EXHIBIT 10.(v)
MONROE BANCORP THRIFT PLAN
Amended and Restated
Generally Effective January 1, 1991
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MONROE BANCORP THRIFT PLAN
TABLE OF CONTENTS
ARTICLE PAGE
INTRODUCTION 1
PURPOSE AND APPLICABILITY OF PLAN 1
I DEFINITIONS 1
1.1 Adjustment 1
1.2 Adjustment Factor 2
1.3 Annual Additions 2
1.4 Beneficiary 2
1.5 Board 3
1.6 Break in Service 3
1.7 Code 3
1.8 Committee 3
1.9 Compensation 3
1.10 Defined Benefit Plan 5
1.11 Defined Contribution Plan 5
1.12 Effective Date 6
1.13 Employee 6
1.14 Employer 7
1.15 Employment Commencement Date 8
1.16 ERISA 8
1.17 Family Member 8
1.18 Fiduciary 8
1.19 Fund 8
1.20 Highly Compensated Employee 8
1.21 Hour of Service 9
1.22 Inactive Participant 11
1.23 Individual Account 11
1.24 Key Employee 11
1.25 Limitation Year 12
1.26 Matching Contributions 12
1.27 Matching Contributions Account 12
1.28 Maximum Permissible Amount 12
1.29 Net Profits 13
1.30 Non-Highly Compensated Employee 13
1.31 Participant 13
1.32 Plan 13
1.33 Plan Year 13
1.34 Profit Sharing Contributions 13
1.35 Profit Sharing Account 13
1.36 Qualified Non-Elective Contributions 13
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ARTICLE PAGE
1.37 Qualified Non-Elective Contributions
Account 13
1.38 Related Plan 14
1.39 Rollover Account 14
I. DEFINITIONS (Continued)
1.40 Salary Redirection Contributions 14
1.41 Salary Redirection Contributions Account 14
1.42 Service 14
1.43 Top-Heavy Provisions 15
1.44 Total and Permanent Disability 19
1.45 Trust Agreement 20
1.46 Trustee 20
1.47 Valuation Date 20
II PARTICIPATION 20
2.1 Eligibility and Participation 20
2.2 Plan Binding 22
2.3 Reemployment 22
2.4 Beneficiary Designation 22
2.5 No Credit Upon Acquisition and Recognition
of Past Service 23
2.6 Salary Redirection Election 23
III CONTRIBUTIONS 24
3.1 Profit Sharing Contributions 24
3.2 Rollover Contributions 24
3.3 Salary Redirection Contributions 26
3.4 Adjustment to Salary Redirection 29
3.5 Distribution of Excess Salary
Redirection Amounts 33
3.6 Distribution of Excess Contributions 35
3.7 Matching Contributions 37
3.8 Nondiscrimination Requirements For
Matching Contributions 37
3.9 Distribution of Excess Aggregate
Contributions 42
3.10 Exclusive Benefit of Employees 44
3.11 Qualified Non-Elective Contributions 45
IV ALLOCATIONS TO INDIVIDUAL ACCOUNTS 45
4.1 Individual Accounts 45
4.2 Allocation of Profit Sharing Contributions 46
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ARTICLE PAGE
4.3 Allocation of Matching Contributions 46
4.4 Allocation of Adjustments 46
4.5 Allocation of Forfeitures 47
4.6 Trustee and Committee Judgment Controls 48
4.7 Maximum Allocations 48
4.8 Corrective Adjustments 48
4.9 Limitations on Benefits of Participants
Participating in More than One Plan 49
V TERMINATION OF SERVICE AND VESTING 51
5.1 Vesting 51
5.2 Cash-Out Distributions to Partially-Vested
Participants/Restoration of Forfeited
Accrued Benefits 52
5.3 Segregated Account for Repaid Amount 54
5.4 Year of Service-Vesting 55
5.5 Included Years of Service-Vesting 55
5.6 Forfeiture Occurs 55
5.7 Benefits to Minors and Incompetents 55
VI TIME AND METHOD OF PAYMENT OF BENEFITS 56
6.1 Time of Payment of Benefits 56
6.2 Method of Payment 59
6.3 Distributions Under Qualified Domestic
Relations Orders 61
6.4 Annuity Distributions to Participants
and Surviving Spouses 62
6.5 Valuation of Individual Accounts 62
6.6 Minimum Required Distributions 63
6.7 Direct Rollovers 63
VII FUNDING 64
7.1 Contributions 64
7.2 Trustee 64
7.3 Funding Policy 65
VIII PLAN ADMINISTRATION 65
8.1 Fiduciaries 65
8.2 Employer 66
8.3 Trustee 66
8.4 Benefits Committee 67
8.5 Claims Procedures 68
8.6 Records 69
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ARTICLE PAGE
8.7 Disclosures to Participants 70
8.8 No Liability 70
8.9 Indemnity of Committee Members 71
8.10 Employer Direction of Investment 71
8.11 Amendment to Vesting Schedule 71
8.12 Discretionary Powers and Authority
of the Employer and Committee 72
IX AMENDMENT AND TERMINATION OF THE PLAN 72
9.1 Amendment of the Plan 72
9.2 Termination of the Plan 73
X MISCELLANEOUS 74
10.1 Governing Law 74
10.2 Headings and Gender 74
10.3 Administration Expenses 75
10.4 Participant's Rights; Acquittance 75
10.5 Spendthrift Clause 75
10.6 Merger, Consolidation or Transfer 75
10.7 Counterparts 76
10.8 Mistake of Fact 76
10.9 No Enlargement of Employment Rights 76
10.10 No Guarantee 77
10.11 Prudent Man Rule 77
10.12 Limitations on Liability 77
XI ADOPTION OF THE PLAN 77
SIGNATURES 78
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INTRODUCTION
PURPOSE AND APPLICABILITY OF PLAN
Effective January 1, 1991, Monroe Bancorp (the "Employer") adopts the
Monroe Bancorp Thrift Plan (the "Plan") as set forth herein.
This Plan, together with the Monroe Bancorp Thrift Plan Trust Agreement
(the "Trust"), is intended to be qualified under Sections 401(a), 401(k) and
501(a) of the Internal Revenue Code of 1986, as amended (the "Code"); and to
meet all the requirements of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"). The Plan shall be interpreted, wherever possible, so
as to comply with the terms of the Code, ERISA, and all formal regulations and
rulings issued thereunder.
The purpose of this Plan is to provide additional incentive and
retirement security for eligible employees by permitting them to share in the
Employer's profits and to contribute to their retirement.
This Plan and its related Trust is a complete amendment and restatement
of the Monroe Bancorp Employees' Profit Sharing Plan which was originally
effective January 1, 1986 which is replaced by this Plan and its related Trust.
The provisions of this Plan shall generally be effective for Plan Years
commencing after December 31, 1990, unless otherwise specifically provided
herein or required by applicable law.
The provisions of the Plan and Trust shall apply to individuals who are
employed by the Employer on and after the Effective Date. The rights and
benefits, if any, of individuals who were employed by the Employer prior to the
Effective Date shall be determined in accordance with the provisions of the
Plan, if any, in effect on the date their employment terminated.
ARTICLE I
DEFINITIONS
Whenever the initial letter of a word or phrase is capitalized herein,
the following words and phrases shall have the meanings stated below unless a
different meaning is plainly required by the context:
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1.1 "Adjustment" means the net increases and decreases in the market
value of the Fund during a Plan Year or other period exclusive of any
contributions during such year or other period. Such increases and decreases
shall include such items as realized or unrealized investment gains and losses
and investment income and may include expenses properly attributable to
administering the Fund and the Plan.
1.2 "Adjustment Factor" means the cost of living Adjustment Factor
prescribed by the Secretary of the Treasury under Section 415(d) of the Code, as
applied to such items and in such manner as the Secretary of the Treasury shall
provide.
1.3 "Annual Additions" means the sum of the Employer contributions,
Voluntary Contributions and forfeitures credited or debited to a Participant's
accounts for the Limitation Year under all Defined Contribution Plans maintained
by the Employer. Amounts allocated, after March 31, 1984, to an individual
medical account, as defined in Section 415(l)(2) of the Code, which is part of a
pension or annuity plan maintained by the Employer shall be treated as Annual
Additions to a Defined Contribution Plan. Also, amounts derived from
contributions paid or accrued after December 31, 1985, and taxable years ending
after such date, which are attributable to post-retirement medical benefits
allocated to the separate account of a key employee, as defined in Section
419A(d)(3) of the Code, under a welfare benefit fund, as defined in Section
419(e) of the Code, maintained by the Employer, are treated as Annual Additions
to a Defined Contribution Plan but only for purposes of the dollar limitation
applicable to the Maximum Permissible Amount, as defined in Section 1.28. The
preceding provisions of this Section 1.3 shall be effective for Plan Years
commencing after December 31, 1986.
For the purposes of this Section 1.3 and Section 1.28, compensation
shall mean Compensation as defined in Section 1.9, disregarding elective
contributions and any exclusions from Compensation.
1.4 "Beneficiary" means the surviving spouse of a Participant, or, if
such Participant has no surviving spouse or if the Participant's spouse has made
a Qualified Consent to the selection of a different beneficiary, any person
designated by a Participant to receive such benefits as may become payable
hereunder after the death of such Participant. For purposes of this Section 1.4,
a Qualified Consent means a consent by the Participant's spouse which consent
acknowledges the effect of the designation and has been executed by such spouse
in writing and witnessed by a member of the Committee or a notary public. A
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Qualified Consent must either designate a beneficiary and a form of benefits or
expressly permit designations by the Participant without further consent by the
spouse. Any consent necessary under this Section 1.4 will be valid only with
respect to the spouse who properly executes the consent. Additionally, a
revocation of a prior consent may be made at any time by such spouse. A
Qualified Consent need not be furnished by a Participant if the Participant
establishes to the satisfaction of the Committee that no consent is required
because (i) there is no spouse, (ii) the spouse cannot be located, (iii) the
spouse has abandoned the Participant as evidenced by a court order to such
effect or (iv) the spouse is legally incompetent to give consent (in which case
the legal guardian of the spouse may give consent even if the Participant is the
legal guardian) or because of other circumstances which may be prescribed by the
Code or Treasury Regulations. The Qualified Consent provisions of this Section
1.4 shall apply to a former spouse of the Participant, to the extent required
under a qualified domestic relations order.
1.5 "Board" means the Board of Directors of the Employer.
1.6 "Break in Service" means a computation period, as specified in
Section 1.42, during which a Participant is not credited with more than five
hundred (500) Hours of Service. Solely for purposes of determining whether a
Break in Service, as defined in this Section 1.6, for participation and vesting
purposes, has occurred in a computation period, an individual who is absent from
work for maternity or paternity reasons shall receive credit for the Hours of
Service which would otherwise have been credited to such individual but for such
absence, or in any case in which such hours cannot be determined, eight (8)
Hours of Service per day of such absence. For purposes of this Section 1.6, an
absence from work for maternity or paternity reasons means an absence (1) by
reason of the pregnancy of the individual, (2) by reason of a birth of a child
of the individual, (3) by reason of the placement of a child with the individual
in connection with the adoption of such child by such individual, or (4) for
purposes of caring for such child for a period beginning immediately following
such birth or placement. The Hours of Service credited under this Section 1.6
shall be credited (1) in the computation period in which the absence begins if
the crediting is necessary to prevent a Break in Service in that period or (2)
in all other cases, in the following computation period. The total number of
Hours of Service required to be treated as completed for any computation period
shall not exceed five hundred one (501) Hours of Service.
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1.7 "Code" means the Internal Revenue Code of 1986, as amended from
time to time. References to a section of the Code shall include that section and
any comparable section or sections of any future legislation that amends,
supplements or supersedes said section.
1.8 "Committee" means the Benefits Committee described in
Section 8.4 of the Plan.
1.9 "Compensation" means a Participant's wages, salaries and fees for
professional services and other amounts (without regard to whether or not an
amount is paid in cash) paid during a Plan Year for personal services actually
rendered in the course of employment with the Employer as reported for federal
income tax purposes on Internal Revenue Service Form W-2. Compensation shall
include (i) elective contributions to the Plan or any other plan maintained by
the Employer on the Employee's behalf, (ii) compensation deferred under an
eligible deferred compensation plan within the meaning of Section 457(b) of the
Code (relating to deferred compensation plans maintained by state and local
governments and tax-exempt organizations), and (iii) employee contributions
(under governmental plans) described in Section 414(h)(2) of the Code that are
picked up by the employing unit and thus are treated as employer contributions.
"Elective contributions" are amounts excludible from the Employee's gross income
under Section 402(a)(8) of the Code (relating to an arrangement under Section
401(k)), Section 402(h) of the Code (relating to a simplified employee pension
plan), Section 125 of the Code (relating to a cafeteria plan) or Section 403(b)
of the Code (relating to a tax-sheltered annuity). Effective January 1, 1994,
Compensation shall not include any salary reduction contributions under the
Monroe Bancorp Executives' Deferred Compensation Plan. Effective July 1, 1994,
Compensation shall exclude all amounts paid to Participants during a Plan Year
under the "Quality Award Program" sponsored by the Employer.
Any reference in this Plan to Compensation is a reference to the
definition in this Section 1.9, unless the Plan reference specifies a
modification to this definition. The Committee will take into account only
Compensation actually paid during the Plan Year.
For any Plan Year beginning after December 31, 1988, the Committee
shall take into account for all purposes under the Plan (including without
limitation contributions and allocations for a Plan Year) only the first Two
Hundred Thousand Dollars ($200,000), as adjusted by the Adjustment Factor, of
any Participant's Compensation. For this purpose, any increase in the Two
Hundred
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Thousand Dollar ($200,000) limit due to the application of the Adjustment Factor
shall only apply to Compensation taken into account for the Plan Year of such
increase and subsequent years and shall not apply to Compensation for prior Plan
Years in determining a Participant's allocations under or contributions to the
Plan on behalf of such Participant. The Two Hundred Thousand Dollar ($200,000)
Compensation limitation applies to the combined Compensation of the Participant
and of any Family Member aggregated with the Employee under Section 1.20 and who
is either (i) the Employee's spouse or (ii) the Employee's lineal descendant
under the age of nineteen (19). If such Compensation limitation applies to the
combined Compensation of the Participant and one or more Family Members, the
Committee will apply the contribution and allocation provisions of Articles III
and IV by prorating such limitation among the affected individuals in proportion
to each such individual's Compensation determined prior to application of this
limitation.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual compensation of each Employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with Section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding 12
months, over which Compensation is determined (determination period) beginning
in such calendar year. If a determination period consists of fewer than 12
months, the OBRA '93 annual compensation limit will be multiplied by a fraction,
the numerator of which is the number of months in the determination period, and
the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under Section 401(a)(17) of the Code shall mean the
OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current plan year,
the Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first Plan Year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
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For purposes of determining whether the Plan discriminates in favor of
Highly Compensated Employees, Compensation means Compensation as defined in
Section 415(c)(3)(A) of the Code, unless the Employer elects to use an alternate
nondiscriminatory definition, in accordance with the requirements of Section
414(s) of the Code and the Treasury Regulations promulgated thereunder. The
Employer may elect to include all elective contributions made by the Employer on
behalf of Participants. The Employer's election to include elective
contributions must be consistent and uniform with respect to all Participants
and all plans of the Employer for any particular Plan Year. The Employer may
make this election to include elective contributions for nondiscrimination
testing purposes, irrespective of whether this Section 1.9 includes elective
contributions in the general Compensation definition applicable to the Plan.
1.10 "Defined Benefit Plan" means a plan established and qualified
under Section 401 or 404 of the Code, except to the extent it is, or is treated
as, a Defined Contribution Plan.
1.11 "Defined Contribution Plan" means a plan which is established and
qualified under Section 401 or Section 403 of the Code, which provides for an
individual account for each Participant thereunder and for benefits based solely
on the amount contributed to each Participant's account and any income and
expenses or gains or losses (both realized and unrealized) which may be
allocated to such account.
1.12 "Effective Date" of the Plan as completely amended and restated
means January 1, 1991, unless otherwise specified herein or as otherwise
required by applicable law.
1.13 "Employee" means
(a) An individual who is employed as an employee (whether on
a full-time, part-time, regular, temporary or other
basis) by the Employer.
(b) An individual (who otherwise is not an Employee of the
Employer) who, pursuant to a leasing agreement between
the Employer and any other person ("leasing
organization"), has performed services for the Employer
(or for the Employer and any persons related to the
Employer within the meaning of Section 414(n)(6) of the
Code) on a substantially full-time basis for at least
one (1) year and who performs services historically
performed by employees in the Employer's business field.
If a leased employee is treated as an Employee by reason
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of this Section 1.13, Compensation shall include compensation
from the leasing organization which is attributable to
services performed for the Employer and contributions or
benefits provided to a leased employee by the leasing
organization which are attributable to services performed for
the Employer shall be treated as provided for the Employer.
(i) The Plan does not treat a leased employee as an
Employee if the leasing organization covers the
employee in a safe harbor plan and prior to
application of this safe harbor plan exception,
twenty percent (20%) or less of the Employer's
Employees (other than Highly Compensated Employees)
are leased employees. For this purpose, a "safe
harbor plan" is a money purchase pension plan which
provides immediate participation, full and
immediate vesting, and a nonintegrated contribution
formula equal to at least ten percent (10%) of the
employee's compensation without regard to
employment by the leasing organization on a
specified date. The safe harbor plan must
determine the ten percent (10%) contribution on the
basis of compensation as defined in
Section 415(c)(3) of the Code plus amounts
contributed pursuant to a salary redirection
agreement which are excludable from the Employee's
gross income under Sections 125 (relating to a
cafeteria plan), 402(a)(8) (relating to an
arrangement under Section 401(k)), 402(h) (relating
to a simplified employee pension
plan) or 403(b) (relating to a tax-sheltered
annuity) of the Code.
(ii) The Committee shall apply this Section 1.13 in a
manner consistent with Sections 414(n) and 414(o)
of the Code and the Treasury Regulations
promulgated thereunder. The Committee shall reduce
a leased employee's allocation of Employer
contributions under this Plan by the leased
employee's allocation under the leasing
organization's plan, but only to the extent that
the allocation is attributable to the leased
employee's service provided to the Employer. The
leasing organization's plan must be a money
purchase pension plan which would satisfy the
definition of a safe harbor plan under
paragraph (i).
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1.14 "Employer" means Monroe Bancorp, and wherever required by the
context of this Plan, an Affiliated Employer, which, by action of its Board of
Directors, adopts this Plan subject to the acceptance of such participation by
the Board, and any successor to one or more of such entities if such successor
shall adopt and continue the Plan by appropriate corporate action. All employees
of: (i) any corporation which is a member of a controlled group of corporations
(as defined in Section 414(b) of the Code) with 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 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 Section 414(o) of the Code and the Treasury Regulations
promulgated thereunder, shall be treated as employed by the Employer only for
purposes of determining the definitions of Compensation, Employee, leased
employee and Highly Compensated Employee under Sections 1.9, 1.13 and 1.20
respectively; determining Breaks in Service under Section 1.6; crediting Hours
of Service under Section 1.21; determining Service under Section 1.42; applying
the Top-Heavy rules under Section 1.43; determining eligibility to participate
under Section 2.1 (unless such employees are specifically excluded from coverage
under the Plan by the Board); determining the limitations on allocations to
Participants' accounts under Article IV; and determination of Vesting Service
under Sections 1.42 and 5.1. In addition, any entity or other organization
described in (i) through (iv), above shall constitute an Affiliated Employer.
Notwithstanding anything to the contrary contained in this Section 1.14, no
provision of this Section 1.14 shall be construed or interpreted to require the
Employer to make an Employer contribution under the Plan for any individual who
is not an Employee.
1.15 "Employment Commencement Date" means the date on which an Employee
is first credited with an Hour of Service under the Plan.
1.16 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time. References to a section of ERISA shall include
that section and any comparable section or sections of any future legislation
that amends, supplements or supersedes said section.
1.17 "Family Member" means, with respect to any Employee, such
Employee's spouse and lineal ascendants or descendants and the spouses of such
lineal ascendants or descendants.
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1.18 "Fiduciary" means the Employer, the Trustee, the Committee and any
individual, corporation, firm or other entity which assumes responsibilities of
the Employer, the Trustee or the Committee respecting management of the Plan or
the disposition of its assets.
1.19 "Fund" means the Trust Fund created in accordance with
Article VII.
1.20 "Highly Compensated Employee" means an Employee who, during the
Plan Year or during the preceding twelve (12) month period:
(a) Is a more than five percent (5%) owner of the Employer
(applying the constructive ownership rules of Section 318 of
the Code and applying the principles of Section 318 of the
Code for an unincorporated entity);
(b) Has Compensation in excess of Seventy-Five Thousand
Dollars ($75,000), as adjusted by the Adjustment Factor;
(c) Has Compensation in excess of Fifty Thousand Dollars
($50,000), as adjusted by the Adjustment Factor and is part of
the top-paid twenty percent (20%) group of employees (based on
Compensation for the relevant year);
(d) Has Compensation in excess of fifty percent (50%) of the
dollar amount prescribed in Section 415(b)(1)(A) of the Code
(relating to Defined Benefit Plans) and is an officer of the
Employer.
If the Employee satisfies the definition in subsection (b), (c) or (d)
in the Plan Year but not during the preceding twelve (12) month period and does
not satisfy subsection (a) in either period, the Employee is a Highly
Compensated Employee only if he is one of the one hundred (100) most highly
compensated Employees for the Plan Year. For purposes of subsection (d), no more
than fifty (50) Employees (or, if lesser, the greater of three (3) Employees or
ten percent (10%) of the Employees) shall be treated as officers. If no Employee
satisfies the Compensation requirement in subsection (d) for the relevant year,
the Committee will treat the highest paid officer as satisfying subsection (d)
for that year. For purposes of determining the number of officers taken into
account under subsection (d), Employees described in Section 414(q)(8) of the
Code shall be excluded.
