As filed with the Securities and Exchange Commission on January 26, 1998
Registration Number 333--------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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ORION CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 95-6069054
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
600 Fifth Avenue
New York, New York 10020-2302
(Address of Principal Executive (Zip Code)
Offices)
WM. H. MCGEE & CO., INC. PROFIT SHARING PLAN
(Full Title of Plan)
Michael P. Maloney, Esq.
Senior Vice President, General Counsel and Secretary
Orion Capital Corporation
9 Farm Springs Road
Farmington, Connecticut 06032
(860) 674-6600
(Name and address of agent for service)
--------------
Copies to:
John J. McCann, Esq.
Donovan Leisure Newton & Irvine
30 Rockefeller Plaza
New York, New York 10112
(212) 632-3000
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<PAGE>
CALCULATION OF REGISTRATION FEE
================================================================================
TITLE PROPOSED PROPOSED
OF MAXIMUM MAXIMUM AMOUNT
SECURITIES AMOUNT TO OFFERING AGGREGATE OF
TO BE BE PRICE PER OFFERING REGISTRATION
REGISTERED (1) REGISTERED UNIT (2) PRICE (2) FEE
- -----------------------------------------------------------------------------
Common Stock,
par value $1.00
per share 100,000 $44.594 $4,459,000 $1,315.52
================================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Estimated for the sole purpose of computing the registration fee.
Pursuant to Securities Act Rule 457(c), the proposed maximum offering
price per unit is calculated as the average of the high and low prices,
reported by the New York Stock Exchange, Inc., of the common stock of
the registrant as of January 22, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Pursuant to Rule 428(b)(1) under the Securities Act of 1933,
as amended, the documents containing the information specified in Part I of Form
S-8 will be sent or given to each participant in the Wm. H. McGee & Co., Inc.
Profit Sharing Plan (the "McGee Savings Plan"). These documents and the
documents incorporated by reference in the Registration Statement pursuant to
Item 3 of Part II hereof, taken together, constitute the Section 10(a)
Prospectus.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Orion
Capital Corporation ("Orion") (File No. 1-7801) are incorporated herein by
reference and made a part hereof:
(a) Orion's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(b) Orion's Quarterly Report on Form 10-Q for the quarters ended
March 31, June 30 and September 30, 1997; and
(c) the description of the Common Stock of Orion and its preferred
stock purchase rights associated with the Common Stock,
contained in its Registration Statement filed pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and any amendment or report filed for the
purpose of updating that description.
All documents filed by Orion or the McGee Savings Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
The consolidated financial statements and the related
financial statement schedules incorporated in this Registration Statement by
reference from Orion's Annual Report on Form 10-K for the year ended December
31, 1996 have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, and have been so incorporated in reliance upon the
report of such firm given upon their authority as experts in accounting and
auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Orion is a Delaware corporation. Wm. H. McGee & Co., Inc.
("McGee") is a New York corporation and may be deemed to be a controlling person
of the McGee Savings Plan. Reference is made to Section 145 of the Delaware
General Corporation Law as to indemnification by Orion of its officers and
directors and to Sections 721 through 726 of the New York Business Corporation
Law as to indemnification by McGee of its officers and directors. The general
effect of such laws is to empower a corporation to indemnify any of its officers
and directors against certain expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the
person to be indemnified in connection with certain actions, suits or
proceedings (threatened, pending or completed) if the person to be indemnified
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Article IX of Orion's By-laws requires indemnification of
Orion's directors and officers to the fullest extent permitted by the Delaware
General Corporation Law ("Delaware Law") and provides for the advancement of
defense expenses provided the director or officer agrees to repay the advance if
it is ultimately determined that he is not entitled to indemnification. Article
IX also provides that the indemnification provided by the By-laws is not
exclusive. Section 145(a) of Delaware Law provides in general that a corporation
may indemnify anyone who is or may be a party to a legal proceeding by reason of
his service as a director or officer against expenses, adjustments, fines and
settlement payments actually and reasonably incurred if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, as to any criminal proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145(b) of Delaware
Law provides similarly where the proceeding is by or in the right of the
corporation to procure a judgment in its favor. Section 145(g) of Delaware Law
allows a corporation to maintain insurance on behalf of any officer or director
against any liability incurred by him in such capacity, whether or not the
corporation would have the power to indemnify him against such liability under
Delaware Law. Registrant maintains such directors and officers liability
insurance coverage.
Each of Orion's directors has entered into an indemnity
agreement with Orion which (i) confirms the indemnity set forth in the By-laws
and gives assurances that such indemnity will continue to be provided despite
any By-law changes and (ii) provides, subject to certain conditions, that the
director shall be indemnified to the fullest extent permitted by law against all
expenses, judgments, fines and settlement amounts incurred or paid by him in any
proceeding.
As permitted by Section 102(b)(7) of Delaware Law, Article VII
of Orion's Restated Certificate of Incorporation eliminates personal liability
of any director to Orion and its stockholders for breach of the director's
fiduciary duty of care, except where the director has breached his duty of
loyalty, acted in bad faith, engaged in intentional or knowing misconduct,
negligently or willfully declared an improper dividend or effected an unlawful
stock repurchase or redemption, or obtained any improper personal benefit.
Article V of McGee's By-laws requires indemnification of
McGee's directors and officers as permitted by Sections 721 through 725 of the
Business Corporation Law of New York ("New York Law") and provides for the
advancement of defense expenses provided the director or officer agrees to repay
the advance if it is ultimately determined that he is not entitled to
indemnification. The McGee By-laws also provide that the indemnification
provisions are not exclusive and that other rights to indemnification may be
granted through shareholder resolutions, director resolutions and
indemnification agreements between McGee and its officers and directors. Section
726 of New York Law allows a corporation to maintain insurance on behalf of any
officer or director against any liability incurred by him in such capacity,
whether or not the corporation would have the power to indemnify him against
such liability under New York Law. Registrant maintains such director's and
officer's liability insurance coverage.
Paragraph 6 of McGee's Restated Certificate of Incorporation
eliminates personal liability of any director to McGee and its stockholders for
any breach of duty by the director, except where, in a judgment or other final
adjudication adverse to the director, the director's acts or omissions were
determined to be in bad faith, involve intentional misconduct or a knowing
violation of law or in which it was determined that the director gained, in
fact, a financial profit or other advantage to which the director was not
legally entitled or that the director's acts violated New York Law Section 719.
The Wm. H. McGee & Co., Inc. Profit Sharing Trust (the "Trust
Agreement") provides that McGee shall indemnify and save harmless from and
against all liability to which the trustee, Fidelity Management Trust Company, a
Massachusetts corporation, may be subjected by reason of any act or conduct in
its capacity as trustee, including all expenses reasonably incurred in its
defense, except for losses or expenses resulting from the negligence or willful
misconduct of the Trustee or its affiliates.
<PAGE>
ITEM 8. EXHIBITS.
The documents listed hereunder are filed as exhibits hereto.
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
4.1 Wm. H. McGee & Co., Inc. Profit Sharing Plan as amended
effective January 1, 1997
4.2 Wm. H. McGee & Co., Inc. Profit Sharing Trust as amended
effective January 1, 1997
23 Consent of Deloitte & Touche LLP dated January 23, 1998
Orion will cause the McGee Savings Plan, as amended to date,
to be submitted to the Internal Revenue Service ("IRS") in a timely manner and
will cause to be made all changes required by the IRS in order to qualify such
plan.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 23rd day of
January, 1998.
ORION CAPITAL CORPORATION
By:/s/ W. Marston Becker
--------------------------
W. Marston Becker
Chairman and
Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below authorizes Michael P. Maloney as attorney-in-fact, with full power of
substitution and resubstitution, to sign and file on his behalf, individually
and in each capacity stated below, all amendments to this Registration
Statement.
Date: January 23, 1998 By:/s/ W. Marston Becker
--------------------------
W. Marston Becker
Chairman and Director
(Principal Executive Officer)
Date: January 23, 1998 By:/s/ Daniel L. Barry
--------------------------
Daniel L. Barry
Senior Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
Date: January 23, 1998 By:/s/ Bertram J. Cohn
--------------------------
Bertram J. Cohn
Director
Date: January 23, 1998 By:/s/ Gordon F. Cheesbrough
--------------------------
Gordon F. Cheesbrough
Director
Date: January 23, 1998 By:/s/ John C. Coleman
--------------------------
John C. Coleman
Director
Date: January 23, 1998 By:/s/ Victoria R. Fash
--------------------------
Victoria R. Fash
Director
Date: January 23, 1998 By:/s/ Robert H. Jeffrey
--------------------------
Robert H. Jeffrey
Director
Date: January 23, 1998 By:/s/ Warren R. Lyons
--------------------------
Warren R. Lyons
Director
Date: January 23, 1998 By:/s/ James K. McWilliams
--------------------------
James K. McWilliams
Director
Date: January 23, 1998 By:/s/ Ronald W. Moore
--------------------------
Ronald W. Moore
Director
Date: January 23, 1998 By:/s/ Robert B. Sanborn
--------------------------
Robert B. Sanborn
Director
Date: January 23, 1998 By:/s/ William J. Shepherd
--------------------------
William J. Shepherd
Director
Date: January 23, 1998 By:/s/ John R. Thorne
--------------------------
John R. Thorne
Director
Date: January 23, 1998 By:/s/ Roger B. Ware
--------------------------
Roger B. Ware
Director
Date: January 23, 1998 By:
--------------------------
William Weaver
Director
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act
of 1933, the trustee of or other persons who administer the McGee Savings Plan
have duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York on the 23rd day of January, 1998.
WM. H. MCGEE & CO, INC.
PROFIT SHARING PLAN
By:/s/ Michael Miller
--------------------------
Michael Miller
Chairman of the Employee
Benefits Committee of
Wm. H. McGee & Co., Inc.
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
4.1 Wm. H. McGee & Co., Inc. Profit Sharing Plan as amended
effective January 1, 1997
4.2 Wm. H. McGee & Co., Inc. Profit Sharing Trust as amended
effective January 1, 1997
23 Consent of Deloitte & Touche LLP dated January 23, 1998
WM. H. MCGEE & CO., INC. PROFIT SHARING PLAN
(JANUARY 1, 1997 RESTATEMENT)
FIDELITY MANAGEMENT TRUST COMPANY, ITS AFFILIATES AND EMPLOYEES MAY
NOT PROVIDE YOU WITH LEGAL OR TAX ADVICE IN CONNECTION WITH THE
EXECUTION OF THIS DOCUMENT. IT SHOULD BE REVIEWED BY YOUR ATTORNEY
AND/OR ACCOUNTANT PRIOR TO EXECUTION.
