessity of meeting as a group.
13.6 Appointment of Successors. Upon the death, resignation or removal
of a person serving as, or on a committee which is, the Administrator, the Board
may, but need not, appoint a successor.
13.7 Additional Duties and Responsibilities. The Administrator shall
have the following duties and responsibilities in addition to those expressly
provided elsewhere in the Plan:
13.7(a) The Administrator shall be responsible for the fulfillment of all
relevant reporting and disclosure requirements set forth in the Act and the
Code, including but not limited to the preparation of necessary plan
descriptions, summary plan descriptions, annual reports, summary annual reports,
employee benefit statements, notice of forfeitability of benefits, notice of
special tax treatment (rollover, five-year or ten-year averaging and capital
gains) for distributions, and other statements or reports, the distribution
thereof to Participants and their Beneficiaries and the filing thereof with the
appropriate governmental officials and agencies.
13.7(b) The Administrator shall maintain and retain necessary records
respecting administration of the Plan and matters upon which disclosure is
required under the Act and the Code.
13.7(c) The Administrator shall make any elections for the Plan under the
Act or the Code.
13.7(d) The Administrator shall provide to Participants and Beneficiaries
such notices, including but not limited to the notice to interested parties, and
information as are required by the Plan, the Act and the Code.
13.7(e) The Administrator shall make all determinations regarding
eligibility for participation in and benefits under the Plan.
13.7(f) The Administrator shall have the right to settle claims against the
Plan and to make such equitable adjustments in a Participant's or Beneficiary's
rights or entitlements under the Plan as it deems appropriate in the event an
error or omission is discovered or claimed in the operation or administration of
the Plan.
13.8 Power and Authority.
13.8(a) The Administrator is hereby vested with all the power and authority
necessary in order to carry out its duties and responsibilities in connection
with the administration of the Plan, including the power to interpret the
provisions of the Plan. For such purpose, the Administrator shall have the power
to adopt rules and regulations consistent with the terms of the Plan.
13.8(b) The Administrator shall exercise its power and authority in its
discretion. It is intended that a court review of the Administrator's exercise
of its power and authority with respect to matters relating to claims for
benefits by, and to eligibility for participation in and benefits of,
Participants and Beneficiaries shall be made only on an arbitrary and capricious
standard.
13.9 Availability of Records. The Employer and the Trustee shall, at
the request of the Administrator, make available necessary records or other
information they possess which may be required by the Administrator in order to
carry out its duties hereunder.
13.10 No Action with Respect to Own Benefit. No Administrator who is a
Participant shall take any part as the Administrator in any discretionary action
in connection with his participation as an individual. Such action shall be
taken by the remaining Administrator, if any, or otherwise by the Plan Sponsor.
13.11 Limitation on Powers and Authority. The Administrator shall have
no power in any way to modify, alter, add to or subtract from any provisions of
the Plan.
ARTICLE XIV
Amendment and Termination of Plan
14.1 Amendment. The Plan may be amended in whole or in part at any time
by action of the Board; provided, however, that:
(i) Except to the extent permitted or required by the Act or the
Code, neither the Accrued Benefit (nor any subsidy, early retirement
benefit, optional form of payment or any other benefit considered to be an
accrued benefit for purposes of Section 411(d)(6)(B) of the Code) of a
Participant, nor the percentage thereof which is non-forfeitable, at the
time of any such amendment shall be adversely affected thereby.
(ii) Except to the extent permitted or required by the Act or the
Code, no such amendment shall have the effect of revesting in the Employers
any part of the Fund prior to the termination of the Plan and the
satisfaction of all fixed and contingent liabilities thereunder with
respect to Participants and their Beneficiaries.
(iii) The duties and obligations of the Trustee hereunder shall not
be increased nor its compensation decreased without its written consent.
Any such amendment to the Plan shall be in writing and shall be adopted pursuant
to action by the Board (including pursuant to any standing authorization for any
officer, director or committee to adopt amendments) in accordance with its
applicable procedures, including where applicable by majority vote or consent in
writing.
14.2 Merger, Consolidation or Transfer of Assets.
14.2(a) The merger or consolidation of or transfer of assets or liabilities
between this Plan and any other plan shall be permitted upon action by the Board
or as expressly provided elsewhere in the Plan so long as, immediately after
such merger, consolidation or transfer of assets or liabilities, each
Participant who is or may become eligible to receive an accrued benefit of any
type from this Plan (or whose Beneficiaries may be eligible to receive any such
benefit) would, if such surviving or transferee plan was then terminated, be
entitled to receive an accrued benefit at least equal to the accrued benefit to
which such Participant (and each such Beneficiary) would have been entitled had
this Plan terminated immediately prior to such merger, consolidation or transfer
of assets or liabilities.
14.2(b) With the consent of the Plan Sponsor, the Trustee may accept a
direct transfer of cash or other property to the Fund on behalf of a Participant
from a plan qualified under Section 401 or 403(a) of the Code.
14.2(c) In the event property is received by the Trustee pursuant to this
paragraph, such property shall be valued at its fair market value on the date of
receipt by the Trustee in accordance with the method of valuation used for
purposes of paragraph 4.6 or as otherwise provided in the merger, consolidation
or asset transfer agreement.
14.2(d) Assets becoming part of the Fund by reason of any such merger,
consolidation or transfer of assets or liabilities shall be allocated to the
accounts in the Plan as provided in the merger, consolidation or asset transfer
agreement or as otherwise provided in the Plan.
14.3 Plan Permanence and Termination. The Employers have established
the Plan with the intention and expectation that they will be able to make their
contributions indefinitely, but none of the Employers are or shall be under any
obligation or liability to any Participant or Employee to continue their
contributions or to maintain the Plan for any given length the time, and each
may in its sole and absolute discretion discontinue its contributions or
otherwise terminate its participation in the Plan at any time without any such
liability for such discontinuance or termination.
14.4 Lapse in Contributions. Failure by any Employer to make
contributions to the Fund in any year or years, unless the same shall constitute
a complete discontinuance of contributions, or shall be coupled with any other
event causing a termination of its participation in the Plan, shall not
terminate the Plan or operate to vest the rights of any Participants or to
accelerate any payments or distributions to or for the benefit of any
Participants or their Beneficiaries.
14.5 Termination Events.
14.5(a) The Plan shall terminate in whole or in part as the case may be
upon the happening of any of the following events:
(i) With respect to any Employer, action by its Board terminating
the Plan as to it and specifying the date of such termination. Notice of
such termination shall be delivered to the Plan Sponsor, Trustee and the
Administrator.
(ii) With respect to any Employer, its adjudication as a bankrupt or
its general assignment to or for the benefit of its creditors or its
dissolution, unless within sixty (60) days after such event a successor
employer shall assume the terms and conditions hereof in writing.
(iii) With respect to any Employer, its complete discontinuance of
contributions.
(iv) Termination or partial termination of the Plan within the
meaning of Section 411(d)(3) of the Code, provided, however, that in the
case of a partial termination, paragraphs 14.5 through 14.8 shall only
apply to that part of the Plan which is partially terminated.
(v) With respect to any Employer other than the Plan Sponsor, upon
its ceasing to be an Affiliate with respect to the Plan Sponsor.
(vi) Action by the Board of the Plan Sponsor terminating the Plan as
a whole and specifying the date of such termination. Notice of such
termination shall be delivered to the Trustee, the Administrator and all
Employers.
14.5(b) For purposes of paragraphs 14.6 through 14.8 hereof, any action by
the Board terminating the Plan shall also specify whether the Plan is thereafter
to be operated as a "terminated plan" or a "frozen plan". Such terms are
defined as follows:
(i) A "terminated plan" is one that has been formally terminated,
has ceased crediting service for benefit accrual purposes and vesting, and
has been or is distributing Plan assets to Participants and Beneficiaries
entitled thereto as soon as administratively possible. For purposes
hereof, a Plan will be considered a terminated plan when Plan assets are
required to be distributed pursuant to paragraph 14.8 hereof.
(ii) A "frozen plan" is one to which contributions to the Plan have
ceased but all Plan assets are not being distributed to Participants or
Beneficiaries entitled thereto as soon as administratively possible. For
purposes hereof, a Plan will be considered a frozen plan when Plan assets
are not required to be distributed pursuant to paragraph 14.8 hereof.
14.5(c) Termination of the Plan shall mean that:
(i) Contributions shall cease to be made to the Plan for periods
after the effective date of the termination, and
(ii) Unless otherwise determined by the Board or prohibited by the
Act or the Code, any withdrawal, investment direction, or other rights
shall cease in the case of a "terminated plan" or shall continue in the
case of a "frozen plan", and
(iii) In the case of a "frozen plan", benefit payments shall be made
as provided in ARTICLE VIII and withdrawals and loans shall be permitted as
provided in ARTICLE IX prior to its becoming a "terminated plan".
14.6 Termination Allocations and Separate Accounts.
14.6(a) Upon the effective date of the termination or partial termination
of the Plan within the meaning of Section 411(d)(3) of the Code, or upon the
effective date of the complete discontinuance of contributions to the Plan, the
accounts of each affected Participant shall be fully vested.
14.6(b) Upon the effective date of the termination of the Plan with respect
to any Employer, or upon the discontinuance of contributions by it, all or that
portion of each Participant's account which is attributable to such Employer's
(or its predecessor's) contributions shall be fully vested to the extent, if
any, as the Board or the Plan Sponsor shall provide. In addition:
(i) If so directed by the Plan Sponsor, and as of the effective
date of the termination of the Plan with respect to such Employer or the
complete discontinuance of contributions by it, or as of any subsequent
Valuation Date, the Trustee shall pay out of the Fund or provide for all
accrued expenses not otherwise paid, shall value the assets held by the
Fund, and shall adjust such accounts, both in the same manner as at the end
of the Plan Year.
(ii) If so directed by the Plan Sponsor, the Trustee shall then hold
as separate accounts the portions of each account which have been fully
vested under the provisions of this subparagraph.
14.6(c) Upon the effective date of the termination of the Plan as a whole
or the complete discontinuance of all contributions to the Plan, or if so
directed by the Plan Sponsor, the partial termination of the Plan, the Trustee
shall, subject to the Dollar/25% Limitation of paragraph 4.3, allocate the then
unallocated contributions and forfeitures to the accounts of Participants and
adjust such accounts in the same manner as at the end of the Plan Year and shall
thereafter hold such accounts of all Participants as separate accounts
hereunder. Thereafter, and after all fixed and contingent liabilities of the
Fund to Participants and their Beneficiaries have been satisfied, any remaining
assets of the Fund held in such account pursuant to paragraph 4.5 hereof shall
be distributed to the Employer in such manner and in such proportions as the
Plan Sponsor may determine.
14.6(d) To the extent a Participant's Matching and Profit Sharing Active
Accounts becomes fully vested pursuant to this paragraph, it shall be
transferred to his Matching and Profit Sharing Non-forfeitable Accounts.
14.7 Holding of Separate Accounts.
14.7(a) Upon termination of the Plan with respect to any Employer caused
solely by a complete discontinuance of its contributions, by a partial
termination of the Plan and/or by action of its Board or the Board, the Trustee
shall continue to administer any separate accounts established in accordance
with paragraph 14.6 as a part of the Fund in accordance with the provisions of
the Plan for the sole benefit of the then Participants and Beneficiaries then
receiving benefits, and any future Beneficiaries entitled to receive benefits
hereunder with respect to such separate accounts.
14.7(b) In administering such separate accounts the Trustee shall have the
powers and duties imposed upon it under the Plan provided that no circumstances
shall all or any portion of the separate accounts of any Participant held under
this paragraph, as from time to time adjusted to reflect the profits, losses and
expenses of the Fund, be subject to any forfeiture or inure to the benefit of
any person other than such Participant or his Beneficiary.
14.8 Distribution of Separate Accounts after Termination.
Notwithstanding the other provisions of this ARTICLE XIV, but subject to the
applicable provisions of clause (i)(B) of subparagraph 8.1(a) in the event that
the Employer maintains another defined contribution plan other than an employee
stock ownership plan (as defined in Section 4975(e)(7) of the Code), the Trustee
shall forthwith distribute or pay the respective separate accounts in the Fund
to the Participants who are not Transferor Plan Participants or their
Beneficiaries entitled thereto, in cash or in assets valued as hereinbefore
provided, in a Lump Sum Payment and to Transferor Plan Participants and their
Beneficiaries entitled thereto either in the form of a Lump Sum Payment, in cash
or in assets valued as hereinbefore provided, or in the form of an annuity
contract or policy upon the happening of any of the following events which occur
on or after or result in the termination of the Plan:
(i) Delivery to the Trustee of a notice executed on behalf of the
Plan Sponsor by authority of the Board directing that such distribution or
payment be made.
(ii) Adjudication of the Plan Sponsor as a bankrupt or general
assignment by the Plan Sponsor to or for the benefit of creditors or
dissolution of the Plan Sponsor, unless, within sixty (60) days after such
event, either a successor or other employer shall assume the terms and
conditions hereof in writing, or the Trustee (or a successor Trustee
appointed within such sixty (60) day period) shall agree to continue to
hold and administer the Fund as provided herein and additionally, unless
otherwise agreed with or directed by the Plan Sponsor, to assume all the
powers and duties imposed upon the Named Fiduciaries under the Plan. In
assuming such powers and duties, the Trustee (or any successor Trustee)
shall be vested with all authority granted by the Plan without any
limitation imposed upon such authority by the Plan except the requirement
that its actions shall be governed by the other provisions of the Plan and
by the Act and the Code. If the Trustee (or any successor Trustee) shall
so agree to continue the trust, all expenses of the Plan and the Fund and
reasonable compensation to the Trustee (or any successor Trustee) and any
successor shall be paid from the Fund. In the event of the death,
resignation or removal of the Trustee (or any successor Trustee) who shall
have so agreed to continue the trust, a court of competent jurisdiction
over the Fund shall appoint a successor or the respective account balances
in the Fund shall forthwith be distributed as hereinabove provided at the
direction of such court.
14.9 Effect of Employer Merger, Consolidation or Liquidation.
Notwithstanding the foregoing provisions of the ARTICLE XIV, the merger or
liquidation of any Employer into any other Employer or the consolidation of two
(2) or more of the Employers shall not cause the Plan to terminate with respect
to the merging, liquidating or consolidating Employers, provided that the Plan
has been adopted or is continued by and has not terminated with respect to the
surviving or continuing Employer.
ARTICLE XV
Matters Relating to Stock
15.1 Voting Directions.
15.1(a) Voting rights with respect to Stock (and any other securities of
the Employer) held in any Fund division and allocated to Participants' accounts
as of the applicable record date shall be passed through to Participants (or if
deceased, to their Beneficiaries). When so required to be passed through, such
rights which are not so exercised shall not be exercised by the Trustee.
15.1(b) In addition to the required pass-through of voting rights under
subparagraph 15.1(a), when and then to the extent and in the manner directed by
the Benefits Committee:
(i) Any voting rights with respect to Stock (or other securities of
the Employer) which are not required to be passed through may be passed
through to Participants (or if deceased, to their Beneficiaries),
(ii) Any decision by a holder of Stock (or such other securities) to
accept or reject a tender offer for Stock (or such other securities) may be
treated as voting rights with respect to Stock (or such other securities)
and passed through to Participants (or if deceased, to their
Beneficiaries), and/or
(iii) Voting rights with respect to unallocated Stock (and such other
securities) may be passed through to Participants (or if deceased, to their
Beneficiaries).
For purposes hereof, a "tender offer" is intended to include any acquisition
proposal which does not require voting rights with respect to Stock (or such
other securities) to be exercised.
15.1(c) Whenever voting rights of Stock (or any other securities of the
Employer) are passed through to Participants under subparagraph 15.1(a) or (b),
each Participant (or if deceased, his Beneficiary) shall have the right to
direct the manner in which such Stock (or other securities) is to be voted
pursuant to clause (i) hereof or to actually or by attorney vote such Stock (or
other securities) pursuant to clause (ii) hereof as determined by the
Administrator. Within a reasonable time before such voting rights are to be
exercised, the Administrator shall notify each Participant (or if deceased, his
Beneficiary) of the occasion for the exercise of such rights and shall cause to
be sent to each such Participant (or if deceased, his Beneficiary entitled to
benefits hereunder) all information that the Employer or tender offeror, as the
case may be, distributes to shareholders (or security holders) regarding the
exercise of such rights.