For purposes of this Section 1.20, "Compensation" means Compensation as
defined in Section 415(c)(3)(A) of the Code except
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any exclusions from Compensation and Compensation shall include (i) elective
deferrals under an arrangement described in Section 401(k) of the Code or under
a simplified employee pension plan maintained by the Employer and (ii) amounts
paid by the Employer which are not currently includible in the Employee's gross
income because of Sections 125 (cafeteria plans) or 403(b) (tax-sheltered
annuities) of the Code. The Committee shall make the determination of who is a
Highly Compensated Employee, including the determinations of the number and
identity of the top-paid twenty percent (20%) group, the top one hundred (100)
paid Employees, the number of officers includible in subsection (d) and the
relevant Compensation, consistent with Section 414(q) of the Code and Treasury
Regulations promulgated thereunder. The Employer may make a calendar year
election to determine the Highly Compensated Employees for the Plan Year, as
prescribed by Treasury Regulations. A calendar year election must apply to all
plans and arrangements of the Employer. For purposes of applying any
nondiscrimination test required under the Plan or under the Code, in a manner
consistent with applicable Treasury Regulations, the Committee will not treat as
a separate Employee a Family Member of a Highly Compensated Employee described
in subsection (a) of this Section 1.20, or a Family Member of one of the ten
(10) Highly Compensated Employees with the greatest Compensation for the Plan
Year, but will treat the Highly Compensated Employee and all Family Members as a
single Highly Compensated Employee. This aggregation rule applies to a Family
Member even if that Family Member is a Highly Compensated Employee without
family aggregation.
The term "Highly Compensated Employee" also includes any former
Employee who separated from Service (or has a deemed Separation from Service, as
determined under Treasury Regulations) prior to the Plan Year, performs no
Service for the Employer during the Plan Year, and was a Highly Compensated
Employee either for the separation year or any Plan Year ending on or after his
fifty-fifth (55th) birthday.
1.21 "Hour of Service" means:
(a) Each Hour of Service for which the Employer, either directly
or indirectly, pays an Employee, or for which the Employee is
entitled to payment, for the performance of duties. The
Committee shall credit Hours of Service under this subsection
(a) to the Employee for the computation period in which the
Employee performs the duties, irrespective of when paid;
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(b) Each Hour of Service for back pay, irrespective of
mitigation of damages, to which the Employer has agreed
or for which the Employee has received an award. The
Committee shall credit Hours of Service under this
subsection (b) to the Employee for the computation
period(s) to which the award or the agreement pertains
rather than for the computation period in which the
award, agreement or payment is made; and
(c) Each Hour of Service for which the Employer, either
directly or indirectly, pays an Employee, or for which
the Employee is entitled to payment (irrespective of
whether the employment relationship is terminated), for
reasons other than for the performance of duties during
a computation period, such as leave of absence,
vacation, holiday, sick leave, illness, incapacity
(including disability), layoff, jury duty or military
duty. The Committee will credit no more than five
hundred and one (501) Hours of Service under this
subsection (c) to an Employee on account of any single
continuous period during which the Employee does not
perform any duties (whether or not such period occurs
during a single Plan Year). The Committee shall credit
Hours of Service under this subsection (c) in accordance
with the rules of subparagraphs (b) and (c) of
Section 2530.200b-2 of Department of Labor Regulations,
which the Plan, by this reference, specifically
incorporates in full within this subsection (c).
The Committee shall not credit an Hour of Service under more than one
of the above subsections. A computation period for purposes of this Section 1.21
is the Plan Year, Year of Service period, Break in Service period or other
period, as determined under the Plan provision for which the Committee is
measuring an Employee's Hours of Service. The Committee will resolve any
ambiguity with respect to the crediting of an Hour of Service in favor of the
Employee.
The Committee shall credit every Employee with Hours of Service on the
basis of the "actual" method. For purposes of the Plan, the "actual" method
means the determination of Hours of Service from records of hours worked and
hours for which the Employer makes payment or for which payment is due from the
Employer.
Nothing in this Section 1.21 shall be construed to alter, amend,
modify, invalidate, impair or supersede any law of the United States or any rule
or regulation issued under any such law. The nature and extent of any credit for
Hours of Service under this Section 1.21 shall be determined under such law.
1.22 "Inactive Participant" means any Employee or former Employee who
has ceased to be a Participant and on whose behalf an Individual Account is
maintained under the Plan.
1.23 "Individual Account" means the detailed record kept of the amounts
credited or charged to each Participant in accordance with the terms of the
Plan. Such Individual Account is comprised of whichever of the following are
applicable to a particular Participant: Matching Contributions Account, Profit
Sharing Account, Qualified Non-Elective Contributions Account, Rollover Account
and Salary Redirection Contributions Account.
1.24 "Key Employee" means an Employee or former Employee (including the
Beneficiaries of such Employees) who at any time during the Plan Year or any of
the four (4) preceding Plan Years is:
(a) An Employee or former Employee (and the beneficiaries of such
Employee) who was an officer of the Employer and such
individual's annual compensation exceeded fifty percent (50%)
of the dollar limitation in effect under Section 415(b)(1)(A)
of the Code;
(b) One (1) of the ten (10) Employees having annual
compensation from the Employer of more than the
limitation in effect under Section 415(c)(1)(A) of the
Code and owning (or considered as owning within the
meaning of Section 318 of the Code) one (1) of the
ten (10) largest interests in the Employer if such
Employee's compensation exceeds one hundred percent
(100%) of the dollar limitation in effect under
Section 415(c)(1)(A) of the Code;
(c) A five percent (5%) owner of the Employer, as described
in Section 416(i)(1)(B)(i) of the Code; or
(d) A one percent (1%) owner of the Employer, as described in
Section 416(i)(1)(B)(ii) of the Code, having an annual
compensation from the Employer of more than One Hundred and
Fifty Thousand Dollars ($150,000).
For purposes of this Section 1.24 compensation means compensation as
defined in Section 415(c)(3)(A) of the Code, but including amounts contributed
by the Employer pursuant to a salary reduction agreement which are excludible
from the Employee's gross income under Section 402(a)(8) of the Code (relating
to an arrangement under Section 401(k)), Section 402(h) of the Code (relating to
a simplified employee pension plan), Section 125 of the Code (relating to a
cafeteria plan) or Section 403(b) of the Code (relating to a tax-sheltered
annuity).
For purposes of subsection (a), no more than fifty (50) Employees (or,
if lesser, the greater of three (3) or ten percent (10%) of the Employees) shall
be treated as officers. For purposes of subsection (b), if two (2) Employees
have the same interest in the Employer the Employee having greater annual
compensation from the Employer shall be treated as having a larger interest.
Such term shall not include any officer or employee of an entity referred to in
Section 414(d) of the Code. For purposes of determining the number of officers
taken into account under subsection (a), Employees described in Section
414(q)(8) of the Code shall be excluded. As used herein, "Employer" means the
Employer and any Affiliated Employer.
1.25 "Limitation Year" means the Plan Year, unless the Board specifies
another twelve (12) consecutive month period through adoption of appropriate
resolutions in which case the new Limitation Year must begin on a date within
the Limitation Year for which the Employer makes the amendment, creating a short
Limitation Year.
1.26 "Matching Contributions" means contributions made to the Plan by
the Employer for the Plan Year and allocated to a Participant's Individual
Account by reason of the Participant's Salary Redirection Contributions.
1.27 "Matching Contributions Account" means that portion of a
Participant's Individual Account attributable to (a) Matching Contributions
allocated to such Participant pursuant to Section 4.3 and (b) the Participant's
proportionate share, attributable to his Matching Contribution Account, of the
Adjustments, reduced by any distributions from such account pursuant to Article
V.
1.28 "Maximum Permissible Amount" means the lesser of: (i)
Thirty-Thousand Dollars ($30,000) (or if greater, one-fourth (1/4) of the
defined benefit dollar limitation prescribed by Section 415(b)(1)(A) of the Code
as in effect for the Limitation Year) or (ii) twenty-five percent (25%) of the
Participant's compensation as defined in Section 415(c)(3)(A) of the Code. The
compensation limitation referred to in (ii) of the preceding sentence shall not
apply to any contribution for medical benefits (within the meaning of Section
419A(f)(2) of the Code) after Separation from Service which is otherwise treated
as an Annual Addition or any amount otherwise treated as an Annual Addition
under Section 415(l)(2) of the Code.
If there is a short Limitation Year because of a change therein, the
Committee will multiply the Thirty-Thousand Dollar ($30,000) (as adjusted)
limitation by the following fraction:
Number of months in short Limitation Year
-----------------------------------------
12
The preceding provisions of this Section 1.28 shall be effective for
Plan Years commencing after December 31, 1986.
1.29 "Net Profits" means for any Plan Year the net operating profits of
the Employer computed according to generally accepted accounting principles,
excluding any extraordinary gains or losses from nonoperational areas.
1.30 "Non-Highly Compensated Employee" means an Employee of the
Employer who is neither a Highly Compensated Employee nor a Family Member.
1.31 "Participant" means any Employee who becomes a
Participant under the provisions of Section 2.1 of the Plan.
1.32 "Plan" means the Monroe Bancorp Thrift Plan.
1.33 "Plan Year" means the twelve (12) month period beginning on
January 1 and each anniversary thereof.
1.34 "Profit Sharing Contributions" means contributions made
to the Fund by the Employer pursuant to Section 3.1.
1.35 "Profit Sharing Account" means that portion of a Participant's
Individual Account attributable to (a) Profit Sharing Contributions allocated to
such Participant pursuant to Section 4.2 and (b) the Participant's proportionate
share, attributable to his Profit Sharing Account, of the Adjustments, reduced
by any distributions from such account pursuant to Article V.
1.36 "Qualified Non-Elective Contributions" means contributions (other
than Matching Contributions) made by the Employer and allocated to a
Participant's Individual Account that the Participant may not elect to receive
in cash until distributed from the Plan; that are vested and nonforfeitable when
made; and that together with any income allocable thereto, are not distributable
under the terms of the Plan to Participants or their Beneficiaries before the
earlier of:
(a) Separation from Service, death, or Total and Permanent
Disability of the Participant;
(b) Attainment of age fifty-nine and one-half (59-1/2) by
the Participant;
(c) Termination of the Plan without establishment of another
Defined Contribution Plan (other than an employee stock
ownership plan within the meaning of Section 4975(e)(7) of the
Code); or
(d) The events specified in Section 9.2.
1.37 "Qualified Non-Elective Contributions Account" means that portion
of a Participant's Individual Account attributable to (a) Qualified Non-Elective
Contributions allocated to such Participant pursuant to Section 3.11 and (b) the
Participant's proportionate share, attributable to his Qualified Non-Elective
Contributions Account, of the Adjustments, reduced by any distributions from
such account pursuant to Article V.
1.38 "Related Plan" means any other Defined Contribution Plan
maintained by the Employer or by an Affiliated Employer.
1.39 "Rollover Account" means that portion of a Participant's
Individual Account attributable to (a) rollover contributions and (b) the
Participant's proportionate share, attributable to his Rollover Account, of the
Adjustments, reduced by any distributions from such account pursuant to Article
V or any withdrawals from such account pursuant to Section 3.2.
1.40 "Salary Redirection Contributions" means contributions made to the
Plan within the time prescribed by Section 3.3, by the Employer, at the election
of the Participant, in lieu of cash compensation and shall include contributions
made pursuant to a Salary Redirection Agreement between the Participant and the
Employer; that are vested and nonforfeitable when made; and that together with
any income allocable thereto, are not distributable under the terms of the Plan
to Participants or their Beneficiaries before the earlier of:
(a) Separation from Service, death, or Total and Permanent
Disability of the Participant;
(b) Attainment of age fifty-nine and one-half (59-1/2) by
the Participant;
(c) Termination of the Plan without establishment of another
Defined Contribution Plan (other than an employee stock
ownership plan within the meaning of Section 4975(e)(7) of the
Code); or
(d) The events specified in Section 9.2.
1.41 "Salary Redirection Contributions Account" means that portion of a
Participant's Individual Account attributable to (a) Salary Redirection
Contributions allocated to such Participant pursuant to Section 3.3 and (b) the
Participant's proportionate share of the Adjustments, attributable to his Salary
Redirection Contributions Account, reduced by any distributions from such
account pursuant to Article VI.
1.42 "Service" except as it may be disregarded under the
provisions of Articles II or V, means the following:
(a) "Eligibility Service" means the years which are credited to an
Employee for the purpose of determining eligibility for
participation under the Plan, as described in Section 2.1.
(b) "Vesting Service" means the years which are credited to a
Participant for the purpose of determining his vested
percentage in his Profit Sharing and Matching Contributions
Accounts and eligibility for various benefits under the Plan,
as described in Article V.
(c) "Separation from Service" means a Separation from
Service with the Employer.
For purposes of determining an Employee's eligibility to participate
under the Plan and for determining his nonforfeitable right to his Individual
Account balance attributable to Employer contributions, years of Service and
Breaks in Service (as defined in Section 1.6) shall initially be based on the
period commencing on the Employee's Employment Commencement Date and thereafter
shall be based on each Plan Year (which includes the first anniversary of the
Employee's Employment Commencement Date) beginning after the Employee's
Employment Commencement Date.
1.43 "Top-Heavy Provisions." The following provisions shall
become effective in any Plan Year in which the Plan is determined
to be a Top-Heavy Plan:
(a) Determination of Top-Heavy. The Plan will be considered
a Top-Heavy Plan for the Plan Year if (1) as of the last
day of the preceding Plan Year (the "Determination
Date"), the sum of the present value, determined on the
Determination Date, of the Individual Accounts
(including the portion thereof attributable to the
Rollover Accounts to the extent permitted by the
Treasury Regulations promulgated under Section 416 of
the Code) under the Plan (but not including any
allocations to be made as of such last day of the Plan
Year except contributions actually made on or before
that date) of Participants who are Key Employees exceed
sixty percent (60%) of the sum of the present value,
determined on the Determination Date, of the Individual
Accounts (but not including any allocations to be made
as of such last day of the Plan Year except
contributions actually made on or before that date) of
all Participants (the "60% Test"); or (2) the Plan is
part of a Required Aggregation Group and the Required
Aggregation Group is Top-Heavy. However, and
notwithstanding the results of the 60% Test, the Plan
shall not be considered a Top-Heavy Plan for any Plan
Year in which the Plan is part of a Required or
Permissive Aggregation Group which is not Top-Heavy.
For the first Plan Year that the Plan is in effect, the
determination of whether the Plan is Top-Heavy shall be
made as of the last day of such Plan Year and in
applying the Top-Heavy determination for such first Plan
Year, the Individual Accounts of all Participants shall
be deemed to include any contributions thereto
made after the Determination Date that are allocated as
of a date in such first Plan Year. The Top-Heavy ratio
shall be computed in accordance with Section 416(g) of
the Code and the Treasury Regulations promulgated
thereunder.
(i) If the Employer maintains another Defined Benefit
Plan or Defined Contribution Plan (including a
simplified employee pension plan), or maintained
another such plan which now is terminated, this
Plan is Top-Heavy only if it is part of the
Required Aggregation Group, and the Top-Heavy ratio
for the Required Aggregation Group and for the
Permissive Aggregation Group, if any, each exceeds
sixty percent (60%). The Committee will calculate
the Top-Heavy ratio taking into account all plans
within the Required Aggregation Group. To the
extent the Committee must take into account
distributions to a Participant, the Committee shall
include distributions from a terminated plan which
would have been part of the Required Aggregation
Group if it were in existence on the Determination
Date. The Committee will calculate the present
value of accrued benefits under Defined Benefit
Plans or simplified employee pension plans included
within the group in accordance with the terms of
those plans, Section 416 of the Code and the
Treasury Regulations promulgated thereunder. If a
Participant in a Defined Benefit Plan is a Non-Key
Employee, the Committee will determine his accrued
benefit under the accrual method, if any, which is
applicable uniformly to all Defined Benefit Plans
maintained by the Employer or, if there is no
uniform method, in accordance with the slowest
accrual rate permitted under the fractional rule
accrual method described in Section 411(b)(1)(C) of
the Code. To calculate the present value of
benefits under a Defined Benefit Plan, the
Committee will use the actuarial assumptions
(interest and mortality only) prescribed by the
Defined Benefit Plan(s) to value benefits for Top-
Heavy purposes. If an aggregated plan does not
have a valuation date coinciding with the
Determination Date, the Committee must value the
accrued benefits in the aggregated plan as of the
most recent valuation date falling within the
twelve (12) month period ending on the
Determination Date except as Section 416 of the
Code and applicable Treasury Regulations require
for the first (1st) and second (2nd) plan year of a
Defined Benefit Plan. The Committee will calculate
the Top-Heavy ratio with reference to
the Determination Dates that fall within the same
calendar year.
(ii) In determining whether or not the Plan is a Top-Heavy
Plan, the account balances and accrued benefits of a
Participant who has not performed Service for the
Employer during the five (5) year period ending on
the Determination Date shall be disregarded.
(iii) For purposes of this Section 1.43, "Required
Aggregation Group" shall mean: (A) each plan of
the Employer in which a Key Employee is a
Participant and (B) each other plan of the Employer
which enables any plan described in (A) to meet the
requirements of Section 401(a)(4) or 410 of the
Code. Required Aggregation Group shall also
include each terminated plan of the Employer if
such plan was maintained within the last five (5)
years ending on the Determination Date for the Plan
Year in question and would, but for the fact that
it terminated, be part of a Required Aggregation
Group for such Plan Year. "Permissive Aggregation
Group" shall mean the Required Aggregation Group
combined with any other plan maintained by the
Employer, provided the resulting combination group
would continue to satisfy the requirements of
Section 401(a)(4) and 410 of the Code once such
other plan is taken into account. The Committee
shall determine which plan or plans maintained by
the Employer shall be taken into account in
determining the Permissive Aggregation Group.
(b) For any Plan Year during which the Plan is deemed a Top-Heavy
Plan, the Employer contributions for such Plan Year shall be
made and allocated as follows:
(i) Each Participant as of the Determination Date and
who is not a participant in another plan maintained
by the Employer qualified under Section 401(a) of
the Code shall receive a minimum "Contribution"
equal to the lesser of: (i) three percent (3%) of
the Participant's compensation (within the meaning
of Section 415 of the Code) for the Plan Year, or
(ii) the highest percentage of compensation (within
the meaning of Section 415 of the Code) contributed
on behalf of a Key Employee. For purposes of the
preceding sentence, Qualified Non-Elective, Salary
Redirection and Matching Contributions to the Plan
by or on behalf of a Key Employee shall be taken
into account in determining such Key Employee's
contribution
percentage. Such Contribution shall be made on
behalf of all Participants who are Employees and
who have not incurred a Separation from Service at
the end of the Plan Year in which the Contribution
shall be made. Participants who have become
Participants but who subsequently fail to complete
one thousand (1,000) Hours of Service at the end of
the Plan Year shall be considered as employees
covered by the Plan for purposes of this
paragraph (i). For purposes of this paragraph (i),
"contribution" shall include (A) Employer
contributions and forfeitures, and shall, effective
for Plan Years commencing before January 1, 1989,
include salary redirection contributions under
Section 401(k) of the Code (and shall exclude such
contributions for Plan Years commencing after
December 31, 1988); (B) amounts paid by the
Employer to provide social security benefits; and
(C) qualified nonelective contributions described
in Section 401(m)(4)(C) of the Code. Such
contribution (to the extent required to be
nonforfeitable under subsection (c)) shall not be
forfeitable under Section 411(a)(3)(B) or
411(a)(3)(D) of the Code.
(ii) If Employees of the Employer are covered under both
a Defined Benefit Plan maintained by the Employer
and both this Plan and the Defined Benefit Plan are
Top-Heavy Plans in any Plan Year, all non-key
Employees covered by both the Defined Benefit Plan
and this Plan shall receive, for all such Plan
Years, the minimum benefit prescribed by the
Defined Benefit Plan. If Employees of the Employer
are covered by another Defined Contribution Plan
maintained by the Employer and both this Plan and
the other Defined Contribution Plan are Top-Heavy
Plans in any Plan Year, all non-key Employees
covered by both the other Defined Contribution Plan
and this Plan shall receive, for all such Plan
Years, the minimum benefit prescribed by such other
Defined Contribution Plan.
Provided, however, such other Defined Contribution
Plan shall meet the top-heavy vesting requirements
and the limitations on compensation specified in
Section 416(b) and (d) of the Code, respectively.
(c) Notwithstanding the provisions of Section 5.1, for any Plan
Year in which the Plan is a Top-Heavy Plan, such Participant's
vested percentage in his Matching Contributions and Profit
Sharing Accounts shall not be less than the percentage
determined in accordance with the following table:
Years of Vested Forfeited
Vesting Service Percentage Percentage
less than 3 0% 100%
3 or more 100% 0%
(i) Subject to the requirements of Section 8.1(a), if
the Plan becomes a Top-Heavy Plan and subsequently
ceases to be such, the above vesting schedule
shall continue to apply, at the option of the
affected Participant, in determining the vested
percentage of any Participant who had at least
six (6) Years of Vesting Service as of the last
day in the last Plan Year in which the Plan was a
Top-Heavy Plan. For all other Participants, said
vesting schedule shall apply only to their
Matching Contributions and Profit Sharing Accounts
as of such last day of the Plan Year.