CORPORATEPLAN FOR RETIREMENTSM
VOLUME SUBMITTER
PLAN DOCUMENT SYSTEMSTM
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
1.1 - PLAN DEFINITIONS
1.2 - INTERPRETATION
ARTICLE II SERVICE
2.1 - DEFINITIONS
2.2 - CREDITING OF HOURS OF SERVICE
2.3 - HOURS OF SERVICE EQUIVALENCIES
2.4 - LIMITATIONS ON CREDITING OF HOURS OF SERVICE
2.5 - DEPARTMENT OF LABOR RULES
2.6 - YEARS OF ELIGIBILITY SERVICE
2.7 - CREDITING OF CONTINUOUS SERVICE
2.8 - VESTING SERVICE
2.9 - CREDITING OF SERVICE ON TRANSFER OR AMENDMENT
ARTICLE III ELIGIBILITY
3.1 - ELIGIBILITY
3.2 - TRANSFERS OF EMPLOYMENT
3.3 - REEMPLOYMENT
3.4 - NOTIFICATION CONCERNING NEW ELIGIBLE EMPLOYEES
3.5 - EFFECT AND DURATION
ARTICLE IV TAX-DEFERRED CONTRIBUTIONS
4.1 - TAX-DEFERRED CONTRIBUTIONS
4.2 - AMOUNT OF TAX-DEFERRED CONTRIBUTIONS
4.3 - CHANGES IN REDUCTION AUTHORIZATION
4.4 - SUSPENSION OF TAX-DEFERRED CONTRIBUTIONS
4.5 - RESUMPTION OF TAX-DEFERRED CONTRIBUTIONS
4.6 - DELIVERY OF TAX-DEFERRED CONTRIBUTIONS
4.7 - VESTING OF TAX-DEFERRED CONTRIBUTIONS
ARTICLE V AFTER-TAX AND ROLLOVER CONTRIBUTIONS
5.1 - NO AFTER-TAX CONTRIBUTIONS
5.2 - ROLLOVER CONTRIBUTIONS
5.3 - VESTING OF ROLLOVER CONTRIBUTIONS
ARTICLE VI EMPLOYER CONTRIBUTIONS
6.1 - CONTRIBUTION PERIOD
6.2 - PROFIT-SHARING CONTRIBUTIONS
6.3 - ALLOCATION OF PROFIT-SHARING CONTRIBUTIONS
6.4 - MATCHING CONTRIBUTIONS
6.5 - ALLOCATION OF MATCHING CONTRIBUTIONS
6.6 - VERIFICATION OF AMOUNT OF EMPLOYER CONTRIBUTIONS BY THE SPONSOR
6.7 - PAYMENT OF EMPLOYER CONTRIBUTIONS
6.8 - ELIGIBILITY TO PARTICIPATE IN ALLOCATION
6.9 - VESTING OF EMPLOYER CONTRIBUTIONS
6.10 - ELECTION OF FORMER VESTING SCHEDULE
6.11 - FORFEITURES TO REDUCE EMPLOYER CONTRIBUTIONS
ARTICLE VII LIMITATIONS ON CONTRIBUTIONS
7.1 - DEFINITIONS
7.2 - CODE SECTION 402(G) LIMIT
7.3 - DISTRIBUTION OF EXCESS DEFERRALS
7.4 - LIMITATION ON TAX-DEFERRED CONTRIBUTIONS OF HIGHLY
COMPENSATED EMPLOYEES
7.5 - DISTRIBUTION OF EXCESS TAX-DEFERRED CONTRIBUTIONS
7.6 - LIMITATION ON MATCHING CONTRIBUTIONS OF HIGHLY COMPENSATED
EMPLOYEES
7.7 - FORFEITURE OR DISTRIBUTION OF EXCESS CONTRIBUTIONS
7.8 - MULTIPLE USE LIMITATION
7.9 - DETERMINATION OF INCOME OR LOSS
7.10 - CODE SECTION 415 LIMITATIONS ON CREDITING OF CONTRIBUTIONS
AND FORFEITURES
7.11 - COVERAGE UNDER OTHER QUALIFIED DEFINED CONTRIBUTION PLAN
7.12 - COVERAGE UNDER QUALIFIED DEFINED BENEFIT PLAN
7.13 - SCOPE OF LIMITATIONS
ARTICLE VIII TRUST FUNDS AND SEPARATE ACCOUNTS
8.1 - GENERAL FUND
8.2 - INVESTMENT FUNDS
8.3 - LOAN INVESTMENT FUND
8.4 - INCOME ON TRUST
8.5 - SEPARATE ACCOUNTS
8.6 - SUB-ACCOUNTS
ARTICLE IX LIFE INSURANCE CONTRACTS
9.1 - NO LIFE INSURANCE CONTRACTS
ARTICLE X DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
10.1 - FUTURE CONTRIBUTION INVESTMENT ELECTIONS
10.2 - DEPOSIT OF CONTRIBUTIONS
10.3 - ELECTION TO TRANSFER BETWEEN FUNDS
ARTICLE XI CREDITING AND VALUING SEPARATE ACCOUNTS
11.1 - CREDITING SEPARATE ACCOUNTS
11.2 - VALUING SEPARATE ACCOUNTS
11.3 - PLAN VALUATION PROCEDURES
11.4 - FINALITY OF DETERMINATIONS
11.5 - NOTIFICATION
ARTICLE XII LOANS
12.1 - APPLICATION FOR LOAN
12.2 - REDUCTION OF ACCOUNT UPON DISTRIBUTION
12.3 - REQUIREMENTS TO PREVENT A TAXABLE DISTRIBUTION
12.4 - ADMINISTRATION OF LOAN INVESTMENT FUND
12.5 - DEFAULT
12.6 - SPECIAL RULES APPLICABLE TO LOANS
12.7 - LOANS GRANTED PRIOR TO AMENDMENT
ARTICLE XIII WITHDRAWALS WHILE EMPLOYED
13.1 - WITHDRAWALS OF ROLLOVER CONTRIBUTIONS
13.2 - WITHDRAWALS OF EMPLOYER CONTRIBUTIONS
13.3 - WITHDRAWALS OF TAX-DEFERRED CONTRIBUTIONS
13.4 - LIMITATIONS ON WITHDRAWALS OTHER THAN HARDSHIP WITHDRAWALS
13.5 - CONDITIONS AND LIMITATIONS ON HARDSHIP WITHDRAWALS
13.6 - ORDER OF WITHDRAWAL FROM A PARTICIPANT'S SUB-ACCOUNTS
ARTICLE XIV TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
14.1 - TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
14.2 - SEPARATE ACCOUNTING FOR NON-VESTED AMOUNTS
14.3 - DISPOSITION OF NON-VESTED AMOUNTS
14.4 - RECREDITING OF FORFEITED AMOUNTS
ARTICLE XV DISTRIBUTIONS
15.1 - DISTRIBUTIONS TO PARTICIPANTS
15.2 - DISTRIBUTIONS TO BENEFICIARIES
15.3 - CASH OUTS AND PARTICIPANT CONSENT
15.4 - REQUIRED COMMENCEMENT OF DISTRIBUTION
15.5 - REEMPLOYMENT OF A PARTICIPANT
15.6 - RESTRICTIONS ON ALIENATION
15.7 - FACILITY OF PAYMENT
15.8 - INABILITY TO LOCATE PAYEE
15.9 - DISTRIBUTION PURSUANT TO QUALIFIED DOMESTIC RELATIONS ORDERS
ARTICLE XVI FORM OF PAYMENT
16.1 - NORMAL FORM OF PAYMENT
16.2 - OPTIONAL FORM OF PAYMENT
16.3 - CHANGE OF OPTION ELECTION
16.4 - DIRECT ROLLOVER
16.5 - NOTICE REGARDING FORMS OF PAYMENT
16.6 - REEMPLOYMENT
16.7 - SECTION 242(B)(2) ELECTIONS
ARTICLE XVII BENEFICIARIES
17.1 - DESIGNATION OF BENEFICIARY
17.2 - SPOUSAL CONSENT REQUIREMENTS
ARTICLE XVIII ADMINISTRATION
18.1 - AUTHORITY OF THE SPONSOR
18.2 - ACTION OF THE SPONSOR
18.3 - CLAIMS REVIEW PROCEDURE
18.4 - QUALIFIED DOMESTIC RELATIONS ORDERS
18.6 - ACTIONS BINDING
ARTICLE XIX AMENDMENT AND TERMINATION
19.1 - AMENDMENT
19.2 - LIMITATION ON AMENDMENT
19.3 - TERMINATION
19.4 - REORGANIZATION
19.5 - WITHDRAWAL OF AN EMPLOYER
ARTICLE XX ADOPTION BY OTHER ENTITIES
20.1 - ADOPTION BY RELATED COMPANIES
20.2 - EFFECTIVE PLAN PROVISIONS
ARTICLE XXI MISCELLANEOUS PROVISIONS
21.1 - NO COMMITMENT AS TO EMPLOYMENT
21.2 - BENEFITS
21.3 - NO GUARANTEES
21.4 - EXPENSES
21.5 - PRECEDENT
21.6 - DUTY TO FURNISH INFORMATION
21.7 - WITHHOLDING
21.8 - MERGER, CONSOLIDATION, OR TRANSFER OF PLAN ASSETS
21.9 - BACK PAY AWARDS
21.10 - CONDITION ON EMPLOYER CONTRIBUTIONS
21.11 - RETURN OF CONTRIBUTIONS TO AN EMPLOYER
21.12 - VALIDITY OF PLAN
21.13 - TRUST AGREEMENT
21.14 - PARTIES BOUND
21.15 - APPLICATION OF CERTAIN PLAN PROVISIONS
21.16 - LEASED EMPLOYEES
21.17 - TRANSFERRED FUNDS
21.18 - VETERAN'S RIGHTS
21.19 - RIGHTS UNDER THE FAMILY AND MEDICAL LEAVE ACT OF 1992
ARTICLE XXII TOP-HEAVY PROVISIONS
22.1 - DEFINITIONS
22.2 - APPLICABILITY
22.3 - MINIMUM EMPLOYER CONTRIBUTION
22.4 - ADJUSTMENTS TO SECTION 415 LIMITATIONS
22.5 - ACCELERATED VESTING
ARTICLE XXIII EFFECTIVE DATE
23.1 - EFFECTIVE DATE OF AMENDMENT AND RESTATEMENT
<PAGE>
PREAMBLE
The Wm. H. McGee & Co., Inc. Profit Sharing Plan, originally effective as of
January 1, 1961, is hereby amended and restated in its entirety. The Plan, as
amended and restated hereby, is intended to qualify as a profit-sharing plan
under Section 401(a) of the Code, and includes a cash or deferred arrangement
that is intended to qualify under Section 401(k) of the Code. The Plan is
maintained for the exclusive benefit of eligible employees and their
beneficiaries.
Notwithstanding any other provision of the Plan to the contrary, a Participant's
vested interest in his Separate Account under the Plan on and after the
effective date of this amendment and restatement shall be not less than his
vested interest in his account on the day immediately preceding the effective
date. In addition, notwithstanding any other provision of the Plan to the
contrary, the forms of payment and other Plan provisions that were available
under the Plan immediately prior to the later of the effective date of this
amendment and restatement or the date this amendment and restatement is adopted
and that may not be eliminated under Section 411(d)(6) of the Code shall
continue to be available to Participants who had an account under the Plan on
the day immediately preceding the later of the effective date or the date this
amendment and restatement is adopted.
<PAGE>
ARTICLE I
DEFINITIONS
1.1 - PLAN DEFINITIONS
As used herein, the following words and phrases have the meanings hereinafter
set forth, unless a different meaning is plainly required by the context:
The "ADMINISTRATOR" means the Sponsor unless the Sponsor designates another
person or persons to act as such.
An "AFTER-TAX CONTRIBUTION" means any after-tax employee contribution made by a
Participant as may be permitted under Article V.
The "BENEFICIARY" of a Participant means the person or persons entitled under
the provisions of the Plan to receive distribution hereunder in the event the
Participant dies before receiving distribution of his entire interest under the
Plan.
The "CODE" means the Internal Revenue Code of 1986, as amended from time to
time. Reference to a section of the Code includes such section and any
comparable section or sections of any future legislation that amends,
supplements, or supersedes such section.