(i) Unless otherwise determined pursuant to clause (ii) of this
subparagraph, any direction made pursuant to this paragraph shall be made
in writing on a form provided by the Administrator, executed by the
Participant (or if deceased, his Beneficiary), and delivered to the
Administrator by 5:00 p.m. of the second day preceding (or such other
period as the Administrator may establish) the date such voting rights are
to be exercised. The Administrator shall then forthwith deliver such
direction to the Trustee. To the extent permitted by law, the Trustee
shall exercise such rights as directed and, except in the case of voting
rights or a tender offer described in subparagraph 15.1(b) unless also
directed by the Administrator, shall not exercise such rights which are not
so directed.
(ii) Notwithstanding the foregoing, the Administrator may
alternatively direct the Trustee to execute and give each Participant (or
if deceased, his Beneficiary) a power of attorney with respect to such
Stock (or other securities), and the Participant (or if deceased, his
Beneficiary) may then vote such Stock (or other securities) directly or
through his attorney. If the Administrator determines to pass through
voting rights pursuant to this clause (ii), such Stock (or other
securities) which is not voted by Participants (or if deceased, their
Beneficiaries) shall not be voted.
15.1(d) To the extent that the voting rights of Stock (or other
securities of the Employer) or the decision to accept or reject a tender offer
for Stock (or other securities of the Employer) held in the Fund are not passed
through to Participants and are not prohibited from being voted under
subparagraph 15.1(a), either:
(i) The Administrator shall direct the Trustee in writing as to the
manner, if any, in which such voting rights shall be exercised and as to
the acceptance or rejection of such tender offer in whole or in part,
provided such direction is delivered to the Trustee prior to the time such
voting rights are to be exercised or such tender offer is to be accepted or
rejected, and the Trustee shall exercise such rights as directed, or
(ii) The Administrator's duly authorized representative may exercise
such rights in person or by proxy, or
(iii) The Administrator shall inform the Trustee that neither the
Administrator nor its authorized representative will exercise its rights
hereunder and that the Trustee should exercise such rights in its
discretion.
Such direction may include, but shall not be limited to, an instruction to vote
such Stock (or such other securities) or to accept or reject such tender offer
based on the manner in which such rights with respect to a majority (or some
other specified percentage or fraction) of shares of Stock (or shares or
interests in such other securities) with respect to which such voting or tender
acceptance or rejection rights are passed through to Participants are exercised.
15.1(e) If the Trustee or Administrator is prevented by law from, or
does or may have a conflict of interest in, exercising any voting rights of
Stock (or other securities of the Employer) in accordance with the applicable
provisions of the Plan or making directions or other determinations pursuant to
this paragraph, or if the Plan Sponsor deems it appropriate for any reason, the
Plan Sponsor shall appoint a Co-Trustee (sometimes referred to as the "Voting
Co-Trustee") in lieu of the Trustee or Administrator for the purpose of
exercising such voting rights in accordance herewith or making directions or
other determinations pursuant to this paragraph and such appointment shall be
terminable at will by the Plan Sponsor.
15.2 Put to Employer.
15.2(a) In the event Stock distributed from an ESOP Account in the Fund
to a Participant or Beneficiary is not readily tradable on an established market
within the meaning of Section 409(h)(1)(B) of the Code at the time of the
distribution, the Plan Sponsor agrees to cause the Employer or, if approved by
the Benefits Committee, the Trustee to purchase such Stock when requested by
such Participant or his Beneficiary within sixty (60) days following the date of
the distribution and, if the put is not then exercised, within the sixty (60)
day period beginning on the first day of the Plan Year next following the last
day of such first sixty (60) day period (or as otherwise required under
regulations issued pursuant to Section 409(h)(4) of the Code) under a fair
valuation formula determined by the Plan Sponsor and satisfying the requirements
of Section 409(h)(1)(B) of the Code. The Administrator may extend either sixty
(60) day period until sixty (60) days after the value of the Stock or the fair
valuation formula is determined. The Administrator may extend either sixty (60)
day period until sixty (60) days after the value of the Stock or the fair
valuation formula is determined.
15.2(b) The purchase price for Stock put pursuant to subparagraph
15.2(a) shall be paid commencing not later than thirty (30) days after the put
is exercised in a lump sum in cash.
15.3 Sales Prohibited if Registration or Qualification Required. In no
event shall any acquisition or sale of Stock pursuant to the Plan be consummated
if in the opinion of counsel for the Plan Sponsor such acquisition or sale could
result in the loss by the Employer or the Plan of its exemption from applicable
registration and/or qualification requirements of federal or state securities
laws. The foregoing sentence shall, however, be inapplicable if and to the
extent such acquisition or sale is required to preserve the qualification of the
Plan under Section 401 or, to the extent applicable, 409 of the Code or to the
extent such acquisition or sale is directed in writing by the Administrator. In
the event an acquisition or disposition of Stock is made as provided in this
paragraph under circumstances which require the registration and/or
qualification of the Stock under applicable federal or state securities laws,
then the Plan Sponsor, at the expense of the Employer, shall take or cause to be
taken any and all actions as may be necessary or appropriate to effect such
registration or qualification.
15.4 Limitation on Insiders' Interests in Stock. Notwithstanding
anything in the Plan to the contrary, but subject to any applicable
qualification requirements under Section 401 and, to the extent applicable, 409
of the Code, the Benefits Committee shall have authority to adopt and implement
administrative rules and regulations relating to the investment of the assets
held in the accounts of Participants who are insiders (within the meaning of
Section 16 of the Securities Exchange Act of 1934 (the "1934 Act") and the rules
thereunder), including, without limitation, such rules and regulations as may
the Administrator or Plan Sponsor deems necessary or appropriate in order for
insiders' participation in the Plan to satisfy the conditions of Rule 16b-3, as
amended, (or any successor or similar rule) under the 1934 Act.
15.5 No Guarantee of Values. Neither the Employer nor the Named
Fiduciaries guarantee that the fair market value of the Stock when it is
distributed will be equal to its purchase price or that the total amount
distributable under the Plan will be equal to or greater than the amount of
contributions and direct transfers allocated to any Participant. Each
Participant assumes all risk of any decrease in the market value of the Stock
and other assets allocated to his accounts in accordance with the provisions of
the Plan.
15.6 Legend Regarding Securities Laws Restriction on Sale or Transfer.
Each certificate for shares of Stock distributed from the Plan which is subject
to a restriction on sale or transfer by reason of any applicable federal or
state securities laws shall bear an appropriate legend giving notice of such
restrictions.
15.7 Independent Appraisals. All valuations of Stock involving the ESOP
Accounts of Participants where such Stock is not readily tradable on an
established securities market with respect to activities carried on by the Plan
(within the meaning of Section 401(a)(28)(C) of the Code) shall be made by an
independent appraiser meeting requirements similar to those contained in
regulations under Section 170(a)(1) of the Code.
15.8 Confidentiality of Participant Directions regarding and Holdings of
Stock.
15.8(a) The Administrator shall maintain confidentially with respect to
Participant directions to invest or cease investment in the Company Stock Fund,
Participants' interests in the Company Stock Fund and Participant directions
regarding the exercise of voting, tender and similar rights for Stock as is
intended under Section 404(c) of the Act. The Administrator's procedures for
confidentiality shall include the collection of investment direction information
by the Administrator (or its delegate) and the collection of voting instructions
by the Plan Administrator (or its delegate), followed by delivery of voting
instructions to the Trustee. Information regarding investment directions and
voting instructions shall be retained by the Administrator, as required by the
Act and other applicable laws, but will not be disclosed to management of the
Plan Sponsor or any other Employer or Affiliate except to the extent required by
securities or other applicable laws which are not pre-empted by the Act.
15.8(b) The Plan fiduciary responsible for monitoring compliance with
the confidentiality procedures of this paragraph is the Vice President, Human
Resources, of the Plan Sponsor.
15.8(c) The Plan fiduciary responsible for monitoring compliance with
the confidentiality procedures of this paragraph shall appoint an independent
fiduciary for the Plan to carry out certain activities with respect to Stock for
any matters (such as tender offers, exchange offers and contested Board
elections) for which he believes appropriate in order to ensure confidentially .
ARTICLE XVI
Miscellaneous
16.1 Headings. The headings in the Plan have been inserted for
convenience of reference only and are to be ignored in any construction of the
provisions hereof.
16.2 Gender and Number. In the construction of the Plan, the masculine
shall include the feminine or neuter and the singular shall include the plural
and vice-versa in all cases where such meanings would be appropriate.
16.3 Governing Law. The Plan and the Fund created hereunder shall be
construed, enforced and administered in accordance with the laws of the
Commonwealth of Virginia, and any federal law pre-empting the same. Unless
federal law specifically addresses the issue, federal law shall not pre-empt
applicable state law preventing an individual or person claiming through him
from acquiring property or receiving benefits as a result of the death of a
decedent where such individual caused the death.
16.4 Employment Rights. Participation in the Plan shall not give any
employee the right to be retained in the Employer's employ nor, upon dismissal
or upon his voluntary termination of employment, to have any right or interest
in the Fund other than as herein provided.
16.5 Conclusiveness of Employer Records. The records of the Employer
with respect to age, service, employment history, compensation, absences,
illnesses and all other relevant matters shall be conclusive for purposes of the
administration of the Plan.
16.6 Right to Require Information and Reliance Thereon. The Employer,
Administrator and Trustee shall have the right to require any Participant,
Beneficiary or other person receiving benefit payments to provide it with such
information, in writing, and in such form as it may deem necessary to the
administration of the Plan and may rely thereon in carrying out its duties
hereunder. Any payment to or on behalf of a Participant or Beneficiary in
accordance with the provisions of the Plan in good faith reliance upon any such
written information provided by a Participant or any other person to whom such
payment is made shall be in full satisfaction of all claims by such Participant
and his Beneficiary; and any payment to or on behalf of a Beneficiary in
accordance with the provisions of the Plan in good faith reliance upon any such
written information provided by such Beneficiary or any other person to whom
such payment is made shall be in full satisfaction of all claims by such
Beneficiary.
16.7 Alienation and Assignment.
16.7(a) Except as otherwise permitted by the Act and the Code and as
expressly permitted by the Plan or the Administrator, no benefit hereunder shall
be subject in any manner to alienation, sale, anticipation, transfer,
assignment, pledge, encumbrance, garnishment, attachment, execution or levy of
any kind.
16.7(b) As provided in the Act and the Code, this prohibition shall not
apply to any QDRO entered on or after January 1, 1985, and the Administrator
shall have all rights granted thereunder in determining the existence of such an
order, in establishing and following procedures therefor and in complying with
any such order. The Administrator shall treat any domestic relations order
entered before January 1, 1985 as a QDRO entered on January 1, 1985 if the Plan
is paying benefits pursuant to such order on January 1, 1985 or if the
Administrator in its discretion deems such treatment warranted. On a uniform
and non-discriminatory basis, the Administrator may determine that any special
charge, fee or expense in reviewing the status of a domestic relations order and
in otherwise administering the Plan in connection therewith be charged directly
to the account of the Participant with respect to whom the order is issued.
16.7(c) As provided in the Act and the Code, this prohibition shall not
apply to any Participant loan which meets the requirements of subparagraph
9.9(a).
16.8 Notices and Elections.
16.8(a) Except as provided in subparagraph 16.8(b), all notices
required to be given in writing and all elections, consents, applications and
the like required to be made in writing, under any provision of the Plan, shall
be invalid unless made on such forms as may be provided or approved by the
Administrator and, in the case of a notice, election, consent or application by
a Participant or Beneficiary, unless executed by the Participant or Beneficiary
giving such notice or making such election, consent or application.
16.8(b) Subject to limitations under applicable provisions of the Code
or the Act (such as the requirement that spousal consent be in writing), the
Administrator is authorized in its discretion to accept other means for receipt
of effective notices, elections, consent and/or application by Participants
and/or Beneficiaries, including but not limited to interactive voice systems, on
such basis and for such purposes as it determines from time to time.
16.9 Delegation of Authority. Whenever the Plan Sponsor or any Employer
is permitted or required to perform any act, such act may be performed by its
Chief Executive Officer, its President or its Board of Directors or by any
person duly authorized by any of the foregoing.
16.10 Service of Process. The Administrator, as well as the Trustee,
shall be the agent for service of process on the Plan.
16.11 Construction. This Plan is created for the exclusive benefit of
Employees of the Employer and this Plan and the Trust Agreement their
Beneficiaries and shall be interpreted and administered in a non-discriminatory
manner consistent with its being an employees' profit sharing plan and trust and
a defined contribution plan as defined in Sections 401(a) and 414(i), of the
Code, respectively, with a cash or deferred arrangement described in 401(k) of
the Code. The ESOP Account shall be interpreted and administered consistent
with its being an a terminated employee stock ownership plan as defined in
Section 409 of the Code in the Plan's capacity as successor in interest to and
transferee of the assets of the Cadmus Employee Stock Ownership Plan.
ARTICLE XVII
Adoption of the Plan
17.1 Restated Adoption and Failure to Obtain Qualification. If the
Internal Revenue Service determines that this Restatement of the Plan does not
qualify initially under Section 401 or, to the extent applicable, 409 of the
Code, the Plan as restated herein shall have no force and effect, unless the
same shall be further amended in order to so qualify.
17.2 Adoption by Additional Employers. Any employer which is an
Affiliate and which, with the consent of the Board, desires to adopt the Plan,
may do so by executing the Plan or an adoption agreement in a form authorized
and approved by such employer's Board of Directors and the Board. In the event
that such Affiliate has established and has been maintaining a profit sharing or
money purchase pension plan for the benefit of its employees which qualifies
under Section 401 or 404(a)(2) of the Code, an adoption or other agreement may
provide, subject to the requirements of paragraph 14.2, that such plan is
amended and restated by the provisions of this Plan (such prior plan being
deemed a predecessor plan to this Plan) or that such plan is to be merged or
consolidated with this Plan; and, in such event, the assets of such plan shall
be paid over to the Trustee to be administered as a part of the Fund pursuant to
the provisions of this Plan.
IN WITNESS WHEREOF, the Plan Sponsor, for itself and for each Employer,
pursuant to the resolution duly adopted by its Board of Directors, has caused
its name to be signed to this Plan Agreement by its duly authorized officer with
its corporate seal hereunto affixed and attested by its Secretary or Assistant
Secretary as of the day and year above written.
CADMUS COMMUNICATIONS CORPORATION,
Plan Sponsor and participating Employer
By: (SEAL)
Its Chief Executive Officer
Attest:
Its
<PAGE>
CADMUS THRIFT SAVINGS PLAN
Appendix A
Determination of Hours of Service
A-1.1 Introduction. Hours of Service shall be credited to Employees for
purposes of the Plan as provided in this Appendix.
A-1.2 Paid Hours for the Performance of Duties Where Records of Actual
Hours Maintained. An Employee for whom records of actual hours worked are
maintained by the Employer shall be credited with one (1) Hour of Service for
each hour for which he is directly or indirectly paid by the Employer, or
entitled to such payment, for the performance of duties for the Employer,
including each hour for which credit has not theretofore been given and for
which back pay, irrespective of mitigation of damages, has either been awarded
or agreed to by the Employer. Such Hours of Service shall be credited to the
Employee for the year in which the duties are actually performed.
A-1.3 Paid Hours for the Performance of Duties Where Records of Actual
Hours Not Maintained. An Employee for whom records of actual hours worked are
not maintained by the Employer shall be credited with forty-five (45) Hours of
Service for each week in which he is credited with at least one (1) "hour in the
employment of the Employer". For purposes of this paragraph, such an Employee
will be credited with one (1) "hour in the employment of the Employer" for each
hour for which the Employee is paid by the Employer or entitled to payment, for
the performance of duties for the Employer, including each hour for which credit
has not theretofore been given and for which back pay, irrespective of
mitigation of damages, has either been awarded or agreed to by the Employer.