(ii) Notwithstanding the provisions of subsection (c)
and paragraph (i) above, subsection (c) shall not
apply to the Profit Sharing Account balance of any
Employee who does not have at least one (1) Hour
of Service after the Plan has initially become
Top-Heavy and such Employee's Profit Sharing
Account balance will be determined without regard
to subsection (c).
(d) In any Plan Year in which the Plan is a Top-Heavy Plan, Section
4.8 shall be read by substituting the number "1.00" for the
number "1.25" wherever it appears therein except such
substitution shall not have the effect of reducing any benefit
accrued under a Defined Benefit Plan prior to the first day of
the Plan Year in which this provision becomes applicable.
1.44 "Total and Permanent Disability" or "Totally and Permanently
Disabled" means a disability as determined for purposes of the Federal Social
Security Act which qualifies the Participant for permanent disability insurance
payments in accordance with such Act. Disability for purposes of the Plan shall
not include any disability which is incurred while the Participant is on leave
of absence because of military or similar service and for which a governmental
pension is payable. The Committee may require subsequent proof of continued
disability, prior to the Participant's sixty-fifth (65th) birthday, at intervals
of not less than six (6) months. A minimal level of earnings in restricted
activity during any period of disability shall not disqualify a Participant from
receiving disability benefits for such period if the disabled Participant
receives disability benefits under the Social Security Act for the same period.
1.45 "Trust Agreement" means the agreement entered into between the
Employer and the Trustee pursuant to Article VII.
1.46 "Trustee" means such individual(s) or financial institution as
shall be designated in the Trust Agreement to hold in trust any assets of the
Plan for the purpose of providing benefits under the Plan, and shall include any
successor to the Trustee initially designated thereunder.
1.47 "Valuation Date" means the last day of December of each Plan Year,
as of which date the Fund shall be valued at fair market value. The Committee
may, in its discretion, from time to time value the Fund as of any other date or
dates it deems desirable in its discretion.
ARTICLE II
PARTICIPATION
2.1 Eligibility and Participation.
(a) Conditions of Eligibility.
Each Employee who is a Participant as of the Effective Date
shall continue to participate in accordance with the provisions
of this amended and restated Plan.
Any Employee who has completed one (1) year of Eligibility
Service and has attained the age of twenty-one (21) shall be
eligible to become a Participant effective as of the date
specified in subsection (b).
(b) Date of Participation.
Each Employee shall become a Participant on the first Plan Entry
Date, provided he is an Employee on such date, which occurs
after the date on which the Employee satisfies the requirements
of subsection (a). The Plan Entry Dates shall fall on January 1
and July 1 of each Plan Year.
For purposes of this Section 2.1, a year of Eligibility Service
shall initially be based on the period of twelve (12)
consecutive months following the Employee's Employment
Commencement Date during which the Employee is credited with at
least one thousand (1,000) Hours of Service and thereafter shall
be based on each Plan Year (which includes the first anniversary
of the Employee's Employment Commencement Date) beginning after
the Employee's Employment Commencement Date during which the
Employee is credited with at least one thousand (1,000) Hours of
Service.
(c) Participation in the Plan shall continue until terminated
following retirement, Total and Permanent Disability, death or
other Separation from Service with the Employer, except as
otherwise provided in Sections 5.1 through 5.3.
(d) Employees who are included in a unit of employees
covered by an agreement which the Secretary of Labor
finds to be a collective bargaining agreement between
employee representatives and the Employer, if there is
evidence that retirement benefits were the subject of
good faith bargaining between such employee
representatives and the Employer, shall not be eligible
to participate in the Plan. Provided, however, in the
event an employee described in the preceding sentence
ceases to be covered by such a collective bargaining
agreement, then such Employee shall become a
Participant on the first Plan Entry Date, as defined in
Section 2.1(b), coinciding with or immediately
following the date such Employee ceases to be covered
by such collective bargaining agreement, after which
such Employee satisfies the eligibility requirements
specified in Section 2.1(a). For purposes of this
subsection (d), in determining such Employee's
Eligibility Service, his years of Eligibility Service
commencing on his Employment Commencement Date shall be
credited to him.
(e) Self-employed individuals shall not be eligible to
participate in this Plan.
(f) In the case of a Participant who does not have a
nonforfeitable right to his Individual Account balance
derived from Employer contributions, Years of
Eligibility Service before a period of consecutive one-
year Breaks in Service will not be taken into account
in computing Eligibility Service if the number of
consecutive one-year Breaks in Service in such period
equals or exceeds the greater of five (5) or the
aggregate number of Years of Eligibility Service. Such
aggregate number of Years of Eligibility Service will
not include any Years of Eligibility Service
disregarded under the preceding sentence by reason of
prior Breaks in Service.
(g) An Inactive Participant who did not have a
nonforfeitable right to any portion of his Individual
Account balance derived from Employer Contributions at
the time of Separation from Service will be considered
a new Employee, for eligibility purposes, if the number
of consecutive one year Breaks in Service equals or
exceeds the greater of five (5) or the aggregate number
of Years of Eligibility Service before such Breaks in
Service. If such Inactive Participant's Years of
Eligibility Service before Separation from Service may
not be disregarded pursuant to the preceding sentence,
such Inactive Participant shall participate immediately
upon reemployment.
2.2 Plan Binding. Upon becoming a Participant, a Participant shall be
bound then and thereafter by the terms of this Plan and the Trust Agreement,
including all amendments to the Plan and the Trust Agreement made in the manner
herein authorized.
2.3 Reemployment. A terminated employee who is reemployed by the
Employer shall become a Participant in accordance with whichever provision
of subsection (a) or (b) is applicable.
(a) A terminated Participant who later resumes his employment with
the Employer shall again become a Participant on his
reemployment date.
(b) An Employee who terminated employment with the Employer
prior to becoming a Participant pursuant to
Section 2.1, and who later resumes his employment with
the Employer shall become a Participant on the later of
(i) his reemployment date, provided he has met the
eligibility requirements contained in Section 2.1, or
(ii) the date he would have become a Participant had he
not terminated employment.
2.4 Beneficiary Designation. Subject to the provisions of Section 1.4,
upon commencing participation, each Participant shall designate a Beneficiary on
forms furnished by the Committee. Such Participant may then from time to time
change his designated Beneficiary by written notice to the Committee and upon
such change, the rights of all previously designated Beneficiaries to receive
any benefits under this Plan shall cease. If, at the time of a Participant's
death while benefits are still outstanding, his named Beneficiary does not
survive him, the benefits shall be paid to his named contingent Beneficiary. If
a deceased Participant is not survived by either a named Beneficiary or
contingent Beneficiary (or if no Beneficiary was effectively named), the balance
of his Individual Account shall be paid in a single sum to the person or persons
in the first of the following classes of successive preference Beneficiaries
then surviving: the Participant's (a) widow or widower, (b) children, (c)
grandchildren, (d) parents, (e) brothers and sisters, or (f) executors and
administrators. If a Beneficiary or contingent Beneficiary is living at the
death of the Participant, but such person dies prior to receiving the entire
death benefit, the remaining portion of such death benefit shall be paid in a
single sum to the estate of such deceased Beneficiary or contingent Beneficiary.
2.5 No Credit Upon Acquisition and Recognition of Past Service.
(a) If the Employer acquires an entity or division or other
section of an entity under an arrangement whereby the
acquired entity is not or ceases to be a separate
entity and is merged into the Employer or becomes a
division, subsidiary, or affiliate of the Employer, the
employees of the acquired entity shall be considered as
new employees of the Employer for purposes of
Eligibility and Vesting Service on the date of the
acquisition and shall become Participants hereunder in
accordance with Section 2.1. Notwithstanding the
preceding sentence, the Board may, in its sole
discretion, provide for recognition of employment
(including, if desired, compensation) by the acquired
entity prior to the acquisition date for purposes of
eligibility or vesting. Recognition of employment
under this Section 2.5 shall be evidenced by resolution
of the Board, or by such other documentation and
records as the Committee shall specify. In the case of
an individual whose employment is to be recognized
under this Section 2.5, the Committee may require from
the individual or the acquired entity such evidence of
employment as the Committee deems reasonable and
proper.
(b) Notwithstanding the provisions of subsection (a), all
service prior to the Effective Date with the Employer
shall be recognized for purposes of eligibility to
participate under Section 2.1 and for purposes of
vesting under Section 5.1 to the extent such service
would be credited under the terms of the Plan (as in
effect on the Effective Date) for eligibility and
vesting purposes if the Plan were in existence in such
prior years.
2.6 Salary Redirection Election. Each Employee who desires to make
Salary Redirection Contributions must elect, on forms provided by the Committee,
to have Salary Redirection Contributions made on his behalf. A Participant is
not required to elect to have Salary Redirection Contributions made as a
prerequisite to share in any Profit Sharing Contributions to the Plan.
ARTICLE III
CONTRIBUTIONS
The provisions of Sections 3.3 through 3.9 and 3.11 shall be effective
for Plan Years commencing after December 31, 1986.
3.1 Profit Sharing Contributions.
(a) Amount of Contribution. Subject to the provisions of
Section 3.10, for each Plan Year, the Employer may but
shall not be required to contribute to the Fund an
amount of cash or other property acceptable to the
Trustee, which the Board may determine from time to
time to be advisable. Although the Employer may
contribute to this Plan irrespective of whether it has
any current or accumulated Net Profits, the Employer
intends the Plan to constitute a profit sharing plan
for all purposes of the Code. Provided, however, the
Employer shall not make a contribution to the Fund for
any Plan Year to the extent the contribution would
exceed the Maximum Permissible Amount.
(b) Timing of Contributions. Profit Sharing Contributions may be
made by the Employer to the Fund at any time prior to the time
prescribed by law for filing the federal income tax return of
the Employer for the taxable year (including extensions), if
such contributions are on account of such taxable year.
(c) Minimum Top-Heavy Contribution. If the Plan is a Top-Heavy Plan
in any Plan Year, notwithstanding this Section 3.1 and the
provisions for allocations of such contributions under Section
4.2, the Employer shall make the contributions necessary to
satisfy the minimum allocations required to satisfy the minimum
contribution required under Section 1.43.
3.2 Rollover Contributions. An Employee who receives an eligible
rollover distribution, as defined in Code Section 402(c)(4), from a plan which
meets the requirements of Section 401(a) or 403(a) of the Code may, whether or
not he is presently eligible to participate in this Plan and in accordance with
procedures approved by the Committee, transfer the distribution received from
such other plan to the Trustee, provided the following conditions are met:
(a) Transfer Within Sixty Days. The transfer occurs on or
before the sixtieth (60th) day following his receipt of
the distribution from the other plan, or, if such
distribution had previously been deposited in an
individual retirement account (as defined in Section
408 of the Code), the transfer occurs on or before the
sixtieth (60th) day following the receipt of such
distribution plus earnings thereon from the individual
retirement account.
(b) Maximum Amount. The amount transferred does not exceed an amount
equal to the amount of the eligible rollover distribution
received from the other plan, plus any earnings on such sum
accrued during the period, if any, in which such sum was held in
an individual retirement account.
(c) Value of Rollover Account Not Guaranteed. There shall be no
guarantee to any Participant, Inactive Participant, or
Beneficiary of the return of the full amount of a rollover
contribution in the event the value of his Rollover Account
shall be less than the full amount of his rollover contribution.
(d) Direct Rollovers Not Permitted. An Employee may not
elect to have a distribution from another plan paid
directly into the Plan. As a result, the Plan is not
an eligible retirement plan for purposes of Code
Section 401(a)(31).
(e) Rollover Account. A separate Rollover Account shall be
established for that part of the transferred amount
that is attributable to an eligible rollover
distribution within the meaning of Section 402(e)(4)(A)
of the Code. An Employee's Rollover Account shall be
fully vested and nonforfeitable at all times. Until
the Valuation Date immediately following the date on
which a rollover contribution is made, such rollover
contribution shall be placed in a segregated account.
Except to the extent provided in the first sentence of
this subsection (e), as of such next Valuation Date the
Rollover Account shall be invested as part of the Fund
and shall not be segregated as separate assets thereof.
(f) Committee Approval Required. The Committee shall
develop such procedures, and may require such
information from the Employee desiring to make a
rollover contribution, as it deems necessary or
desirable to determine that the proposed transfer will
meet the requirements of this Section 3.2. Upon
approval by the Committee, the amount transferred shall
be deposited in the Fund and shall be credited to the
Employee's Rollover Account in accordance with the
provisions of subsection (e). Upon such a transfer by
an Employee who is not yet a Participant hereunder, his
Rollover Account shall represent his sole interest in
the Plan until and if he becomes a Participant.
(g) Distributions. At any time prior to the time
prescribed by Article V for distributions from the
Plan, any Employee, Participant, Inactive Participant
or, to the extent permitted under the Code, a
Beneficiary entitled to a distribution under the terms
of the Plan may request (and the Committee shall agree
to) a distribution of his Rollover Account in a single
sum, as soon as reasonably practicable, after such
request in order that such distribution may be
(i) transferred to an individual retirement account
described in Section 408(a) of the Code, (ii) applied
to purchase an individual retirement annuity described
in Section 408(b) of the Code, or (iii) transferred to
a trust described in Section 401(a) of the Code which
is exempt from tax under Section 501(a) of the Code.
The Committee shall develop such procedures, and may
require the person entitled to a distribution of a
Rollover Account to complete such written forms, as the
Committee shall determine. In the event a person
entitled to the distribution of a Rollover Account
makes a request for such a distribution prior to the
Valuation Date, and the balance of such account is
distributed prior to such Valuation Date, the Rollover
Account shall not be entitled to share in any
Adjustments since the Valuation Date immediately
preceding the date of distribution.
3.3 Salary Redirection Contributions.
(a) General. Subject to the limitations of Section 3.4,
each Employee who becomes a Participant may, as soon as
practicable after adoption of the Plan, elect to have
Salary Redirection Contributions made to the Plan on
his behalf, by entering into a Salary Redirection
Agreement with the Employer in which it is agreed that
the Participant's Employer will redirect a portion of
the Participant's Compensation not in excess of Seven
Thousand Dollars ($7,000) for each calendar year
multiplied by the Adjustment Factor (the "Dollar
Limitation"), on a pre-tax basis, during each pay
period, in an amount not less than one percent (1%) nor
more than fifteen percent (15%) of his Compensation
during each such pay period, expressed as a whole
percentage, and contribute that designated percentage
to the Fund on behalf of the Participant. In order for
Salary Redirection Contributions to commence on the
appropriate date, the Salary Redirection Agreement must
be received by the Committee at such times as the
Committee shall direct on a reasonable and
nondiscriminatory basis. The amount of Salary
Redirection Contributions which are made by a
Participant for any calendar year under the Plan and
all other plans, contracts or arrangements of
the Employer shall not exceed the Dollar Limitation as
in effect for the taxable year beginning in such
calendar year.
(b) Elections Made on Date Other Than First Day of Plan
Year. Notwithstanding anything in this Section 3.3 to
the contrary, unless participation begins on the first
day of a Plan Year, the election to have salary
redirection of a specified percent of Compensation
during each pay period shall be interpreted as an
election to have salary redirection of such percent of
Compensation multiplied by a fraction, the numerator of
which is the number of pay periods in the Plan Year
over which the salary redirection is to be made and the
denominator of which is the total number of pay periods
in a Plan Year. However, this interpretation shall
only apply in the initial year of participation in this
Plan.
(c) Initial Time of Election--Reemployed Employees. A
Participant or Employee who incurs a Separation from
Service and who is reemployed by the Employer may elect
to have Salary Redirection Contributions made on his
behalf commencing on the later of (i) the date he
becomes a Participant, (ii) the first day of the month
next following his date of reemployment, or (iii) at
such other time(s) as the Committee shall direct on a
reasonable and nondiscriminatory basis, provided such
date (under (i), (ii) or (iii)) is at least thirty (30)
days after receipt of the Salary Redirection Agreement
by the Committee.
(d) Other Times of Election. In the event a Participant
does not so elect when initially eligible, either
because he chooses not to elect or fails to timely
deliver a Salary Redirection Agreement to the
Committee, he may subsequently elect to have salary
redirection made on his behalf effective with the first
day of any calendar quarter which is at least thirty
(30) days after the date his election is delivered to
the Committee.
(e) Salary Redirection Agreement. The Salary Redirection
Agreement shall be on a form provided by the Committee.
Such Agreement shall authorize the Employer to reduce
Compensation otherwise payable to
the Employee during each pay period by the amount of
salary redirection elected.
(f) Withdrawal of Salary Redirection. Once contributed to
the Fund, Salary Redirection Contributions shall be
credited to the Participant's Salary Redirection
Contributions Account and shall not be subject to
withdrawal.
(g) Increase in Salary Redirection. A Participant who
elects to have Salary Redirection Contributions made to
the Plan on his behalf pursuant to this Section 3.3
may, on a Salary Redirection Agreement provided by and
submitted to the Committee at least thirty (30) days
prior to the effective date thereof, increase his
Salary Redirection Contribution percentage (within the
appropriate minimum and maximum specified in
subsection (a)) as of the first day of any calendar
quarter, or at such other time(s) as shall be
prescribed by the Committee on a reasonable and
nondiscriminatory basis, but not retroactively, by
filing such Salary Redirection Agreement with the
Committee and stating the amount of Salary Redirection
Contributions he desires to have made on his behalf.
(h) Reduction of Salary Redirection. Any Participant may
elect to reduce or discontinue future Salary
Redirection Contributions to the Plan effective with
the first day of any calendar quarter beginning at
least thirty (30) days after receipt of a new Salary
Redirection Agreement showing the reduction or
discontinuance by the Committee. In the event any such
Participant desires thereafter to increase or
recommence having Salary Redirection Contributions made
on his behalf, he shall be allowed to do so on the
first day of any calendar quarter following thereafter,
or at such other time(s) as shall be permitted by the
Committee on a reasonable and nondiscriminatory basis,
by filing a new Salary Redirection Agreement as
provided by the Committee stating the amount of Salary
Redirection Contributions he desires to have made on
his behalf.
(i) Payment to Trustee. The Employer shall pay to the Trustee any
Salary Redirection Contributions made on behalf of any
Participant not later than the last day of the month following
the month for which the contribution was due.
(j) Modification of Salary Redirection. Notwithstanding anything to
the contrary, the Committee shall, at its sole option, on a
reasonable and nondiscriminatory basis, have the discretion to
allow Participants to modify their Salary Redirection Agreements
at any time during the Plan Year, if such modifications are
necessary due to extraordinary circumstances.
(k) Effectiveness of Elections. A Participant's properly executed
and delivered election to have Salary Redirection Contributions
made to the Plan on his behalf shall remain in effect until
modified or terminated in accordance with the provisions of this
Article III.
3.4 Adjustment to Salary Redirection.
(a) In General. Upon receipt of all Salary Redirection
Agreements to be effective each January 1st or July 1st
(or on such later date as the Committee shall establish
during the first Plan Year in which Salary Redirection
Contributions are permitted under the Plan), but prior
to any Salary Redirection Contributions being made for
any pay period beginning on or after such effective
date, the Employer shall check the Actual Deferral
Percentages against the tests identified below. In the
event that neither test is met, the Employer shall
reduce, on a nondiscriminatory basis, the salary
redirection elections to the extent necessary to meet
either test. The determination of which test shall be
met shall be based upon the test which requires the
smallest reduction of Salary Redirection Contributions.
(i) Test One. The Average Actual Deferral Percentage
for Eligible Participants who are Highly
Compensated Employees for the Plan Year shall not
exceed the Average Actual Deferral Percentage for
Eligible Participants who are Non-Highly
Compensated Employees for the same Plan Year
multiplied by one and twenty-five hundredths
(1.25); or
(ii) Test Two. The Average Actual Deferral Percentage
for Eligible Participants who are Highly
Compensated Employees for the same Plan Year shall
not exceed the Average Actual Deferral Percentage
for Eligible Participants who are Non-Highly
Compensated Employees for the Plan Year multiplied
by two (2.0), provided that the Average Actual
Deferral Percentage for Eligible Participants who
are Highly Compensated Employees does not exceed
the Average Actual Deferral Percentage for
Eligible Participants who are Non-Highly
Compensated Employees by more than two (2.0)
percentage points or such lesser amount as the
Secretary of the Treasury shall prescribe to
prevent the multiple use of this alternative
limitation with respect to any Highly Compensated
Employee.
(b) Definitions. For purposes of Article III, the following
definitions shall be used:
(i) "Actual Deferral Percentage" shall mean, for a
specified group of Participants for a Plan Year,
the average of the ratios (expressed as a
percentage and calculated separately for each
Participant in such group), of Salary Redirection
Contributions and, at the election of the
Committee, Qualified Non-Elective Contributions on
behalf of the Eligible Participant for the Plan
Year to the Eligible Participant's Compensation
for such Plan Year. Provided, however, if such
Eligible Participant entered the Plan on a date
other than the first day of the Plan Year, such
Eligible Participant's compensation shall be
limited to the Compensation he received for the
Plan Year while he constituted an Eligible
Participant. For purposes of this subsection (b),
Salary Redirection Contributions shall include
Excess Salary Redirection Amounts but shall
exclude Salary Redirection Contributions and
Qualified Non-Elective Contributions that are
taken into account in administering the Average
Contribution Percentage tests prescribed by
Section 3.8 provided the Actual Deferral
Percentage test is satisfied both with and without
the exclusion of such contributions. All
contributions taken into account in satisfying the
Actual Deferral Percentage tests shall satisfy the
requirements of Section 401(a)(4) of the Code and
the Treasury Regulations promulgated thereunder.