The "COMPENSATION" of a Participant for any period means the wages as defined in
Section 3401(a) of the Code, determined without regard to any rules that limit
compensation included in wages based on the nature or location of the employment
or services performed, and all other payments made to him for such period for
services as an Employee for which his Employer is required to furnish the
Participant a written statement under Sections 6041(d), 6051(a)(3), and 6052 of
the Code, and excluding reimbursements or other expense allowances, fringe
benefits, moving expenses, deferred compensation, and welfare benefits, but
determined prior to any exclusions for amounts deferred under Section 125,
402(e)(3), 402(h)(1)(B), 403(b), or 457(b) of the Code or for certain
contributions described in Section 414(h)(2) of the Code that are picked up by
the employing unit and treated as employer contributions.
Notwithstanding the foregoing, Compensation shall not include the following:
* bonuses.
* overtime pay.
* commissions.
* the value of any qualified or non-qualified stock option granted
to the Participant by his Employer to the extent such value is
includible in the Participant's taxable income.
In no event, however, shall the Compensation of a Participant taken into account
under the Plan for any Plan Year exceed (1) $200,000 for Plan Years beginning
prior to January 1, 1994, or (2) $150,000 for Plan Years beginning on or after
January 1, 1994 (subject to adjustment annually as provided in Section
401(a)(17)(B) and Section 415(d) of the Code; provided, however, that the dollar
increase in effect on January 1 of any calendar year, if any, is effective for
Plan Years beginning in such calendar year). If the Compensation of a
Participant is determined over a period of time that contains fewer than 12
calendar months, then the annual compensation limitation described above shall
be adjusted with respect to that Participant by multiplying the annual
compensation limitation in effect for the Plan Year by a fraction the numerator
of which is the number of full months in the period and the denominator of which
is 12; provided, however, that no proration is required for a Participant who is
covered under the Plan for less than one full Plan Year if the formula for
allocations is based on Compensation for a period of at least 12 months. In
determining the Compensation, for purposes of applying the annual compensation
limitation described above, of a Participant who is a five percent owner or
among the ten Highly Compensated Employees receiving the greatest Compensation
for the Plan Year, the Compensation of the Participant's spouse and of his
lineal descendants who have not attained age 19 as of the close of the Plan Year
shall be included as Compensation of the Participant for the Plan Year. If as a
result of applying the family aggregation rule described in the preceding
sentence the annual compensation limitation would be exceeded, the limitation
shall be prorated among the affected family members in proportion to each
member's Compensation as determined prior to application of the family
aggregation rules.
A "CONTRIBUTION PERIOD" means the period specified in Article VI for which
Employer Contributions shall be made.
An "ELIGIBLE EMPLOYEE" means any Employee who has met the eligibility
requirements of Article III to have Tax-Deferred Contributions made to the Plan
on his behalf.
The "ELIGIBILITY SERVICE" of an employee means the period or periods of service
credited to him under the provisions of Article II for purposes of determining
his eligibility to participate in the Plan as may be required under Article III
or Article VI.
An "EMPLOYEE" means any employee of an Employer other than an employee who (i)
is a leased employee, (ii) is covered by a collective bargaining agreement,
(iii) is a nonresident alien who does not receive United States source income,
(iv) is a non-salaried employee, (v) does not regularly perform for an Employer
in the United States, or (vi) has his primary residence outside the United
States and is either carried on the books of a foreign office of an Employer or
is on temporary secondment to the United States from a foreign office.
An "EMPLOYER" means the Sponsor and any entity which has adopted the Plan as may
be provided under Article XX, including, prior to July 1, 1995, only, Sun
Alliance USA Inc.
An "EMPLOYER CONTRIBUTION" means the amount, if any, that an Employer
contributes to the Plan as may be provided under Article VI or Article XXII.
An "ENROLLMENT DATE" means the first day of each Plan Year quarter.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time. Reference to a section of ERISA includes such section and any
comparable section or sections of any future legislation that amends,
supplements, or supersedes such section.
The "GENERAL FUND" means a Trust Fund maintained by the Trustee as required to
hold and administer any assets of the Trust that are not allocated among any
separate Investment Funds as may be provided in the Plan or the Trust Agreement.
No General Fund shall be maintained if all assets of the Trust are allocated
among separate Investment Funds.
A "HIGHLY COMPENSATED EMPLOYEE" means an Employee or former Employee who is a
highly compensated active employee or highly compensated former employee as
defined hereunder.
A "highly compensated active employee" includes any Employee who performs
services for an Employer during the determination year and who (i) was a five
percent owner at any time during the determination year or the look back year,
(ii) received compensation from an Employer during the look back year in excess
of $75,000 (subject to adjustment annually at the same time and in the same
manner as under Section 415(d) of the Code), (iii) was in the top paid group of
employees for the look back year and received compensation from an Employer
during the look back year in excess of $50,000 (subject to adjustment annually
at the same time and in the same manner as under Section 415(d) of the Code),
(iv) was an officer of an Employer during the look back year and received
compensation during that year in excess of 50 percent of the dollar limitation
in effect for that year under Section 415(b)(1)(A) of the Code or, if no officer
received compensation in excess of that amount for the look back year or the
determination year, received the greatest compensation for the look back year of
any officer, or (v) was one of the 100 employees paid the greatest compensation
by an Employer for the determination year and would be described in (ii), (iii),
or (iv) above if the term "determination year" were substituted for "look back
year".
A "highly compensated former employee" includes any Employee who separated from
service from an Employer and all Related Companies (or is deemed to have
separated from service from an Employer and all Related Companies) prior to the
determination year, performed no services for an Employer during the
determination year, and was a highly compensated active employee for either the
separation year or any determination year ending on or after the date the
Employee attains age 55.
The determination of who is a Highly Compensated Employee hereunder, including
determinations as to the number and identity of employees in the top paid group,
the 100 employees receiving the greatest compensation from an Employer, the
number of employees treated as officers, and the compensation considered, shall
be made in accordance with the provisions of Section 414(q) of the Code and
regulations issued thereunder. For purposes of this definition, the following
terms have the following meanings:
(a) The "determination year" means the Plan Year or, if the Administrator
makes the election provided in paragraph (b) below, the period of time,
if any, which extends beyond the look back year and ends on the last day
of the Plan Year for which testing is being performed (the "lag
period"). If the lag period is less than 12 months long, the dollar
amounts specified in (ii), (iii), and (iv) above shall be prorated based
upon the number of months in the lag period.
(b) The "look back year" means the 12-month period immediately preceding the
determination year; provided, however, that the Administrator may elect
instead to treat the calendar year ending with or within the
determination year as the "look back year".
An "HOUR OF SERVICE" with respect to a person means each hour, if any, that may
be credited to him in accordance with the provisions of Article II.
An "INVESTMENT FUND" means any separate investment Trust Fund maintained by the
Trustee as may be provided in the Plan or the Trust Agreement or any separate
investment fund maintained by the Trustee, to the extent that there are
Participant Sub-Accounts under such funds, to which assets of the Trust may be
allocated and separately invested.
A "MATCHING CONTRIBUTION" means any Employer Contribution made to the Plan on
account of a Participant's Tax-Deferred Contributions as provided in Article VI.
The "NORMAL RETIREMENT DATE" of an employee means the date he attains age 65.
A "PARTICIPANT" means any person who has a Separate Account in the Trust.
The "PLAN" means Wm. H. McGee & Co., Inc. Profit Sharing Plan, as from time to
time in effect.
A "PLAN YEAR" means the 12-consecutive-month period ending each December 31.
A "PROFIT-SHARING CONTRIBUTION" means any Employer Contribution made to the Plan
as provided in Article VI, other than Matching Contributions.
A "RELATED COMPANY" means any corporation or business, other than an Employer,
which would be aggregated with an Employer for a relevant purpose under Section
414 of the Code and, for purposes of applying the provisions of Section 415 of
the Code, Section 415(h) of the Code.
A "ROLLOVER CONTRIBUTION" means any rollover contribution to the Plan made by a
Participant as may be permitted under Article V.
A "SEPARATE ACCOUNT" means the account maintained by the Trustee in the name of
a Participant that reflects his interest in the Trust and any Sub-Accounts
maintained thereunder, as provided in Article VIII.
The "SETTLEMENT DATE" of a Participant means the date on which a Participant's
interest under the Plan becomes distributable in accordance with Article XV.
The "SPONSOR" means Wm. H. McGee & Co., Inc., and any successor thereto.
A "SUB-ACCOUNT" means any of the individual sub-accounts of a Participant's
Separate Account that is maintained as provided in Article VIII.
A "TAX-DEFERRED CONTRIBUTION" means the amount contributed to the Plan on a
Participant's behalf by his Employer in accordance with his reduction
authorization executed pursuant to Article IV.
The "TRUST" means the trust maintained by the Trustee under the Trust Agreement.
The "TRUST AGREEMENT" means the agreement entered into between the Sponsor and
the Trustee relating to the holding, investment, and reinvestment of the assets
of the Plan, together with all amendments thereto.
The "TRUSTEE" means the trustee or any successor trustee which at the time shall
be designated, qualified, and acting under the Trust Agreement. The Sponsor may
designate a person or persons other than the Trustee to perform any
responsibility of the Trustee under the Plan, other than trustee
responsibilities as defined in Section 405(c)(3) of ERISA, and the Trustee shall
not be liable for the performance of such person in carrying out such
responsibility except as otherwise provided by ERISA. The term Trustee shall
include any delegate of the Trustee as may be provided in the Trust Agreement.
A "TRUST FUND" means any fund maintained under the Trust by the Trustee.
A "VALUATION DATE" means the date or dates designated by the Sponsor and
communicated in writing to the Trustee for the purpose of valuing the General
Fund and each Investment Fund and adjusting Separate Accounts and Sub-Accounts
hereunder, which dates need not be uniform with respect to the General Fund,
each Investment Fund, Separate Account, or Sub-Account; provided, however, that
the General Fund and each Investment Fund shall be valued and each Separate
Account and Sub-Account shall be adjusted no less often than once annually.
The "VESTING SERVICE" of an employee means the period or periods of service
credited to him under the provisions of Article II for purposes of determining
his vested interest in his Employer Contributions Sub-Account, if Employer
Contributions are provided for under either Article VI or Article XXII.
1.2 - INTERPRETATION
Where required by the context, the noun, verb, adjective, and adverb forms of
each defined term shall include any of its other forms. Wherever used herein,
the masculine pronoun shall include the feminine, the singular shall include the
plural, and the plural shall include the singular.
<PAGE>
ARTICLE II
SERVICE
2.1 - DEFINITIONS
For purposes of this Article, the following terms shall have the following
meanings:
(a) A "break in service" means any computation period during which a person
completes less than 501 Hours of Service except that no person shall
incur a break in service solely by reason of temporary absence from work
not exceeding 12 months resulting from illness, layoff, or other cause
if authorized in advance by an Employer or a Related Company pursuant to
its uniform leave policy, if his employment shall not otherwise be
terminated during the period of such absence.
(b) A "computation period" for purposes of determining an employee's years
of Eligibility Service means (i) the 12-consecutive-month period
beginning on the first date he completes an Hour of Service, and (ii)
each 12-consecutive-month period beginning on an anniversary of such
date.
(c) The "continuous service" of an employee means the service credited to
him in accordance with the provisions of Section 2.7 of the Plan.
(d) The "employment commencement date" of an employee means the date he
first completes an Hour of Service.