Such "hours in the employment of the Employer" shall be credited to the
individual for the week in which the duties are performed; provided, however,
that in case of Hours of Service to be credited in connection with any week
which overlaps two (2) years, all such Hours of Service may be credited to the
first or second such year, if done on a consistently applied basis as determined
by the Administrator.
A-1.4 Paid Hours Where No Performance of Duties Required. An Employee
shall also be credited with up to and including five hundred one (501) Hours of
Service for any single continuous period during which no duties are performed
due to vacation, holiday, sickness, incapacity, disability, layoff, jury duty,
military duty or leave of absence and on account of which such Employee is
directly or indirectly paid, or entitled to payment, by the Employer (other than
under a plan maintained solely for the purpose of complying with applicable
workmen's compensation or unemployment compensation or disability insurance laws
or other than solely as reimbursement for medical or medically related expenses
incurred by the individual), including hours for any such period for which
credit has not theretofore been given and for which back pay, irrespective of
mitigation of damages, has either been awarded or agreed to by the Employer, all
determined as provided below. Such Hours of Service shall be credited in
accordance with the following rules:
(i) An Employee for whom the payment is calculated on the basis of
units of time (such as hours, days, weeks or months) and for whom records
of actual hours worked are maintained by the Employer shall be credited
with Hours of Service equal to the number of regularly scheduled working
hours included in the unit of time on the basis of which the payment is
calculated; provided, however, that if an Employee has no regular working
schedule, such Hours of Service to be credited to the Employee shall be
calculated, as determined by the Administrator, on the basis of a forty
(40) hour workweek, an eight (8) hour workday, or on any reasonable basis
which reflects the average hours worked by the Employee, or by other
Employees in the same job classification, over a representative period of
time, provided that the basis so used is consistently applied. Such Hours
of Service shall be credited to the year or years in which the period
during which no duties are performed occurred.
(ii) An Employee for whom the payment is calculated on the basis of
units of time (such as hours, days, weeks, or months) and for whom records
of actual hours worked are not maintained by the Employer shall be credited
with forty-five (45) Hours of Service for each regularly scheduled work
week for which he is paid in such single continuous period; provided,
however, that such Employee shall not be credited with a greater number of
Hours of Service for such week than there are in the Employee's regularly
scheduled work week; and provided, further, that in case of Hours of
Service to be credited in connection with any week which overlaps two (2)
years, all such Hours of Service may be credited to the first or second
such year, if done on a consistently applied basis as determined by the
Administrator.
(iii) An Employee for whom the payment is not calculated on the basis
of units of time shall be credited with that number of Hours of Service
equal to the quotient obtained by dividing the amount of the payment by the
Employee's most recent "hourly rate of compensation" before the period for
which the payment is made. An Employee's "hourly rate of compensation" is:
(A) In the case of an Employee whose compensation is
determined on the basis of an hourly rate, his hourly rate of
compensation;
(B) In the case of an Employee whose compensation is
determined on the basis of a fixed rate for specified periods of
time (other than hours), his rate of compensation for the specified
period of time divided by the number of hours regularly scheduled
during such specified period of time; provided, however, that if the
Employee has no regular work schedule, the "hourly rate of
compensation" of the individual shall be calculated, as determined
by the Administrator, on the basis of a forty (40) hour workweek, an
eight (8) hour workday, or on any reasonable basis which reflects
the average hours worked by the Employee, or by other Employees in
the same job classification, over a representative period of time,
provided that the basis so used is consistently applied; or
(C) In the case of all other Employees the lowest hourly rate
of compensation paid to Employees in the same job classification or,
if none have an hourly rate, the minimum wage as established from
time to time under Section 6(a)(1) of the Fair Labor Standards Act
of 1938, as amended.
Such Hours of Service shall be credited to the year in which the period during
which no duties are performed occur, or, if more than one year is involved, such
Hours of Service shall be allocated between the first two such years on any
reasonable and consistently applied basis determined by the Administrator.
(iv) Notwithstanding the provisions of clauses (i), (ii) and (iii) of
this paragraph, such Hours of Service shall not be credited in a number
greater than the number of hours regularly scheduled for performance of
duties during the period for which the payment is made; provided, however,
that if the Employee has no regular work schedule, the number of regularly
scheduled hours for the Employee for purposes of the provisions of this
clause (iv) shall be deemed to be, as determined by the Administrator,
forty (40) hours per workweek, eight (8) hours per workday, or such number
as reflects the average hours worked by the Employee, or by other Employees
in the same job classification over a representative period of time,
provided such number used is consistently applied.
A-1.5 Absences Due to Pregnancy, Childbirth, Adoption and Related Child
Care. Solely for purposes of determining whether an Employee is credited with a
Year of Broken Service for purposes of determining his eligibility to
participate in the Plan or his vested interest in his Accrued Benefit, if the
Employee is absent from work with the Employer for any period beginning on or
after the first day of the first Plan Year commencing after December 31, 1984:
(i) By reason of the pregnancy of the Employee,
(ii) By reason of the birth of a child of the Employee,
(iii) By reason of the placement of a child with the Employee in
connection with the adoption of such child by the Employee, or
(iv) For purposes of caring for such child for a period beginning
immediately after such birth or placement,
then the Employee shall be credited with that number of Hours of Service which
would normally have been credited to the Employee during such absence but for
such absence or, if the Employee's otherwise credited Hours of Service cannot be
readily determined, with eight (8) Hours of Service per day of such absence,
except that the total number of Hours of Service so credited shall not exceed
that number needed to avoid incurring a Year of Broken Service. Such Hours of
Service shall be credited either for the applicable year in which the absence
from work begins, if the Employee would be prevented from receiving a Year of
Broken Service for such year solely because such periods of absence are treated
as Hours of Service as provided in this subparagraph, or in the immediately
following year, in any other case. Notwithstanding the foregoing, no credit for
Hours of Service shall be given under this subparagraph unless the Employee
furnishes to the Administrator such timely information as the Administrator may
reasonably require to establish that the absence from work is for one of the
foregoing reasons or purpose and the number of days for which there was such an
absence.
A-1.6 Absences for Leave under the Family and Medical Leave Act. Solely
for purposes of determining whether an Employee is credited with a Year of
Broken Service (but only when Years of Broken Service are determined on the
basis of Hours of Service) for purposes of determining his eligibility to
participate in the Plan or his vested interest in his Accrued Benefit, if the
Employee is absent from work with the Employer for any period after August 4,
1993 for family or medical leave required to be granted under the Family and
Medical Leave Act, then the Employee shall be credited with that number of Hours
of Service which would normally have been credited to the Employee during such
absence but for such absence or, if the Employee's otherwise credited Hours of
Service cannot be readily determined, with eight (8) Hours of Service per day of
such absence, except that the total number of Hours of Service so credited shall
not exceed that number needed to avoid incurring a Year of Broken Service. Such
Hours of Service shall be credited for the applicable year(s) in which the
absence from work occurs. Notwithstanding the foregoing, no credit for Hours of
Service shall be given under this subparagraph unless the Employee complies with
the leave procedures required under the Employer's leave policies and the Family
and Medical Leave Act.
A-1.7 No Duplication of Hours Credited or Conflict with Federal Law.
Nothing contained in this Appendix shall be construed to require or permit any
duplication in the crediting of Hours of Service or to alter, amend, modify,
invalidate, impair or supersede any law of the United States or any valid rule
or regulation issued under any such law so as to deny an Employee credit for an
Hour of Service where such credit is required by federal law other than the Act,
including but not limited to credit required to be given for periods of time in
which no duties are performed due to military duty or service in the United
States Armed Forces, provided that the Employee enters such service directly
from the employ of the Employer and returns to active employment with the
Employer within the period prescribed by applicable law. Hours of Service
before any year commencing after December 31, 1975 may be determined or
reasonably estimated with such records as are available to the Employer.
<PAGE>
CADMUS THRIFT SAVINGS PLAN
Appendix B
Determination of Top Heavy Plan Status
B-1.1 Introduction. The Plan will be a Top Heavy Plan for any Plan Year
beginning after December 31, 1983 if the sum of the present values of the
cumulative accrued benefits of Key Employees under the Plan, and the present
values of the cumulative accrued benefits of Key Employees under all plans
aggregated with it, exceeds sixty percent (60%) of the aggregate of the present
value of the cumulative Accrued Benefits under the Plan and accrued benefits
under such plan(s) at the applicable determination date. For purposes hereof,
aggregation, accrued benefits (including Accrued Benefits) taken into account,
the determination date and all other standards and criteria for determining
top-heaviness under this Plan and such other plan(s) shall be determined under
Section 416 of the Code. Subject to the foregoing, the determination of Top
Heavy Plan status shall be made each Plan Year in accordance with the rules and
definitions contained in this Appendix.
B-1.2 Determination Date. The determination date with respect to a plan
means the last day of its preceding plan year or, in the case of the first plan
year of a plan, the last day of such first plan year.
B-1.3 Value of Accrued Benefits.
B-1.3(a) The value of an accrued benefit at a determination date is the
value thereof at the most recent valuation date occurring within the twelve (12)
month period ending on the determination date, plus, in the case of a defined
contribution plan, an appropriate adjustment for contributions made or due
thereafter and on or before the determination date.
B-1.3(b) If the plan is a defined benefit plan, the present value of
accrued benefits thereunder shall be determined on the basis of the actuarial
assumptions stated in such plan for such purpose or, if none are stated, on the
basis of the applicable actuarial equivalent benefit payment factors of such
plan, in any case taking into account post-retirement mortality, interest,
non-proportional subsidies (the benefits of which are assumed to commence at the
age when the benefit is most valuable), pre-retirement mortality and future
increases in cost of living, but not taking into account proportional subsidies,
future withdrawals or salary increases, future increases in the maximum dollar
limitation of Section 415 of the Code, and benefits not relating to retirement.
B-1.3(c) If the plan is a defined contribution plan, the value of an
accrued benefit shall be determined as follows:
(i) An individual's account balance in a plan not subject to
Section 412 of the Code is the sum of his actual account balance on the
applicable valuation date and all contributions actually made after the
applicable valuation date but on or before the determination date;
provided, however, for such a plan's first plan year, the amount determined
in the preceding sentence shall be added to the amount of any contributions
made after the determination date that are allocated as of a date in that
first plan year.
(ii) An individual's account balance in a defined contribution plan
that is subject to Section 412 of the Code is the sum of his account
balance on the applicable valuation date, all contributions due as of the
determination date (that is, contributions that would be allocated as of a
date not later than the determination date, even though those amount are
not yet required to be contributed), and, for the plan year that contains
the determination date, all amounts actually contributed (or due to be
contributed) after the extended payment period in Section 412(c)(10) of the
Code.
B-1.3(d) The accrued benefit of a Non-Key Employee shall be determined
(i) under the method which is uniformly used for accrual purposes for all plans
of the Employer or (ii) if there is no method described in clause (i), as if
such benefit accrued not more rapidly than the slowest applicable accrual rate
permitted under the fractional rule of Section 411(b)(1)(C) of the Code.
B-1.4 Accrued Benefits Excluded from Determination. In determining the
value of accrued benefits, there shall be excluded:
(i) Any rollover contribution or plan-to-plan transfer initiated by
the participant and made after December 31, 1983 so long as the rollover
contribution or transfer was not derived from a plan maintained by the
Employer,
(ii) Any accumulated deductible employee contributions,
(iii) The accrued benefit of any individual who was a Key Employee
for a prior plan year but who is no longer a Key Employee, and
(iv) For plan years beginning after December 31, 1984, the accrued
benefit of any individual who has not performed service for any Employer
maintaining the plan at any time during the five (5) plan year period
ending on the determination date.
B-1.5 Distributions and Transfers Taken into Account in Determination.
In determining the value of accrued benefits, there shall be included any
distributions made under the plan at any time during the five (5) plan year
period ending on the determination date:
(i) Including distributions from any terminated plan which if it
had not been terminated would have been required to be aggregated with this
Plan under clause (i) or (ii) of subparagraph 1.6(b) of this Appendix, but
(ii) Excluding:
(A) Distributions made on account of death, to the extent the
benefits do not exceed the present value of accrued benefits
existing immediately prior to death (in the case of a defined
contribution plan, a distribution made on account of death is the
participant's accrued account balance (including the cash value of
life insurance policies)), and
(B) Distributions and plan-to-plan transfers which are rolled
over into a plan maintained by the Employer or initiated by the
participant.
B-1.6 Aggregation of Plans.
B-1.6(a) When aggregating plans, the value of accrued benefits shall be
calculated with reference to the determination dates of such aggregated plans
that fall within the same calendar year. When aggregating defined benefit plans
the same actuarial assumptions shall be used with respect to all such plans and,
if the stated assumptions of such plans are not the same, the plan sponsor(s) of
such plans shall select and agree on one plan's assumptions.
B-1.6(b) The plans to be aggregated with this Plan for purposes hereof
for a plan year are:
(i) Each other plan (whether or not terminated) intended to meet
the applicable requirements of Section 401(a)(10)(B) of the Code and
maintained by the Employer and each simplified employee pension plan
(whether or not terminated) maintained by the Employer in which a Key
Employee participates for the plan year containing the determination date
with respect to such plan year or for any of the preceding four (4) plan
years,
(ii) Each other qualified or simplified employee pension plan
(whether or not terminated) maintained by the Employer which, during the
applicable five (5) plan year period described in clause (i) of this
subparagraph, enables any such plan described in clause (i) of this
subparagraph to meet the requirements of Section 401(a)(4) or 410 of the
Code, and
(iii) Solely in the discretion of the Plan Sponsor, any additional
qualified or simplified employee pension plan(s) (whether or not
terminated) maintained by the Employer if the plans described in clauses
(i) and (ii) of this subparagraph would continue to meet the requirements
of Sections 401(a)(4) and 410 of the Code with such plan(s) being included
in the aggregation group.
<PAGE>
CADMUS THRIFT SAVINGS PLAN
Appendix C
(As of January 1, 1995)
List of Participating Employers
<TABLE>
Effective Date Effective Date
Place of of Commencement of Termination
Name Incorporation of Participation of Participation
<S> <C> <C> <C>
Washburn Graphics, Inc. North Carolina January 1, 1969 ___
Cadmus Communications Corporation Virginia July 1, 1985 ___
The William Byrd Press, Virginia July 1, 1985 ___
Incorporated
Expert Graphics, Inc. Virginia January 1, 1985 ___
American Graphics, Inc. Georgia July 1, 1986 (1) ___
Three Score, Inc. Georgia July 1, 1987 (2) ___
Vaughan Printers, Inc. Florida July 1, 1987 (3) ___
Garamond/Pridemark Press, Inc. Maryland July 1, 1987 (4) ___
Cadmus Direct Marketing, Inc. North Carolina January 1, 1990 ___
(formerly Washburn Direct Marketing, Inc.)
Cadmus Color Center, Inc. Virginia January 1, 1992 ___
Tuff Stuff Publications, Inc. Virginia July 1, 1993 ___
Cadmus Journal Services, Inc. Virginia November 1, 1993 (5) ___
Marblehead Communications, Inc. Delaware July 1, 1994 ___
____________________
</TABLE>
(1) With Participant pre-tax Savings Contribution rights and contribution
investment direction rights commencing effective August 1, 1986.
(2) With Participant pre-tax Savings Contribution rights and contribution
investment direction rights commencing effective with first pay period
beginning on or after September 1, 1987.
(3) With Participant pre-tax Savings Contributions rights and contribution
investment direction rights commencing effective with the first pay period
beginning on or after October 1, 1987.
(4) With Participant pre-tax Savings Contributions rights and contributions
investment direction rights commencing effective with the first pay period
beginning on or after November 1, 1987.
(5) With Participant pre-tax Savings Contributions rights and contributions
investment direction rights commencing effective with the first pay period
beginning on or after November 1, 1993.
<PAGE>
CADMUS THRIFT SAVINGS PLAN
Appendix D
Rules Pertaining to Limitations on Savings and Matching Contributions
D-1.1 Limitation on Savings Contributions.
D-1.1(a) The aggregate amount of a Participant's Savings Contributions
made to the Plan for a Plan Year shall not exceed the applicable limits thereon
specified in this paragraph and elsewhere in the Plan.