Provided further, Qualified Non-Elective
Contributions shall not be treated as Qualified
Matching Contributions if the effect of such
treatment would be to increase the Average
Contribution Percentage for Eligible Participants
who are Highly Compensated Employees and the
Average Contribution Percentage for all other
Eligible Participants.
(ii) "Average Actual Deferral Percentage" shall mean the
average (expressed as a percentage) of the Actual
Deferral Percentage of the Eligible Participants in a
group.
(iii) "Eligible Participant" shall mean any Employee of the
Employer who is otherwise eligible under the terms of
the Plan to have Salary Redirection Contributions
allocated to his Individual Account for the Plan Year.
(c) Actual Deferral Percentages of Highly Compensated
Employees.
(i) For purposes of this Section 3.4, the Actual
Deferral Percentage for any Eligible Participant
who is a Highly Compensated Employee for the Plan
Year and who is eligible to have Salary
Redirection (and Qualified Non-Elective)
Contributions allocated to his account under two
or more plans or arrangements described in Section
401(k) of the Code that are maintained by the
Employer or an Affiliated Employer shall be
determined as if all such Salary Redirection (and,
if applicable, such Qualified Non-Elective)
Contributions were made under a single
arrangement. If a Highly Compensated Employee
participates in two or more such arrangements that
have different Plan Years, all such cash or
deferred arrangements ending with or within the
same calendar year shall be treated as a single
arrangement.
(ii) For purposes of determining the Actual Deferral
Percentage of an Eligible Participant who is a
Highly Compensated Employee on the basis he is a
five percent (5%) owner or one (1) of the ten (10)
most Highly Compensated Employees, the combined
actual deferral ratio for the Family Members (who
are treated for purposes of the Average Actual
Deferral Percentage tests as one (1) Highly
Compensated Employee) shall be the greater of
(i) the actual deferral ratio determined by
combining the Salary Redirection Contributions
(and Qualified Non-Elective Contributions if
treated as Salary Redirection Contributions for
purposes of the Average Actual Deferral Percentage
test) and Compensation of all Family Members who
are Highly Compensated Employees without regard to
aggregation of Family Members and (ii) the actual
deferral ratio determined by combining the Salary
Redirection Contributions (and Qualified Non-
Elective Contributions) and Compensation of all
Family Members. If the amount calculated under
(i) is greater than the amount calculated under
(ii), a separate ratio may be needed for the group
of Family Members who are not Highly Compensated
Employees (without regard to family aggregation).
Such separate ratio shall only apply for purposes
of correcting Excess Salary Redirection Amounts
and shall be determined by combining the Salary
Redirection Contributions (and, if applicable,
Qualified Non-Elective Contributions) and
Compensation of such Employees. Except to the
extent otherwise provided in the preceding
provisions of this subsection (c), the Salary
Redirection Contributions (and, if applicable,
Qualified Non-Elective Contributions) and
Compensation of Family Members shall be
disregarded for purposes
of determining the Actual Deferral Percentage for
Non-Highly Compensated Employees.
(iii) The determination and treatment of the Salary
Redirection Contributions, Qualified Non-Elective
Contributions and Actual Deferral Percentage of any
Participant shall satisfy such other requirements as
may be prescribed by the Secretary of the Treasury.
(d) "Actual Deferral Percentages" Defined. For purposes of
applying both Test One and Test Two, the Actual
Deferral Percentage shall be the sum of the deferral
percentages for each Eligible Participant under each
cash or deferred arrangement in which the Eligible
Participant participates. Additionally, if two (2) or
more plans in which an Eligible Participant
participates are considered as one (1) plan for
purposes of Section 401(a)(4) or 410(b) of the Code
(other than Section 410(b)(2)(A)(ii) of the Code), the
cash or deferred arrangements included in such plans
shall be treated as one arrangement for purposes of
applying Test One and Test Two. Provided, further, if
a Highly Compensated Employee participates in two (2)
or more cash or deferred arrangements which have
different plan years, all cash or deferred arrangements
ending with or within the calendar year shall be
treated as a single arrangement. All rules of
application with reference to Test One and Test Two
shall be governed by Section 401(k) of the Code and any
rules or regulations promulgated thereunder. Deferral
percentages calculated under this Section 3.4 shall be
calculated to the nearest one-hundredth of one
percent (.01%) of Compensation.
(e) Date by Which Salary Redirection Contributions Must be
Made. In order to be included in the tests prescribed
by subsection (a), Salary Redirection Contributions and
Qualified Non-Elective Contributions for a Plan Year
must be made by the last day of the twelve (12) month
period immediately following the Plan Year to which the
Salary Redirection Contributions relate. Moreover,
such contributions must be allocated to Participants'
Individual Accounts for the Plan Year with respect to
which the tests are performed. Finally, any Salary
Redirection Contributions made to the Plan after the
end of a Plan Year must relate either to Compensation
that would have been received in such Plan Year (but
for the election to make Salary Redirection
Contributions) or to Compensation attributable to such
Plan Year that would have been received by the
Participant (but for the election to
make Salary Redirection Contributions) within two and
one-half (2-1/2) months after the close of the Plan
Year.
(f) Maintenance of Records. The Committee shall maintain records
sufficient to demonstrate satisfaction of the tests prescribed
by subsection (a) and the amounts of the contributions used in
such tests.
3.5 Distribution of Excess Salary Redirection Amounts.
(a) In General. Notwithstanding any other provision of the
Plan, Excess Salary Redirection Amounts plus any income
and less any losses allocable thereto shall be
distributed no later than April 15, 1992, and each
April 15 thereafter, to Participants who properly
notify the Committee and claim such allocable Excess
Salary Redirection Amounts for the preceding taxable
year. For purposes of this Section 3.5, the "Excess
Salary Redirection Amount" shall mean the amount of
Salary Redirection Contributions for a calendar year
that the Participant allocates to this Plan pursuant to
the claims procedure set forth in subsection (b) which
exceeds the Dollar Limitation (as defined in
Section 3.3(a)) as in effect for the taxable year
beginning in such calendar year.
(b) Claims. The Participant's claim shall be in writing,
shall be submitted to the Committee no later than March
1st; shall specify the Participant's Excess Salary
Redirection Amount for the immediately preceding
taxable year of the Participant; and shall be
accompanied by the Participant's written statement that
if such amounts are not distributed, such Excess Salary
Redirection Amount, when added to amounts deferred
under other plans or arrangements described in
Sections 401(k), 408(k) or 403(b) of the Code, exceeds
the limit imposed on the Participant by Section 402(g)
of the Code for the year in which the deferral
occurred. Notwithstanding the provisions of
subsection (a) and the preceding provisions of this
subsection (b), a Participant's Excess Salary
Redirection Amount plus any income and less any losses
allocable thereto may be distributed to the Participant
in the same taxable year in which the Excess Salary
Redirection Amount is made so long as (i) such amount
is distributed in accordance with the claims procedure
set forth in the preceding provisions of this
subsection (b), (ii) the Participant designates the
distribution as an Excess Salary Redirection Amount,
(iii) the distribution is made after the date on which
the Plan received such amount and (iv) the Committee
designates the distribution as a distribution of an
Excess Salary Redirection Amount.
(c) Maximum Distribution Amount. The Excess Salary
Redirection Amount distributed to a Participant with
respect to a taxable year shall be adjusted for income
or loss. The income or loss allocable to the Excess
Salary Redirection Amounts is equal to the sum of the
allocable gain or loss for the Participant's taxable
year and the allocable gain or loss for the period, if
any, between the end of the taxable year and the date
of distribution. The income, if any, allocable to an
Excess Salary Redirection Amount for the taxable year
of a Participant, excluding any income allocable to the
period between the end of the Participant's taxable
year and the date of distribution, is determined by
multiplying the income for the Participant's taxable
year allocable to Salary Redirection Contributions by a
fraction, the numerator of which is the amount of
Excess Salary Redirection Amount made by the
Participant for such taxable year and the denominator
of which is the total balance of the Participant's
Individual Account attributable to Salary Redirection
Contributions as of the end of the taxable year,
reduced by any gain allocable to such total amount for
the taxable year and increased by the loss allocable to
such total amount for the taxable year. The allocable
income or loss for the period between the end of the
taxable year and the date of distribution shall be
calculated on the basis that such income or loss is
equal to ten percent (10%) of the income or loss
allocable to Excess Salary Redirection Amounts for the
taxable year, as determined under the preceding
sentence, multiplied by the number of calendar months
that have elapsed since the end of the taxable year.
For purposes of determining the number of such calendar
months, a distribution which occurs on or before the
fifteenth (15th) day of the month will be treated as
having been made on the last day of the preceding
month, and a distribution which occurs after such
fifteenth (15th) day of the month will be treated as
having been made on the first day of the next month.
If an Excess Salary Redirection Amount is distributed
within the same taxable year in which the Excess Salary
Redirection Amount is made, the income, if any,
allocable to the Salary Redirection Contributions from
the beginning of the taxable year to the date on which
the distribution is made shall be determined by using
the method prescribed in the preceding provisions of
this subsection (c).
(d) Reduction of Excess Salary Redirection Amounts. The
Excess Salary Redirection Amount otherwise
distributable to a Participant for a taxable year under
this Section 3.5 shall be reduced by the amount
of any Excess Contributions, if any, as described in
Section 3.6, previously distributed to the Participant
for the Plan Year beginning with or within such taxable
year. In no event shall a Participant receive a
distribution for a taxable year in an amount in excess
of the Participant's total Salary Redirection
Contributions to the Plan for the taxable year.
3.6 Distribution of Excess Contributions.
(a) In General. Notwithstanding any other provision of the
Plan, Excess Contributions plus any income and less any
losses allocable thereto shall be distributed no later
than April 15, 1992, and each April 15th thereafter, to
Highly Compensated Employees on whose behalf such
Excess Contributions were made for the preceding Plan
Year. Excess Contributions shall be distributed to
appropriate Highly Compensated Employees after the
close of the Plan Year in which the Excess
Contributions arose. For purposes of this Section 3.6,
"Excess Contributions" shall mean, with respect to any
Plan Year, the excess of (i) the aggregate amount of
Employer contributions actually taken into account in
computing the Actual Deferral Percentage of Highly
Compensated Employees for such Plan Year over (ii) the
maximum amount of such contributions permitted by the
Actual Deferral Percentage tests specified in
Section 3.4(a) (determined by reducing contributions
made on behalf of Highly Compensated Employees in order
of their respective Actual Deferral Percentages,
commencing with the highest of such percentages). Any
Excess Contributions for a Plan Year shall not remain
unallocated under the Plan or be allocated to a
suspense or limitation account for allocation to one
(1) or more Participants in any future Plan Year.
(b) Determination of Excess Contributions. The amount of
Excess Contributions for a Highly Compensated Employee
for a Plan Year shall be determined under the following
leveling method, under which the actual deferral ratio
of the Highly Compensated Employee with the highest
actual deferral ratio shall be reduced to the extent
required to (1) enable the arrangement to satisfy
either of the Actual Deferral Percentage tests
specified in Section 3.4(a), or (ii) cause such Highly
Compensated Employee's actual deferral ratio to equal
the ratio of the Highly Compensated Employee with the
next highest deferral ratio. The procedure specified
in the preceding sentence shall be repeated until the
Plan satisfies either of the Actual Deferral Percentage
tests specified in Section 3.4(a). For each Highly
Compensated Employee, the amount of Excess
Contributions is equal to the total Salary Redirection
Contributions made to the Plan by the Highly
Compensated Employee for the Plan Year plus Qualified
Non-Elective Contributions, if any, treated as Salary
Redirection Contributions, on behalf of the Highly
Compensated Employee determined prior to the
application of the leveling process contained in this
subsection (b) minus the amount determined by
multiplying the Highly Compensated Employee's actual
deferral ratio determined after application of such
leveling process by his Compensation used in
determining such ratio.
(c) Maximum Distribution Amount. The Excess Contributions
which would otherwise be distributed to a Highly
Compensated Employee shall be adjusted for income or
loss. The income or loss allocable to Excess
Contributions is equal to the sum of the allocable gain
or loss for the Plan Year and the allocable gain or
loss, if any, for the period between the end of the
Plan Year and the date of distribution. The income, if
any, allocable to a Highly Compensated Employee's
Excess Contributions for a Plan Year, excluding any
income allocable to the period between the end of the
Plan Year and the date of distribution, is determined
by multiplying the income for the Plan Year allocable
to Salary Redirection Contributions (and any amounts
treated as Salary Redirection Contributions) by a
fraction, the numerator of which is the Highly
Compensated Employee's Excess Contributions for the
Plan Year and the denominator of which is the total
balance of the Highly Compensated Employee's Individual
Account attributable to Salary Redirection
Contributions (and amounts treated as Salary
Redirection Contributions) as of the end of the Plan
Year, reduced by the gain attributable to such total
amount for the Plan Year and increased by the loss
allocable to such total amount for the Plan Year. The
allocable income or loss for the period between the end
of the Plan Year and the date of distribution shall be
calculated on the basis that such income or loss is
equal to ten percent (10%) of the income allocable to
the Excess Contributions for the Plan Year, as
determined under the preceding sentence, multiplied by
the number of calendar months that have elapsed since
the end of the Plan Year. For purposes of determining
the number of such calendar months, a distribution
which occurs on or before the fifteenth (15th) day of
the month will be treated as having been made on the
last day of the preceding month and a distribution made
after the fifteenth (15th) day of the month will be
treated as having been made on the first day of the
next month.
(d) Accounting for Excess Contributions. In no case shall the amount
of Excess Contributions to be distributed for a Plan Year with
respect to any Highly Compensated Employee exceed the amount of
Salary Redirection Contributions made to the Plan by such Highly
Compensated Employee for such Plan Year.
(e) Reduction of Excess Contributions. The Excess
Contributions otherwise distributable to a Plan for a
Plan Year under this Section 3.6 shall be reduced by
the amount of any Excess Salary Redirection Amount, as
described in Section 3.5, previously distributed to the
Highly Compensated Employees for the Highly Compensated
Employee's taxable year ending with or within such Plan
Year.
(f) Designation of Excess Contributions. Excess Contributions and
any income allocable thereto distributed to Highly Compensated
Employees pursuant to this Section 3.6 shall be designated in
writing by the Committee as a distribution of Excess
Contributions and income allocable thereto.
3.7 Matching Contributions.
(a) As of the annual Valuation Date, the Employer shall
contribute an amount on behalf of each eligible
Participant necessary to match fifty percent (50%) of
each eligible Participant's eligible Salary Redirection
Contributions up to four percent (4%) of such
Participant's Compensation made to the Fund since the
last preceding annual Valuation Date by each such
eligible Participant.
For this purpose, an "eligible" Participant is a Participant described in
Section 3.4(b).
(b) For purposes of subsection (a), "eligible" Salary Redirection
Contributions shall mean Salary Redirection Contributions not to
exceed fifteen percent (15%) of Compensation. Subject to
Sections 3.8 and 3.9, Matching Contributions shall be allocated
to the Participant's Matching Contributions Account in
accordance with Section 4.3.
3.8 Nondiscrimination Requirements For Matching Contributions.
All Matching Contributions made to the Plan shall be subject to the following
requirements:
(a) Average Contribution Percentage Requirement. The Average
Contribution Percentage for Eligible Participants who are Highly
Compensated Employees for the Plan Year and the Average
Contribution Percentage for Eligible Participants for the same
Plan Year must satisfy one of the following tests:
(i) Test One. The Average Contribution Percentage for
Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the Average
Contribution Percentage for Participants who are
Non-Highly Compensated Employees for the same Plan
Year multiplied by one and twenty-five hundredths
(1.25); or
(ii) Test Two. The Average Contribution Percentage for
Eligible Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the
Average Contribution Percentage for Eligible
Participants who are Non-Highly Compensated
Employees for the same Plan Year multiplied by two
(2.0), provided that the Average Contribution
Percentage for Eligible Participants who are
Highly Compensated Employees does not exceed the
Average Contribution Percentage for Eligible
Participants who are Non-Highly Compensated
Employees by more than two (2.0) percentage points
or such lesser amount as the Secretary of the
Treasury shall prescribe to prevent the multiple
use of this alternative limitation with respect to
any Highly Compensated Employee.
(b) Definitions. For purposes of this Article III, the
following definitions shall apply.
(i) "Average Contribution Percentage" shall mean the
average (expressed as a percentage) of the Contribution
Percentages of the Eligible Participants in a group.
(ii) "Contribution Percentage" shall, subject to the
provisions of subsection (g), mean the ratio
(expressed as a percentage), of the sum of the
Contribution Percentage Amounts under the Plan on
behalf of the Eligible Participant for the Plan
Year to the Eligible Participant's Compensation
for the Plan Year. Provided, however, if such
Eligible Participant entered the Plan on a date
other than the first day of the Plan Year, such
Eligible Participant's compensation shall be
limited to the Compensation he received for the
Plan Year while he constituted an Eligible
Participant.
(iii) "Contribution Percentage Amount" shall mean the
sum of Matching Contributions (to the extent not
taken into account by the Committee in satisfying
the Actual Deferral Percentage Tests prescribed by
Section 3.4(a)) made under the Plan on behalf of
the Participant for the Plan Year. The Committee
may, in its discretion, elect to utilize Qualified
Non-Elective Contributions and Salary Redirection
Contributions so long as one of the Actual
Deferral Percentage tests is met before such
Qualified Non-Elective Contributions and Salary
Redirection Contributions are utilized in the
Actual Contribution Percentage tests and continues
to be met following the exclusion of those
Qualified Non-Elective Contributions and Salary
Redirection Contributions that are used to meet
the Average Contribution Percentage tests. All
contributions taken into account in satisfying the
Average Compensation Percentage Tests shall
satisfy the requirements of Section 401(a)(4) of
the Code and the Treasury Regulations promulgated
thereunder.
(iv) "Eligible Participant" shall mean any Employee who is
otherwise eligible under the terms of the Plan to make
Salary Redirection Contributions (if the Committee
takes such contributions into account in the
calculation of the Contribution Percentage) or to
receive an allocation of Matching Contributions.
(c) Special Rules.
(i) For purposes of this Section 3.8, the Contribution
Percentage for any Eligible Participant who is a
Highly Compensated Employee for the Plan Year and
who is eligible to have Contribution Percentage
Amounts allocated to his account under two (2) or
more plans described in Section 401(a) of the Code
or arrangements described in Section 401(k) of the
Code that are maintained by the Employer or an
Affiliated Employer shall be determined as if the
total of such Contribution Percentage Amounts was
made under each Plan. If a Highly Compensated
Employee participates in two or more cash or
deferred arrangements that have different Plan
Years, all cash or deferred arrangements ending
with or within the same calendar year shall be
treated as a single arrangement.
(ii) If one or more Highly Compensated Employees
participate in both a cash or deferred arrangement
and a plan subject to the Average Contribution
Percentage tests maintained by the
Employer or an Affiliated Employer and the sum of
the Actual Deferral and Average Contribution
Percentages of those Highly Compensated Employees
subject to either or both tests exceeds the
"aggregate limit", then the Average Contribution
Percentage of those Highly Compensated Employees
who also participate in a cash or deferred
arrangement will be reduced (beginning with the
Highly Compensated Employees whose Actual Deferral
Percentage is the highest) so that the limit is
not exceeded. The amount by which each Highly
Compensated Employee's Contribution Percentage
Amount is reduced shall be treated as an Excess
Aggregate Contribution under Section 3.9. The
Actual Deferral and Average Contribution
Percentages of the Highly Compensated Employees
shall be determined after any corrections required
to meet the Actual Deferral and Average
Contribution Percentage tests. Multiple use shall
not be deemed to have occurred if both the Actual
Deferral and Average Contribution Percentage of
the Highly Compensated Employees does not exceed
one and twenty-five hundredths (1.25) multiplied
by the Actual Deferral and Average Contribution
Percentage of the Non-Highly Compensated
Employees. For purposes of this paragraph (ii),
"aggregate limit" means the sum of (A) the Actual
Deferral Percentage of the Highly Compensated
Employees for the Plan Year or the Average
Contribution Percentage of the Non-Highly
Compensated Employees under the plan subject to
Section 401(m) of the Code for the Plan Year
beginning with or within the Plan Year of the cash
or deferred arrangement and (B) the lesser of two
hundred percent (200%) or two (2.0) plus the
lesser of such Actual Deferral and Average
Contribution Percentage.
(d) Aggregation of Plans. In the event that this Plan
satisfies the requirements of Section 410(b) of the
Code only if aggregated with one or more other plans,
or if one or more other plans satisfy the requirements
of Section 410(b) of the Code only if aggregated with
this Plan, then this Section 3.8 shall be applied by
determining the Contribution Percentage of Eligible
Participants as if all such plans were a single plan.
For plan years beginning after December 31, 1989, plans
may be aggregated in order to satisfy the Average
Contribution Percentage tests only if they have the
same plan year.
(e) Aggregation of Family Members. For purposes of
determining the Contribution Percentage of an Eligible
Participant who is a Highly Compensated Employee on the
basis he is a five percent (5%) owner or one (1) of the
ten (10) most Highly Compensated Employees, the
combined actual contribution ratio for the Family
Members (who are treated for purposes of the Average
Contribution Percentage tests as one (1) Highly
Compensated Employee) shall be the greater of (i) the
Contribution Percentage Amounts and Compensation of all
Family Members who are Highly Compensated Employees
without regard to aggregation of Family Members and
(ii) the Contribution Percentage Amounts and
Compensation of all Family Members. If the amount
calculated under (i) is greater than the amount
calculated under (ii), it may be necessary for purposes
of correcting Excess Aggregate Contributions of the
Family Members specified in the preceding provisions of
this subsection (e), to calculate an actual
contribution ratio for the group of eligible Family
Members who are not Highly Compensated Employees
without regard to family aggregation. This actual
contribution percentage is determined by combining
Contribution Percentage Amounts and Compensation of all
such Employees. Except to the extent otherwise
provided in the preceding provisions of this
subsection (e), the Contribution Percentage Amounts and
Compensation for all Family Members are disregarded for
purposes of determining the Actual Contribution
Percentage for Non-Highly Compensated Employees.