(e) A "maternity/paternity absence" means a person's absence from
employment with an Employer or a Related Company because of the
person's pregnancy, the birth of the person's child, the placement of a
child with the person in connection with the person's adoption of the
child, or the caring for the person's child immediately following the
child's birth or adoption. A person's absence from employment will not
be considered a maternity/paternity absence unless the person furnishes
the Administrator such timely information as may reasonably be required
to establish that the absence was for one of the purposes enumerated in
this paragraph and to establish the number of days of absence
attributable to such purpose.
(f) The "reemployment commencement date" of an employee means the first date
following a severance date on which he again completes an Hour of
Service.
(g) The "severance date" of an employee means the earlier of (i) the date
on which he retires, dies, or his employment with an Employer and all
Related Companies is otherwise terminated, or (ii) the first
anniversary of the first date of a period during which he is absent
from work with an Employer and all Related Companies for any other
reason; provided, however, that if he terminates employment with or is
absent from work with an Employer and all Related Companies on account
of service with the armed forces of the United States, he shall not
incur a severance date if he is eligible for reemployment rights under
the Uniformed Services Employment and Reemployment Rights Act of 1994
and he returns to work with an Employer or a Related Company within the
period during which he retains such reemployment rights.
2.2 - CREDITING OF HOURS OF SERVICE
A person shall be credited with an Hour of Service for:
(a) each hour for which he is paid, or entitled to payment, for the
performance of duties for an Employer or a Related Company during the
applicable computation period; provided, however, that hours compensated
at a premium rate shall be treated as straight-time hours;
(b) subject to the provisions of Section 2.4, each hour for which he is
paid, or entitled to payment, by an Employer or a Related Company on
account of a period of time during which no duties are performed
(irrespective of whether the employment relationship has terminated) due
to vacation, holiday, illness, incapacity (including disability),
lay-off, jury duty, military duty, or leave of absence;
(c) each hour for which he would have been scheduled to work for an Employer
or a Related Company during the period that he is absent from work
because of service with the armed forces of the United States provided
he is eligible for reemployment rights under the Uniformed Services
Employment and Reemployment Rights Act of 1994 and returns to work with
an Employer or a Related Company within the period during which he
retains such reemployment rights; and
(d) each hour for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to by an Employer or a Related Company;
provided, however, that the same Hour of Service shall not be credited
both under paragraph (a) or (b) or (c) of this Section, as the case may
be, and under this paragraph (d); and provided, further, that the
crediting of Hours of Service for back pay awarded or agreed to with
respect to periods described in such paragraph (b) shall be subject to
the limitations set forth therein and in Section 2.4.
Notwithstanding the foregoing and solely for purposes of determining whether a
person who is on a maternity/paternity absence beginning on or after the first
day of the first Plan Year that commences on or after January 1, 1985, has
incurred a break in service, Hours of Service shall include those hours with
which such person would otherwise have been credited but for such
maternity/paternity absence, or shall include eight Hours of Service for each
day of maternity/paternity absence if the actual hours to be credited cannot be
determined; except that not more than 501 hours are to be credited by reason of
any maternity/paternity absence. Any hours included as Hours of Service pursuant
to the immediately preceding sentence shall be credited to the computation
period in which the absence from employment begins, if such person otherwise
would incur a break in service in such computation period, or, in any other
case, to the immediately following computation period.
2.3 - HOURS OF SERVICE EQUIVALENCIES
Notwithstanding any other provision of the Plan to the contrary, an Employer may
elect to credit Hours of Service to its employees in accordance with one of the
following equivalencies, and if an Employer does not maintain records that
accurately reflect actual hours of service, such Employer shall credit Hours of
Service to its employees in accordance with one of the following equivalencies:
(a) If the Employer maintains its records on the basis of days worked, an
employee shall be credited with 10 Hours of Service for each day on
which he performs an Hour of Service.
(b) If the Employer maintains its records on the basis of weeks worked, an
employee shall be credited with 45 Hours of Service for each week in
which he performs an Hour of Service.
(c) If the Employer maintains its records on the basis of semi-monthly
payroll periods, an employee shall be credited with 95 Hours of Service
for each semi-monthly payroll period in which he performs an Hour of
Service.
(d) If the Employer maintains its records on the basis of months worked, an
employee shall be credited with 190 Hours of Service for each month in
which he performs an Hour of Service.
2.4 - LIMITATIONS ON CREDITING OF HOURS OF SERVICE
In the application of the provisions of paragraph (b) of Section 2.2, the
following shall apply:
(a) An hour for which a person is directly or indirectly paid, or entitled
to payment, on account of a period during which no duties are performed
shall not be credited to him if such payment is made or due under a plan
maintained solely for the purpose of complying with applicable workers'
compensation, unemployment compensation, or disability insurance laws.
(b) Hours of Service shall not be credited with respect to a payment which
solely reimburses a person for medical or medically-related expenses
incurred by him.
(c) For purposes of such paragraph (b), a payment shall be deemed to be made
by or due from an Employer or a Related Company (i) regardless of
whether such payment is made by or due from such employer directly or
indirectly, through (among others) a trust fund or insurer to which any
such employer contributes or pays premiums, and (ii) regardless of
whether contributions made or due to such trust fund, insurer, or other
entity are for the benefit of particular persons or are on behalf of a
group of persons in the aggregate.
(d) No more than 501 Hours of Service shall be credited under such paragraph
(b) to a person on account of any single continuous period during which
he performs no duties (whether or not such period occurs in a single
computation period), unless no duties are performed due to service with
the armed forces of the United States for which the person retains
reemployment rights as provided in paragraph (c) of Section 2.2.
2.5 - DEPARTMENT OF LABOR RULES
The rules set forth in paragraphs (b) and (c) of Department of Labor Regulations
ss.2530.200b-2, which relate to determining Hours of Service attributable to
reasons other than the performance of duties and crediting Hours of Service to
computation periods, are hereby incorporated into the Plan by reference.
2.6 - YEARS OF ELIGIBILITY SERVICE
An employee shall be credited with a year of Eligibility Service for each
computation period in which he completes at least 1,000 Hours of Service.
2.7 - CREDITING OF CONTINUOUS SERVICE
A person shall be credited with continuous service for the aggregate of the
periods of time between his employment commencement date or any reemployment
commencement date and the severance date that next follows such employment
commencement date or reemployment commencement date; provided, however, that an
employee who has a reemployment commencement date within the
12-consecutive-month period following the earlier of the first date of his
absence or his severance date shall be credited with continuous service for the
period between such severance date and reemployment commencement date.
2.8 - VESTING SERVICE
Years of Vesting Service shall be determined in accordance with the following
provisions:
(a) An employee shall be credited with years of Vesting Service equal to his
period of continuous service.
(b) Notwithstanding the provisions of paragraph (a), the following periods
of continuous service shall not be included in determining an employee's
years of Vesting Service:
(i) continuous service completed by the employee prior to a severance
date unless the employee had a nonforfeitable right to any
portion of his Separate Account, excluding that portion of his
Separate Account that is attributable to Rollover Contributions,
as of the severance date, or the period of time between the
severance date and his reemployment commencement date is less
than the greater of five years or his period of continuous
service determined as of the severance date; provided, however,
that solely for purposes of applying this subparagraph, if a
person is on a maternity/paternity absence beyond the first
anniversary of the first day of such absence, his severance date
shall be the second anniversary of the first day of such
maternity/paternity absence; and
(ii) continuous service completed by an employee prior to the original
effective date of the Plan.
2.9 - CREDITING OF SERVICE ON TRANSFER OR AMENDMENT
Notwithstanding any other provision of the Plan to the contrary, if an Employee
is transferred from employment covered under a qualified plan maintained by an
Employer or a Related Company for which eligibility service is credited based on
elapsed time in accordance with Treasury Regulations ss.1.410(a)-7 to employment
covered under the Plan or, prior to amendment, the Plan provided for crediting
of Eligibility Service on the basis of elapsed time, an affected Employee shall
be credited with Eligibility Service hereunder equal to:
(a) the number of one year periods of service credited to the Employee under
the elapsed time method before the transfer date or the effective date
of the amendment, plus
(b) his service under the Hours of Service method provided hereunder for the
computation period in which the transfer or the effective date of the
amendment occurs applying one of the equivalencies set forth in Section
2.3 to any fractional part of a year credited to the Employee under the
elapsed time method as of the transfer date or the effective date of the
amendment; provided, however that the same equivalency shall be used for
all similarly situated Employees, plus
(c) the service credited to such Employee under the Hours of Service method
provided hereunder for computation periods beginning after the
computation period in which the transfer or the effective date of the
amendment occurs.
In addition, notwithstanding any other provision of the Plan to the contrary, if
an Employee is transferred from employment covered under a qualified plan
maintained by an Employer or a Related Company for which vesting service is
credited based on Hours of Service and computation periods in accordance with
Department of Labor Regulations ss.2530.200 through 2530.203 to employment
covered under the Plan or, prior to amendment, the Plan provided for crediting
of service on the basis of Hours of Service and computation periods, an affected
Employee shall be credited with Vesting Service hereunder equal to:
(a) the Employee's years of service credited to him under the Hours of
Service method before the computation period in which the transfer or
the effective date of the amendment occurs, plus
(b) the greater of (i) the period of service that would be credited to the
Employee under the elapsed time method provided hereunder for his
employment during the entire computation period in which the transfer or
the effective date of the amendment occurs or (ii) the service taken
into account under the Hours of Service method for such computation
period as of the transfer date or the effective date of the amendment,
plus
(c) the service credited to such Employee under the elapsed time method
provided hereunder for the period of time beginning on the day after the
last day of the computation period in which the transfer or the
effective date of the amendment occurs.
<PAGE>
ARTICLE III
ELIGIBILITY
3.1 - ELIGIBILITY
Each Employee who was an Eligible Employee immediately prior to the effective
date of this amendment and restatement shall continue to be an Eligible
Employee. Each other Employee shall become an Eligible Employee as of the
Enrollment Date coinciding with or next following the date on which he has both
attained age 21 and completed one year of Eligibility Service.
3.2 - TRANSFERS OF EMPLOYMENT
If a person is transferred directly from employment with an Employer or with a
Related Company in a capacity other than as an Employee to employment as an
Employee, he shall become an Eligible Employee as of the date he is so
transferred if prior to an Enrollment Date coinciding with or preceding such
transfer date he has met the eligibility requirements of Section 3.1. Otherwise,
the eligibility of a person who is so transferred to elect to have Tax-Deferred
Contributions made to the Plan on his behalf shall be determined in accordance
with Section 3.1.
3.3 - REEMPLOYMENT
If a person who terminated employment with an Employer and all Related Companies
is reemployed as an Employee and if he had been an Eligible Employee prior to
his termination of employment, he shall again become an Eligible Employee on the
date he is reemployed. Otherwise, the eligibility of a person who terminated
employment with an Employer and all Related Companies and who is reemployed by
an Employer or a Related Company to elect to have Tax-Deferred Contributions
made to the Plan on his behalf shall be determined in accordance with Section
3.1 or 3.2.
3.4 - NOTIFICATION CONCERNING NEW ELIGIBLE EMPLOYEES
Each Employer shall notify the Administrator as soon as practicable of Employees
becoming Eligible Employees as of any date.
3.5 - EFFECT AND DURATION
Upon becoming an Eligible Employee, an Employee shall be entitled to elect to
have Tax-Deferred Contributions made to the Plan on his behalf and shall be
bound by all the terms and conditions of the Plan and the Trust Agreement. A
person shall continue as an Eligible Employee eligible to have Tax-Deferred
Contributions made to the Plan on his behalf only so long as he continues
employment as an Employee.