D-1.1(b) Notwithstanding anything in the Plan to the contrary, the
aggregate Savings Contributions and other Elective Deferrals made by a
Participant for any calendar year may not exceed the Elective Deferral Dollar
Limitation.
(i) In no event shall the aggregate Elective Deferrals made by any
Employee for any calendar year to this Plan and any other plan maintained
by the Employer exceed the Elective Deferral Dollar Limitation, and the
Administrator shall, whenever necessary to comply with this limitation,
cause such Employee's Elective Deferrals to this Plan to cease being made
for such calendar year and take such other action as it may deem
appropriate in connection therewith.
(ii) For purposes hereof:
(A) The term "Elective Deferral Dollar Limitation" means
$7,000, as adjusted by the Adjustment Factor and as otherwise
adjusted pursuant to Section 402(g) of the Code.
(B) The term "Elective Deferrals" means a Participant's Savings
Contributions to the Plan and his other elective or salary reduction
contributions to a cash or deferred arrangement, tax sheltered
annuity or simplified employee pension plan or "Section 501(c)(18)"
trust to the extent not includable in or to the extent deductible
from the Participant's gross income for his taxable year of
contribution on account of or as described in Section 401(k),
403(b), 408(k) or 501(c)(18) of the Code and required to be taken
into account and aggregated for purposes of applying the limitations
of Section 402(g) of the Code to the Plan.
(C) The term "Excess Elective Deferrals" means a Participant's
Elective Deferrals for a calendar year in excess of the Elective
Deferral Dollar Limitation for such calendar year.
(iii) The following procedure applies to the notice of the existence
of Excess Elective Deferrals and to the distribution of Excess Elective
Deferrals during the calendar year for which made:
(A) By written notice filed with the Administrator the
Participant may notify the Administrator of the existence of Excess
Elective Deferrals with respect to the Participant and may allocate
the amount of his Excess Elective Deferrals for such calendar year
among the plans to which contributed and notify the Administrator of
the portion, if any, allocated to the Plan. In addition, the
Employer may notify the Administrator of Excess Elective Deferrals
made to the Plan and other plans maintained by the Employer.
(B) The Administrator, in its discretion, may then distribute
the designated Excess Elective Deferrals (without income thereon
unless otherwise determined by the Administrator on a uniform and
non-discriminatory basis) in a "corrective distribution" during the
calendar year for which made so long as the distribution is made
after the Plan has received the Excess Elective Deferrals or, if
permitted under Section 402(g) of the Code, may direct that the
Excess Elective Deferrals be retained in the Plan permanently or for
later distribution pursuant to the Plan.
(iv) The following procedure applies to the notice of the existence
of Excess Elective Deferrals and to the distribution of Excess Elective
Deferrals after the calendar year for which made:
(A) Not later than the January 31 following each calendar year
the Administrator shall inform each Participant of his aggregate
Savings Contributions for such calendar year.
(B) Not later than the March 1 following each calendar year, by
written notice filed with the Administrator the Participant may
notify the Administrator of the existence of Excess Elective
Deferrals with respect to the Participant and may allocate the
amount of his Excess Elective Deferrals for such calendar year among
the plans to which contributed and notify the Administrator of the
portion, if any, allocated to the Plan. In addition, the Employer
may notify the Administrator of Excess Elective Deferrals made to
the Plan and other plans maintained by the Employer.
(C) The Administrator may then, in its discretion, direct that
any Excess Elective Deferrals allocated to the Plan be distributed
to the Participant (together with income thereon as determined
pursuant to Section 402(g) of the Code) in a "corrective
distribution" or, if permitted under Section 402(g) of the Code, be
retained in the Plan.
(v) For purposes hereof and except to the extent otherwise provided
under Section 401(k) or 402(g) of the Code:
(A) The amount of any Excess Elective Deferrals that may be
distributed with respect to any Participant for a calendar year
shall be reduced by any Excess Deferral Contributions (as defined in
paragraph 1.2 of this Appendix) previously distributed or
recharacterized with respect to the Participant for the Plan Year
beginning with or within the calendar year.
(B) Excess Elective Deferrals allocated to the Plan shall be
considered first to be Savings Contributions in excess of the
percentage of a Participant's Compensation with respect to which
Matching Contributions are made for such Plan Year and then to be
the remainder of the Participant's Savings Contributions.
(vi) For purposes hereof and except to the extent otherwise provided
under Section 401(k) or 402(g) of the Code, the income allocated to any
Excess Elective Deferrals allocated to the Plan shall be determined by the
Administrator under the following rules and calculated under any reasonable
method selected by the Administrator so long as the method does not violate
the requirements of Section 401(a)(4) of the Code, is used consistently for
all Participants and for all corrective distributions under the Plan for a
calendar year, and is used by the Plan for allocating income to
Participants' accounts under the Plan:
(A) Unless another method is determined by the Administrator,
where the corrective distribution is made after the end of the
calendar year for which the Excess Elective Deferrals were made, the
amount of income to be distributed shall be determined by
multiplying (I) the income for the calendar year or other period in
question allocable to the account to which such Excess Elective
Deferrals are allocated by (II) a fraction, the numerator of which
is the amount of the Participant's Excess Elective Deferrals
allocated to such account for the calendar year or other period in
question and entitled to a share of the valuation adjustment
therefor under paragraph 4.6 of the Plan and the denominator of
which is the balance in such account on the last day of the calendar
year or other period in question, reduced by the earnings allocable
thereto and increased by the losses allocable thereto in the
calendar year or other period in question.
(B) Where the corrective distribution is made after the end of
the calendar year for which the Excess Elective Deferrals were made,
unless otherwise determined by the Administrator on a uniform and
non-discriminatory basis, no income shall be distributed for the
period between the end of the calendar year and the date of
distribution.
(C) Where the corrective distribution is made during the end of
the calendar year for which the Excess Elective Deferrals were made,
unless otherwise determined by the Administrator on a uniform and
non-discriminatory basis, no income shall be distributed.
(vii) For purposes of the Code, including Sections 401(a)(4),
401(k)(3), 404, 409, 411, 412 and 416 thereof, Excess Elective Deferrals
are treated as Employer contributions even if they are distributed.
However, Excess Elective Deferrals which are timely distributed to a
Participant are not treated as Annual Additions for purposes of Section 415
of the Code and paragraphs 4.3 and 4.4 of the Plan. In addition, Excess
Elective Deferrals of Non-Highly Compensated Employees are not taken into
account in determining Deferral Percentages under paragraph 1.2 of this
Appendix to the extent they exceed the Elective Deferral Dollar Limitation
based only on Elective Deferrals made to this Plan and other plans
maintained by the Employer.
D-1.1(c) If a Participant's Savings Contributions are returned in a
corrective distribution, such contributions shall nevertheless still be
considered made for any benefit accrual requirements contingent thereon, and any
Matching Contributions attributable thereto shall be also be distributed (to the
extent vested) or forfeited (to the extent not vested).
D-1.2 Limitation on and Distribution of Savings Contributions Made by
Highly Compensated Employees.
D-1.2(a) Notwithstanding the Savings Contributions permitted to be made
pursuant to the Plan, the Average Deferral Percentage for Eligible Participants
who are Highly Compensated Employees for a Plan Year shall not exceed the
greater of (i) or (ii) as follows:
(i) The "regular limitation" percentage which is equal to one
hundred twenty-five percent (125%) of the Average Deferral Percentage for
the Eligible Participants who are Non-Highly Compensated Employees for the
Plan Year, or
(ii) The "alternative limitation" percentage which is equal to the
lesser of:
(A) Two hundred percent (200%) of the Average Deferral
Percentage for the Eligible Participants who are Non-Highly
Compensated Employees for the Plan Year, or
(B) Two (2) percentage points over the Average Deferral
Percentage for the Eligible Participants who are Non-Highly
Compensated Employees.
D-1.2(b) For purposes hereof:
(i) The term "Average Deferral Percentage" means the average
(expressed as a percentage) of the Deferral Percentages of the Eligible
Participants in a group.
(ii) The term "Eligible Compensation" means an Eligible
Participant's Statutory Compensation while he is an Eligible Participant
determined without regard to suspensions from participation.
(iii) The term "Deferral Percentage" means the ratio (expressed as a
percentage and calculated to the nearest one-hundredth of one percent
(.01%)) of (A) the Savings Contributions under the Plan (and, where
provided or elected in accordance with the special operating rules of
subparagraph 1.2(c) of this Appendix, any other Deferral Contributions)
made by or on behalf of an Eligible Participant for the Plan Year to (B)
the Eligible Participant's Eligible Compensation for the Plan Year.
(iv) The term "Eligible Participant" means any Employee who is
authorized under the terms of the Plan to make Savings Contributions for
the Plan Year, determined without regard to suspensions from participation
for any reason other than not being an Eligible Employee (or, where
provided or elected in accordance with the special operating rules of
subparagraph 1.2(c) of this Appendix, who is authorized under the terms of
the applicable plan to make or receive an allocation of Deferral
Contributions for the Plan Year).
(v) The term "Deferral Contributions" means:
(A) Savings Contributions, and
(B) To the extent provided or elected pursuant to the special
operating rules of subparagraph 1.2(c) of this Appendix:
(I) Qualified non-elective contributions within the meaning
of Section 401(m)(4)(C) of the Code (that is, any employer
contributions (other than matching contributions within the
meaning of Section 401(m)(4)(A) of the Code) which the Employee
may not elect to have paid to him instead of being contributed
to the plan, which are subject to the restrictions on
distributions contained in Section 401(k)(2)(B) of the Code
(generally prohibiting distribution before separation from
service, death, or disability unless the Employee has a hardship
or has reached age fifty-nine and one-half (59-1/2) or after
plan termination), and which are immediately fully vested and
non-forfeitable,
(II) Qualified matching contributions within the meaning of
Section 401(k)(3)(C)(I) of the Code (that is, matching
contributions as defined in Section 401(m)(4)(A) of the Code,
which are subject to the restrictions on distributions contained
in Section 401(k)(2)(B) of the Code (generally prohibiting
distribution before separation from service, death, or
disability unless the Employee has a hardship or has reached the
age fifty-nine and one-half (59-1/2) or after plan termination)
and which are immediately fully vested and non-forfeitable),
and/or
(III) Any other elective deferrals under a cash or deferred
arrangement described in Section 401(k) of the Code.
(C) Notwithstanding the foregoing, a Savings Contribution and
any other elective deferral shall not be considered a Deferral
Contribution for a Plan Year unless both:
(I) It is allocated as of a date within the Plan Year
(which generally means that it is not contingent upon the
Employee's participation in the plan or arrangement or
performance of services on any date subsequent to that date and
that is actually paid to the funding vehicle of the plan or
arrangement no later than the end of the 12-month period
immediately following such Plan Year), and
(II) It either relates to compensation that either would
have been received by the Employee in such Plan Year but for his
election to contribute to the plan or arrangement or is
attributable to services performed by the Employee in the Plan
Year, and but for the Employee's election to contribute to the
plan or arrangement, would have been received by the Employee
within two and one-half (2-1/2) months after the end of such
Plan Year.
(vi) The term "Excess Deferral Contributions" means the amount of
Deferral Contributions for a Plan Year which must be eliminated in order
for the restrictions of subparagraph 1.2(a) of this Appendix to be
satisfied for the Plan Year.
D-1.2(c) The following special rules shall apply for purposes of this
paragraph:
(i) The following plans or portions of plans are mandatorily
disaggregated and must be tested separately under subparagraph 1.2(a) of
this Appendix and Section 401(k)(3) of the Code:
(A) Contributions under an employee stock ownership plan
described in Section 409 or 4975(e)(7) of the Code (an "ESOP")
(or the portion of a plan which is an ESOP) may not be
aggregated with contributions under a non-ESOP (or the portion
of a plan which is not an ESOP) except as permitted under
Section 401(k), 409 or 4975 of the Code.
(B) Except where permitted to be aggregated for purposes of
Section 410 of the Code, contributions by or for employees who
are included in a unit of employees covered by a collective
bargaining agreement may not be aggregated with contributions by
or for employees who are included in a unit of employees not
covered by the same collective bargaining agreement.
(C) Except where permitted to be aggregated for purposes of
Section 410 of the Code, contributions by or for employees
assigned to qualified separate lines of business within the
meaning of Section 414(r) of the Code, unless the plan in
question qualifies for the employer-wide exception to mandatory
disaggregation for this purpose under Section 414(r) of the
Code.
(D) Contributions under plans that could but actually are
not aggregated for the plan year for purposes of satisfying the
minimum coverage requirements of Section 410(b) of the Code
(other than the average benefits percentage test).
(E) Contributions under a plan maintained by more than one
employer as described in Section 413(c) of the Code shall be
treated as if each such employer maintained a separate plan.
(F) Except as provided in clause (ii) of this subparagraph,
contributions under plans which do not have the same plan year.
(ii) Subject to the limitations of clause (i) of this subparagraph,
the following plans or portions of plans are mandatorily aggregated and
must be tested as one plan under subparagraph 1.2(a) of this Appendix and
Section 401(k)(3) of the Code:
(A) The Deferral Percentage for any Eligible Participant who is
a Highly Compensated Employee for the Plan Year and who is eligible
to make Savings Contributions or have other elective deferrals
allocated to his account under two or more cash or deferred
arrangements described in Section 401(k) of the Code that are
maintained by the Employer shall be determined as if all such
Savings Contributions and elective deferrals were made under a
single plan. Such aggregation shall be effected on the basis of plan
years beginning in the same calendar year.
(B) In the event that this Plan satisfies the requirements of
Section 401(a)(4) or 410(b) (other than Section 410(b)(2)(A)(ii)) of
the Code only if aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of Section 401(a)(4) or
410(b) (other than Section 410(b)(2)(A)(ii)) of the Code only if
aggregated with this Plan, then this paragraph shall be applied by
determining the Deferral Percentages of Eligible Participants as if
all such plans were a single plan.
(iii) Subject to the limitations of clause (i) of this subparagraph,
two or more cash or deferred arrangements may be permissively aggregated by
the Administrator for purposes of satisfying the requirements of Section
401(a)(4), 401(k) and 410(b) of the Code if such arrangements each have the
same plan year.
(iv) For purposes of determining the Deferral Percentage of an
Eligible Participant who is a Highly Compensated Employee, the Deferral
Contributions and Eligible Compensation of such Participant shall include
the Deferral Contributions and Eligible Compensation of his Family Members
and such Highly Compensated Employee and his Family Members shall be
treated as one Highly Compensated Employee. Such aggregation shall be
effected under the following rules:
(A) The combined Deferral Percentage of the Family Group (which
shall be treated as one Highly Compensated Employee for purposes of
determining the Average Deferral Percentage of Highly Compensated
Employees) shall be the Deferral Percentage determined for the
Family Group.
(B) Except as provided in this clause, the Deferral
Contributions and Eligible Compensation of the Family Members shall
be disregarded in determining the Average Deferral Percentages of
Eligible Participants who are Non-Highly Compensated Employees.
(C) For purposes hereof, the term "Family Group" means a Highly
Compensated Employee and his Family Members who are required to be
treated as a single Highly Compensated Employee pursuant hereto and
who are Eligible Participants. If an Employee is required to be
aggregated as a member of more than one Family Group, then all
Eligible Participants who are members of those Family Groups that
include the Employee shall be aggregated and treated as one Family
Group.
(v) At the option of the Administrator, each Eligible Participant's
Deferral Contributions for a Plan Year consisting of qualified non-elective
contributions and/or qualified matching contributions under any plan or
arrangement may be included in determining the Deferral Percentages for the
Plan Year provided, however, that:
(A) The non-elective contributions (both including and
excluding the qualified non-elective contributions which are treated
as Deferral Contributions) satisfy the requirements of Section
401(a)(4) of the Code.
(B) The matching contributions satisfy the requirements of
Section 401(m) of the Code, provided that the qualified non-elective
contributions and qualified matching contributions treated as
Deferral Contributions are disregarded in making this determination.