(f) Other Requirements. The determination and treatment of
the Contribution Percentage of any Participant shall
satisfy such other requirements as may be prescribed by
the Secretary of the Treasury.
(g) Computing Contribution Percentage. In computing the
Contribution Percentage, Matching and Qualified Non-
Elective Contributions shall be taken into account
under this Section 3.8 for a Plan Year only if such
contributions are (i) allocated in accordance with
Article IV as of a date within such Plan Year,
(ii) actually paid to the Fund no later than the end of
the twelve (12) month period after the end of such Plan
Year, and (iii) made to the Plan on account of Salary
Redirection Contributions. Contribution Percentages
calculated under this Section 3.8 shall be calculated
to the nearest one-hundredth of one percent (.01%) of
Compensation.
(h) Maintenance of Records. The Committee shall maintain records
sufficient to demonstrate satisfaction of the tests prescribed
by subsection (a) and the amount of the Qualified Non-Elective
Contributions used in such tests.
3.9 Distribution of Excess Aggregate Contributions.
(a) In General. Notwithstanding any other provision of the
Plan, the Excess Aggregate Contributions plus any
income less any losses allocable thereto shall be
distributed no later than April 15, 1992, and each
April 15th thereafter, to Highly Compensated Employees
on whose behalf such Excess Aggregate Contributions
were made for the preceding Plan Year. Excess
Aggregate Contributions shall be distributed to
appropriate Highly Compensated Employees after the
close of the Plan Year in which the Excess Aggregate
Contributions arose. For purposes of this Section 3.9
"Excess Aggregate Contributions" shall mean, with
respect to any Plan Year, the excess of the (i) the
Aggregate Contribution Percentage Amounts taken into
account in computing the numerator of the Contribution
Percentage actually made on behalf of Highly
Compensated Employees for such Plan Year over (ii) the
Maximum Contribution Percentage Amounts permitted by
the Average Contribution Percentage tests (determined
by reducing contributions made on behalf of the Highly
Compensated Employees in order of their Contribution
Percentages beginning with the highest of such
percentages). Such determination shall be made after
first determining Excess Salary Redirection
Contributions pursuant to Section 3.5 and then
determining Excess Contributions pursuant to
Section 3.6. Excess Aggregate Contributions for a
Plan Year shall not remain unallocated under the Plan
or be allocated to a suspense or limitation account for
allocation to one (1) or more Participants in any
future Plan Year.
(b) Determination of Excess Aggregate Contributions. The
amount of Excess Aggregate Contributions for a Highly
Compensated Employee for a Plan Year shall be
determined under the following leveling method, under
which the actual contribution ratio of the Highly
Compensated Employee with the highest actual
contribution ratio is reduced to the extent required to
(i) enable the Plan to satisfy either of the Average
Contribution Percentage tests specified in Section 3.8
or (ii) cause such Highly Compensated Employee's actual
contribution ratio to equal the ratio of the Highly
Compensated Employee with the next highest actual
contribution ratio. The procedure specified in the
preceding sentence shall be repeated until the Plan
satisfies either of the Average
Contribution Percentage tests specified in Section 3.8.
For each Highly Compensated Employee, the amount of
Excess Aggregate Contributions is equal to the total
Matching Contributions plus Qualified Non-Elective
Contributions and Salary Redirection Contributions, if
any, treated as Matching Contributions, on behalf of
the Highly Compensated Employee determined prior to the
leveling process contained in this subsection (b) minus
the amount determined by multiplying the Highly
Compensated Employee's actual contribution ratio,
determined after the application of such leveling
process by his Compensation used in determining such
ratio.
(c) Maximum Distribution Amount. The Excess Aggregate
Contributions which would otherwise be distributed to a
Highly Compensated Employee shall be adjusted for
income or loss. The income or loss allocable to Excess
Aggregate Contributions is equal to the sum of the
allocable gain or loss for the Plan Year and the
allocable gain or loss for the period between the end
of the Plan Year and the date of the distribution. The
income, if any, allocable to Excess Aggregate
Contributions for a Plan Year, excluding any income
allocable to the period between the end of the Plan
Year and the date of the distribution, is determined by
multiplying the income for the Plan Year allocable to
Matching Contributions (and amounts treated as Matching
Contributions) by a fraction, the numerator of which is
the amount of Excess Aggregate Contributions made on
behalf of the Highly Compensated Employee for the Plan
Year and the denominator of which is the total balance
of the Individual Accounts of the Highly Compensated
Employees attributable to Matching Contributions (and
amounts treated as Matching Contributions) as of the
end of the Plan Year, reduced by the gain allocable to
such total amount for the Plan Year and increased by
the loss allocable to such total amount for the Plan
Year. The allocable income or loss for the period
between the end of the Plan Year and the date of
distribution shall be calculated on the basis that such
income or loss is equal to ten percent (10%) of the
income or loss allocable to the Excess Aggregate
Contributions for the Plan Year, as determined under
the preceding sentence, multiplied by the number of
calendar months that have elapsed since the end of the
Plan Year. For purposes of determining the number of
calendar months, a distribution which occurs on or
before the fifteenth (15th) day of the month will be
treated as having been made on the last day of the
preceding month and a distribution which occurs after
such fifteenth (15th) day shall be treated as having
been made on the first day of the next month.
(d) Accounting for Excess Aggregate Contributions. Excess Aggregate
Contributions shall be distributed on a pro-rata basis from the
Participant's Matching Contributions Account (and, if
applicable, the Participant's Qualified Non-Elective or Salary
Redirection Contribution Accounts, or both).
(e) Designation of Excess Aggregate Contributions. Excess Aggregate
Contributions and any income allocable thereto distributed to
Highly Compensated Employees pursuant to this Section 3.9 shall
be designated in writing by the Committee as a distribution of
Excess Aggregate Contributions and income allocable thereto.
3.10 Exclusive Benefit of Employees. All contributions made pursuant to
the Plan shall be held by the Trustee in accordance with the terms of the Trust
Agreement for the exclusive benefit of those Employees who are Participants
under the Plan, any Inactive Participant, and their Beneficiaries, and shall be
applied to provide benefits under the Plan and to pay expenses properly
attributable to administration of the Plan and the Trust, to the extent that
such expenses are not otherwise paid. At no time prior to the satisfaction of
all liabilities with respect to such Employees and their Beneficiaries shall any
part of the Fund (other than such part as may be required to properly pay
administration expenses and taxes) be used for, or diverted to, purposes other
than for the exclusive benefit of such Participants, Inactive Participants and
their Beneficiaries. However, without regard to the provisions of this Section
3.10:
(a) All contributions under the Plan are conditioned on
initial qualification or subsequent amendment of the
Plan under Section 401(a) of the Code, and if the Plan
does not so qualify, either initially or as amended,
the Trustee shall, upon written request of the
Employer, return to the Employer the amount of such
contribution within one (1) calendar year after the
date that qualification of the Plan is denied but only
if the application for qualification of the Plan is
made by the time prescribed by law for filing the
employee's return for the taxable year in which the
plan is adopted, or such later date as may be
prescribed by the Secretary of the Treasury;
(b) All contributions are conditioned upon the deductibility of the
contribution under Section 404 of the Code and to the extent the
deduction is disallowed, the Trustee shall, upon written request
of the Employer, return the contribution (to the extent
disallowed) to the Employer within one (1) year after the date
the deduction is disallowed; and
(c) If a contribution or any portion thereof is made by the Employer
by a mistake of fact, the Trustee shall, upon written request of
the Employer, return the contribution or such portion to the
Employer within one (1) year after the date of payment to the
Trustee.
The Trustee shall not increase the amount of the Employer contribution
returnable under this Section 3.10 for any income attributable to such
contribution; however, the Trustee shall decrease the Employer contribution
returnable for any losses allocable thereto. The Trustee may require the
Employer to furnish it with whatever evidence the Trustee considers reasonably
necessary to enable the Trustee to confirm the amount the Employer has requested
to be returned as properly returnable under the applicable provisions of ERISA.
3.11 Qualified Non-Elective Contributions. In lieu of distributing
Excess Contributions, as provided in Section 3.6, or Excess Aggregate
Contributions, as provided in Section 3.9, the Employer may, in its discretion,
make Qualified Non-Elective Contributions on behalf of Non-Highly Compensated
Employees which are sufficient to satisfy either the Actual Deferral Percentage
test or the Average Contribution Percentage test, or both, as provided in the
Treasury Regulations. Qualified Non-Elective Contributions shall be allocated to
the Qualified Non-Elective Contributions Accounts of Participants entitled to
receive an allocation in the ratio which each such Participant's Compensation
bears to the total Compensation of all Participants for such Plan Year. Provided
further, in lieu of distributing Excess Aggregate Contributions, as provided in
Section 3.9, the Employer may, in its discretion, make Qualified Matching
Contributions on behalf of Non-Highly Compensated Employees which are sufficient
to satisfy the Average Contribution Percentage tests, as provided in the
Treasury Regulations.
ARTICLE IV
ALLOCATIONS TO INDIVIDUAL ACCOUNTS
4.1 Individual Accounts. The Committee shall establish and maintain an
Individual Account in the name of each Participant to which the Committee shall
credit all amounts allocated to each such Participant pursuant to Article III
and the following Sections of this Article IV. Each Individual Account shall be
comprised of whichever of the following are applicable to a particular
Participant: a Profit Sharing Account, a Rollover Account, a Salary Redirection
Contributions Account, a Qualified Non-Elective Contribution Account and a
Matching Contributions Account.
4.2 Allocation of Profit Sharing Contributions. The Committee, as of the
last day of each Plan Year (or such other Valuation Date as the Committee shall
determine), shall determine for each eligible Participant, his share of Profit
Sharing Contributions contributed in accordance with Section 3.1. Subject to the
provisions of Section 1.43, each Participant described in Section 3.1 who is an
Employee on the last day of such Plan Year and who completed one thousand
(1,000) Hours of Service during the Plan Year shall receive an allocation in the
proportion that the Participant's Compensation (as defined in Section 1.9) for
the Plan Year bears to the total Compensation of all such Participants for such
Plan Year. Provided, however, for purposes of this Section 4.2, in the case of a
Participant who enters the Plan on a date other than the first day of the Plan
Year, such Participant's Compensation shall include only that Compensation paid
to the Participant on and after becoming a Participant. Provided, further, a
Participant who is not an Employee on the last day of the Plan Year shall also
share in the allocation of Profit Sharing Contributions for the Plan Year of his
retirement upon or after attaining his Normal Retirement Age, Total and
Permanent Disability or death. Each Participant's share of the Profit Sharing
Contribution shall be allocated to his Profit Sharing Account.
4.3 Allocation of Matching Contributions. The Committee, as of the last
day of the Plan Year (or such other Valuation Date as the Committee shall
determine), shall determine for each eligible Participant, his share of Matching
Contributions contributed in accordance with Section 3.7. The Matching
Contributions shall be allocated to the Matching Contribution Accounts of each
Participant (i) who made Salary Redirection Contributions to the Fund since the
last Valuation Date and (ii) who is an Employee on the last day of such Plan
Year and who completed one thousand (1,000) Hours of Service during the Plan
Year. Provided, however, a Participant who is not an Employee on the last day of
the Plan Year but who made Salary Redirection Contributions during such Plan
Year shall also share in the allocation of Matching Contributions for the Plan
Year of his retirement upon or after attaining his Normal Retirement Age, Total
and Permanent Disability or death.
4.4 Allocation of Adjustments.
(a) Determination of Adjustment. Following the allocations
---------------------------
made pursuant to Sections 4.2 and 4.3, the Committee
shall determine the Adjustment for the current
Valuation Date by adding together all income received,
and realized and unrealized gains and losses, and
deducting therefrom all taxes, charges or expenses
(unless paid separately by the Employer in its
discretion, outside the confines of this Plan) and any
realized and unrealized losses since the preceding
Valuation Date which may have been sustained by the
Fund. In determining the fair market value of the Fund
for purposes of making the Adjustment, the Committee
shall exclude (i) any Employer or rollover
contributions made on account of the period ending on
the current Valuation Date, (ii) distributions made
from the Fund during the period commencing with such
last preceding Valuation Date and ending with the
current Valuation Date and (iii) any income received
with respect to Rollover Accounts or accounts which
have been segregated in accordance with the provisions
of Sections 3.2(e), 5.3 and 6.2.
(b) Allocation of Adjustment. The Adjustment shall be
allocated as of the current Valuation Date to the
Individual Accounts of Participants, Inactive
Participants and Beneficiaries who maintain a credit
balance in their Individual Account, as of such
Valuation Date, in the same proportion that the balance
of each Participant's Individual Account as of the
current Valuation Date (excluding allocations made
under Sections 4.2 and 4.3 for the period ending on the
current Valuation Date and previously allocated to such
Individual Account) bears to the balance of all
Individual Accounts of Participants, Inactive
Participants and Beneficiaries in the Fund on the
current Valuation Date (excluding allocations made
under Sections 4.2 and 4.3 for the period ending on the
current Valuation Date and previously allocated to such
Individual Accounts). Provided, further, in allocating
the Adjustment, the Committee shall not take into
account (i) any rollover contributions made to the
Trustee since the last preceding Valuation Date and
segregated under a separate account in accordance with
the provisions of Sections 3.2(e) or (ii) any amounts
which have been allocated to segregated accounts in
accordance with the provisions of Sections 5.3 and 6.2.
Provided, further, the portion of the contributions to be included shall
be weighted, in a reasonable and nondiscriminatory fashion, to be determined by
the Committee, to reflect the time since the immediately preceding Valuation
Date during which such amounts were actually held and invested by the Trustee.
In addition, the Committee may from time to time, in its reasonable discretion,
modify the rules for determining the prior credit balance of a Participant's
Individual Account, provided that any such rules shall be applied in a uniform
and nondiscriminatory manner.
4.5 Allocation of Forfeitures. The amount of a Participant's Profit
Sharing and Matching Contributions Accounts forfeited under the Plan shall,
subject to any restoration allocation required under Section 5.2, be allocated
under Sections 3.1 and 3.7 with the Employer's Profit Sharing and Matching
Contributions for the Plan Year in which the forfeiture occurs as if the
Participant's forfeiture was an additional Profit Sharing or Matching
Contribution for that Plan Year as the case may be. Such allocation shall be
made to the Matching Contributions and Profit Sharing Accounts of each
Participant who is eligible under Sections 3.1 and 3.7 to share in the
allocation of the Matching and Profit Sharing Contributions. The Committee shall
continue to hold the undistributed, non-vested portion of a terminated
Participant's Matching Contributions and Profit Sharing Accounts solely for his
benefit until a forfeiture occurs at the time specified in Section 5.6. Except
as provided in Section 5.6(b), a terminated Participant shall not be entitled to
share in the allocation of a forfeiture of any portion of his Matching or Profit
Sharing Account.
4.6 Trustee and Committee Judgment Controls. In determining the fair
market value of the Fund and of Individual Accounts, the Trustee and the
Committee shall exercise their best judgment, and all such determinations of
value (in the absence of bad faith) shall be binding upon all Participants and
their Beneficiaries. All allocations shall be deemed to have been made as of the
Valuation Date, regardless of when actual allocations were undertaken.
4.7 Maximum Allocations. The allocations to the accounts
of any Participant in any Limitation Year shall be limited so
that the Participant's Annual Additions for such Limitation Year
do not exceed the Maximum Permissible Amount.
4.8 Corrective Adjustments. In the event that corrective adjustments in
the Annual Additions to any Participant's Individual Account are required as the
result of the allocation of forfeitures, a reasonable error in estimating a
Participant's total annual Compensation or under other limited facts and
circumstances which the Commissioner of the Internal Revenue Service finds
justify the availability of the provisions of this Section 4.8, the following
corrective adjustments shall be made:
(a) The excess amounts in the Participant's Profit Sharing Account
shall be reduced to insure compliance with Section 4.7 by
reducing Profit Sharing Contributions for the next Limitation
Year (and succeeding Limitation Years, as necessary) for that
Participant if the Participant is covered by the Plan and
entitled to an allocation hereunder in accordance with Section
4.2.
(b) If the Participant is not entitled to share in the
allocation of Profit Sharing Contributions as of the
end of the Limitation Year, then the excess amount
shall be held unallocated in a suspense account for the
Limitation Year and allocated and reallocated in the
next Limitation Year to all remaining Participants in
the Plan who are entitled to an allocation of Profit
Sharing Contributions. The excess amount held in such
suspense account shall be (i) allocated and reallocated
(subject to the limits of this Article IV) before any
Annual Additions may be made to the Plan for the
Limitation Year and (ii) used to reduce Profit Sharing
Contributions for that Limitation Year (and any
succeeding Limitation Years, as necessary) for all
remaining Participants entitled to receive an
allocation of such Profit Sharing Contribution. No
excess amount or any portion thereof may be distributed
to Participants, Inactive Participants or their
Beneficiaries.
(c) As used in this Section 4.8, "excess amount" means the excess of
a Participant's Annual Additions for a Limitation Year over the
Maximum Permissible Amount.
4.9 Limitations on Benefits of Participants Participating
in More than One Plan.
(a) Notwithstanding the provisions of Section 4.6 and 4.7,
the otherwise permissible Annual Additions for any
Participant under this Plan shall be further reduced to
the extent necessary, as determined by the Committee,
to prevent disqualification of the Plan under Section
415 of the Code, which imposes the following additional
limitations on the benefits payable to Participants who
also may be participating in another tax qualified
pension, profit sharing, savings or stock bonus plan
maintained by the Employer:
(i) If an individual is a Participant at any time in
both a Defined Benefit Plan and a Defined
Contribution Plan maintained by the Employer, the
sum of the Defined Benefit Plan fraction and the
Defined Contribution Plan fraction for any
Limitation Year may not exceed 1.0. If the sum of
the Defined Benefit Plan fraction and the Defined
Contribution Plan fraction for any Limitation Year
exceeds 1.0, the numerator of the Defined
Contribution Plan fraction shall be reduced in
order that the sum of the Defined Contribution
Plan fraction and the Defined Benefit Plan
fraction do not exceed 1.0.
The Defined Benefit Plan fraction for any Limitation
Year is a fraction, the numerator of which is the
Participant's projected annual benefit under the Plan
(determined at the close of the Limitation Year) and
the denominator of which is the lesser of 1.25
multiplied by Ninety Thousand Dollars ($90,000), as
adjusted by the Adjustment Factor; or 1.4 multiplied by
one hundred percent (100%) of the Participant's average
monthly compensation, as defined in Treasury Regulation
Section 1.415-2(d)(1)(i), during the three (3)
consecutive years when the total compensation paid to
him was highest. The Defined Contribution Plan fraction
for any Limitation Year is a fraction, the numerator of
which is the sum of the Annual Additions to the
Participant's accounts in such Limitation Year and for
all prior Plan Years and the denominator of which is
the sum of the applicable maximum amounts of Annual
Additions which could have been made under Section
415(c) of the Code for such Plan Year and for all prior
years of such Participant's employment (assuming for
this purpose that said Section 415(c) had been in
effect during such prior years). The applicable maximum
amount for any Limitation Year shall be equal to the
lesser of 1.25 multiplied by the dollar limitation in
effect for such Limitation Year under Section
415(c)(1)(A) of the Code; or 1.4 multiplied by
twenty-five percent (25%) of the Participant's
Compensation for such Limitation Year.
(ii) If the Plan satisfied the applicable requirements
of Section 415 of the Code as in effect for all
Limitation Years beginning before January 1, 1989,
an amount shall be subtracted from the numerator
of the Defined Contribution Plan fraction (not
exceeding such numerator) as prescribed by the
Secretary of the Treasury so that the sum of the
Defined Benefit Plan fraction and the Defined
Contribution Plan fraction computed under Section
415(e)(1) of the Code does not exceed 1.0 for such
Limitation Year.
(b) For purposes of the limitation provided by this
Section 4.9, all Defined Benefit Plans of the Employer,
whether or not terminated, are to be treated as one
Defined Benefit Plan and all Defined Contribution Plans
of the Employer, whether or not terminated, are to be
treated as one Defined Contribution Plan. The extent
to which Annual Additions under the Plan shall be
reduced as compared with the extent to which the annual
benefit under any Defined Benefit Plan shall be reduced
in order to achieve compliance with the limitations of
Section 415 of the Code shall be determined by the
Committee in
such a manner so as to maximize the aggregate benefits
payable to such Participant. If such reduction is
under this Plan, the Committee shall advise affected
Participants of any additional limitation on their
annual benefits required by this Section 4.9.
(c) The above limitations are intended to comply with the
provisions of Section 415 of the Code so that the
maximum benefits provided by plans of the Employer
shall be exactly equal to the maximum amounts allowed
under Section 415 of the Code and regulations
thereunder. If there is any discrepancy between the
provisions of this Section 4.9 and the provisions of
Section 415 of the Code and Treasury Regulations
thereunder, such discrepancy shall be resolved in such
a way as to give full effect to the provisions of
Section 415 of the Code.
The provisions of this Section 4.9 shall be effective for Plan Years
commencing after December 31, 1986.