<PAGE>
ARTICLE IV
TAX-DEFERRED CONTRIBUTIONS
4.1 - TAX-DEFERRED CONTRIBUTIONS
Effective as of the date he becomes an Eligible Employee, or any subsequent
Enrollment Date, each Eligible Employee may elect in writing in accordance with
rules prescribed by the Administrator to have Tax-Deferred Contributions made to
the Plan on his behalf by his Employer as hereinafter provided. An Eligible
Employee's written election shall include his authorization for his Employer to
reduce his Compensation and to make Tax-Deferred Contributions on his behalf and
his election as to the investment of his contributions in accordance with
Article X. Tax-Deferred Contributions on behalf of an Eligible Employee shall
commence with the first payment of Compensation made on or after the date on
which his election is effective.
4.2 - AMOUNT OF TAX-DEFERRED CONTRIBUTIONS
The amount of Tax-Deferred Contributions to be made to the Plan on behalf of an
Eligible Employee by his Employer shall be an integral percentage of his
Compensation of not less than 1 percent nor more than 10 percent. In the event
an Eligible Employee elects to have his Employer make Tax-Deferred Contributions
on his behalf, his Compensation shall be reduced for each payroll period by the
percentage he elects to have contributed on his behalf to the Plan in accordance
with the terms of his currently effective reduction authorization.
4.3 - CHANGES IN REDUCTION AUTHORIZATION
An Eligible Employee may change the percentage of his future Compensation that
his Employer contributes on his behalf as Tax-Deferred Contributions at such
time or times during the Plan Year as the Administrator may prescribe by filing
an amended reduction authorization with his Employer such number of days prior
to the date such change is to become effective as the Administrator shall
prescribe. An Eligible Employee who changes his reduction authorization shall be
limited to selecting a percentage of his Compensation that is otherwise
permitted hereunder. Tax-Deferred Contributions shall be made on behalf of such
Eligible Employee by his Employer pursuant to his amended reduction
authorization filed in accordance with this Section commencing with Compensation
paid to the Eligible Employee on or after the date such filing is effective,
until otherwise altered or terminated in accordance with the Plan.
4.4 - SUSPENSION OF TAX-DEFERRED CONTRIBUTIONS
An Eligible Employee on whose behalf Tax-Deferred Contributions are being made
may have such contributions suspended at any time by giving such number of days
advance written notice to his Employer as the Administrator shall prescribe. Any
such voluntary suspension shall take effect commencing with Compensation paid to
such Eligible Employee on or after the expiration of the required notice period
and shall remain in effect until Tax-Deferred Contributions are resumed as
hereinafter set forth.
4.5 - RESUMPTION OF TAX-DEFERRED CONTRIBUTIONS
An Eligible Employee who has voluntarily suspended his Tax-Deferred
Contributions may have such contributions resumed at such time or times during
the Plan Year as the Administrator may prescribe, by filing a new reduction
authorization with his Employer such number of days prior to the date as of
which such contributions are to be resumed as the Administrator shall prescribe.
4.6 - DELIVERY OF TAX-DEFERRED CONTRIBUTIONS
As soon after the date an amount would otherwise be paid to an Employee as it
can reasonably be separated from Employer assets, each Employer shall cause to
be delivered to the Trustee in cash all Tax-Deferred Contributions attributable
to such amounts.
4.7 - VESTING OF TAX-DEFERRED CONTRIBUTIONS
A Participant's vested interest in his Tax-Deferred Contributions Sub-Account
shall be at all times 100 percent.
<PAGE>
ARTICLE V
AFTER-TAX AND ROLLOVER CONTRIBUTIONS
5.1 - NO AFTER-TAX CONTRIBUTIONS
There shall be no After-Tax Contributions made to the Plan.
5.2 - ROLLOVER CONTRIBUTIONS
An Employee who was a participant in a plan qualified under Section 401 or 403
of the Code and who receives a cash distribution from such plan that he elects
either (i) to roll over immediately to a qualified retirement plan or (ii) to
roll over into a conduit IRA from which he receives a later cash distribution,
may elect to make a Rollover Contribution to the Plan if he is entitled under
Section 402(c), Section 403(a)(4), or Section 408(d)(3)(A) of the Code to roll
over such distribution to another qualified retirement plan. The Administrator
may require an Employee to provide it with such information as it deems
necessary or desirable to show that he is entitled to roll over such
distribution to another qualified retirement plan. An Employee shall make a
Rollover Contribution to the Plan by delivering, or causing to be delivered, to
the Trustee the cash that constitutes the Rollover Contribution amount within 60
days of receipt of the distribution from the plan or from the conduit IRA in the
manner prescribed by the Administrator. If the Employee does not already have an
investment election on file with the Administrator, the Employee shall also
deliver to the Administrator his election as to the investment of his
contributions in accordance with Article X.
5.3 - VESTING OF ROLLOVER CONTRIBUTIONS
A Participant's vested interest in his Rollover Contributions Sub-Account shall
be at all times 100 percent.
<PAGE>
ARTICLE VI
EMPLOYER CONTRIBUTIONS
6.1 - CONTRIBUTION PERIOD
The Contribution Period for Employer Contributions under the Plan shall be each
Plan Year.
6.2 - PROFIT-SHARING CONTRIBUTIONS
Each Employer may, in its discretion, make a Profit-Sharing Contribution to the
Plan for the Contribution Period in an amount determined by the Sponsor.
6.3 - ALLOCATION OF PROFIT-SHARING CONTRIBUTIONS
Any Profit-Sharing Contribution made for a Contribution Period shall be
allocated among the Employees who are eligible to participate in the allocation
of Profit-Sharing Contributions for the Contribution Period, as determined under
this Article. The allocable share of each such Employee shall be in the ratio
which his Compensation from the Employers for the Contribution Period bears to
the aggregate of such Compensation for all such Employees. Notwithstanding any
other provision of the Plan to the contrary, Compensation with respect to any
period ending prior to the date on which an Employee first became eligible to
participate in the allocation of Profit-Sharing Contributions shall be
disregarded in determining the amount of the Employee's allocable share.
6.4 - MATCHING CONTRIBUTIONS
Each Employer may make a Matching Contribution to the Plan for each Contribution
Period in an amount equal to the percentage, determined by the Sponsor, in its
discretion, for the Contribution Period, of the aggregate "eligible Tax-Deferred
Contributions" for the Contribution Period made on behalf of its Employees
during the Contribution Period who are eligible to participate in the allocation
of Matching Contributions for the Contribution Period, as determined under this
Article. For purposes of this Article, "eligible Tax-Deferred Contributions"
with respect to an Employee mean the Tax-Deferred Contributions made on his
behalf for the Contribution Period in an amount up to, but not exceeding, the
"match level". For purposes of this Article, the "match level" means 4 percent
(or such other percent that the board of directors of the Sponsor may establish
in advance of any Contribution Period) of an Employee's Compensation for the
Contribution Period, excluding Compensation with respect to any period ending
prior to the date on which the Employee became eligible to participate in the
allocation of Matching Contributions.
6.5 - ALLOCATION OF MATCHING CONTRIBUTIONS
Any Matching Contribution made by an Employer for the Contribution Period shall
be allocated among its Employees during the Contribution Period who are eligible
to participate in the allocation of Matching Contributions for the Contribution
Period, as determined under this Article. The allocable share of each such
Employee shall be an amount equal to the percentage determined by the Sponsor of
the "eligible Tax-Deferred Contributions" made on his behalf for the
Contribution Period.
6.6 - VERIFICATION OF AMOUNT OF EMPLOYER CONTRIBUTIONS BY THE SPONSOR
The Sponsor shall verify the amount of Employer Contributions to be made by each
Employer in accordance with the provisions of the Plan. Notwithstanding any
other provision of the Plan to the contrary, the Sponsor shall determine the
portion of the Employer Contribution to be made by each Employer with respect to
an Employee who transfers from employment with one Employer as an Employee to
employment with another Employer as an Employee.
6.7 - PAYMENT OF EMPLOYER CONTRIBUTIONS
Employer Contributions made for a Contribution Period shall be paid in cash or
in qualifying employer securities, as defined in Section 407(d)(5) of ERISA, to
the Trustee within the period of time required under the Code in order for the
contribution to be deductible by the Employer in determining its Federal income
taxes for the Plan Year.
6.8 - ELIGIBILITY TO PARTICIPATE IN ALLOCATION
Each Employee shall be eligible to participate in the allocation of Employer
Contributions beginning on the date he becomes, or again becomes, an Eligible
Employee in accordance with the provisions of Article III. Notwithstanding the
foregoing, no person shall be eligible to participate in the allocation of
Profit-Sharing Contributions for a Contribution Period unless he is employed by
an Employer or a Related Company on the last day of the Contribution Period;
provided, however, that if the Plan would not otherwise meet the minimum
coverage requirements of Section 410(b) of the Code in any Plan Year, the group
of Employees eligible to participate in the allocation of Profit-Sharing
Contributions shall be expanded to include the minimum number of Employees who
are not employed by an Employer or a Related Company on the last day of the
Contribution Period that is necessary to meet the minimum coverage requirements.
The Employees who become eligible to participate under the provisions of the
immediately preceding clause shall be those Employees who have completed the
greatest number of Hours of Service during the Contribution Period.
6.9 - VESTING OF EMPLOYER CONTRIBUTIONS
A Participant's vested interest in his Profit-Sharing and Matching Contributions
Sub-Accounts shall be determined in accordance with the following schedule:
YEARS OF VESTING SERVICE VESTED INTEREST
Less than 5 50%
5 but less than 6 60%
6 but less than 7 80%
7 or more 100%
Notwithstanding the foregoing, if a Participant is employed by an Employer or a
Related Company on his Normal Retirement Date, the date he attains age 55 and
completes 1 year of Vesting Service, the date he dies, or the date he becomes
physically or mentally disabled such that he can no longer continue in the
service of his Employer, as determined by the Administrator on the basis of a
written certificate of a physician acceptable to it, his vested interest in his
Profit-Sharing and Matching Contributions Sub-Accounts shall be 100 percent.
6.10 - ELECTION OF FORMER VESTING SCHEDULE
If the Sponsor adopts an amendment to the Plan that directly or indirectly
affects the computation of a Participant's vested interest in his Employer
Contributions Sub-Account, any Participant with three or more years of Vesting
Service shall have a right to have his vested interest in his Employer
Contributions Sub-Account continue to be determined under the vesting provisions
in effect prior to the amendment rather than under the new vesting provisions,
unless the vested interest of the Participant in his Employer Contributions
Sub-Account under the Plan as amended is not at any time less than such vested
interest determined without regard to the amendment. A Participant shall
exercise his right under this Section by giving written notice of his exercise
thereof to the Administrator within 60 days after the latest of (i) the date he
receives notice of the amendment from the Administrator, (ii) the effective date
of the amendment, or (iii) the date the amendment is adopted. Notwithstanding
the foregoing, a Participant's vested interest in his Employer Contributions
Sub-Account on the effective date of such an amendment shall not be less than
his vested interest in his Employer Contributions Sub-Account immediately prior
to the effective date of the amendment.
6.11 - FORFEITURES TO REDUCE EMPLOYER CONTRIBUTIONS
Notwithstanding any other provision of the Plan to the contrary, the amount of
the Employer Contribution required under this Article for a Plan Year shall be
reduced by the amount of any forfeitures occurring during the Plan Year that are
not used to pay Plan expenses.