(C) Except as provided in clauses (v)(A) and (B) of this
subparagraph, the qualified non-elective contributions and qualified
matching contributions treated as Deferral Contributions are not
taken into account in determining whether any other contributions or
benefits satisfy the requirements of Section 401(a)(4) of the Code
or whether employee contributions and matching contributions meet
the requirements of Section 401(m) of the Code.
(D) The qualified non-elective contributions may not be treated
as Deferral Contributions if the effect is to increase the
difference between the Average Deferral Percentages for Highly
Compensated Employees and for Non-Highly Compensated Employees.
(E) The qualified non-elective contributions and qualified
matching contributions satisfy the contingent benefit limitations of
Section 401(k)(4)(A) (which generally prohibit benefits other than
matching contributions from being contingent on making or not making
elective deferrals).
(F) The plan years of the plans or arrangements under which the
qualified non-elective contributions and qualified matching
contributions treated as Deferral Contributions are made is the same
as the Plan Year.
(vi) The determination of Excess Deferral Contributions for a Plan
Year for purposes of this paragraph shall be made:
(A) After first determining the Excess Elective Deferrals under
subparagraph 1.1(b) of this Appendix for the Plan Year; provided
that the Excess Elective Deferrals of Non-Highly Compensated
Employees shall not be taken into account in determining the
Deferral Percentage of such Eligible Participants to the extent that
such Excess Elective Deferrals are made under this Plan or other
cash or deferred arrangement maintained by the Employer and that
Excess Elective Deferrals of Highly Compensated Employees shall be
taken into account in determining the Deferral Percentage of such
Eligible Participants, and
(B) Before determining the Excess Aggregate Contributions for
purposes of paragraph 1.3 of this Appendix and Section 401(m) of the
Code for the Plan Year.
(vii) The employee groups tested hereunder may be divided into
separate testing groups on such basis, if any, as the Administrator may
determine and as is permitted under Sections 410, 401(k) and 401(m) of the
Code, including, but not limited to, separate testing for excludible
employees (that is, where the plan's age and/or service requirements are
lower than the greatest minimum age and service conditions permissible
under Section 410(a) of the Code).
(viii) The determination and treatment of the Deferral Contributions
and Deferral Percentage of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the Treasury or his
delegate.
D-1.2(d) If the Average Deferral Percentage for the Eligible
Participants who are Highly Compensated Employees for a Plan Year is more than
the amount permitted under the above restrictions, then:
(i) The Excess Deferral Contributions for the Highly Compensated
Employees for the Plan Year shall be reduced by distributing them (together
with income thereon) in a "corrective distribution" to Highly Compensated
Employees and any Family Members as required by Section 401(k) of the Code
as provided below (or, where so provided in another plan for Excess
Deferral Contributions made to that plan, by recharacterizing them as
after-tax employee contributions pursuant to that other plan) after the end
of the Plan Year for which made and, to the extent not inconsistent
therewith, in the following manner:
(A) First, the excess amount shall be considered to consist of
the Participant's Savings Contributions in excess of the percentage
of his Compensation with respect to which Matching Contributions are
made for such Plan Year to the extent thereof, and
(B) Then, any remaining portion of the excess amount shall be
considered to consist of the remainder of the Participant's Savings
Contributions for such Plan Year to the extent thereof, and
(C) Finally, any remaining portion of the excess amount shall
be considered to consist of the Participant's other Deferral
Contributions for such Plan Year.
(ii) Among such Participants, the reduction shall be effected by
reducing contributions in the order of the highest Deferral Percentages
such that the applicable restrictions of subparagraph 1.2(a) of this
Appendix are satisfied; provided, however, that any required reduction for
any Eligible Participant will be reduced by his Excess Elective Deferrals
returned pursuant to subparagraph 1.1(b) of this Appendix. In effecting
the needed reduction, if the Deferral Percentage of a Highly Compensated
Employee is determined by aggregating his Deferral Contributions with those
of his Family Members, then as between the members of the Family Group, the
reduction shall be effected pro rata on the basis of the Deferral
Contributions made by each member of the Family Group compared to the total
Deferral Contributions of all members of the Family Group that are being
reduced.
(iii) When two or more plans are involved, contributions shall be
reduced in the following order: First, those under money purchase pension
plans, then those under stock bonus plans, then those under profit sharing
plans, and lastly, those under all other plans; and reductions under plans
of the same type shall be on a pro rata basis.
(iv) For purposes hereof and except to the extent otherwise provided
under Section 401(k) of the Code, the income allocated to any Excess
Deferral Contributions allocated to the Plan shall be determined by the
Administrator under the following rules and calculated under any reasonable
method selected by the Administrator so long as the method does not violate
the requirements of Section 401(a)(4) of the Code, is used consistently for
all Participants and for all corrective distributions under the Plan for a
Plan Year, and is used by the Plan for allocating income to Participants'
accounts under the Plan:
(A) Unless another method is determined by the Administrator,
the amount of income to be distributed shall be determined by
multiplying (I) the income for the Plan Year or other period in
question allocable to the account to which such Excess Deferral
Contributions are allocated by (II) a fraction, the numerator of
which is the amount of the Participant's Excess Deferral
Contributions allocated to such account for the Plan Year or other
period in question and entitled to a share of the valuation
adjustment therefor under paragraph 4.6 and the denominator of which
is the balance in such account on the last day of the Plan Year or
other period in question, reduced by the earnings allocable thereto
and increased by the losses allocable thereto in the Plan Year or
other period in question.
(B) Unless otherwise determined by the Administrator on a
uniform and non-discriminatory basis, no income shall be distributed
for the period between the end of the Plan Year and the date of
distribution.
D-1.2(e) If a Participant's Savings Contributions are returned pursuant
to that paragraph, such contributions shall nevertheless still be considered
made for any benefit accrual requirements contingent thereon and any Matching
Contributions attributable thereto shall be also be distributed (to the extent
vested) or forfeited (to the extent not vested).
D-1.3 Limitation on and Distribution of Matching Contributions Made on
behalf of Highly Compensated Employees.
D-1.3(a) Notwithstanding the provisions of the Plan for the allocation
of the Matching Contribution, the Average Contribution Percentage for Eligible
Participants who are Highly Compensated Employees for a Plan Year shall not
exceed the greater of (i) or (ii) as follows:
(i) The "regular limitation" percentage which is equal to one
hundred twenty-five percent (125%) of the Average Contribution Percentage
for the Eligible Participants who are Non-Highly Compensated Employees for
the Plan Year, or
(ii) The "alternative limitation" percentage which is equal to the
lesser of:
(A) Two hundred percent (200%) of the Average Contribution
Percentage for the Eligible Participants who are Non-Highly
Compensated Employees for the Plan Year, or
(B) Two (2) percentage points over the Average Contribution
Percentage for the Eligible Participants who are Non-Highly
Compensated Employees.
D-1.3(b) For purposes hereof:
(i) The term "Average Contribution Percentage" means the average
(expressed as a percentage) of the Contribution Percentages of the Eligible
Participants in a group.
(ii) The term "Eligible Compensation" means an Eligible
Participant's Statutory Compensation while he is an Eligible Participant
determined without regard to suspensions from participation.
(iii) The term "Contribution Percentage" means the ratio (expressed
as a percentage and calculated to the nearest one-hundredth of one percent
(.01%)) of (A) the Matching Contributions under the Plan (and, where
provided or elected in accordance with the special operating rules of
subparagraph 1.3(c) of this Appendix, any other Aggregate Contributions)
made by or on behalf of an Eligible Participant for the Plan Year to (B)
the Eligible Participant's Eligible Compensation for the Plan Year.
(iv) The term "Eligible Participant" means any Employee who is
authorized under the terms of the Plan to make Savings Contributions for
the Plan Year and receive an allocation of the Matching Contribution for
the Plan Year, determined without regard to suspensions from participation
for any reason other than not being an Eligible Employee (or, where
provided or elected in accordance with the special operating rules of
subparagraph 1.3(c) of this Appendix, who is authorized under the terms of
the applicable plan to make or receive an allocation of other Aggregate
Contributions for the Plan Year).
(v) The term "Aggregate Contributions" means:
(A) Matching Contributions,
(B) To the extent provided or elected pursuant to the special
operating rules of subparagraph 1.3(c) of this Appendix, any
after-tax employee contributions which are allocated to a separate
account to which attributable earnings or loss are allocated and
consisting of either:
(I) Employee contributions to the defined contribution
portion of a plan described in Section 414(k) of the Code.
(II) Employee contributions to a qualified cost-of-living
arrangement described in Section 415(2)(B) of the Code.
(III) Employee contributions applied to the purchase of whole
life insurance protection or survivor benefit protection under a
defined contribution plan.
(IV) Amounts attributable to Excess Deferral Contributions
as defined in paragraph 1.2 of this Appendix which are
recharacterized as after-tax employee contributions.
(V) Employee contributions to a contract described in
Section 403(b) of the Code.
Notwithstanding the foregoing, after-tax employee contributions do
not include loan repayments, cash-out buy-backs, qualifying rollover
contributions, employee contributions which are transferred to a
plan or any other amounts which are excluded from such term under
Section 401(m) of the Code,
(C) To the extent provided or elected pursuant to the special
operating rules of subparagraph 1.3(c) of this Appendix, any other
matching contributions within the meaning of Section 404(m)(4)(A) of
the Code (that is, employer contributions made on account of
after-tax employee contributions under any plan or elective
deferrals under a cash or deferred arrangement described in Section
401(k) of the Code), and/or
(D) To the extent provided or elected pursuant to the special
operating rules of subparagraph 1.3(c) of this Appendix:
(I) Savings Contributions,
(II) Qualified non-elective contributions within the meaning
of Section 401(m)(4)(C) of the Code (that is, any employer
contributions (other than matching contributions) which the
Employee may not elect to have paid to him instead of being
contributed to the plan, which are subject to the restrictions
on distributions contained in Section 401(k)(2)(B) of the Code
(generally prohibiting distribution before separation from
service, death, or disability unless the Employee has a hardship
or has reached age fifty-nine and one-half (59-1/2) or after
plan termination), and which are immediately fully vested and
non-forfeitable), and/or
(III) Any other elective deferrals under a cash or deferred
arrangement described in Section 401(k) of the Code.
(E) Notwithstanding the foregoing, a contribution shall not be
considered an Aggregate Contribution for a Plan Year unless:
(I) In the case of an after-tax employee contribution it is
actually paid to the funding vehicle of the plan or an agent of
the plan who remits the contribution to the funding vehicle
within a reasonable time.
(II) In the case of a matching contribution, it is allocated
as of a date within the Plan Year, it is actually paid to the
funding vehicle of the plan no later than the end of the
12-month period immediately following such plan year, and it is
made on behalf of the Employee's elective deferrals or employee
contributions for the plan year.
(vi) The term "Excess Aggregate Contributions" means the amount of
Aggregate Contributions for a Plan Year which must be eliminated in order
for the restrictions of subparagraph 1.3(a) of this Appendix to be
satisfied for the Plan Year.
D-1.3(c) The following special rules shall apply for purposes of this
paragraph:
(i) The following plans or portions of plans are mandatorily
disaggregated and must be tested separately under subparagraph 1.3(a) of
this Appendix and Section 401(m)(2) of the Code:
(A) Contributions under an employee stock ownership plan
described in Section 409 or 4975(e)(7) of the Code (an "ESOP") (or
the portion of a plan which is an ESOP) may not be aggregated with
contributions under a non-ESOP (or the portion of a plan which is
not an ESOP) except as permitted under Section 401(m), 409 or 4975
of the Code.
(B) Except where permitted to be aggregated for purposes of
Section 410 of the Code, contributions by or for employees who are
included in a unit of employees covered by a collective bargaining
agreement may not be aggregated with contributions by or for
employees who are included in a unit of employees not covered by the
same collective bargaining agreement.
(C) Except where permitted to be aggregated for purposes of
Section 410 of the Code, contributions by or for employees assigned
to qualified separate lines of business within the meaning of
Section 414(r) of the Code, unless the plan in question qualifies
for the employer-wide exception to mandatory disaggregation for this
purpose under Section 414(r) of the Code.
(D) Contributions under plans that could but actually are not
aggregated for the plan year for purposes of satisfying the minimum
coverage requirements of Section 410(b) of the Code (other than the
average benefits percentage test).
(E) Contributions under a plan maintained by more than one
employer as described in Section 413(c) of the Code shall be treated
as if each such employer maintained a separate plan.
(F) Except as provided in clause (ii) of this subparagraph,
contributions under plans which do not have the same plan year.
(ii) Subject to the limitations of clause (i) of this subparagraph,
the following plans or portions of plans are mandatorily aggregated and
must be tested as one plan under subparagraph 1.3(a) of this Appendix and
Section 401(m)(2) of the Code:
(A) The Contribution Percentage for any Eligible Participant
who is a Highly Compensated Employee for the Plan Year and who is
eligible to make after-tax employee contributions, or to have
matching contributions, qualified non-elective contributions or
elective deferrals allocated to his account, under two or more plans
described in Section 401(a) or cash or deferred arrangements
described in Section 401(k) of the Code that are maintained by the
Employer shall be determined as if all such after-tax employee
contributions, matching contributions, qualified non-elective
contributions and elective deferrals were made under a single plan.
Such aggregation shall be effected on the basis of plan years
beginning in the same calendar year.
(B) In the event that this Plan satisfies the requirements of
Section 401(a)(4) or 410(b) (other than Section 410(b)(2)(A)(ii)) of
the Code only if aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of Section 401(a)(4) or
410(b) (other than Section 410(b)(2)(A)(ii)) of the Code only if
aggregated with this Plan, then this paragraph shall be applied by
determining the Contribution Percentages of Eligible Participants as
if all such plans were a single plan.
(iii) Subject to the limitations of clause (i) of this subparagraph,
two or more plans to which after-tax employee contributions or matching
contributions or both may be made may be permissively aggregated by the
Administrator for purposes of satisfying the requirements of Section
401(a)(4), 401(m) and 410(b) of the Code if such plans each have the same
plan year.
(iv) For purposes of determining the Contribution Percentage of an
Eligible Participant who is a Highly Compensated Employee, the Aggregate
Contributions and Eligible Compensation of such Participant shall include
the Aggregate Contributions and Eligible Compensation of his Family Members
and such Highly Compensated Employee and his Family Members shall be
treated as one Highly Compensated Employee. Such aggregation shall be
effected under the following rules:
(A) The combined Contribution Percentage of the Family Group
(which shall be treated as one Highly Compensated Employee for
purposes of determining the Average Contribution Percentage of
Highly Compensated Employees) shall be the Contribution Percentage
determined for the Family Group.
(B) Except as provided in this clause, the Aggregate
Contributions and Eligible Compensation of the Family Members shall
be disregarded in determining the Average Contribution Percentages
of Eligible Participants who are Non-Highly Compensated Employees.
(C) For purposes hereof, the term "Family Group" means a Highly
Compensated Employee and his Family Members who are required to be
treated as a single Highly Compensated Employee pursuant hereto and
who are Eligible Participants. If an Employee is required to be
aggregated as a member of more than one Family Group, then all
Eligible Participants who are members of those Family Groups that
include the Employee shall be aggregated and treated as one Family
Group.
(v) At the option of the Administrator, each Eligible Participant's
Aggregate Contributions for a Plan Year consisting of qualified
non-elective contributions and elective deferrals under any plan or
arrangement may be treated as matching contributions and included in
determining the Contribution Percentages for the Plan Year provided,
however, that:
(A) The non-elective contributions (both including and
excluding the qualified non-elective contributions which are treated
as Aggregate Contributions and in the latter case also excluding the
qualified non-elective contributions treated as elective deferrals
under Section 401(k) of the Code) satisfy the requirements of
Section 401(a)(4) of the Code.
(B) The elective deferrals (both including and excluding
elective deferrals treated as Aggregate Contributions) satisfy the
requirements of Section 401(k) of the Code.
(C) Except as provided in clauses (v)(A) and (B) of this
subparagraph, the qualified non-elective contributions and elective
deferrals treated as Aggregate Contributions are not taken into
account in determining whether any other contributions or benefits
satisfy the requirements of Section 401(a)(4) of the Code or whether
elective deferrals meet the requirements of Section 401(k) of the
Code.