ARTICLE V
TERMINATION OF SERVICE AND VESTING
5.1 Vesting.
(a) Vesting on Termination of Service. Each Participant shall always
be one hundred percent (100%) vested in the balance of his
Rollover, Salary Redirection and Qualified Non-Elective
Contributions Accounts.
A Participant shall be one hundred percent (100%) vested in the
balance of his Profit Sharing and Matching Contributions
Accounts under the Plan as follows: (i) upon attaining Normal
Retirement Age (age 65); (ii) upon the Committee's determination
that the Participant is Totally and Permanently Disabled; and
(iii) upon the death of the Participant while still employed.
Should a Participant's Separation from Service occur under any
circumstances other than those set forth in (i), (ii) or (iii),
his vested interest in his Profit Sharing and Matching
Contributions Accounts shall be determined based on his
completed Years of Vesting Service as follows:
Years of Vested Forfeited
Vesting Service Percentage Percentage
0-5 0% 100%
5 or more 100% 0%
(b) Breaks in Service. In the case of a Participant who
has five (5) or more consecutive one-year Breaks in
Service, all Service after such Breaks in Service shall
be disregarded for the purpose of vesting the portion
of the Participant's Individual Account attributable to
Profit Sharing and Matching Contributions that accrued
before such Breaks in Service. Such Participant's pre-
break Service will count in vesting his post-break
Individual Account balance only if either:
(i) Such Participant has any nonforfeitable
interest in his Individual Account
attributable to Employer Contributions at the
time of Separation from Service; or
(ii) Upon returning to Service the number of
consecutive one-year Breaks in Service is
less than the number of Years of Vesting
Service;
Separate accounts will be maintained for the Participant's
pre-break and post-break Individual Account balance. Both
accounts will share in the Adjustments.
Upon termination of Service of such a Participant, he shall be
entitled to the vested interest in his Individual Account
attributable to Profit Sharing and Matching Contributions based
upon his completed years of Vesting Service. The nonvested
portion, if any, shall be forfeited and reallocated to the
appropriate Individual Accounts of all other Participants, as
provided in Sections 5.2 through 5.6 below.
5.2 Cash-Out Distributions to Partially-Vested Participants/Restoration
of Forfeited Accrued Benefits. If, pursuant to Article VI, a partially-vested
Participant receives a cash-out distribution before he incurs a forfeiture break
in service (as defined in Section 5.5), the cash-out distribution will result in
an immediate forfeiture of the nonvested portion of the Participant's Individual
Account. A partially vested Participant is a Participant whose nonforfeitable
percentage of his Individual Account determined under Section 5.1 (or Section
1.43, whichever is applicable) is less than one hundred percent (100%). A
cash-out distribution is a distribution of the entire present value of the
Participant's nonforfeitable Individual Account balance.
(a) Restoration and Conditions Upon Restoration. A
partially-vested Participant who is re-employed after
receiving a cash-out distribution of the nonforfeitable
percentage of his Individual Account
balance may repay to the Trustee the amount of the
cash-out distribution, unless the Participant no longer
has a right to restoration under the requirements of
this Section 5.2. If a partially-vested Participant
makes the cash-out distribution repayment, the
Committee, subject to the conditions of this subsection
(a), shall restore his Individual Account to the same
dollar amount as the dollar amount of his Individual
Account on the last day of the Plan Year, or other
applicable Valuation Date, immediately preceding the
date of the cash-out distribution, unadjusted for any
Adjustments occurring subsequent to such last day of
the Plan Year or other Valuation Date. Restoration of
the Participant's Individual Account shall include
restoration of all Section 411(d)(6) protected benefits
with respect to that Individual Account, in accordance
with applicable Treasury Regulations. The Committee
shall not restore a re-employed Participant's
Individual Account under this subsection (a) if:
(i) Five (5) years have elapsed since the
Participant's first re-employment date with the
Employer following the cash-out distribution; or
(ii) The Participant incurred a forfeiture break in
service (as defined in Section 5.5). This
condition also applies if the Participant makes
repayment within the Plan Year in which he incurs
the forfeiture break in service and that
forfeiture break in service would result in a
complete forfeiture of the amount the Committee
otherwise would restore.
(b) Time and Method of Restoration. If neither of the two
conditions specified in subsection (a) preventing
restoration of the Participant's Individual Account
applies, the Committee will restore the Participant's
Individual Account as of the last day of the Plan Year
coincident with or immediately following the repayment.
To restore the Participant's Individual Account, the
Committee, to the extent necessary, shall allocate to
the Participant's Individual Account:
(i) First, the amount, if any, of forfeitures the
Committee would otherwise allocate under
Section 4.5.
(ii) Second, the amount, if any, of the Adjustment for
the Plan Year; and
(iii) Third, the Employer's Profit Sharing Contribution for
the Plan Year, to the extent made under a discretionary
formula.
To the extent the amounts described in paragraphs (i),
(ii) and (iii) are insufficient to enable the Committee
to make the required restoration, the Employer shall
contribute without regard to any requirement or
condition of Article III, the additional amount
necessary to enable the Committee to make the required
restoration. If, for a particular Plan Year, the
Committee must restore the Individual Account of more
than one re-employed Participant, then the Committee
will make the restoration allocation(s) to each such
Participant's Individual Account in the same proportion
that a Participant's restored amount for the Plan Year
bears to the restored amount for the Plan Year of all
re-employed Participants. The Committee shall not take
into account the allocation under this Section 5.2 in
applying the limitation on allocations under Article
IV.
(c) Zero Percent (0%) Vested Participant. The deemed cash-
out rule applies to a zero percent (0%) vested
Participant. A zero percent (0%) vested Participant is
a Participant whose Individual Account is entirely
forfeitable at the time of his Separation from Service.
Under the deemed cash-out rule, the Committee shall
treat the zero percent (0%) vested Participant as
having received a cash-out distribution on the date of
the Participant's Separation from Service or, if the
Participant's Individual Account is entitled to an
allocation of Employer contributions for the Plan Year
in which he incurs a Separation from Service, on the
last day of that Plan Year. For purposes of applying
the restoration provisions of this Section 5.2, the
Committee shall treat the zero percent (0%) vested
Participant as repaying his cash-out "distribution" on
the first date of his re-employment with the Employer.
5.3 Segregated Account for Repaid Amount. Until the Committee restores
the Participant's Individual Account, as provided in Section 5.2, the Trustee
will invest the cash-out amount the Participant has repaid in a segregated
account maintained solely for that Participant. The Trustee shall invest the
amount in the Participant's segregated account in federally insured interest
bearing savings accounts(s) or time deposit(s) (or a combination of both), or in
other fixed income investments. Until commingled with the balance of the Fund on
the date the Committee restores the Participant's Individual Account, the
Participant's segregated account remains a part of the Fund, but it alone shares
in any income it earns and it alone bears any expense or loss it incurs. Unless
the repayment qualifies as a rollover contribution, the Committee will direct
the Trustee to repay to the Participant as soon as administratively practicable
the full amount of the Participant's segregated account if the Committee
determines either of the conditions of Section 5.2(a) prevent restoration as of
the applicable Valuation Date, notwithstanding the Participant's repayment.
5.4 Year of Service - Vesting. Except as otherwise provided in Section
1.42, regarding a Participant's initial vesting computation period, for purposes
of vesting under Sections 1.43 and 5.1, a Year of Service means any Plan Year
during which an Employee completes not less than one thousand (1,000) Hours of
Service.
5.5 Included Years of Service - Vesting. For the sole purpose of
determining a Participant's nonforfeitable percentage of his Individual Account
attributable to Employer Contributions which accrued for his benefit prior to a
forfeiture break in service, the Plan disregards any year of Service after the
Participant first incurs a forfeiture break in service. The Participant incurs a
forfeiture break in service when he incurs five (5) consecutive one-year Breaks
in Service.
5.6 Forfeiture Occurs. A Participant's forfeiture, if any, of the
portion of his Individual Account attributable to Employer Contributions shall
occur under the Plan on the earlier of:
(a) The last day of the Plan Year in which the Participant
first incurs a forfeiture break in service; or
(b) The date the Participant receives a cash-out
distribution.
5.7 Benefits to Minors and Incompetents.
(a) Minors. In case any person entitled to receive payment under the
Plan shall be a minor, the Committee, in its discretion, may
dispose of such amount in any one or more of the following ways:
(i) By payment thereof directly to such minor;
(ii) By application thereof for the benefit of such
minor; or
(iii) By payment thereof to either parent of such minor
or to any adult person with whom such minor may at
the time be living or to any person who shall be
legally qualified and shall be acting as guardian
of the person or the property of such minor;
provided only that the parent or adult
person to whom any amount shall be paid shall have
advised the Committee in writing that he will hold
or use such amount for the benefit of such minor.
(b) Incompetents. In the event that it shall be found that
a person entitled to receive payment under the Plan is
physically or mentally incapable of personally
receiving and giving a valid receipt for any payment
due (unless prior claim therefor shall have been made
by duly qualified committee or other legal
representative), such payment may be made to the
spouse, son, daughter, parent, brother, sister or other
person deemed by the Committee to have incurred expense
for such person otherwise entitled to payment.
ARTICLE VI
TIME AND METHOD OF PAYMENT OF BENEFITS
6.1 Time of Payment of Benefits. The Committee shall direct the Trustee
to commence distribution of the nonforfeitable portion of the Participant's
Individual Account in accordance with this Section 6.1. A Participant must
consent, in writing, to any distribution required under this Section 6.1 if the
present value of the nonforfeitable portion of the Participant's Individual
Account, at the time of the distribution to the Participant, exceeds Three
Thousand Five Hundred Dollars ($3,500) and the Participant has not attained his
Normal Retirement Age. A distribution date under this Article VI, unless
otherwise specified under the Plan, is on or as soon as administratively
practicable following the date on which an amount is distributable hereunder.
Notwithstanding the foregoing, a Participant with a distributable benefit in
excess of $3,500 may elect to accelerate or defer the payment of his benefits in
accordance with nondiscriminatory rules and procedures established by the
Committee. The election under the preceding sentence to accelerate payment must
be made at least 30 days after (but no more than 90 days after) the Participant
receives a benefit distribution notice and election form from the Committee. The
30-day election period may be waived by the Participant (so that benefit
payments may be made or commenced immediately following receipt of the notice
and election form) if the Committee clearly informs the Participant that he has
at least 30 days to consider the timing and form of his benefit payment. For
purposes of the consent requirements under this Article VI, if the present value
of the nonforfeitable portion of the Participant's Individual Account, at the
time of any distribution, exceeds Three Thousand Five Hundred Dollars ($3,500),
the Committee shall treat that present value as exceeding Three Thousand Five
Hundred Dollars ($3,500) for purposes of all subsequent distributions to the
Participant. If a distribution is one to which Sections 401(a)(11) and 417 of
the Internal Revenue Code do not apply, such distribution may commence less than
thirty (30) days after the notice required under Section 1.411(a)(11)(c) of the
Income Tax Regulations is given, provided that:
(i) The Committee clearly informs the Participant that the
Participant has a right to a period of at least thirty
(30) days after receiving the notice to consider the
decision of whether or not to elect a distribution
(and, if applicable, a particular distribution option);
and
(ii) The Participant, after receiving the notice,
affirmatively elects a distribution.
(a) Termination of Employment For a Reason Other Than
Death, Permanent and Total Disability or Retirement.
In the case of a Participant who terminates employment
with the Employer for a reason other than death, Total
and Permanent Disability or retirement on or after
attaining his Normal Retirement Age, the Committee
shall direct the Trustee to commence distribution of
the Participant's Individual Account as follows:
(i) Participant's Nonforfeitable Individual Account
Does Not Exceed $3,500. In a single sum, as soon
as administratively practicable following the
Participant's Separation from Service.
(ii) Participant's Nonforfeitable Individual Account
Exceeds $3,500. In a single sum, at either of the
following times elected by the Participant: (i)
as soon as administratively practicable following
the Participant's Separation from Service or (ii)
as soon as administratively practicable following
the end of the Plan Year in which the
Participant's Separation from Service occurs.
(b) Total and Permanent Disability or Retirement. In the
case of a Participant who terminates employment with
the Employer due to Total and Permanent Disability or
retirement upon or after attaining his Normal
Retirement Age, the Committee shall direct the Trustee
to commence distribution of the Participant's
Individual Account in a single sum, as soon as
administratively practicable following the close of the
Plan Year in which the Participant's Separation from
Service occurs.
(c) Required Beginning Date. If any distribution date
described under subsection (a) or (b), either by Plan
provision or by Participant election (or nonelection),
is later than the Participant's required beginning date
(as defined below), the Committee instead shall direct
the Trustee to make distribution under this Section 6.1
on the Participant's required beginning date. A
Participant's required beginning date is the April 1
following the close of the calendar year in which the
Participant attains age seventy and one-half (70-1/2).
However, if the Participant, prior to incurring a Separation
from Service, attained age seventy and one-half (70-1/2) by
January 1, 1988, and for the five (5) Plan Year period ending in
the calendar year in which he attained age seventy and one-half
(70-1/2) and for all subsequent years, the Participant was not a
more than five percent (5%) owner, the required beginning date
shall be the April 1 following the close of the calendar year in
which the Participant incurs a Separation from Service or, if
earlier, the April 1 following the close of the calendar year in
which the Participant becomes a more than five percent (5%)
owner. Furthermore, if a Participant attains age seventy and
one-half (70-1/2) during 1988, the Participant does not incur a
Separation from Service prior to January 1, 1989, and for the
five (5) Plan Year period ending in 1988, the Participant was
not a more than five percent (5%) owner, his required beginning
date is April 1, 1990. A mandatory distribution at the
Participant's required beginning date will be in a single sum.
(d) Death of the Participant. The amount of the death
benefit under this Plan shall be the full balance in
the Participant's Individual Account at the time of the
Participant's death. The Committee shall direct the
Trustee to pay the deceased Participant's Individual
Account at the time elected by his designated
Beneficiary. In the absence of an election, the
Committee shall direct the Trustee to distribute the
Participant's undistributed Individual Account in a
single sum on the first distribution date following the
close of the Plan Year in which the Participant's death
occurs or, if later, the first distribution date
following the date the Committee receives notification
of or otherwise confirms the Participant's death.
If all or any portion of the Participant's Individual Account is payable
to his surviving spouse, the surviving spouse may elect to receive distribution
at any time this Article VI would permit a Participant to receive a
distribution.
6.2 Method of Payment. A Participant, Inactive Participant
or Beneficiary will receive all distributions by payment in a
single sum.
(a) Minimum Distribution Requirements for Participants.
The Committee shall not direct the Trustee to
distribute the Participant's nonforfeitable Individual
Account, nor may the Participant elect to have the
Trustee distribute his Individual Account, under a
method of payment which, as of the required beginning
date, does not satisfy the minimum distribution
requirements under Section 401(a)(9) of the Code and
the Treasury Regulations promulgated thereunder. The
minimum distribution for a calendar year equals the
nonforfeitable portion of the Participant's Individual
Account as of the latest Valuation Date preceding the
beginning of the calendar year divided by the
Participant's life expectancy or, if applicable, the
joint and last survivor expectancy of the Participant
and his designated Beneficiary (as determined under
Article VII, subject to the requirements of the
Treasury Regulations promulgated under Section
401(a)(9) of the Code). In computing a minimum
distribution, the Committee shall use the unisex life
expectancy multiples under Section 1.72-9 of the
Treasury Regulations. The Committee, only upon the
Participant's written request, may compute the minimum
distribution for a calendar year subsequent to the
first calendar year for which the Plan requires a
minimum distribution by redetermining the applicable
life expectancy. However, the Committee may not
redetermine the joint life and last survivor expectancy
of the Participant and a nonspouse designated
Beneficiary in a manner which takes into account any
Adjustment to a life expectancy other than the
Participant's life expectancy.
(i) Method of Payment Where Beneficiary is Not
Participant's Spouse. If the Participant's spouse
is not his designated Beneficiary, a method of
payment to the Participant (whether by Participant
election or by Committee direction) may not
provide more than incidental benefits to the
Beneficiary. For Plan Years beginning after
December 31, 1988, the Plan must satisfy the
minimum distribution incidental benefit ("MDIB")
requirement in the Treasury Regulations
promulgated under Section 401(a)(9) of the Code
for distributions made on or after the
Participant's required beginning date and before
the Participant's death. To satisfy the MDIB
requirement, the Committee shall compute the
minimum distribution required by this subsection
(a) by substituting the applicable MDIB divisor
for the applicable life expectancy factor, if the
MDIB divisor is a lesser number. Following the
Participant's death, the Committee shall compute
the minimum distribution required by this
Section 6.2(a) solely on the basis of the
applicable life expectancy factor and will
disregard the MDIB factor. For Plan Years
beginning prior to January 1, 1989, the Plan
satisfies the incidental benefits requirement if
the distributions to the Participant satisfied the
MDIB requirement or if the present value of the
retirement benefits payable solely to the
Participant is greater than fifty percent (50%) of
the present value of the total benefits payable to
the Participant and his designated Beneficiary.
The Committee shall determine whether benefits
distributed to the Beneficiary are incidental as
of the date the Trustee is to commence payment of
the retirement benefits to the Participant, or as
of any date the Trustee redetermines the payment
period to the Participant.
(ii) Commencement of Distributions. The minimum
distribution for the first distribution calendar
year is due by the Participant's required
beginning date. The minimum distribution for each
subsequent distribution calendar year, including
the calendar year in which the Participant's
required beginning date falls, is due by December
31 of that year.
(b) Minimum Distribution Requirements for Beneficiaries.
The method of distribution to a Participant's
Beneficiary shall satisfy Section 401(a)(9) of the Code
and the Treasury Regulations promulgated thereunder.
If the Participant's death occurs after his required
beginning date, the method of payment to the
Beneficiary must provide for completion of
distributions over a period which does not exceed the
payment period which had commenced for the Participant.
If the Participant's death occurs prior to his required
beginning date, the method of payment to the
Beneficiary must provide for completion of payment to
the Beneficiary over a period not exceeding (i) five
(5) years after the date of the Participant's death or
(ii) if the Beneficiary is a designated Beneficiary,
the designated Beneficiary's life expectancy. The
Committee may not direct payment of the Participant's
Individual Account over a period described in paragraph
(ii) unless the Trustee will commence payment to the
designated Beneficiary no
later than December 31 following the close of the
calendar year in which the Participant's death occurred
or, if later, and the designated Beneficiary is the
Participant's surviving spouse, December 31 of the
calendar year in which the Participant would have
attained age seventy and one-half (70-1/2). If the
Trustee will make distribution in accordance with
paragraph (ii), the minimum distribution for a calendar
year equals the Participant's Individual Account as of
the latest Valuation Date preceding the beginning of
the calendar year divided by the designated
Beneficiary's life expectancy. The Committee shall use
the unisex life expectancy multiples under Section
1.72-9 of the Treasury Regulations for purposes of
applying this paragraph. The Committee, only upon the
written request of the Participant or of the
Participant's surviving spouse, may recalculate the
life expectancy of the Participant's surviving spouse
not more frequently than annually, but may not
recalculate this life expectancy of a nonspouse
designated Beneficiary after the Trustee commences
payment to the designated Beneficiary. The Committee
shall apply this subsection (b) by treating any amount
paid to the Participant's child, which becomes payable
to the Participant's surviving spouse upon the child's
attaining the age of majority, as paid to the
Participant's surviving spouse. Upon the Beneficiary's
written request, the Committee must direct the Trustee
to accelerate payment of all, or any portion, of the
Participant's Individual Account, as soon as
administratively practicable following the effective
date of that request.
6.3 Distributions Under Qualified Domestic Relations Orders. Nothing
contained in this Plan shall prevent the Trustee, in accordance with the
direction of the Committee, from complying with the provisions of a qualified
domestic relations order (as defined in Section 414(p) of the Code). This Plan
specifically permits distribution to an alternate payee under a qualified
domestic relations order at any time, irrespective of whether the Participant
has attained his earliest retirement age (as defined under Section 414(p) of the
Code) under the Plan. A distribution to an alternate payee prior to the
Participant's attainment of his earliest retirement age is available only if:
(a) the order specifies distribution at that time or permits an agreement
between the Plan and the alternate payee to authorize an earlier distribution
and (b) if the present value of the alternate payee's benefits under the Plan
exceeds Three Thousand Five Hundred Dollars ($3,500), and if the order requires,
the alternate payee consents to any distribution which occurs prior to the
Participant's attainment of his earliest retirement age. Nothing in this Section
6.3 shall permit a Participant to receive a distribution at a time not otherwise
permitted under the Plan nor does it permit the alternate payee to receive a
form of payment not permitted under the Plan.
6.4 Annuity Distributions to Participants and Surviving Spouses. The
joint and survivor annuity requirements of Sections 401(a)(11) and 417 of the
Code do not apply to this Plan. The Plan does not provide any annuity
distributions to Participants or surviving spouses. A transfer agreement may not
permit a plan which is subject to the provisions of Sections 401(a)(11) and 417
to transfer assets to this Plan, unless the transfer is an elective transfer and
meets all applicable requirements of the Treasury Regulations promulgated under
Section 411(d)(6) of the Code.
6.5 Valuation of Individual Accounts. Valuation of the Participant's
Individual Account for purposes of determining the amount to be distributed
shall be made as follows:
(a) Termination of Employment for a Reason Other Than
Death, Total and Permanent Disability or Retirement.