<PAGE>
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS
7.1 - DEFINITIONS
For purposes of this Article, the following terms have the following meanings:
(a) The "actual deferral percentage" with respect to an Eligible Employee
for a particular Plan Year means the ratio of the Tax-Deferred
Contributions made on his behalf for the Plan Year to his test
compensation for the Plan Year; provided, however, that contributions
made on a Participant's behalf for a Plan Year shall be included in
determining his actual deferral percentage for such Plan Year only if
the contributions are made to the Plan prior to the end of the 12-month
period immediately following the Plan Year to which the contributions
relate. The determination and treatment of the actual deferral
percentage amounts for any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the Treasury.
(b) The "aggregate limit" means the sum of (i) 125 percent of the greater
of the average contribution percentage for eligible participants other
than Highly Compensated Employees or the average actual deferral
percentage for Eligible Employees other than Highly Compensated
Employees and (ii) the lesser of 200 percent or two plus the lesser of
such average contribution percentage or average actual deferral
percentage, or, if it would result in a larger aggregate limit, the sum
of (iii) 125 percent of the lesser of the average contribution
percentage for eligible participants other than Highly Compensated
Employees or the average actual deferral percentage for Eligible
Employees other than Highly Compensated Employees and (iv) the lesser
of 200 percent or two plus the greater of such average contribution
percentage or average actual deferral percentage.
(c) The "annual addition" with respect to a Participant for a limitation
year means the sum of the Tax-Deferred Contributions and Employer
Contributions allocated to his Separate Account for the limitation year
(including any excess contributions that are distributed pursuant to
this Article), the employer contributions, employee contributions, and
forfeitures allocated to his accounts for the limitation year under any
other qualified defined contribution plan (whether or not terminated)
maintained by an Employer or a Related Company concurrently with the
Plan, and amounts described in Sections 415(l)(2) and 419A(d)(2) of the
Code allocated to his account for the limitation year; provided,
however, that the annual addition for limitation years beginning prior
to January 1, 1987 shall not be recalculated to treat all employee
contributions as annual additions.
(d) The "Code Section 402(g) limit" means the dollar limit imposed by
Section 402(g)(1) of the Code or established by the Secretary of the
Treasury pursuant to Section 402(g)(5) of the Code in effect on January
1 of the calendar year in which an Eligible Employee's taxable year
begins.
(e) The "contribution percentage" with respect to an eligible participant
for a particular Plan Year means the ratio of the matching
contributions made to the Plan on his behalf for the Plan Year to his
test compensation for such Plan Year, except that, to the extent
permitted by regulations issued under Section 401(m) of the Code, the
Sponsor may elect to take into account in computing the numerator of
each eligible participant's contribution percentage the Tax-Deferred
Contributions made to the Plan on his behalf for the Plan Year;
provided, however, that any Tax-Deferred Contributions that were taken
into account in computing the numerator of an eligible participant's
actual deferral percentage may not be taken into account in computing
the numerator of his contribution percentage; and provided, further,
that contributions made by or on a Participant's behalf for a Plan Year
shall be included in determining his contribution percentage for such
Plan Year only if the contributions are made to the Plan prior to the
end of the 12-month period immediately following the Plan Year to which
the contributions relate. The determination and treatment of the
contribution percentage amounts for any Participant shall satisfy such
other requirements as may be prescribed by the Secretary of the
Treasury.
(f) An "elective contribution" means any employer contribution made to a
plan maintained by an Employer or any Related Company on behalf of a
Participant in lieu of cash compensation pursuant to his written
election to defer under any qualified CODA as described in Section
401(k) of the Code, any simplified employee pension cash or deferred
arrangement as described in Section 402(h)(1)(B) of the Code, any
eligible deferred compensation plan under Section 457 of the Code, or
any plan as described in Section 501(c)(18) of the Code, and any
contribution made on behalf of the Participant by an Employer or a
Related Company for the purchase of an annuity contract under Section
403(b) of the Code pursuant to a salary reduction agreement.
(g) An "eligible participant" means any Employee who is eligible to have
Tax-Deferred Contributions made on his behalf (if Tax-Deferred
Contributions are taken into account in computing contribution
percentages) or to participate in the allocation of matching
contributions.
(h) An "excess deferral" with respect to a Participant means that portion
of a Participant's Tax-Deferred Contributions that when added to
amounts deferred under other plans or arrangements described in
Sections 401(k), 408(k), or 403(b) of the Code, would exceed the Code
Section 402(g) limit and is includable in the Participant's gross
income under Section 402(g) of the Code.
(i) A "family member" of an Employee means the Employee's spouse, his
lineal ascendants, his lineal descendants, and the spouses of such
lineal ascendants and descendants.
(j) A "limitation year" means the calendar year.
(k) A "matching contribution" means any employer contribution allocated to
an Eligible Employee's account under the Plan or any other plan of an
Employer or a Related Company solely on account of elective
contributions made on his behalf or employee contributions made by him.
(l) The "test compensation" of an Eligible Employee for a Plan Year means
compensation as defined in Section 414(s) of the Code and regulations
issued thereunder, limited, however, to (1) $200,000 for Plan Years
beginning prior to January 1, 1994, or (2) $150,000 for Plan Years
beginning on or after January 1, 1994 (subject to adjustment annually
as provided in Section 401(a)(17)(B) and Section 415(d) of the Code;
provided, however, that the dollar increase in effect on January 1 of
any calendar year, if any, is effective for Plan Years beginning in
such calendar year). If the test compensation of a Participant is
determined over a period of time that contains fewer than 12 calendar
months, then the annual compensation limitation described above shall
be adjusted with respect to that Participant by multiplying the annual
compensation limitation in effect for the Plan Year by a fraction the
numerator of which is the number of full months in the period and the
denominator of which is 12; provided, however, that no proration is
required for a Participant who is covered under the Plan for less than
one full Plan Year if the formula for allocations is based on
Compensation for a period of at least 12 months. In determining the
test compensation, for purposes of applying the annual compensation
limitation described above, of a Participant who is a five-percent
owner or among the ten Highly Compensated Employees receiving the
greatest test compensation for the limitation year, the test
compensation of the Participant's spouse and of his lineal descendants
who have not attained age 19 as of the close of the limitation year
shall be included as test compensation of the Participant for the
limitation year. If as a result of applying the family aggregation rule
described in the preceding sentence the annual compensation limitation
would be exceeded, the limitation shall be prorated among the affected
family members in proportion to each member's test compensation as
determined prior to application of the family aggregation rules.
7.2 - CODE SECTION 402(G) LIMIT
In no event shall the amount of the Tax-Deferred Contributions made on behalf of
an Eligible Employee for his taxable year, when aggregated with any elective
contributions made on behalf of the Eligible Employee under any other plan of an
Employer or a Related Company for his taxable year, exceed the Code Section
402(g) limit. In the event that the Administrator determines that the reduction
percentage elected by an Eligible Employee will result in his exceeding the Code
Section 402(g) limit, the Administrator may adjust the reduction authorization
of such Eligible Employee by reducing the percentage of his Tax-Deferred
Contributions to such smaller percentage that will result in the Code Section
402(g) limit not being exceeded. If the Administrator determines that the
Tax-Deferred Contributions made on behalf of an Eligible Employee would exceed
the Code Section 402(g) limit for his taxable year, the Tax-Deferred
Contributions for such Participant shall be automatically suspended for the
remainder, if any, of such taxable year.
If an Employer notifies the Administrator that the Code Section 402(g) limit has
nevertheless been exceeded by an Eligible Employee for his taxable year, the
Tax-Deferred Contributions that, when aggregated with elective contributions
made on behalf of the Eligible Employee under any other plan of an Employer or a
Related Company, would exceed the Code Section 402(g) limit, plus any income and
minus any losses attributable thereto, shall be distributed to the Eligible
Employee no later than the April 15 immediately following such taxable year. Any
Tax-Deferred Contributions that are distributed to an Eligible Employee in
accordance with this Section shall NOT be taken into account in computing the
Eligible Employee's actual deferral percentage for the Plan Year in which the
Tax-Deferred Contributions were made, unless the Eligible Employee is a Highly
Compensated Employee. If an amount of Tax-Deferred Contributions is distributed
to a Participant in accordance with this Section, matching contributions that
are attributable solely to the distributed Tax-Deferred Contributions, plus any
income and minus any losses attributable thereto, shall be forfeited by the
Participant. Any such forfeited amounts shall be treated as a forfeiture under
the Plan in accordance with the provisions of Article XIV as of the last day of
the month in which the distribution of Tax-Deferred Contributions pursuant to
this Section occurs.
7.3 - DISTRIBUTION OF EXCESS DEFERRALS
Notwithstanding any other provision of the Plan to the contrary, if a
Participant notifies the Administrator in writing no later than the March 1
following the close of the Participant's taxable year that excess deferrals have
been made on his behalf under the Plan for such taxable year, the excess
deferrals, plus any income and minus any losses attributable thereto, shall be
distributed to the Participant no later than the April 15 immediately following
such taxable year. Any Tax-Deferred Contributions that are distributed to a
Participant in accordance with this Section shall nevertheless be taken into
account in computing the Participant's actual deferral percentage for the Plan
Year in which the Tax-Deferred Contributions were made. If an amount of
Tax-Deferred Contributions is distributed to a Participant in accordance with
this Section, matching contributions that are attributable solely to the
distributed Tax-Deferred Contributions, plus any income and minus any losses
attributable thereto, shall be forfeited by the Participant. Any such forfeited
amounts shall be treated as a forfeiture under the Plan in accordance with the
provisions of Article XIV as of the last day of the month in which the
distribution of Tax-Deferred Contributions pursuant to this Section occurs.
7.4 - LIMITATION ON TAX-DEFERRED CONTRIBUTIONS OF HIGHLY COMPENSATED EMPLOYEES
Notwithstanding any other provision of the Plan to the contrary, the
Tax-Deferred Contributions made with respect to a Plan Year on behalf of
Eligible Employees who are Highly Compensated Employees may not result in an
average actual deferral percentage for such Eligible Employees that exceeds the
greater of:
(a) a percentage that is equal to 125 percent of the average actual
deferral percentage for all other Eligible Employees; or
(b) a percentage that is not more than 200 percent of the average actual
deferral percentage for all other Eligible Employees and that is not
more than two percentage points higher than the average actual deferral
percentage for all other Eligible Employees.
In order to assure that the limitation contained herein is not exceeded with
respect to a Plan Year, the Administrator is authorized to suspend completely
further Tax-Deferred Contributions on behalf of Highly Compensated Employees for
any remaining portion of a Plan Year or to adjust the projected actual deferral
percentages of Highly Compensated Employees by reducing their percentage
elections with respect to Tax-Deferred Contributions for any remaining portion
of a Plan Year to such smaller percentages that will result in the limitation
set forth above not being exceeded. In the event of any such suspension or
reduction, Highly Compensated Employees affected thereby shall be notified of
the reduction or suspension as soon as possible and shall be given an
opportunity to make a new Tax-Deferred Contribution election to be effective the
first day of the next following Plan Year. In the absence of such an election,
the election in effect immediately prior to the suspension or adjustment
described above shall be reinstated as of the first day of the next following
Plan Year.
For purposes of applying the limitation contained in this Section, the
Tax-Deferred Contributions and test compensation of any Eligible Employee who is
a family member of another Eligible Employee who is a five percent owner or
among the ten Highly Compensated Employees receiving the greatest test
compensation for the Plan Year shall be aggregated with the Tax-Deferred
Contributions and test compensation of such other Eligible Employee, and such
family member shall not be considered an Eligible Employee for purposes of
determining the average actual deferral percentage for all other Eligible
Employees.