(D) The qualified non-elective contributions may not be treated
as Aggregate Contributions if the effect is to increase the
difference between the Average Contribution Percentages for Highly
Compensated Employees and for Non-Highly Compensated Employees.
(E) The plan years of the plans or arrangements under which the
qualified non-elective contributions and elective deferrals treated
as Aggregate Contributions are made is the same as the Plan Year.
(vi) Contributions by or for employees who are included in a unit of
employees covered by a collective bargaining agreement shall automatically
be considered to pass the non-discrimination test of subparagraph 1.3(a) of
this Appendix and Section 401(m) of the Code and need not be tested
thereunder.
(vii) The determination of Excess Aggregate Contributions for a Plan
Year for purposes of this paragraph shall be made after:
(A) First determining the Excess Elective Deferrals under
subparagraph 1.1(b) of this Appendix for the Plan Year, and
(B) Then determining the Excess Deferral Contributions under
paragraph 1.2 of this Appendix for the Plan Year.
(viii) The employee groups tested hereunder may be divided into
separate testing groups on such basis, if any, as the Administrator may
determine and as is permitted under Sections 410, 401(k) and 401(m) of the
Code, including, but not limited to, separate testing for excludible
employees (that is, where the plan's age and/or service requirements are
lower than the greatest minimum age and service conditions permissible
under Section 410(a) of the Code).
(ix) The determination and treatment of the Aggregate Contributions
and Contribution Percentage of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the Treasury or his
delegate.
D-1.3(d) If the Average Contribution Percentage for the Eligible
Participants who are Highly Compensated Employees for a Plan Year is more than
the amount permitted under the above restrictions, then:
(i) The Excess Aggregate Contributions for the Highly Compensated
Employees for the Plan Year shall be reduced as required by Section 401(m)
of the Code after the end of the Plan Year for which made and, to the
extent not inconsistent therewith, in the following manner:
(A) First, the excess amount shall be considered to consist of
the Participant's after-tax unmatched contributions under other
plans taken into account for such Plan Year on a pro rata basis to
the extent thereof, which contributions (and any income allocable
thereto within the meaning of Section 401(m) of the Code) shall be
distributed to the Participant at such time as the Administrator may
determine but in no event later than twelve (12) months after the
end of such Plan Year, and
(B) Then, any remaining portion of the excess amount shall be
considered to consist of the Participant's after-tax matched
contributions, Matching Contributions, and other Aggregate
Contributions treated as matching contributions and similar
contributions under other plans taken into account for such Plan
Year on a pro rata basis to the extent thereof, which contributions
(and any income allocable thereto within the meaning of Section
401(m) of the Code) shall be distributed to the Participant (or
forfeited, to the extent not vested) at such time as the
Administrator may determine but in no event later than twelve (12)
months after the end of such Plan Year.
Notwithstanding the time period described above for the return of Excess
Aggregate Contributions, such amounts and any income thereon returned more
than two and one-half (2-1/2) months after the end of the Plan Year may be
subject to the ten percent (10%) excise tax imposed on the Employer by
Section 4979 of the Code.
(ii) Among such Participants, the reduction in the portion of the
after-tax unmatched contributions and after-tax matched contributions which
those Participants elected to contribute for such Plan Year and in the
Matching Contributions allocated to their accounts for such Plan Year shall
be effected by reducing contributions in the order of the highest
Contribution Percentages such that the applicable restrictions of
subparagraph 1.3(a) of this Appendix are satisfied. In effecting the
needed reduction, if the Contribution Percentage of a Highly Compensated
Employee is determined by aggregating his Aggregate Contributions with
those of his Family Members, then as between the members of the Family
Group, the reduction shall be effected pro rata on the basis of the
Aggregate Contributions made by each member of the Family Group compared to
the total Aggregate Contributions of all members of the Family Group that
are being reduced.
(iii) When two or more plans are involved, contributions shall be
reduced in the following order: First, those under defined benefit plans
shall be reduced, then those under target benefit pension plans, then those
under money purchase pension plans, then those under stock bonus plans,
then those under profit sharing plans, and lastly, those under all other
plans; and reductions under plans of the same type shall be on a pro rata
basis.
(iv) For purposes hereof and except to the extent otherwise provided
under Section 401(m) of the Code, the income allocated to any Excess
Aggregate Contributions allocated to the Plan shall be determined by the
Administrator under the following rules and calculated under any reasonable
method selected by the Administrator so long as the method does not violate
the requirements of Section 401(a)(4) of the Code, is used consistently for
all Participants and for all corrective distributions under the Plan for a
Plan Year, and is used by the Plan for allocating income to Participants'
accounts under the Plan:
(A) Unless another method is determined by the Administrator,
the amount of income to be distributed shall be determined by
multiplying (I) the income for the Plan Year or other period in
question allocable to the account to which such Excess Aggregate
Contributions are allocated by (II) a fraction, the numerator of
which is the amount of the Participant's Excess Aggregate
Contributions allocated to such account for the Plan Year or other
period in question and entitled to a share of the valuation
adjustment therefor under paragraph 4.6 of the Plan and the
denominator of which is the balance in such account on the last day
of the Plan Year or other period in question normally taken into
account in determining such valuation adjustment.
(B) Unless otherwise determined by the Administrator on a
uniform and non-discriminatory basis, no income shall be distributed
for the period between the end of the Plan Year and the date of
distribution.
(v) Any distribution of Excess Aggregate Contributions (and income)
shall clearly be designated by the Administrator as such.
D-1.4 Limitation on Multiple Use of Alternative Limitations in Paragraphs
1.2 and 1.3 of this Appendix.
D-1.4(a) Multiple use of the alternative limitations under clause (ii)
of subparagraphs 1.2(a) and 1.3(a) of this Appendix is prohibited as provided in
section 401(m)(9)(A) of the Code and, to the extent not inconsistent therewith,
is considered to occur if both of the following occur for a Plan Year:
(i) One or more Highly Compensated Employees are Eligible
Participants for purposes of both paragraphs 1.2 and 1.3 of this Appendix,
and
(ii) The sum of the Average Deferral Percentages and the Average
Contribution Percentages of the Highly Compensated Employees who are
Eligible Participants exceeds the Multiple Use Limitation Percentage, and
(iii) Both:
(A) The Average Deferral Percentage of the Highly Compensated
Employees who are Eligible Participants exceeds one hundred
twenty-five percent (125%) of the Average Deferral Percentage of the
Non-Highly Compensated Employees who are Eligible Participants, and
(B) The Average Contribution Percentage of the Highly
Compensated Employees who are Eligible Participants exceeds one
hundred twenty-five percent (125%) of the Average Contribution
Percentage of the Non-Highly Compensated Employees who are Eligible
Participants.
Notwithstanding anything to the contrary herein, the prohibition on multiple use
of the alternative limitations under clause (ii) of subparagraphs 1.2 and 1.3 of
this Appendix shall apply separately to contributions under an employee stock
ownership plan described in Section 409 or 4975(e)(7) of the Code (an "ESOP")
(or the portion of a plan which is an ESOP) and contributions under a non-ESOP
(or the portion of a plan which is not an ESOP) except as permitted under
Section 401(k), 401(m), 409 or 4975 of the Code.
D-1.4(b) If the multiple use requirement of subparagraph 1.4(a) of this
Appendix is not satisfied for a Plan Year, then the Excess Multiple Use
Contributions shall be eliminated as provided in Sections 401(k) and 401(m) of
the Code and, to the extent not inconsistent therewith, as follows:
(i) The elimination shall be effected in the manner of reduction
described in paragraphs 1.2 and 1.3 of this Appendix, depending on whether
the contribution eliminated is a Deferral Contribution or an Aggregate
Contribution.
(ii) Such reduction shall be effected first for Aggregate
Contributions and then for Deferral Contributions.
(iii) Such reduction shall be effected for all Highly Compensated
Employees who are Eligible Participants for purposes of either paragraph
1.2 or 1.3 of this Appendix.
D-1.4(c) For purposes hereof:
(i) The term "Excess Multiple Use Contributions" means the amount of
Deferral Contributions and/or Aggregate Contributions for a Plan Year which
must be eliminated so that the Multiple Use Limitation Percentage will not
be exceeded for the Plan Year.
(ii) The term "Multiple Use Limitation Percentage" means a percentage
equal to the greater of:
(A) The sum of:
(I) One hundred twenty-five percent (125%) of the greater
of (a) the Average Deferral Percentage of the Non-Highly
Compensated Employees who are Eligible Participants or (b) the
Average Contribution Percentage of the Non-Highly Compensated
Employees who are Eligible Participants, and
(II) Two (2) plus the lesser of (a) the Average Deferral
Percentage referred to in clause (ii)(A)(I) of this subparagraph
or (b) the Average Contribution Percentage referred to in clause
(ii)(A)(I) of this subparagraph, provided that the amount
determined under this clause (ii)(A)(II)(b) shall in no event
exceed two hundred percent (200%) of such lesser Average
Deferral Percentage or Average Contribution Percentage.
(B) The sum of:
(I) One hundred twenty-five percent (125%) of the lesser of
(a) the Average Deferral Percentage of the Non-Highly
Compensated Employees who are Eligible Participants or (b) the
Average Contribution Percentage of the Non-Highly Compensated
Employees who are Eligible Participants, and
(II) Two (2) plus the greater of (a) the Average Deferral
Percentage referred to in clause (ii)(B)(I) of this subparagraph
or (b) the Average Contribution Percentage referred to in clause
(ii)(B)(I) of this subparagraph, provided that the amount
determined under this clause (ii)(B)(II)(b) shall in no event
exceed two hundred percent (200%) of such lesser Average
Deferral Percentage or Average Contribution Percentage.
(iii) Notwithstanding the foregoing:
(A) The employee groups tested hereunder may be divided into
separate testing groups on such basis, if any, as the Administrator
may determine and as is permitted under Sections 410, 401(k) and
401(m) of the Code, including, but not limited to, separate testing
for excludible employees (that is, where the plan's age and/or
service requirements are lower than the greatest minimum age and
service conditions permissible under Section 410(a) of the Code).
(B) The Multiple Use Limitation Percentage may otherwise be
appropriately adjusted by the Administrator as permitted in Sections
401(k) and (m) of the Code in accordance with regulations under
Sections 401(m)(9) of the Code.
D-1.5 Distribution of Transferred Contributions to Meet Requirements
Similar to Those of Paragraphs 1.2, 1.3 and 1.4 of this Appendix. In the event
that Deferral Contributions or Aggregate Contributions are transferred from
another plan to this Plan and corrective distributions are required under
Section 401(k), 401(m) or 402(g) of the Code with respect to the transferred
contributions (including income thereon), the Administrator is authorized to
distribute to the affected Participant or return to the transferor plan the
transferred Deferral Contributions and Aggregate Contributions (including income
thereon) as may be necessary or appropriate to effect the corrective
distribution.
<PAGE>
CADMUS THRIFT SAVINGS PLAN
Appendix E
(As of January 1, 1995)
List of Transferor Plans
<TABLE>
Name of Transferor Plan Effective Date of Transfer
<S> <C>
Vaughan Printers, Inc. Employees Profit Sharing Plan December 31, 1987
</TABLE>
<PAGE>
CADMUS THRIFT SAVINGS PLAN
Appendix F
(As of January 1, 1995)
List of Named Fund Divisions
F-1.1 Named Fund Divisions. The investments funds referred to in clause
(iii) of subparagraph 10.6(b) of the Plan, each of which shall be considered a
separate Fund division (sometimes referred to as "divisions of the Fund", "Fund
divisions" or "investments funds" herein) as hereinafter provided, are the
following regulated investment companies and/or collective trust funds sponsored
by T. Rowe Price Associates, Inc. or any of its affiliates (sometimes referred
to as the "T. Rowe Price investment funds" or "T. Rowe Price Fund divisions"):
(i) T. Rowe Price Stable Value Fund.
(ii) T. Rowe Price Balanced Fund.
(iii) T. Rowe Price Equity Index Fund.
(iv) T. Rowe Price International Stock Fund.
(v) T. Rowe Price Growth Stock Fund.
(vi) T. Rowe Price Small-Cap Value Fund.
Exhibit 4.5
T. ROWE PRICE TRUST COMPANY
TRUST AGREEMENT FOR CADMUS THRIFT SAVINGS PLAN
This TRUST AGREEMENT is made this _____ day of _______, 199__, by and
between CADMUS COMMUNICATIONS CORPORATION, a Virginia corporation,
hereinafter referred to as the "Plan Sponsor," and T. ROWE PRICE TRUST
COMPANY, a Maryland limited trust company, hereinafter referred to as
"Price."
WITNESSETH
WHEREAS, the Plan Sponsor sponsors the Cadmus Thrift Savings Plan, a
defined contribution plan intended to be a qualified plan under Section
401(a) of the Internal Revenue Code ("Code"), which plan is hereinafter
referred to as the "Plan," for the benefit of all those individuals eligible
to participate under the Plan terms (including beneficiaries and alternate
payees); and
WHEREAS, prior to January 1, 1995, the Plan provided that the assets
thereof would be held in two separate trusts, one trusteed by First Union
National Bank and one trusteed by Price; and
WHEREAS, the Plan Sponsor desires to combine the separate trusts to have
all of the Plan assets held by Price for the benefit of Plan participants and
beneficiaries entitled to benefits, hereinafter sometimes referred to
individually as "Participants," with such Plan assets being invested in,
among other things, regulated investment companies and/or collective trust
funds sponsored by Price or T. Rowe Price Associates, Inc., which funds are
hereinafter referred to as "Price Investment Funds"; and
WHEREAS, Price has agreed to act as trustee for all of the Plan assets;
NOW, THEREFORE, the Plan Sponsor and Price agree as follows:
ARTICLE I - TRUST FUND
1.1 Trust. The Plan Sponsor hereby establishes with Price a trust account
or accounts ("Accounts") consisting of such sums of U.S. currency and such
other property acceptable to Price as shall from time to time be contributed
to, paid or delivered to Price pursuant to this Trust Agreement at the
address specified by Price. The Trust Accounts shall consist solely of Plan
assets invested in Price Investment Funds, the Company Stock Fund (as defined
in the Plan), the Loan Fund (as defined in the Plan) and/or any other Fund
decision provided in the Plan and as agreed in writing to be held by Price
pursuant to this Trust Agreement (sometimes referred to collectively as the
"Plan Investment Funds"). All such money and property, all investments and
reinvestments made therewith and proceeds thereof, less any payments or
distributions made by Price pursuant to the terms of this Trust Agreement are
referred to herein as the "Trust" and shall constitute a trust for purposes
of the Employee Retirement Income Security Act of 1974 ("ERISA"). The Trust
shall be held by Price in accordance with the express provisions of this
instrument and the requirements of law.
1.2 Custody of Trust Assets. Price is authorized to: (a) hold property
hereunder in bearer form or in its own name or the name of its nominee; (b)
combine certificates representing investments of the Trust with certificates
of the same issue held by Price or other fiduciaries; (c) hold securities in
definitive form on a segregated or nonsegregated basis or with a
correspondent bank or depository (or nominee of such bank or depository); and
(d) hold obligations of the United States Government and agencies thereof on
a book entry basis at the appropriate Federal Reserve bank, but the books and
records of Price shall, at all times, show that all such property and
securities are held in trust. Price shall not hold any property or
securities hereunder in the same account as any individual property of Price.
Price is also authorized to appoint a subcustodian to perform any of the
above functions.
1.3 Limitations of Price's Duties. With respect to its duties hereunder,
Price is a non-discretionary trustee and shall have no duty to: (a)
determine or enforce payment of any contribution due under the Plan; (b)
inquire into the accuracy of any contribution; (c) determine the adequacy of
the funding policy adopted by the Plan Sponsor to meet its obligations under
the Plan; (d) look into the propriety of any investment or distribution made
under the Plan; or (e) ensure the qualification of the Plan under the Code.
Price shall not be deemed to be the administrator, the Plan sponsor or a
"named fiduciary" of the Plan as defined in Sections 3(16)(A), 3(16)(B) and
402(a)(2), respectively, of ERISA.
ARTICLE II - ACCOUNTS
2.1 Establishing Accounts. Price shall open and maintain a trust Account
for that portion of the Plan which is (a) held for the benefit of Former
Waverly, Inc. Employees, and (b) invested in Price Investment Funds and/or
the Loan Fund (as defined in the Plan).