In the case of a Participant who terminates employment
with the Employer for a reason other than death, Total
and Permanent Disability or retirement upon or after
attaining his Normal Retirement Age, the Participant's
Individual Account shall be valued as of the Valuation
Date coinciding with or immediately preceding the
Participant's termination of employment, plus the
principal amount of any Salary Redirection
Contributions made by the Participant from such
Valuation Date to the date of the Participant's
termination of employment. If the Participant properly
elects, in accordance with the provisions of Section
6.1(a), to receive a distribution after the end of the
Plan Year in which his Separation from Service occurs,
his Individual Account shall include the allocation of
any Adjustments, in the manner prescribed in Section
4.4, attributable to the Participant's Individual
Account for the Plan Year in which such Separation from
Service occurs. If the Participant elects to receive a
distribution before the end of the Plan Year in which
his Separation from Service occurs, his Individual
Account shall not include any Adjustments with respect
to the Plan Year in which such Separation from Service
occurs.
(b) Termination of Employment Due to Death, Total and
Permanent Disability or Retirement. In the case of a
Participant who terminates employment with the Employer
due to death, Total and Permanent Disability or
retirement upon or after attaining his Normal
Retirement Age, the Participant's Individual Account
shall be valued as of the Valuation Date coinciding
with or immediately following the Participant's
termination of employment, and such Individual Account
shall be entitled to share in the allocation of
contributions and Adjustments, as provided under
Articles III and IV.
6.6 Minimum Required Distributions. Notwithstanding any provision of
this Plan to the contrary, unless a Participant otherwise elects, the payment of
benefits under the Plan to the Participant shall not commence later than the
sixtieth (60th) day after the latest of the close of the Plan Year in which (i)
the Participant attains Normal Retirement Age, (ii) the tenth (10th) anniversary
of the year in which the Participant commenced participation under the Plan, or
(iii) the Participant terminates service with the Employer.
6.7 Direct Rollovers.
(a) This Section 6.7 applies to distributions made on
or after January 1, 1993. Notwithstanding any
provision of the Plan to the contrary that would
otherwise limit a distributee's election under
this Section 6.7, a distributee may elect, at the
time and in the manner prescribed by the Plan, to
have any portion of an eligible rollover
distribution paid directly to an eligible
retirement plan specified by the distributee in a
direct rollover.
(b) Definitions.
(i) Eligible rollover distribution. An eligible
rollover distribution is any distribution of
all or any portion of the balance to the
credit of the distributee, except that an
eligible rollover distribution does not
include: any distribution that is one of a
series of substantially equal periodic
payments (not less frequently than annually)
made for the life (or life expectancy) of the
distributee or the joint lives (or joint life
expectancies) of the distributee and the
distributee's designated beneficiary, or for
a specified period of ten years or more; any
distribution to the extent such distribution
is required under Section 401(a)(9) of the
Code; and the portion of any distribution
that is not includible in gross income
(determined without regard to the exclusion
for net unrealized appreciation with respect
to employer securities).
(ii) Eligible retirement plan. An eligible
retirement plan is an individual retirement
account described in Section 408(a) of the
Code, an individual retirement annuity
described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of
the Code, or a qualified trust described in
Section 401(a) of the Code, that accepts the
distributee's eligible rollover distribution.
However, in the case of an eligible rollover
distribution to the surviving spouse, an
eligible retirement plan is an individual
retirement account or individual retirement
annuity.
(iii) Distributee. A distributee includes an
employee or former employee. In addition,
the employee's or former employee's surviving
spouse and the employee's or former
employee's spouse or former spouse who is the
alternate payee under a qualified domestic
relations order, as defined in Section 414(p)
of the Code, are distributees with regard to
the interest of the spouse or former spouse.
(iv) Direct Rollover. A direct rollover is a
payment by the Plan to the eligible
retirement plan specified by the distributee.
ARTICLE VII
FUNDING
7.1 Contributions. Contributions by the Employer and by the Participants
as provided for in Article III shall be paid directly over to the Trustee. All
contributions by the Employer shall be irrevocable, except as otherwise provided
in this Plan, and may be used only for the exclusive benefit of Participants,
Inactive Participants and their Beneficiaries.
7.2 Trustee.
(a) In General. The Employer has entered into an agreement with the
Trustee whereunder the Trustee will receive, invest and
administer as a trust fund, contributions made under this Plan
in accordance with the Trust Agreement.
(b) Trust Agreement. Such Trust Agreement is attached
hereto and incorporated by reference as a part of the
Plan, and the rights of all persons hereunder are
subject to the terms of the Trust Agreement. The
Trust Agreement specifically provides, among other
things, for the investment and reinvestment of the Fund
and the income thereof, the management of the Fund, the
responsibilities and immunities of the Trustee, removal
of the Trustee and appointment of a successor,
accounting by the Trustee and the disbursement of the
Fund.
7.3 Funding Policy. The funding policy for the Plan shall be determined
by the Employer from time to time as required by ERISA. The Employer shall also
establish investment guidelines for the Plan which are consistent with the
objectives of the Plan and the requirements of ERISA. At least annually the
Employer shall review such investment guidelines. The Employer shall make a
written record of all actions taken with respect to establishing and reviewing
such investment guidelines. The Committee shall from time to time determine the
cash requirements of the Plan and communicate the same to the Trustee or
investment manager. The Trustee or investment manager shall make investments
consistent with the investment guidelines and the cash requirements of the Plan,
as advised by the Committee.
ARTICLE VIII
PLAN ADMINISTRATION
8.1 Fiduciaries.
(a) Each Fiduciary who is allocated specific duties or
responsibilities under the Plan or any Fiduciary who
assumes such a position with the Plan shall discharge
his duties solely in the interest of the Participants,
Inactive Participants and Beneficiaries and for the
exclusive purpose of providing such benefits as
stipulated herein to such Participants, Inactive
Participants and Beneficiaries, or defraying reasonable
expenses of administering the Plan. Each Fiduciary, in
carrying out such duties and responsibilities, shall
act 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 exercising such authority or
duties.
(b) A Fiduciary may serve in more than one Fiduciary capacity and
may employ one or more persons to render advice with regard to
his Fiduciary responsibilities. If the Fiduciary is serving as
such without compensation, all expenses reasonably incurred by
such Fiduciary shall be reimbursed by the Employer or, at the
Committee's direction, from the Trustee.
(c) A Fiduciary may allocate any of his responsibilities
for the operation and administration of the Plan. In
limitation of this right, a Fiduciary may not allocate
any responsibilities as contained herein relating to
the management or control of the Fund except through
the employment of an investment manager as provided in
Section 8.3 and in the Trust Agreement relating to the
Fund.
8.2 Employer.
(a) The Employer, in establishing and maintaining the Plan
for the benefit of its Employees and the Employees of
any Affiliated Employer, of necessity retains control
of the operation and administration of the Plan. The
Employer, in accordance with specific provisions of the
Plan, has, as herein indicated, delegated certain of
these rights and obligations to the Trustee and the
Committee and these parties shall be solely responsible
for these, and only these, delegated rights and
obligations.
(b) The Employer shall supply such full and timely information for
all matters relating to the Plan as (i) the Committee, (ii) the
Trustee, and (iii) the attorneys and accountants engaged on
behalf of the Plan by the Employer may require for the effective
discharge of their respective duties.
8.3 Trustee. The Employer shall appoint a bank or trust company or an
individual or individuals to act as Trustee or Trustees under the Trust
Agreement. The Trustee shall serve at the pleasure of the Employer and its
powers and responsibilities shall be set forth in a Trust Agreement entered into
between the Employer and the Trustee. No person who receives full-time pay from
the Employer shall receive compensation paid by the Fund except for
reimbursement of expenses properly incurred. All contributions made pursuant to
the Plan shall be held by the Trustee in accordance with the terms of the Trust
Agreement and Section 3.10 of the Plan for the exclusive benefit of those
Employees who are Participants, Inactive Participants and their Beneficiaries,
and shall be applied to provide benefits under the Plan and to pay expenses
properly attributable to the administration of the Plan and the Trust, to the
extent that such expenses are not otherwise paid. The Employer may appoint an
investment manager or managers to manage any assets of the Plan. Likewise, with
the written consent of the Employer, the Trustee may appoint an investment
manager. In either such event, the responsibility for investment decisions shall
be clearly allocated in writing between the investment manager and the Trustee
and neither shall be responsible for the action or inaction of the other.
8.4 Benefits Committee.
(a) The Employer shall appoint a committee of not less than
three (3) persons to hold office at the pleasure of the
Employer, such committee to be known as the Benefits
Committee ("Committee"). No compensation shall be paid
to members of the Committee from the Fund for service
on such Committee. The Committee shall choose from
among its members a chairman and a secretary. Any
action of the Committee shall be determined by the vote
of a majority of its members. Either the chairman or
the secretary may execute any certificate or written
direction on behalf of the Committee. If the Employer
shall fail to appoint the Committee, then the Employer
shall constitute the plan administrator of the Plan and
all references to the Committee under the Plan shall be
deemed for all purposes to refer to the Employer.
(b) The Committee shall hold meetings upon such notice, at such
place or places and at such time or times as the Committee may
from time to time determine. A majority of the members of the
Committee at the time in office shall constitute a quorum for
the transaction of business.
(c) All disbursements by the Trustee, except for the
expenses properly attributable to the administration of
the Plan or Trust or the reimbursement of reasonable
expenses at the direction of the Employer, as provided
herein, shall be made upon, and in accordance with, the
written directions of the Committee. When the
Committee is required in the performance of its duties
hereunder to administer or construe, or to reach a
determination, under any of the provisions of the Plan,
it shall do so on a uniform, equitable and
nondiscriminatory basis.
(d) The Committee shall establish rules and procedures to
be followed by the Participants, Inactive Participants
and Beneficiaries in filing applications for benefits
and for furnishing and verifying proofs necessary to
establish age and any other matters required in order
to establish their rights to benefits in accordance
with the Plan. Additionally, the Committee shall
establish accounting procedures for the purpose of
making the allocations, valuations and Adjustments to
Participants' accounts. Should the Committee determine
that the strict application of its accounting
procedures will not result in an equitable and
nondiscriminatory allocation among the accounts of
Participants, it may modify its procedures for the
purpose of achieving an equitable and
nondiscriminatory allocation in accordance with the
general concepts of the Plan; provided, however, that
such Adjustments to achieve equity shall not reduce the
vested portion of a Participant's Individual Account.
(e) The Committee may employ such counsel, accountants, and other
agents as it shall deem advisable. The Employer shall pay, or
cause to be paid from the Fund, the reasonable compensation of
such counsel, accountants, and other agents and any other
reasonable expenses incurred by the Committee in the
administration of the Plan and Trust.
(f) All members of the Committee shall serve until their resignation
or dismissal by the Board and vacancies shall be filled in the
same manner as the original appointments. The Board may dismiss
any member of the Committee with or without cause.
8.5 Claims Procedures.
(a) The Committee shall receive all applications for
benefits. Upon receipt by the Committee of such an
application, it shall determine all facts which are
necessary to establish the right of an application to
benefits under the provisions of the Plan and the
amount thereof as herein provided. Upon request, the
Committee shall afford the applicant the right of a
hearing with respect to any finding of fact or
determination. The applicant shall be notified in
writing of any adverse decision with respect to his
claim within sixty (60) days after its submission. The
notice shall be written in a manner calculated to be
understood by the applicant and shall include:
(i) The specific reason or reasons for the denial;
(ii) Specific references to the pertinent Plan
provisions on which the denial is based;
(iii) A description of any additional material or
information necessary for the applicant to perfect
the claim and an explanation why such material or
information is necessary; and
(iv) An explanation of the Plan's claim review
procedures.
(b) If special circumstances require an extension of time for
processing the initial claim, a written notice of the extension
and the reason therefor shall be furnished to the claimant
before the end of the initial sixty (60) day period. In no event
shall such extension exceed sixty (60) days.
(c) In the event a claim for benefits is denied or if the
applicant has had no response to such claim within
sixty (60) days of its submission (in which case the
claim for benefits shall be deemed to have been
denied), the applicant or his duly authorized
representative, at the applicant's sole expense, may
appeal the denial to the Committee within sixty (60)
days of the receipt of written notice of denial or
sixty (60) days from the date such claim is deemed to
be denied. In pursuing such appeal the applicant or
his duly authorized representative:
(i) May request in writing that the Committee review
the denial;
(ii) May review pertinent documents; and
(iii) May submit issues and comments in writing.
(d) The decision on review shall be made within sixty (60)
days of receipt of the request for review, unless
special circumstances require an extension of time for
processing, in which case a decision shall be rendered
as soon as possible, but not later than one hundred
twenty (120) days after receipt of request for review.
If such an extension of time is required, written
notice of the extension shall be furnished to the
claimant before the end of the original sixty (60) day
period. The decision on review shall be made in
writing, shall be written in a manner calculated to be
understood by the claimant, and shall include specific
references to the provisions of the Plan on which such
denial is based. If the decision on review is not
furnished within the time specified above, the claims
shall be deemed denied on review.
8.6 Records. All acts and determinations of the Committee shall be duly
recorded by the secretary thereof and all such records together with such other
documents as may be necessary in exercising its duties under the Plan shall be
reserved in the custody of such secretary. Such records and documents shall at
all times be open for inspection and for the purpose of making copies by any
person designated by the Employer. The Committee shall provide such timely
information, resulting from the application of its responsibilities under the
Plan, as needed by the Trustee and the accountant engaged on behalf of the Plan
by the Employer, for the effective discharge of their respective duties.
8.7 Disclosures to Participants.
(a) Each Participant shall be furnished with the summary plan
description of the Plan, as required by Sections 102(a)(1) and
104(b)(1) of ERISA. Such summary plan description shall be
updated from time to time as required under ERISA and Department
of Labor regulations.
(b) Within nine (9) months after each December 31 Valuation Date,
each Participant shall be furnished with the summary annual
report of the Plan required by Section 104(b)(3) of ERISA, in
the form prescribed in Department of Labor regulations.
(c) Following each December 31 Valuation Date each Participant shall
be furnished with a statement reflecting the following
information:
(i) The total balance (if any) in his Individual
Account as of the beginning of the Plan Year.
(ii) The aggregate amounts of all contributions to the
Individual Account and net income (or loss) allocated
to his Individual Account for the Plan Year.
(iii) The amount of contributions, if any, to his Profit
Sharing, Salary Redirection, Matching, Qualified
Non-Elective Contribution and Rollover Accounts for the
Plan Year and the new balance in each such account as
of that Valuation Date.
(iv) The new balance in his Individual Account as of
that Valuation Date.
(d) The Committee shall make available for examination by
any Participant, copies of the Plan, the Trust
Agreement and the latest annual report of the Plan
filed (on Form 5500) with the Internal Revenue Service.
Upon written request of any Participant, the Committee
shall furnish copies of such documents, and may make a
reasonable charge to cover the cost of furnishing such
copies, as provided in Department of Labor regulations.
8.8 No Liability. The Employer assumes no obligation or responsibility
to any of its Employees, Participants, Inactive Participants, or Beneficiaries
for any act of, or failure to act, on the part of the Committee (unless the
Employer is the Committee) or the Trustee.
8.9 Indemnity of Committee Members. The Employer shall indemnify and
save harmless the members of the Committee, and each of them, from and against
any and all loss resulting from liability to which the Committee, or the members
of the Committee, may be subjected by reason of any act or conduct (except
willful misconduct or gross negligence) in their official capacities in the
administration of the Plan, including all expenses reasonably incurred in their
defense, in case the Employer fails to provide such defense. The indemnification
provisions of this Section 8.9 do not relieve any Committee member from any
liability he may have under ERISA for breach of fiduciary duty. Furthermore, the
Committee members and the Employer may execute a letter agreement further
delineating the indemnification agreement of this Section 8.9, provided the
letter agreement must be consistent with and does not violate ERISA. The
indemnification provisions of this Section 8.9 shall extend to the Trustee
solely to the extent provided by a letter agreement executed by the Trustee and
the Employer.
8.10 Employer Direction of Investment. The Employer has the right to
direct the Trustee with respect to the investment and reinvestment of assets
comprising the Trust Fund only if the Trustee consents in writing to permit such
direction. If the Trustee consents to Employer direction of investment, the
Trustee and the Employer must execute a letter agreement which contains such
conditions, limitations and other provisions they deem appropriate before the
Trustee shall be obligated to follow any Employer direction with respect to the
investment or reinvestment of any part of the Fund.
8.11 Amendment to Vesting Schedule. Though the Employer reserves the
right to amend the vesting schedules contained in Sections 1.43 and 5.1 at any
time, the Committee shall not apply the amended vesting schedule to reduce the
nonforfeitable percentage of any Participant's Individual Account derived from
Employer contributions (determined as of the later of the date the Employer
adopts the amendment, or the date the amendment becomes effective) to a
percentage less than the nonforfeitable percentage computed under the Plan
without regard to the amendment. If the Employer makes a permissible amendment
to the vesting schedule, each Participant having at least three (3) Years of
Vesting Service with the Employer may elect to have the percentage of his
nonforfeitable Individual Account computed under the Plan without regard to the
amendment. For Plan Years beginning prior to January 1, 1989, the election
described in the preceding sentence applies only to Participants having at least
five (5) Years Of Vesting Service with the Employer.
The Participant must file his election with the Committee within sixty
(60) days of the latest of (a) the Employer's adoption of the amendment; (b) the
effective date of the amendment; or (c) his receipt of a copy of the amendment.
The Committee, as soon as practicable, must forward a true copy of any amendment
to the vesting schedule to each affected Participant, together with an
explanation of the effect of the amendment, the appropriate form upon which the
Participant may make an election to remain under the vesting schedule provided
under the Plan prior to the amendment and notice of the time within which the
Participant must make an election to remain under the prior vesting schedule.
For purposes of this Section 8.11, an amendment to the vesting schedule includes
any Plan amendment which directly or indirectly affects the computation of the
nonforfeitable percentage of an Employee's rights to the portion of his
Individual Account attributable to Employer contributions.
8.12 Discretionary Powers and Authority of the Employer and Committee.
The Employer and the Committee shall have any and all power and authority
(including discretion with respect to the exercise of that power and authority)
which shall be necessary, properly advisable, desirable or convenient to enable
them to carry out their responsibilities under the Plan and Trust. By way of
illustration and not limitation, the Employer and Committee are empowered and
authorized to (a) make rules and regulations with respect to the Plan and Trust
which are not inconsistent with the provisions of the Plan and Trust, the Code
or ERISA; (b) determine, consistently therewith, all questions that may arise
concerning coverage, eligibility, benefits, status and rights of any person
claiming particular status under the Plan, including without limitation
Participants, Inactive Participants, former Participants, Beneficiaries and the
spouses and beneficiaries thereof; and (c) subject to and consistent with the
Code and ERISA, to construe and interpret the Plan and correct any defect,
supply any omissions or reconcile any inconsistencies in the Plan. Subject to
the provisions of Section 8.5, such action shall be final, conclusive and
binding upon all persons, whether or not claiming benefits under the Plan.
ARTICLE IX
AMENDMENT AND TERMINATION OF THE PLAN
9.1 Amendment of the Plan.
(a) Employer's Right to Amend. The Employer shall have the
right at any time by action of the Board to modify,
alter or amend the Plan in whole or in part; provided,
however, that the duties, powers and liabilities of the
Trustee hereunder shall not be increased without its
written consent; and provided, further, that the amount
of benefits which, at the time of any such
modification, alteration or amendment, shall appear as
a credit in the Individual
Account of any Participant, Inactive Participant or
Beneficiary hereunder shall not be adversely affected
or reduced thereby; and provided, further, that no such
amendment shall have the effect of revesting in the
Employer any part of the principal or income of the
Fund.
(b) Section 411(d)(6) Protected Benefits. No amendment to
the Plan (including the adoption of this Plan as a
restatement of an existing plan) may decrease a
Participant's Individual Account balance except to the
extent permitted under Section 412(c)(8) of the Code,
and may not reduce or eliminate Section 411(d)(6)
protected benefits determined immediately prior to the
adoption date (or, if later, the effective date) of the
amendment. An amendment reduces or eliminates Section
411(d)(6) protected benefits if the amendment has the
effect of either (i) eliminating or reducing an early
retirement benefit or a retirement-type subsidy (as
defined in Treasury Regulations), or (ii) except as
provided by Treasury Regulations, eliminating an
optional form of benefit. The Committee shall
disregard an amendment to the extent application of the
amendment would fail to satisfy this subsection (b).
If the Committee must disregard an amendment because
the amendment would violate either (i) or (ii) above,
the Committee shall maintain a schedule of the early
retirement option or other optional forms of benefits
the Plan must continue for the affected Participants.
9.2 Termination of the Plan.
(a) The Employer expects to continue the Plan indefinitely,
but continuance is not assumed as a contractual
obligation. The Employer reserves the right at any
time by action of its Board to terminate the Plan by
resolution of the Board or to reduce or cease
contributions at any time if it determines that
business, financial or other good cause make it
necessary or desirable to do so. Upon termination,
partial termination or permanent discontinuance of
contributions to the Plan, the Board shall give written
notice of termination, partial termination or permanent
discontinuance to the Trustee and participating
Affiliated Employers. Upon termination or partial
termination of the Plan or complete discontinuance of
contributions under the Plan, the rights of all
affected Employees to the amounts credited to their
Individual Accounts shall be nonforfeitable.