In determining the actual deferral percentage for any Eligible Employee who is a
Highly Compensated Employee for the Plan Year, elective contributions made to
his accounts under any other plan of an Employer or a Related Company shall be
treated as if all such contributions were made to the Plan; provided, however,
that if such a plan has a plan year different from the Plan Year, any such
contributions made to the Highly Compensated Employee's accounts under the plan
for the plan year ending with or within the same calendar year as the Plan Year
shall be treated as if such contributions were made to the Plan. Notwithstanding
the foregoing, such contributions shall not be treated as if they were made to
the Plan if regulations issued under Section 401(k) of the Code do not permit
such plan to be aggregated with the Plan.
If one or more plans of an Employer or Related Company are aggregated with the
Plan for purposes of satisfying the requirements of Section 401(a)(4) or 410(b)
of the Code, then actual deferral percentages under the Plan shall be calculated
as if the Plan and such one or more other plans were a single plan. For Plan
Years beginning after December 31, 1991, plans may be aggregated to satisfy
Section 401(k) of the Code only if they have the same plan year.
The Administrator shall maintain records sufficient to show that the limitation
contained in this Section was not exceeded with respect to any Plan Year.
7.5 - DISTRIBUTION OF EXCESS TAX-DEFERRED CONTRIBUTIONS
Notwithstanding any other provision of the Plan to the contrary, in the event
that the limitation contained in Section 7.4 is exceeded in any Plan Year, the
Tax-Deferred Contributions made with respect to a Highly Compensated Employee
that exceed the maximum amount permitted to be contributed to the Plan on his
behalf under Section 7.4, plus any income and minus any losses attributable
thereto, shall be distributed to the Highly Compensated Employee prior to the
end of the next succeeding Plan Year. If excess amounts are attributable to
Participants aggregated under the family aggregation rules described in Section
7.4, the excess shall be allocated among family members in proportion to the
Tax-Deferred Contributions made with respect to each family member. If such
excess amounts are distributed more than 2 1/2 months after the last day of the
Plan Year for which the excess occurred, an excise tax may be imposed under
Section 4979 of the Code on the Employer maintaining the Plan with respect to
such amounts.
The maximum amount permitted to be contributed to the Plan on a Highly
Compensated Employee's behalf under Section 7.4 shall be determined by reducing
Tax-Deferred Contributions made on behalf of Highly Compensated Employees in
order of their actual deferral percentages beginning with the highest of such
percentages. The determination of the amount of excess Tax-Deferred
Contributions shall be made after application of Section 7.3, if applicable.
If an amount of Tax-Deferred Contributions is distributed to a Participant in
accordance with this Section, matching contributions that are attributable
solely to the distributed Tax-Deferred Contributions, plus any income and minus
any losses attributable thereto, shall be forfeited by the Participant. Any such
forfeited amounts shall be treated as a forfeiture under the Plan in accordance
with the provisions of Article XIV as of the last day of the month in which the
distribution of Tax-Deferred Contributions pursuant to this Section occurs.
7.6 - LIMITATION ON MATCHING CONTRIBUTIONS OF HIGHLY COMPENSATED EMPLOYEES
Notwithstanding any other provision of the Plan to the contrary, the matching
contributions made with respect to a Plan Year on behalf of eligible
participants who are Highly Compensated Employees may not result in an average
contribution percentage for such eligible participants that exceeds the greater
of:
(a) a percentage that is equal to 125 percent of the average contribution
percentage for all other eligible participants; or
(b) a percentage that is not more than 200 percent of the average
contribution percentage for all other eligible participants and that is
not more than two percentage points higher than the average contribution
percentage for all other eligible participants.
For purposes of applying the limitation contained in this Section, the matching
contributions, Tax-Deferred Contributions (to the extent that such Tax-Deferred
Contributions are taken into account in computing contribution percentages), and
test compensation of any eligible participant who is a family member of another
eligible participant who is a five percent owner or among the ten Highly
Compensated Employees receiving the greatest test compensation for the Plan Year
shall be aggregated with the matching contributions, Tax-Deferred Contributions,
and test compensation of such other eligible participant, and such family member
shall not be considered an eligible participant for purposes of determining the
average contribution percentage for all other eligible participants.
In determining the contribution percentage for any eligible participant who is a
Highly Compensated Employee for the Plan Year, matching contributions, employee
contributions, and elective contributions (to the extent that elective
contributions are taken into account in computing contribution percentages) made
to his accounts under any other plan of an Employer or a Related Company shall
be treated as if all such contributions were made to the Plan; provided,
however, that if such a plan has a plan year different from the Plan Year, any
such contributions made to the Highly Compensated Employee's accounts under the
plan for the plan year ending with or within the same calendar year as the Plan
Year shall be treated as if such contributions were made to the Plan.
Notwithstanding the foregoing, such contributions shall not be treated as if
they were made to the Plan if regulations issued under Section 401(m) of the
Code do not permit such plan to be aggregated with the Plan.
If one or more plans of an Employer or a Related Company are aggregated with the
Plan for purposes of satisfying the requirements of Section 401(a)(4) or 410(b)
of the Code, the contribution percentages under the Plan shall be calculated as
if the Plan and such one or more other plans were a single plan. For Plan Years
beginning after December 31, 1989, plans may be aggregated to satisfy Section
401(m) of the Code only if they have the same plan year.
The Administrator shall maintain records sufficient to show that the limitation
contained in this Section was not exceeded with respect to any Plan Year and the
amount of the elective contributions taken into account in computing
contribution percentages for any Plan Year.
7.7 - FORFEITURE OR DISTRIBUTION OF EXCESS CONTRIBUTIONS
Notwithstanding any other provision of the Plan to the contrary, in the event
that the limitation contained in Section 7.6 is exceeded in any Plan Year, the
matching contributions made on behalf of a Highly Compensated Employee that
exceed the maximum amount permitted to be contributed to the Plan on behalf of
such Highly Compensated Employee under Section 7.6, plus any income and minus
any losses attributable thereto, shall be forfeited, to the extent forfeitable,
or distributed to the Participant prior to the end of the next succeeding Plan
Year as hereinafter provided. If excess amounts are attributable to Participants
aggregated under the family aggregation rules described in Section 7.5, the
excess shall be allocated among family members in proportion to the matching
contributions made with respect to each family member. If such excess amounts
are distributed more than 2 1/2 months after the last day of the Plan Year for
which the excess occurred, an excise tax may be imposed under Section 4979 of
the Code on the Employer maintaining the Plan with respect to such amounts.
The maximum amount permitted to be contributed to the Plan on behalf of a Highly
Compensated Employee under Section 7.6 shall be determined by reducing matching
contributions made on behalf of Highly Compensated Employees in order of their
contribution percentages beginning with the highest of such percentages.
Any amounts forfeited with respect to a Participant pursuant to this Section
shall be treated as a forfeiture under the Plan in accordance with the
provisions of Article XIV as of the last day of the month in which the
distribution of contributions pursuant to this Section occurs. Excess matching
contributions shall be distributable to the extent the Participant has a vested
interest in his Employer Contributions Sub-Account that is attributable to
matching contributions and shall otherwise be forfeitable. The determination of
the amount of excess matching contributions shall be made after application of
Section 7.3, if applicable, and after application of Section 7.5, if applicable.
7.8 - MULTIPLE USE LIMITATION
Notwithstanding any other provision of the Plan to the contrary, the following
multiple use limitation as required under Section 401(m) of the Code shall
apply: the sum of the average actual deferral percentage for Eligible Employees
who are Highly Compensated Employees and the average contribution percentage for
eligible participants who are Highly Compensated Employees may not exceed the
aggregate limit. In the event that, after satisfaction of Section 7.5 and
Section 7.7, it is determined that contributions under the Plan fail to satisfy
the multiple use limitation contained herein, the multiple use limitation shall
be satisfied by further reducing the actual deferral percentages of Eligible
Employees who are Highly Compensated Employees (beginning with the highest such
percentage) to the extent necessary to eliminate the excess, with such further
reductions to be treated as excess Tax-Deferred Contributions and disposed of as
provided in Section 7.5, or in an alternative manner, consistently applied, that
may be permitted by regulations issued under Section 401(m) of the Code.
7.9 - DETERMINATION OF INCOME OR LOSS
The income or loss attributable to excess contributions that are distributed
pursuant to this Article shall be determined for the preceding Plan Year under
the method otherwise used for allocating income or loss to Participant's
Separate Accounts.
7.10 - CODE SECTION 415 LIMITATIONS ON CREDITING OF CONTRIBUTIONS AND
FORFEITURES
Notwithstanding any other provision of the Plan to the contrary, the annual
addition with respect to a Participant for a limitation year shall in no event
exceed the lesser of (i) $30,000 (adjusted as provided in Section 415(d) of the
Code, with the first adjustment being made for limitation years beginning on or
after January 1, 1996) or (ii) 25 percent of the Participant's compensation, as
defined in Section 415(c)(3) of the Code and regulations issued thereunder, for
the limitation year. If the annual addition to the Separate Account of a
Participant in any limitation year would otherwise exceed the amount that may be
applied for his benefit under the limitation contained in this Section, the
limitation shall be satisfied by reducing contributions made on behalf of the
Participant to the extent necessary in the following order:
Tax-Deferred Contributions made on the Participant's behalf for the
limitation year that have not been matched, if any, shall be reduced.
Tax-Deferred Contributions made on the Participant's behalf for the
limitation year that have been matched and the matching contributions
attributable thereto, if any, shall be reduced pro rata.
Employer Contributions (other than matching contributions) otherwise
allocable to the Participant's Separate Account for the limitation year
shall be reduced.
The amount of any reduction of Tax-Deferred Contributions (plus any income
attributable thereto) shall be returned to the Participant. The amount of any
reduction of Employer Contributions shall be deemed a forfeiture for the
limitation year. Amounts deemed to be forfeitures under this Section shall be
held unallocated in a suspense account established for the limitation year and
shall be applied against the Employer's contribution obligation for the next
following limitation year (and succeeding limitation years, as necessary). If a
suspense account is in existence at any time during a limitation year, all
amounts in the suspense account must be allocated to Participants' Separate
Accounts (subject to the limitations contained herein) before any further
Tax-Deferred Contributions or Employer Contributions may be made to the Plan on
behalf of Participants. No suspense account established hereunder shall share in
any increase or decrease in the net worth of the Trust. For purposes of this
Article, excesses shall result only from the allocation of forfeitures, a
reasonable error in estimating a Participant's annual compensation (as defined
in Section 415(c)(3) of the Code and regulations issued thereunder), a
reasonable error in determining the amount of Tax-Deferred Contributions that
may be made with respect to any Participant under the limits of Section 415 of
the Code, or other limited facts and circumstances that justify the availability
of the provisions set forth above. 7.11 - COVERAGE UNDER OTHER QUALIFIED DEFINED
CONTRIBUTION PLAN
If a Participant is covered by any other qualified defined contribution plan
(whether or not terminated) maintained by an Employer or a Related Company
concurrently with the Plan, and if the annual addition for the limitation year
would otherwise exceed the amount that may be applied for the Participant's
benefit under the limitation contained in Section 7.10, such excess shall be
reduced first by returning the employee contributions made by the Participant
for the limitation year under all of the defined contribution plans other than
the Plan and the income attributable thereto to the extent necessary. If the
limitation contained in Section 7.10 is still not satisfied after returning all
of the employee contributions made by the Participant under all such other
plans, the excess shall be reduced by returning the elective contributions made
on the Participant's behalf for the limitation year under all such other plans
and the income attributable thereto to the extent necessary on a pro rata basis
among all of such plans. If the limitation contained in Section 7.10 is still
not satisfied after returning all of the elective contributions made on the
Participant's behalf under all such other plans, the procedure set forth in
Section 7.10 shall be invoked to eliminate any such excess. If the limitation
contained in Section 7.10 is still not satisfied after invocation of the
procedure set forth in Section 7.10, the portion of the employer contributions
and of forfeitures for the limitation year under all such other plans that has
been allocated to the Participant thereunder, but which exceeds the limitation
set forth in Section 7.10, shall be deemed a forfeiture for the limitation year
and shall be disposed of as provided in such other plans; provided, however,
that if the Participant is covered by a money purchase pension plan, the
forfeiture shall be effected first under any other defined contribution plan
that is not a money purchase pension plan and, if the limitation is still not
satisfied, then under such money purchase pension plan.