2.2 Charges Against Accounts. Upon receipt of written instructions from the
Plan Sponsor, Price shall charge the Account for any withdrawals, transfers
or distributions made under the Plan, for any forfeiture which may be
required under the Plan of unvested interests attributable to Plan Sponsor
contributions and for any fees which may be charged against the Trust assets.
ARTICLE III - INVESTMENT OF TRUST ASSETS
3.1 Investment of Trust Assets. Price shall not have any discretion, and is
specifically prohibited from having or exercising any discretion, with
respect to the investment of Trust assets. Except as provided in Section 3.3
(Participant Directed Investments) hereof, the Plan Sponsor shall be the
"named fiduciary" and shall be solely responsible for giving Price directions
as to the investment and disposition of the Trust assets, including, but not
limited to, guaranteed investment contracts, bank investment contracts,
synthetic investment contracts, certificates of deposit, insurance company
annuity contracts and stock of the Plan Sponsor or any affiliate of the Plan
Sponsor. Price, unless it has knowledge that an investment direction
constitutes a violation of ERISA or any other applicable law, shall be
entitled to rely on such direction, and Price shall not review any securities
or other assets or make suggestions with respect to the investment,
reinvestment, retention or disposition of any Trust assets. Price shall
invest and reinvest the Trust's assets only as directed and free from any
limitations imposed by state law on investments of trust funds and without
distinction between income and principal in any property, including, but not
limited to, common and preferred stocks, governmental obligations, equipment,
trust certificates, participation certificates, investment companies or
trusts (including any investment company or trust which has an investment
advisory or other agreement with an affiliate of Price), collateral trust
notes, savings and time deposits, commercial paper (including participation
in variable amount notes), leasebacks, mortgages and other interests in
realty, corporate bonds, debentures, notes and other evidences of
indebtedness, secured or unsecured, non-income producing securities or
property, options and participation in any group or common trust funds,
including any such funds held or maintained by an affiliate of Price, for
commingling assets of participating trusts and exempt from Federal income
tax, but not limited to, any group or common trust fund which is qualified
under the provisions of Section 401(a) of the Code or any successor
provisions thereto (the instrument of trust creating any such qualified group
or common trust fund, to the extent of the Trust's equitable share thereof,
being adopted hereby).
3.2 Written Instruction. Any action of the Plan Sponsor pursuant to any
provisions of this Trust Agreement shall be in writing from the Plan Sponsor,
and Price shall be fully protected in relying upon such written notification
as actions of the Plan Sponsor. The term "Plan Sponsor," as used throughout
this Agreement, includes any duly authorized designee of the Plan Sponsor,
such as a Plan Administrator or the Benefits Committee (as defined in the
Plan), or any individual having apparent authority as such. If written
instructions are not received by Price, or if such instructions are received
but are deemed by Price to be unclear, upon notice to the Plan Sponsor, Price
may elect to hold all or part of any such contribution in cash, without
liability for rising security prices or distributions made, pending receipt
by it from the Plan Sponsor of written instructions or other clarification.
If any contributions received by Price from the Plan Sponsor are less than
any minimum which a directed investment requires, Price may hold the
specified portion of such contributions in cash, without interest, until such
time as the proper amount has been contributed so that the directed
investment may be made. Price shall receive all directions or instructions
in writing provided that Price may accept oral directions for purchases or
sales from the Plan Sponsor or a Participant with subsequent written
confirmation.
3.3 Participant Directed Investments. When so instructed by the Plan
Sponsor, Price shall invest all of the individual Accounts of any Participant
in and/or among the Plan Investment Funds as directed by said Participant.
Such directed investments shall be accounted for separately for each
Participant. The Plan Sponsor or its designee shall have the duty to select
and monitor all investment options made available to Participants under the
Plan. The Plan Sponsor shall ensure that all Participants who are entitled
to direct the investment of assets in their Accounts previously received or
receive a copy of all material describing the Price Investment Funds that is
required by law. Delivery of investment directions by the Plan Sponsor in
accordance with the instructions of a Participant or by the Participant
directly to Price shall entitle Price to assume that the Participant has
received all such descriptive material. Each Participant who directs the
investment of his Accounts shall be solely and absolutely responsible for the
investment, or reinvestment, of any such directed Plan investment held on his
behalf in the Trust, and, except as otherwise provided herein, Price shall
not question any such direction, review any securities or other such assets,
or make suggestions with respect to the investment, reinvestment, retention
or disposition of any such assets. Price shall not have any liability or
responsibility for diversification of such assets, for any loss to or
depreciation of such assets because of the purchase, retention or sale of
assets in accordance with a Participant's direction, and the Participant
shall have sole responsibility for the overall diversification, liquidity and
prudence of the investments of his Accounts. If a Participant fails to
direct the investments of his Accounts, Price shall invest his Accounts in
accordance with the written directions of the Plan Sponsor.
3.4 Plan Sponsor Directed Investments. The Plan Sponsor, by written
direction to Price, is authorized to designate all or a portion of the Trust
assets of which the Plan Sponsor will direct investments, and Price may
segregate such assets into one or more separate accounts or administer the
Trust as one account. Whether or not the Trust is segregated into separate
accounts, Price shall invest such portion of the Trust as directed by the
Plan Sponsor only to the extent that such instruction is consistent with
ERISA and any other applicable legal authority. Price shall have no duty to
question any action or direction of the Plan Sponsor or any failure of the
Plan Sponsor to give directions, or to review the securities or other
investments which are held pursuant to the Plan Sponsor's directions, or to
make suggestions to the Plan Sponsor as to the investment, reinvestment,
retention or disposition of any such assets. Price shall not have any
liability or responsibility for diversification of such assets, or for any
loss to or the depreciation of such assets because of the purchase, retention
or sale of assets in accordance with the Plan Sponsor's direction. The Plan
Sponsor shall have responsibility for the overall diversification of the
Trust.
3.5 Price's Liability with Respect to Plan Sponsor or Participant Directed
Accounts. Price shall not be liable for, and the Plan Sponsor will indemnify
and hold harmless Price (including its affiliates, employees, representatives
and agents) from and against, any liability or expense (including counsel
fees) because of: (a) any investment action taken or omitted by Price in
accordance with any direction of the Plan Sponsor or a Participant; or (b)
any investment inaction in the absence of investment directions from the Plan
Sponsor or a Participant; or (c) any investment action taken by Price
pursuant to an order to purchase or sell securities placed by the Plan
Sponsor or a Participant directly with a broker, dealer or issuer.
3.6 Limitations on Investments. Notwithstanding any other provision of this
Trust Agreement to the contrary:
(a) Price may establish such reasonable rules and regulations, applied
on a uniform basis to all Participants, with respect to the requirements for,
and the form and manner of, effecting any transaction with respect to
Participant directed investments as Price shall determine to be consistent
with the purposes of the Plan. Any such rules and regulations shall be
binding upon all persons interested in the Trust.
(b) In no event shall Price engage in any transactions that would be
prohibited under ERISA.
3.7 "Knowledge" of Price. It is understood that although, when Price is
subject to the direction of the Plan Sponsor or a Participant, Price will
perform certain ministerial duties ("Ministerial Duties") with respect to the
portion of the Trust subject to such direction, such duties do not involve
the exercise of any discretionary authority to manage or control Trust
assets. Such Ministerial Duties will be performed in the normal course of
business by employees of Price, its affiliates, or agents who may be
unfamiliar with investment management. It is agreed that Price is not
undertaking any duty or obligation, express or implied, to review, and will
not be deemed to have any knowledge of or responsibility with respect to, any
transaction involving the investment of the Trust as a result of the
performance of these Ministerial Duties. Therefore, in the event that
"knowledge" of Price shall be a prerequisite to imposing a duty upon or
determining liability of Price under the Plan, this Trust Agreement or any
law regulating the conduct of directed trustees with respect to the
investment of trust assets, as a result of any act or omission of the Plan
Sponsor, or any Participant, or as the result of any transaction engaged in
by any of them, then the receipt and processing of investment orders and
other documents relating to Trust assets by an employee of Price or its
affiliates or agents engaged in the performance of purely Ministerial Duties
shall not constitute "knowledge" of Price.
ARTICLE IV - DUTIES OF PRICE
4.1 Duties of Price. Price is authorized and empowered with respect to the
Trust:
(a) To make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any and all other instruments that may be
necessary or appropriate to carry out the powers herein granted.
(b) To register any investment held in the Trust in the name of Price
or in the name of a nominee, and to hold any investment in bearer form, but
the books and records of Price shall at all times show that all such
investments are part of the Trust.
(c) To employ suitable agents and counsel (who may also be agents
and/or counsel for the Plan Sponsor) and to pay their reasonable expenses and
compensation.
(d) To borrow or raise monies for the purpose of the Trust from any
source and, for any sum borrowed, to issue its promissory note as Trustee and
to secure the repayment thereof by pledging all or any part of the Trust, but
nothing contained herein shall obligate Price to render itself liable
individually for the amount of any such borrowing; and no person loaning
money to Price shall be bound to see the application of money loaned or to
inquire into the validity or propriety of any such borrowing.
Each and all of the foregoing powers may be exercised without a court
order or approval. No one dealing with Price need inquire concerning the
validity or propriety of anything that is done or need see the application of
any money paid or property transferred to or upon the order of Price.
4.2 General Powers. Price shall have all of the powers necessary or
desirable to do all acts, take such procedures and exercise all such rights
and privileges, whether or not expressly authorized herein, which it may deem
necessary or proper for the protection of the Trust and to accomplish any
action provided for in this Separate Trust Agreement.
4.3 Valuation of Trust. Price, as of the valuation date, and at such other
time or times as is necessary, shall determine the net worth of the assets of
the Trust. Price may adopt such methods of valuation as it deems advisable.
4.4 Trust Records. Price shall keep accurate and detailed records of all
receipts, investments, disbursements and other transactions required to be
performed hereunder with respect to the Trust. Price agrees to treat as
confidential all records and other information relative to the Trust. Price
shall not disclose such records and other information to third parties except
to the extent required by law or as requested in writing by the Plan Sponsor.
4.5 Distributions. At the direction of the Plan Sponsor, Price shall make
distributions from the Trust to the Plan Sponsor for the benefit of the
Participants and, to the extent agreed to by Price, shall make distributions
from the Trust directly to the Participants. Price shall not be liable or
responsible for any errors made by the Plan Sponsor with respect to
distributions. Price shall be entitled to rely conclusively upon the Plan
Sponsor's directions. Notwithstanding any other provision of this Trust
Agreement, Price may condition its delivery, transfer or distribution of any
Trust assets upon Price's receiving satisfactory assurances that the approval
of appropriate governmental agencies or other authorities have been secured
and that all notice and other procedures required by applicable law have been
satisfied.
4.6 Price's Fees. Price's fees for performing its duties hereunder shall be
such reasonable amounts as shall be established by it from time to time.
Price shall furnish to the Plan Sponsor its current schedule of fees and give
written notice to the Plan Sponsor whenever its fees are changed or revised.
Such fees, any taxes of any kind whatsoever which may be levied or assessed
upon the Trust, and any expenses incurred by Price in the performance of its
duties, including fees for legal services rendered to Price, shall, unless
paid by the Plan Sponsor, be paid from the Trust.
4.7 Duties not Assigned. The duties of Price with respect to the Trust are
limited to those assumed by Price under the terms of this Trust Agreement.
Price shall not be responsible for filing reports, returns or disclosures
with any government agency except as may otherwise be required by its duties
as Trustee under applicable law.
4.8 Standards for Price's Powers. Notwithstanding any other provision of
this Trust Agreement, Price shall discharge its duties hereunder solely in
the interest of the Participants and for the exclusive purpose of providing
benefits to the Participants and defraying reasonable expenses of
administering the Trust, with the skill, care, prudence and diligence under
the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims. Price shall perform its
duties in accordance with this Trust Agreement insofar as this Trust
Agreement is consistent with the provisions of ERISA. To the extent not
prohibited by ERISA, Price shall not be responsible in any way for any action
or omission of the Plan Sponsor with respect to the performance of its duties
and obligations set forth in this Trust Agreement and in the Plan. Price may
rely upon such information, direction, action or inaction of the Plan Sponsor
as being proper under the Plan or this Trust Agreement and is not required to
inquire into the propriety of any such information, direction, action or
inaction. To the extent not prohibited by ERISA, Price shall not be
responsible for any action or omission of any of its agents, or with respect
to reliance upon advice of its counsel (whether or not such counsel is also
counsel to the Plan Sponsor), provided that such agents or counsel were
prudently chosen by Price and that Price relied in good faith upon the action
of such agent or the advice of such counsel.
ARTICLE V - DUTIES OF THE PLAN SPONSOR
5.1 Duties of the Plan Sponsor. It is understood that the Plan Sponsor
shall be responsible for the performance of the following functions with
respect to the Trust:
(a) Transmitting all Trust contributions made by or on behalf of each
Participant in accordance with the instructions of each Participant to Price
at such times and in such manner as is mutually agreed between the Plan
Sponsor and Price.
(b) Determining that the contributions made by or on the behalf of each
Participant are in accordance with any applicable Federal and state law and
regulations.
(c) Assuring that the Plan maintains qualified status under applicable
provisions of the Code.
5.2 Bonding. The Plan Sponsor agrees to obtain and maintain a fiduciary
bond and to include as those covered by such bond the employees of the Plan
Sponsor, the Plan Administrator and Price, including any of their employees,
officers and agents required by law to be so covered. The cost of any such
bond shall be paid by the Plan Sponsor.
5.3 Information and Data to be Furnished to Price. The Plan Sponsor shall
furnish Price with such information and data relevant to that portion of the
Plan as is necessary for Price to properly perform its duties assumed
hereunder, including but not limited to a copy of the Plan's qualification
letter from the Internal Revenue Service.
5.4 Limitation of Duties. Neither the Plan Sponsor nor any of its officers,
directors, partners or agents shall have any duties or obligations with
respect to this Trust Agreement, except those expressly set forth herein, in
the Plan and in ERISA.
5.5 Qualified Domestic Relations Orders. It shall be the responsibility of
the Plan Sponsor to determine whether any domestic relations order is
"qualified" in accordance with Code Section 414(p). Price will act only as
directed by the Plan Sponsor with respect to the payment of benefits to an
alternate payee under any qualified domestic relations order.
ARTICLE VI - TERMINATION OF SEPARATE TRUST AGREEMENT
6.1 Resignation or Removal of Price. Price may resign at any time upon
thirty days prior written notice to the Plan Sponsor and may be removed by
the Plan Sponsor at any time upon thirty days' prior written notice to Price.
Upon resignation or removal of Price, the Plan Sponsor shall appoint a
successor trustee. Upon receipt by Price of written acceptance of such
appointment by the successor trustee, Price shall transfer and pay over to
the successor the assets of the Trust and all records (or copies) pertaining
thereto. Price is authorized, however, to reserve such sum of money or
property as it may deem advisable for payment of all fees, compensation,
costs and expenses, or for payment of any liabilities constituting a charge
on or against the assets of the Trust or on or against Price, with any
balance of such reserve remaining after payment of all such items to be paid
over to the successor trustee. Upon the assignment, transfer and payment
over of the assets of the Trust, and obtaining a receipt thereof from the
successor trustee, Price shall be released and discharged from any and all
claims, demands, duties and obligations arising out of the Trust and its
management thereof, excepting claims based only upon Price's willful
misconduct or bad faith or failure to act as a prudent professional, and
executing claims for which Price is liable under ERISA. The successor
trustee shall hold the assets paid over to it under the terms similar to
those of this Trust Agreement under a trust that will qualify under Section
401(a) of the Code. If within thirty days after Price's resignation or
removal, the Plan Sponsor has not appointed a successor trustee which has
accepted such appointment, Price shall, unless it elects to terminate the
Trust pursuant to Section 6.3 hereof, appoint such successor trustee itself.