(b) In the event of termination of the Plan, or the sale,
to an entity that is not an Affiliated Employer, of
substantially all of the assets used by the Employer in
the trade or business in which the Participant is
employed, the Committee shall value the Fund as of the
date of such termination or sale of assets. The
Individual Accounts of the Participants, Inactive
Participants and Beneficiaries as determined by the
Committee, shall continue to be administered as a part
of the Fund or distributed in a lump sum to such
Participants, Inactive Participants or Beneficiaries,
as determined by the Committee. Provided, however, no
such distribution shall be made unless the distribution
is made with respect to the Individual Account of a
Participant who satisfied one or more of the following
requirements:
(i) The Employer terminates the Plan and neither the
Employer nor an Affiliated Employer maintains a
successor Defined Contribution Plan (other than an
employee stock ownership plan as defined in Section
4975(e)(7) of the Code); or
(ii) The Employer has sold, or otherwise disposed of, to an
entity, other than an Affiliated Employer,
substantially all of its assets in a trade or business
in which the Participant is employed and such
Participant continues employment with the entity
acquiring such assets; or
(iii) The Employer has sold, to an entity other than an
Affiliated Employer, the Employer's interest in a
subsidiary by which the Participant is employed and
such Participant continues employment with such
subsidiary.
Provided, however, no distribution under paragraphs (ii) or
(iii) shall be made unless the Employer continues the Plan after
the sale or other disposition.
ARTICLE X
MISCELLANEOUS
10.1 Governing Law. The Plan shall be construed, regulated and
administered according to the laws of the State of Indiana, except in those
areas preempted by the laws of the United States of America in which case such
laws will control.
10.2 Headings and Gender. The headings and subheadings in the Plan have
been inserted for convenience of reference only and shall not affect the
construction of the provisions hereof. In any necessary construction the
masculine shall include the feminine and the singular the plural, and vice
versa.
10.3 Administration Expenses. The expenses of administering the Fund
and the Plan may be paid either by the participating Employer or from the Fund.
10.4 Participant's Rights; Acquittance. No Participant in the Plan shall
acquire any right to be retained in the Employers' employ by virtue of the Plan,
nor, upon his dismissal, or upon his voluntary termination of employment, shall
he have any right or interest in and to the Fund other than as specifically
provided herein. The Employers shall not be liable for the payment of any
benefit provided for herein; all benefits hereunder shall be payable only from
the Fund.
10.5 Spendthrift Clause. No benefit or interest available hereunder will
be subject to assignment or alienation, either voluntarily or involuntarily. The
preceding sentence shall also apply to the creation, assignment, or recognition
of a right to any benefit payable with respect to a Participant pursuant to a
domestic relations order, unless such order is determined to be a qualified
domestic relations order, as defined in Section 414(p) of the Code.
10.6 Merger, Consolidation or Transfer.
(a) In the event of the merger or consolidation of the Plan
with another plan, no Participant, Inactive Participant
or Beneficiary shall, as a result of such event, be
entitled on the day following such merger,
consolidation or transfer under the termination of the
Plan provisions to a lesser benefit than the benefit he
was entitled to on the date prior to the merger,
consolidation or transfer if the Plan had then
terminated. Neither the Employer, the Committee nor
the Trustee shall accept a transfer of benefits or
liabilities to the Plan from any other plan. After
August 9, 1988, the Trustee shall not consent to, or be
a party to a merger, consolidation or transfer of
assets with a Defined Benefit or Defined Contribution
Plan, except with respect to an elective transfer. The
Trustee shall hold, administer and distribute the
transferred assets as a part of the Fund and the
Trustee must maintain a separate Employer contribution
account for the benefit of the Employee on whose behalf
the Trustee accepted the transfer in order to reflect
the value of the transferred assets. Unless a transfer
of assets to this Plan is an elective transfer, the
Plan will preserve all Section 411(d)(6) protected
benefits with respect to those transferred assets, in
the manner described in Section 9.2.
(b) For purposes of this Section 10.6, a transfer is an
elective transfer if: (a) the transfer satisfied
subsection (a) of this Section 10.6; (b) the transfer
is voluntary and under a fully informed election by the
Participant; (c) the Participant has an alternative
that retains his Section 411(d)(6) protected benefits
(including an option to leave his benefit in the
transferor plan, if that plan is not terminating); (d)
the transfer satisfied the applicable spousal consent
requirements of the Code; (e) the transferor plan
satisfied the qualified joint and survivor annuity
notice requirements of the Code, if the Participant's
transferred benefit is subject to those requirements;
(f) the Participant has a right to an immediate
distribution from the transferor plan, in lieu of the
elective transfer; (g) the transferred benefit is at
least the greater of the single sum distribution
provided by the transferor plan for which the
Participant is eligible or the present value of the
Participant's accrued benefit under the transferor plan
payable at that plan's normal retirement age; (h) the
Participant has a one hundred percent (100%)
nonforfeitable interest in the transferred benefit; and
(i) the transfer otherwise satisfied the Treasury
Regulations promulgated under Section 411(d)(6) of the
Code.
10.7 Counterparts. The Plan and the Trust Agreement may be executed in
any number of counterparts, each of which shall constitute but one and the same
instrument and may be sufficiently evidenced by any one counterpart.
10.8 Mistake of Fact. Notwithstanding anything herein to the contrary,
upon the Employer's request, a contribution which was made by a mistake of fact,
or conditioned upon the initial qualification of the Plan, either may be
returned to the Employer by the Trustee within one (1) year after the payment of
the contribution or the denial of the qualification, whichever is applicable,
or, only if permitted under the Code, be carried over to a future year.
Contributions to the Trustee are specifically conditioned upon the receipt of a
determination from the Internal Revenue Service that the Plan initially
satisfies the requirements of Sections 401(a) and 401(k) of the Code. In the
event of an adverse determination by the Internal Revenue Service, all Trust
assets held may be returned by the Trustee to the Employer (within one (1) year
after such determination) upon its request.
10.9 No Enlargement of Employment Rights. Nothing contained in the Plan
shall be construed as a contract of employment between the Employer and any
person, nor shall the Plan be deemed to give any person the right to be retained
in the employ of the Employer or limit the right of the Employer to employ or
discharge any person with or without cause, or to discipline any Employee.
10.10 No Guarantee. Neither the Trustee, the Committee, nor the Employer
in any way guarantees the assets in the Trust credited by the Plan from loss or
depreciation nor the payment of any money or other assets which may be or become
due to any person from the Plan. No Participant shall have any recourse against
the Trustee, the Employer or the Committee if Plan assets are insufficient to
provide benefits under the Plan.
10.11 Prudent Man Rule. Notwithstanding any other provision of this
Plan, and the Trust Agreement, the Trustee, the Committee and the Employer shall
exercise their powers and discharge their duties under the Plan and Trust
Agreement for the exclusive purpose of providing benefits to Employees and their
Beneficiaries, and shall act with the care, skill and diligence under the
circumstances 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.
10.12 Limitations on Liability. Notwithstanding any of the preceding
provisions of the Plan, none of the Trustee, the Employer, the Committee and
each individual acting as an employee or agent of any of them shall be liable to
any Participant, Inactive Participant, Employee or Beneficiary for any claim,
loss, liability or expense incurred in connection with the Plan, except when the
same shall have been judicially determined to be due to the gross negligence or
willful misconduct of such person.
ARTICLE XI
ADOPTION OF THE PLAN
This Plan is intended to meet the requirements of Sections 401(a) and
401(k) of the Code, and ERISA, to the extent applicable, so that the income of
the Fund may be exempt from taxation under Section 501(a) of the Code, and
contributions of the Employer under the Plan may be deductible for federal
income tax purposes under Section 404 of the Code. Any modification or amendment
of the Plan may be made retroactively, as necessary or appropriate, to establish
and maintain such qualification and to meet any requirement of the Code or
ERISA.
SIGNATURES
As evidence of its adoption of this amended and restated Plan, Monroe
Bancorp has caused this instrument to be signed by its officers thereunder duly
authorized this day of , 19 , but generally effective as of January 1, 1991,
unless otherwise specified herein or by applicable law.
MONROE BANCORP
By:
David D. Baer, President
ATTEST: [SEAL]
By:
R. Scott Walters
Vice President and Trust Officer
-11-
<PAGE>
FIRST AMENDMENT OF
MONROE BANCORP THRIFT PLAN
WHEREAS, Monroe Bancorp ("Corporation") maintains the Monroe Bancorp
Thrift Plan ("Plan"), as amended and restated generally effective January 1,
1991; and
WHEREAS, the Corporation wishes to amend Section 3.7(a) of the Plan to
provide for an increase in employer matching contributions and to add a new
Section 6.8 to provide for participant loans; and
WHEREAS, pursuant to the authority contained in Section 9.1 of the
plan, the Corporation reserved the right to amend the Plan by action of the
Board of Directors;
NOW, THEREFORE, the Corporation hereby amends the Plan, effective for
plan years beginning on and after January 1, 1996, as follows:
1. Section 3.7(a) of the Plan, regarding employer matching
contributions, is hereby amended in its entirety to read as follows:
"(a) As of the annual Valuation Date, the Employer shall contribute
an amount on behalf of each eligible Participant necessary to
match fifty percent (50%) of each eligible Participant's
eligible Salary Redirection Contributions up to five percent
(5%) of such Participant's Compensation made to the Fund since
the last preceding annual Valuation Date by each such eligible
Participant.
For this purpose, an "eligible" Participant is a Participant described
in Section 4.3."
2. A new Section 8.12, regarding Participant loans, is hereby added to
the Plan to read as follows:
"8.12 Loans From Participant's Salary Redirection Contributions and
Rollover Accounts.
(a) Loan Policy. The Committee shall establish a nondiscriminatory
policy which the Committee or designated members thereof must
observe in making loans, if any, to Participants; provided,
that such policy shall be in a written document and shall
include the following:
(i) The identity of the person(s) authorized to
administer the Participant Loan Program;
(ii) A procedure for applying for a loan;
(iii) The criteria for approving or denying a loan;
<PAGE>
(iv) The limitations, if any, on the types and amounts of
loans available;
(v) The procedure for determining a reasonable rate of
interest;
(vi) The types of collateral which may secure the loan;
and
(vii) The events constituting default and the steps the
Plan will take to preserve Plan assets in the event
of default.
(b) Limitation on Loans to Salary Redirection Contributions and
Rollover Accounts. Loans shall be made available solely from the
Participant's Salary Redirection Contributions and Rollover
Accounts; the portion of a Participant's Individual Account
attributable to Matching, Profit Sharing, Qualified Matching and
Qualified Non-Elective Contributions shall not be available for
loans.
(c) Minimum Loan Requirements. All such loans shall be made to
Participants on a non-discriminatory basis in accordance with
the above-referenced loan policy established by the Committee.
Provided, however, all loans shall satisfy the following
requirements:
(i) The loan shall be adequately secured and shall bear a
reasonable rate of interest;
(ii) The loan shall provide for repayment within a specified
time;
(iii) The default provisions of the note under the loan shall
prohibit the offset of the Participant's Individual
Account prior to the time the Committee would otherwise
direct the Trustee to distribute the Participant's
Individual Account;
(iv) The amount of the loan shall not exceed (at the time
the Plan extends the loan) the lesser of fifty percent
(50%) of the present value of the Participant's vested
interest in the Participant's Salary Redirection
Contributions and Rollover Accounts; or Fifty Thousand
Dollars ($50,000) (reduced by the excess of (A) the
Participant's highest outstanding loan balance during
the twelve (12) month period ended on the day
immediately preceding the date of the new loan over
(B) the outstanding balance of loans from the Plan
to the Participant on the date the new loan is made);
and
(v) The loan otherwise conforms to the exemption provided
by Section 4975(d)(1) of the Code."
The Plan shall remain the same in all other respects except as provided
by the First Amendment above.
<PAGE>
IN WITNESS WHEREOF, the Corporation, by its officers thereunder duly
authorized, adopts this First Amendment this day of , 1995, effective January 1,
1996.
MONROE BANCORP
By:
David D. Baer, President
ATTEST: [SEAL]
By:
Title:
<PAGE>
SECOND AMENDMENT OF
MONROE BANCORP THRIFT PLAN
WHEREAS, Monroe Bancorp ("Corporation") maintains the Monroe Bancorp
Thrift Plan ("Plan"); and
WHEREAS, by corporate resolutions, the Corporation has approved and
adopted this amendment of the Plan to provide for participants to direct the
investment of their accounts under the Plan and for quarterly Plan entry dates;
and
WHEREAS, pursuant to the authority contained in Section 9.1 of the
Plan, the Board of Directors of the Corporation reserved the right to amend the
Plan by action of the Board of Directors;
NOW, THEREFORE, the Corporation hereby amends the Plan, effective on
and after July 1, 1997, as follows:
1. Section 1.47 of the Plan, regarding the definition of "Valuation
Date", is hereby amended to read as follows:
"1.47 'Valuation Date' means the last day of March, June,
September and December, as of which dates the Fund shall be valued at
fair market value. The Committee may, in its discretion, from time to
time value the Fund as of any other date or dates it deems desirable in
its discretion."
2. The Plan is amended by adding Section 2.7, regarding investment of
account balances, to the Plan as follows:
"2.7 Investment of Account Balance. Each Participant may
direct, at the time he commences participation, that his Individual
Account be invested in one (1) or any combination of the investment
accounts or funds made available by the Committee. A Participant may
change his investment election at such times as shall be permitted by
the Committee. Such change may be made applicable to that portion of
his Individual Account attributable to prior contributions and/or
future contributions to the Plan. A Participant may also make
inter-account transfers between and among investment accounts made
available by the Committee at such times as shall be permitted by the
Committee. Notwithstanding the foregoing provisions regarding
inter-account transfers, the investment manager may impose restrictions
on such transfers in the case of a group annuity contract or time
instrument."
3. Section 3.7(a) of the Plan, regarding matching contributions, is
hereby amended to read as follows:
"(a) As of the December 31 Valuation Date the Employer
shall contribute an amount on behalf of each
eligible Participant
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<PAGE>
necessary to match fifty percent (50%) of each
eligible Participant's eligible Salary Redirection
Contributions up to five percent (5%) of such
Participant's Compensation made to the Fund since the
last preceding December 31 Valuation Date by each
such eligible Participant. For this purpose, an
"eligible" Participant is a Participant described in
Section 4.3."
4. Section 4.3 of the Plan, regarding allocation of matching
contributions, is hereby amended to read as follows:
4.3 Allocation of Matching Contributions. The Committee, as of
the last day of the Plan Year (or such other Valuation Date as the
Committee shall determine), shall determine for each eligible
Participant, his share of Matching Contributions contributed in
accordance with Section 3.7. The Matching Contributions shall be
allocated to the Matching Contributions Accounts of each Participant
(i) who made Salary Redirection Contributions to the Fund since the
last day of the prior Plan Year (or such other Valuation Date as the
Committee shall determine) and (ii) who is an Employee on the last day
of such Plan Year and who completed one thousand (1,000) Hours of
Service during the Plan Year. Provided, however, a Participant who is
not an Employee on the last day of the Plan Year but who made Salary
Redirection Contributions during such Plan Year shall also share in the
allocation of Matching Contributions for the Plan Year of his
retirement upon or after attaining his Normal Retirement Age, Total and
Permanent Disability or death.
5. Section 4.4 of the Plan, regarding allocation of adjustments, is
hereby amended by adding the following new paragraph to the end thereof, to read
as follows:
"Provided, further, for any period in which one or more
investment funds are maintained under Section 2.7, the foregoing
provisions of this Section 4.4 will be applied to the account balances
invested in each investment fund and to any withdrawals or
contributions to be allocated to an investment fund as if each
investment fund were a separate Fund."
The Plan shall remain the same in all other respects except as provided
by the Second Amendment above.
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<PAGE>
IN WITNESS WHEREOF, the Corporation, by its officers thereunder duly
authorized, adopts this Second Amendment this day of , 1997, effective July 1,
1997.
MONROE BANCORP
By:
David D. Baer, President
ATTEST:
By:
Title:
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<PAGE>
THIRD AMENDMENT OF
MONROE BANCORP THRIFT PLAN
WHEREAS, Monroe Bancorp ("Corporation") maintains the Monroe Bancorp
Thrift Plan ("Plan"); and
WHEREAS, the Corporation desires to approve and adopt this amendment of
the Plan to provide for Employees to have an eligible rollover distribution from
another plan paid directly into the Plan in a direct rollover; and
WHEREAS, pursuant to the authority contained in Section 9.1 of the
Plan, the Board of Directors of the Corporation reserved the right to amend the
Plan by action of the Board of Directors;
NOW, THEREFORE, the Corporation hereby amends the Plan, effective on
and after January 1, 1997, as follows:
1. Section 3.2 of the Plan, regarding Rollover Contributions, is hereby
amended to read as follows:
"3.2 Rollover Contributions. An Employee who receives an
eligible rollover distribution, as defined in Code Section 402(c)(4) or
408(d)(3) of the Code, from a plan which meets the requirements of
Section 401(a) or Section 408(a) of the Code may, whether or not he is
presently eligible to participate in this Plan and in accordance with
procedures approved by the Committee, transfer the distribution
received from such other plan to the Trustee, provided the following
conditions are met:"
2. Section 3.2(d) of the Plan, regarding direct rollovers not
permitted, is hereby amended to read as follows:
"(d) Direct Rollovers Permitted. An Employee may elect
to have a distribution from another plan paid
directly into the Plan. As a result, the Plan
constitutes an eligible retirement plan for purposes
of Section 401(a)(31) of the Code.
The Plan shall remain the same in all other respects except as provided
by the Third Amendment above.
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<PAGE>
IN WITNESS WHEREOF, the Corporation, by its officers thereunder duly
authorized, adopts this Third Amendment this day of , 1998, effective January 1,
1997.
MONROE BANCORP
By:
David D. Baer, President
ATTEST:
By:
Title:
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<PAGE>
FOURTH AMENDMENT OF
MONROE BANCORP THRIFT PLAN
WHEREAS, Monroe Bancorp (the "Corporation") maintains the Monroe
Bancorp Thrift Plan (the "Plan"); and
WHEREAS, the Corporation has determined that the Plan should be amended
to follow the "safe harbor" methods provided in Sections 401(k)(12) and
401(m)(11) of the Internal Revenue Code for satisfying the nondiscrimination
tests under Sections 401(k) and 401(m) of the Internal Revenue Code; and
WHEREAS, the Corporation also desires to amend the Plan to allow
forfeitures to be used to reduce the Corporation's contributions payable to the
Plan; and
WHEREAS, pursuant to the authority contained in Section 9.1 of the
Plan, the Board of Directors of the Corporation reserved the right to amend the
Plan by action of the Board of Directors;
NOW, THEREFORE, the Corporation hereby amends the Plan, effective on
and after January 1, 1999, as follows:
1. By substituting the following for Section 3.7(a) of the Plan:
"(a) As of each December 31 Valuation Date, the Employer
shall contribute the amount, on behalf of each eligible
Participant, necessary to match one hundred percent
(100%) of each eligible Participant's eligible Salary
Redirection Contributions made to the Fund since the
last preceding December 31 Valuation Date up to three
percent (3%) of such Participant's Compensation plus
the amount necessary to match fifty percent (50%) of
each eligible Participant's eligible Salary Redirection
Contributions made to the Fund since the last preceding
December 31 Valuation Date which exceed three percent
(3%) of such Participant's Compensation but which do
not exceed five percent (5%) of such Participant's
Compensation. For this purpose, an 'eligible'
Participant is a Participant described in Section 4.3."
2. By adding the following new Section 3.12 to the Plan:
"3.12. Alternative Method of Meeting Nondiscrimination
Requirements. Effective for Plan Years beginning on
and after January 1, 1999, the Plan shall be deemed
to satisfy the requirements of Sections 3.4 and 3.8
for a Plan Year if the Plan:
1. meets the contribution requirements of Code
Section 401(k)(12)(B) or (C),
<PAGE>
2. meets the contribution requirements of Code
Section 401(m)(11)(B), and
3. meets the notice requirements of Code
Section 401(k)(12)(D) for that Plan Year."
3. By adding the following to the end of Section 4.5 of the Plan:
"Effective for Plan Years beginning on or after January 1,
1999, the amount of a Participant's Profit Sharing and
Matching Contribution Accounts forfeited under the Plan shall
be used to reduce the Employer contributions payable under
Section 3.1or 3.7 for the Plan Year in which the forfeiture
occurs, rather than being reallocated as described above."
4. By substituting Section 5.1(a) of the Plan with the following:
(a) Vesting on Termination of Service. Each Participant
shall always be one hundred percent (100%) vested in
the balance of his Rollover, Salary Redirection and
Qualified Non-Elective Contributions Accounts.
A Participant shall be one hundred percent (100%)
vested in the balance of his Profit Sharing and
Matching Contributions Accounts under the Plan as
follows: (i) upon attaining Normal Retirement Age
(age 65); (ii) upon the Committee's determination
that the Participant is Totally and Permanently
Disabled; and (iii) upon the death of the Participant
while still employed.
For Plan Years beginning prior to January 1, 1999, in
the event a Participant's Separation from Service
should occur under any circumstances other than those
set forth in (i), (ii) or (iii) above, his vested
interest in his Profit Sharing and Matching
Contributions Accounts shall be determined based on
his completed Years of Vesting Service as follows:
Years of Vested Forfeited
Vesting Service Percentage Percentage
0-5 0% 100%
5 or More 100% 0%
For Plan Years beginning on and after January 1,
1999, in the event a Participant's Separation from
Service should occur under any circumstances other
than those set forth in (i), (ii) or (iii) above, the
Participant shall be one
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<PAGE>
hundred percent (100%) vested in the balance in his
Matching Contributions Account and his vested
interest in his Profit Sharing Contributions Account
shall be determined based on his completed Years of
Vesting Service as follows:
Years of Vested Forfeited
Vesting Service Percentage Percentage
0-5 0% 100%
5 or More 100% 0%"
IN WITNESS WHEREOF, the Corporation, by its officers thereunder duly
authorized, adopts this Fourth Amendment this day of , 2000, but effective as of
January 1, 1999.
MONROE BANCORP
By:
Its:
ATTEST:
By:
Title:
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