6.2 Termination of the Trust. Subject to the right of Price to terminate
the Trust in accordance with Section 6.3 hereof, this Trust shall continue as
to the Plan Sponsor so long as the Plan is in full force and effect. If the
Plan ceases to be in full force and effect, this Trust shall thereupon
terminate unless expressly extended by the Plan Sponsor.
6.3 Termination of the Trust by Price. Price may elect to terminate the
Trust if within thirty days after its resignation or removal pursuant to
Section 6.1 hereof, the Plan Sponsor has not appointed a successor trustee
which has accepted such appointment. Termination of the Trust shall be
effected by distribution of all assets thereof to the Participants or other
persons entitled thereto pursuant to the directions of the Plan Sponsor (or,
in the absence of such direction, as determined by Price), subject to Price's
right to reserve funds as provided in Section 6.1 hereof. Upon the
completion of such distribution, Price shall be relieved from all further
liability with respect to all amounts so paid, other than any liability
arising out of the Trustee's willful misconduct or bad faith or failure to
act as a prudent professional, and executing claims for which Price is liable
under ERISA.
ARTICLE VII - MISCELLANEOUS
7.1 Purpose. This Trust has been established for the exclusive benefit of
the Participants. Except as provided herein or in the Plan, it shall be
impossible at any time prior to the satisfaction of all liabilities to the
Participants for any part of the principal or income of the Trust, other than
such part as is required to pay taxes, administrative expenses or refund
contributions as provided herein, to be paid or diverted to the Plan Sponsor
or to be used for any purpose whatsoever other than for the exclusive benefit
of the Participants.
7.2 Indemnification. The Plan Sponsor shall indemnify and hold harmless
Price (including its affiliates, employees and directors) from and against
any liability, cost or other expense, including, but not limited to, the
payment of attorneys' fees which Price may incur in connection with this
Trust Agreement or the Plan unless such liability, cost or expense arises
from Price's own willful misconduct or bad faith or failure to act as a
prudent professional, and executing claims for which Price is liable under
ERISA. Price shall not be obligated or expected to commence or defend any
legal action or proceeding in connection with this Trust Agreement unless
agreed upon in writing by Price and the Plan Sponsor where Price is entitled
to indemnification and unless Price is fully indemnified for doing so to its
reasonable satisfaction. Price shall indemnify and hold harmless the Plan
Sponsor (including its affiliates, employees or directors) from and against
any liability, cost or other expense, including, but not limited to the
payment of attorney's fees, where such liability, cost or expense arises from
Price's own willful misconduct, bad faith or failure to act as a prudent
professional.
7.3 Conflict with the Plan Document. In the event of any conflict between
the provisions of the Plan document and this Trust Agreement, the provisions
of this Trust Agreement shall prevail.
7.4 Construction. Whenever used in this Trust Agreement, unless the context
indicates otherwise, the singular shall include the plural, the plural shall
include the singular, and the male gender shall include the female gender.
7.5 Headings. Headings in this Trust Agreement are inserted solely for
convenience of reference and shall neither constitute a part of this Trust
Agreement, nor affect its meaning, construction or intent.
7.6 Severability. If any provision of this Trust Agreement is held invalid
or unenforceable, such invalidity or unenforceability shall not affect any
other provision, and this Trust Agreement shall be construed and enforced as
if such provision had not been included.
7.7 Return of Contributions. Contributions are conditioned on deductibility
under Section 404 of the Code. Price may return amounts to the Plan Sponsor
or any affiliate of the Plan Sponsor upon the Plan Sponsor's written
direction due to a "mistake of fact" or the disallowance of a deduction as
described in Section 403(c) of ERISA. Contributions made by the Plan Sponsor
or any affiliate of the Plan Sponsor by "mistake of fact" or the disallowance
of a deduction may revert and be paid to the Plan Sponsor within one year
after the payment of such mistaken contributions or disallowance. In making
such a return of assets to the Plan Sponsor or any affiliate of the Plan
Sponsor, Price may accept the Plan Sponsor's written direction as its
warranty that such payment is provided for in the Plan and complies with such
plan provision and ERISA Section 403(c), and Price need make no further
investigation.
7.8 Voting. The Plan Sponsor shall direct Price as to the manner in which
it shall:
(a) vote in person or by proxy, general or special, any securities held
in the Trust;
(b) exercise conversion privileges, subscription rights and other
options; and
(c) participate in or dissent from reorganizations, tender offers or
other changes in property rights.
Notwithstanding the foregoing and Section 7.9 of this Trust Agreement,
Price shall follow any directions of the Plan Sponsor in the performance of
these functions only to the extent that following such directions would not
violate the provisions of ERISA.
7.9 Qualifying Employer Securities.
(a) General. The Trustee shall exercise all voting or tender offer
rights with respect to any qualifying employer securities, as defined in
Section 407(d)(5) of ERISA (individually, "Qualifying Employer Security" and
collectively, "Qualifying Employer Securities") held by it in accordance with
instructions from Participants made pursuant to the Plan. Each Participant
shall be a named fiduciary within the meaning of Section 403(a)(1) of ERISA
for the purpose of directing the voting and tendering of Qualifying Employer
Securities allocated to his Account. Each Participant may direct the
Trustee, confidentially, how to vote or whether or not to tender the
Qualifying Employer Securities representing shares allocated to the
individual account of that Participant. Upon timely receipt of direction,
the Trustee shall vote or tender all such shares of Qualifying Employer
Securities as directed by the Participants. The Plan Sponsor shall use
reasonable procedures to inform Participants as to what action will be taken
in the absence of such affirmative instructions. In the case of a tender
offer or other right or option with respect to Qualifying Employer
Securities, a Participant who does not issue valid directions to the Trustee
to sell, offer to sell, exchange or otherwise dispose of such Qualifying
Employer Securities shall be deemed to have directed the Trustee that such
shares allocated to that Participant's individual account shall remain
invested in Qualifying Employer Securities. The Plan Sponsor shall provide
the Trustee with all information and assistance that the Trustee may
reasonably request in order for the Trustee to perform its duties hereunder.
(b) Plan Sponsors Not Opting to Comply with ERISA Section 404(c)
Regulations. If the Plan Sponsor does not opt to comply with ERISA Section
404(c) and the regulations issued thereunder in any given year, the Plan
Sponsor shall direct the Trustee how to vote shares of Qualifying Employer
Securities for which no Participant direction is received. Other than as
provided for in Section 7.9(a) with respect to tender offers, the Plan
Sponsor will not instruct the Trustee that the shares remain unvoted.
(c) Plan Sponsors Opting to Comply with ERISA Section 404(c)
Regulations. If the Plan Sponsor opts to comply with ERISA Section 404(c)
and the regulations issued thereunder, the Plan Sponsor shall complete
Exhibit A on an annual basis within a reasonable time prior to the date of
any shareholder meeting for Qualifying Employer Securities. Upon receipt of
a properly executed Exhibit A, the Trustee shall not vote those Participant's
shares for which no instruction is received. If the Employer fails to file
an Exhibit A certification with the Trustee, the Trustee shall follow the
procedures established in Section 7.9(b) of this Trust Agreement
7.10 Nonalienation of Benefits. No rights or claims to any of the monies or
other assets of the Trust shall be assignable, nor shall such rights or
claims be subject to garnishment, attachment, execution or levy of any kind;
and any attempt to transfer, assign or pledge the same, except as
specifically permitted by law, shall not be recognized by Price.
7.11 Amendments. The Plan Sponsor and Price may amend this Trust Agreement
at any time by a written agreement between them; provided, however, that no
such amendment shall make it possible for any part of the corpus or income of
the Fund to be used or diverted to purposes other than the exclusive benefit
of Participants and defraying reasonable expenses of administering the Plan
and Trust.
7.12 Inspection of Plan Records by Plan Sponsor. Price agrees to permit the
Plan Sponsor to inspect the records of the Trust maintained by Price during
regular business hours and to permit the Plan Sponsor to audit the same upon
the giving of reasonable notice to Price. Price further agrees that it will
provide the Plan Sponsor with information and records that the Plan Sponsor
may reasonably require in order to perform audits of said records.
7.13 Law Governing. This Agreement shall be administered, construed and
enforced according to the laws of the State of Maryland and applicable
Federal law.
7.14 Merger, Consolidation or Transfer. In the event of the merger,
consolidation or transfer of any portion of the Trust to a trust fund held
under any other plan, Price shall dispose of all or part, as the case may be,
of the Trust, in accordance with the written directions of the Plan Sponsor,
subject to the right of Price to reserve funds as provided in Section 6.1
hereof.
7.15 Price as Successor Trustee. If Price is acting as a successor trustee
with respect to the Trust, the Plan Sponsor shall indemnify Price against all
liabilities with respect to the Trust arising prior to the appointment of
Price and its acceptance thereof.
7.16 Successors and Assigns. This Trust Agreement shall be binding upon the
successor and assigns of the parties hereto.
7.17 Effective Date. This Trust Agreement shall generally be effective as of
January 1, 1995, but shall only be effective with respect to Plan assets held
by First Union National Bank as of the date of transfer to T. Rowe Price
Trust Company of such assets which are to be held in trust pursuant to this
Trust Agreement but in any event no earlier than the later of January 1,
1995, or the date Price executes this Agreement. This Trust Agreement
replaces and supercedes that certain Separate Trust Agreement dated November
5, 1993.
IN WITNESS WHEREOF, the Plan Sponsor and Price have caused their duly
authorized officers to execute this Trust Agreement on the date(s) herein
below written.
ATTEST: CADMUS COMMUNICATIONS CORPORATION
___________________________ By:
(SEAL)
Title and Date
ATTEST: T. ROWE PRICE TRUST COMPANY
___________________________ By:
(SEAL)
Title and Date
<PAGE>
EXHIBIT A TO
THE TRUST AGREEMENT BETWEEN
THE T. ROWE PRICE TRUST COMPANY AND
CADMUS COMMUNICATION CORPORATION
Certification of Compliance with ERISA Section 404(c)
and Applicable Regulations
The Plan Sponsor shall certify the following in writing within a
reasonable time prior to any shareholder meeting for Qualified Employer
Securities:
I represent that I am a Plan fiduciary of the (Name of
Plan) ("Plan"). In such capacity, I hereby certify that
the Plan is in compliance with ERISA Section 404(c) and
the Regulations issued thereunder.
Exhibit 5 and 23.2
[MAYS & VALENTINE LETTERHEAD]
(804) 697-1298 09948.074
November 29, 1994
Cadmus Communications Corporation
6620 West Broad Street
Suite 500
Richmond, Virginia 23230
Gentlemen:
You propose to file with the Securities and Exchange Commission a
registration statement on Form S-8 (the "Registration Statement") relating to
380,000 shares of Cadmus Communications Corporation Common Stock, $0.50 par
value (the "Common Stock"), to be issued under the Cadmus Communications
Corporation 1990 Long Term Incentive Stock Plan, as amended (the "Incentive
Plan") and 750,000 shares of the Common Stock to be issued under Company's
Thrift Savings Plan (the "Thrift Plan") (collectively, the "Plans"). The shares
of Common Stock to be issued will be authorized but unissued shares.
We have been requested to furnish an opinion regarding certain legal
matters to be included as an exhibit to the Registration Statement. The opinion
set forth below is rendered as of the date hereof and its applicability on any
future date is conditioned upon the non-occurrence of any event which would
affect the validity of the issuance of Common Stock covered by the Registration
Statement.
In connection with this opinion, we have examined such records and
documents as we have deemed relevant and necessary in order to render this
opinion.
We are of the opinion that:
The shares of Common Stock that may be issued under the
Incentive Plan and the Thrift Plan that are the subject of
the Registration Statement, when issued for the consideration
provided for and in the manner and under the conditions set
forth in the Plans and the instruments under which they are
granted, will be validly issued, fully paid and
nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Interests
of Named Experts and Counsel" therein.
Very truly yours,
/s/Mays & Valentine
225/966
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8, pertaining to the 1990 Long Term Incentive Stock Plan and the Thrift
Savings [401(k)] Plan of Cadmus Communications Corporation, of our report dated
August 2, 1994, on our audits of the consolidated financial statements and
financial statement schedules of Cadmus Communications Corporation and
Subsidiaries (the "Company") as of June 30, 1994 and 1993, and for each of the
three years in the period ended June 30, 1994, which report is included in the
Annual Report on Form 10-K of the Company for the fiscal year ended June 30,
1994.
We also consent to the reference of our firm in "Item 5. Interests of Named
Experts and Counsel."
/s/ Coopers & Lybrand L.L.P.
Richmond, Virginia
November 29, 1994
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each undersigned director of
CADMUS COMMUNICATIONS CORPORATION, a corporation organized under the laws of the
Commonwealth of Virginia (the "Corporation") hereby constitutes and appoints C.
Stephenson Gillispie, Jr. and Bruce V. Thomas (with full power to each of them
to act alone) as true and lawful attorneys-in-fact and agents for him and on his
behalf and in his name, place and stead, in any and all capacities, to sign,
execute and affix his seal to and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 or any other appropriate form and all amendments
(including post-effective amendments) thereto with all exhibits and any and all
documents required to be filed with respect thereto, relating to the
registration under the Securities Act of 1933 of common stock of the Corporation
in connection with stock options and other awards issued by the Corporation
under its 1990 Long Term Incentive Stock Plan, as amended; granting unto said
attorneys, and each of them, full power and authority to do and to perform each
and every act and thing requisite and necessary to be done in and about the
premises in order to effectuate the same as fully to all intents and purposes as
he himself might or could do if personally present, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each undersigned director has hereunto set his
hand and seal, as of the date specified.
Dated: November 9, 1994.
/s/ Robert I. Dalton, Jr. /s/ Frank Daniels, III
Robert I. Dalton, Jr. Frank Daniels, III
/s/ Lee P. Dudley /s/ C. Stephenson Gillispie, Jr.
Lee P. Dudley C. Stephenson Gillispie, Jr.
/s/ Price H. Gwynn, III /s/ Frank G. Louthan, Jr.
Price H. Gwynn, III Frank G. Louthan, Jr.
/s/ John D. Munford, II /s/ John C. Purnell, Jr.
John D. Munford, II John C. Purnell, Jr.
/s/ Russell M. Robinson, II /s/ John W. Rosenblum
Russell M. Robinson, II John W. Rosenblum
/s/ Wallace Stettinius /s/ Bruce A. Walker
Wallace Stettinius Bruce A. Walker
Exhibit 24.2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each undersigned director of
CADMUS COMMUNICATIONS CORPORATION, a corporation organized under the laws of the
Commonwealth of Virginia (the "Corporation") hereby constitutes and appoints C.
Stephenson Gillispie, Jr. and Bruce V. Thomas (with full power to each of them
to act alone) as true and lawful attorneys-in-fact and agents for him and on his
behalf and in his name, place and stead, in any and all capacities, to sign,
execute and affix his seal to and file with the Securities and Exchange
Commission (or any other governmental or regulatory authority) a Registration
Statement on Form S-8 or any other appropriate form and all amendments
(including post-effective amendments) thereto with all exhibits and any and all
documents required to be filed with respect thereto, relating to the
registration under the Securities Act of 1933 of common stock of the Corporation
and any related plan interests in connection with stock issued by the
Corporation under its Thrift Savings Plan and any interests in the plan that may
constitute separate securities; granting unto said attorneys, and each of them,
full power and authority to do and to perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully to all intents and purposes as he himself might or
could do if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, each undersigned director has hereunto set his
hand and seal, as of the date specified.
Dated: November 9, 1994.
/s/ Robert I. Dalton, Jr. /s/ Frank Daniels, III
Robert I. Dalton, Jr. Frank Daniels, III
/s/ Lee P. Dudley /s/ C. Stephenson Gillispie, Jr.
Lee P. Dudley C. Stephenson Gillispie, Jr.
/s/ Price H. Gwynn, III /s/ Frank G. Louthan, Jr.
Price H. Gwynn, III Frank G. Louthan, Jr.
/s/ John D. Munford, II /s/ John C. Purnell, Jr.
John D. Munford, II John C. Purnell, Jr.
/s/ Russell M. Robinson, II /s/ John W. Rosenblum
Russell M. Robinson, II John W. Rosenblum
/s/ Wallace Stettinius /s/ Bruce A. Walker
Wallace Stettinius Bruce A. Walker