7.12 - COVERAGE UNDER QUALIFIED DEFINED BENEFIT PLAN
If a Participant in the Plan is also covered by a qualified defined benefit plan
(whether or not terminated) maintained by an Employer or a Related Company, in
no event shall the sum of the defined benefit plan fraction (as defined in
Section 415(e)(2) of the Code) and the defined contribution plan fraction (as
defined in Section 415(e)(3) of the Code) exceed 1.0 in any limitation year. If,
before October 3, 1973, the Participant was an active participant in a qualified
defined benefit plan maintained by an Employer or a Related Company and
otherwise satisfies the requirements of Section 2004(d)(2) of ERISA, then for
purposes of applying this Section, the defined benefit plan fraction shall not
exceed 1.0. If the Plan satisfied the applicable requirements of Section 415 of
the Code as in effect for all limitation years beginning before January 1, 1987,
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,
as revised by the Tax Reform Act of 1986, does not exceed 1.0 for such
limitation year. In the event the special limitation contained in this Section
is exceeded, the benefits otherwise payable to the Participant under any such
qualified defined benefit plan shall be reduced to the extent necessary to meet
such limitation.
7.13 - SCOPE OF LIMITATIONS
The limitations contained in Sections 7.10, 7.11, and 7.12 shall be applicable
only with respect to benefits provided pursuant to defined contribution plans
and defined benefit plans described in Section 415(k) of the Code.
<PAGE>
ARTICLE VIII
TRUST FUNDS AND SEPARATE ACCOUNTS
8.1 - GENERAL FUND
The Trustee shall maintain a General Fund as required to hold and administer any
assets of the Trust that are not allocated among the Investment Funds as
provided in the Plan or the Trust Agreement. The General Fund shall be held and
administered as a separate common trust fund. The interest of each Participant
or Beneficiary under the Plan in the General Fund shall be an undivided
interest. The General Fund may be invested in whole or in part in equity
securities issued by an Employer or a Related Company that are publicly traded
and are "qualifying employer securities" as defined in Section 407(d)(5) of
ERISA.
8.2 - INVESTMENT FUNDS
The Sponsor shall determine the number and type of Investment Funds and select
the investments for such Investment Funds. The Sponsor shall communicate the
same and any changes therein in writing to the Administrator and the Trustee.
Each Investment Fund shall be held and administered as a separate common trust
fund. The interest of each Participant or Beneficiary under the Plan in any
Investment Fund shall be an undivided interest.
The Sponsor may determine to offer one or more Investment Funds that are
invested in whole or in part in equity securities issued by an Employer or a
Related Company that are publicly traded and are "qualifying employer
securities" as defined in Section 407(d)(5) of ERISA.
8.3 - LOAN INVESTMENT FUND
If a loan from the Plan to a Participant is approved in accordance with the
provisions of Article XII, the Sponsor shall direct the establishment and
maintenance of a loan Investment Fund in the Participant's name. The assets of
the loan Investment Fund shall be held as a separate trust fund. A Participant's
loan Investment Fund shall be invested in the note reflecting the loan that is
executed by the Participant in accordance with the provisions of Article XII.
Notwithstanding any other provision of the Plan to the contrary, income received
with respect to a Participant's loan Investment Fund shall be allocated and the
loan Investment Fund shall be administered as provided in Article XII.
8.4 - INCOME ON TRUST
Any dividends, interest, distributions, or other income received by the Trustee
with respect to any Trust Fund maintained hereunder shall be allocated by the
Trustee to the Trust Fund for which the income was received.
8.5 - SEPARATE ACCOUNTS
As of the first date a contribution is made by or on behalf of an Employee,
there shall be established a Separate Account in his name reflecting his
interest in the Trust. Each Separate Account shall be maintained and
administered for each Participant and Beneficiary in accordance with the
provisions of the Plan. The balance of each Separate Account shall be the
balance of the account after all credits and charges thereto, for and as of such
date, have been made as provided herein.
8.6 - SUB-ACCOUNTS
A Participant's Separate Account shall be divided into individual Sub-Accounts
reflecting the portion of the Participant's Separate Account that is derived
from Tax-Deferred Contributions, Rollover Contributions, or Employer
Contributions. Each Sub-Account shall reflect separately contributions allocated
to each Trust Fund maintained hereunder and the earnings and losses attributable
thereto. Such other Sub-Accounts may be established as are necessary or
appropriate to reflect a Participant's interest in the Trust.
<PAGE>
ARTICLE IX
LIFE INSURANCE CONTRACTS
9.1 - NO LIFE INSURANCE CONTRACTS
There shall be no life insurance contracts purchased under the Plan.
<PAGE>
ARTICLE X
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
10.1 - FUTURE CONTRIBUTION INVESTMENT ELECTIONS
Each Eligible Employee shall make an investment election in the manner and form
prescribed by the Administrator directing the manner in which his Tax-Deferred
Contributions, Rollover Contributions, and Employer Contributions shall be
invested. An Eligible Employee's investment election shall specify the
percentage, in the percentage increments prescribed by the Administrator, of
such contributions that shall be allocated to one or more of the Investment
Funds with the sum of such percentages equaling 100 percent. The investment
election by a Participant shall remain in effect until his entire interest under
the Plan is distributed or forfeited in accordance with the provisions of the
Plan or until he files a change of investment election with the Administrator,
in such form as the Administrator shall prescribe. A Participant's change of
investment election may be made effective as of the date or dates prescribed by
the Administrator.
10.2 - DEPOSIT OF CONTRIBUTIONS
All Tax-Deferred Contributions, Rollover Contributions, and Employer
Contributions shall be deposited in the Trust and allocated among the Investment
Funds in accordance with the Participant's currently effective investment
election; provided, however, that any contributions made to the Plan in
qualifying employer securities shall be allocated to the Employer securities
Investment Fund established by the Sponsor, pending directions to the
Administrator regarding their future investment. If no investment election is on
file with the Administrator at the time contributions are to be deposited to a
Participant's Separate Account, the Participant shall be notified and an
investment election form shall be provided to him. Until such Participant shall
make an effective election under this Section, his contributions shall be
allocated among the Investment Funds as directed by the Administrator.
10.3 - ELECTION TO TRANSFER BETWEEN FUNDS
A Participant may elect to transfer investments from any Investment Fund to any
other Investment Fund. The Participant's transfer election shall specify either
(i) a percentage, in the percentage increments prescribed by the Administrator,
of the amount eligible for transfer, which percentage may not exceed 100
percent, or (ii) a dollar amount that is to be transferred. Subject to any
restrictions pertaining to a particular Investment Fund, a Participant's
transfer election may be made effective as of the date or dates prescribed by
the Administrator.
Notwithstanding the foregoing provisions of this Article, to the extent that the
Administrator may determine necessary, appropriate or advisable for the purpose
of securing compliance with applicable federal, state or local laws, rules or
regulations applicable to trading in employer securities, the Administrator may
restrict the making or implementation of investment or transfer directions by
any individual with respect to investments in employer securities to those
periods of time when such individual would, under the issuer's securities
trading policy, be permitted to buy or sell such employer securities directly
for his own account. The Administrator may refuse to implement any such
direction that would result in a transaction that would be prohibited under such
policy if engaged in outside of the Plan.
<PAGE>
ARTICLE XI
CREDITING AND VALUING SEPARATE ACCOUNTS
11.1 - CREDITING SEPARATE ACCOUNTS
All contributions made under the provisions of the Plan shall be credited to
Separate Accounts in the Trust Funds by the Trustee, in accordance with
procedures established in writing by the Administrator, either when received or
on the succeeding Valuation Date after valuation of the Trust Fund has been
completed for such Valuation Date as provided in Section 11.2, as shall be
determined by the Administrator.
11.2 - VALUING SEPARATE ACCOUNTS
Separate Accounts in the Trust Funds shall be valued by the Trustee on the
Valuation Date, in accordance with procedures established in writing by the
Administrator, either in the manner adopted by the Trustee and approved by the
Administrator or in the manner set forth in Section 11.3 as Plan valuation
procedures, as determined by the Administrator.
11.3 - PLAN VALUATION PROCEDURES
With respect to the Trust Funds, the Administrator may determine that the
following valuation procedures shall be applied. As of each Valuation Date
hereunder, the portion of any Separate Accounts in a Trust Fund shall be
adjusted to reflect any increase or decrease in the value of the Trust Fund for
the period of time occurring since the immediately preceding Valuation Date for
the Trust Fund (the "valuation period") in the following manner:
(a) First, the value of the Trust Fund shall be determined by valuing all of
the assets of the Trust Fund at fair market value.
(b) Next, the net increase or decrease in the value of the Trust Fund
attributable to net income and all profits and losses, realized and
unrealized, during the valuation period shall be determined on the basis
of the valuation under paragraph (a) taking into account appropriate
adjustments for contributions, loan payments, and transfers to and
distributions, withdrawals, loans, and transfers from such Trust Fund
during the valuation period.
(c) Finally, the net increase or decrease in the value of the Trust Fund
shall be allocated among Separate Accounts in the Trust Fund in the
ratio of the balance of the portion of such Separate Account in the
Trust Fund as of the preceding Valuation Date less any distributions,
withdrawals, loans, and transfers from such Separate Account balance in
the Trust Fund since the Valuation Date to the aggregate balances of
the portions of all Separate Accounts in the Trust Fund similarly
adjusted, and each Separate Account in the Trust Fund shall be credited
or charged with the amount of its allocated share. Notwithstanding the
foregoing, the Administrator may adopt such accounting procedures as it
considers appropriate and equitable to establish a proportionate
crediting of net increase or decrease in the value of the Trust Fund
for contributions, loan payments, and transfers to and distributions,
withdrawals, loans, and transfers from such Trust Fund made by or on
behalf of a Participant during the valuation period.
11.4 - FINALITY OF DETERMINATIONS
The Trustee shall have exclusive responsibility for determining the balance of
each Separate Account maintained hereunder. The Trustee's determinations thereof
shall be conclusive upon all interested parties.
11.5 - NOTIFICATION
Within a reasonable period of time after the end of each Plan Year, the
Administrator shall notify each Participant and Beneficiary of the balances of
his Separate Account and Sub-Accounts as of a Valuation Date during the Plan
Year.
<PAGE>
ARTICLE XII
LOANS
12.1 - APPLICATION FOR LOAN
A Participant who is a party in interest may make written application to the
Administrator for a loan from his Separate Account.
As collateral for any loan granted hereunder, the Participant shall grant to the
Plan a security interest in his vested interest under the Plan equal to the
amount of the loan; provided, however, that in no event may the security
interest exceed 50 percent of the Participant's vested interest under the Plan
determined as of the date as of which the loan is originated in accordance with
Plan provisions. In the case of a Participant who is an active employee, the
Participant also shall enter into an agreement to repay the loan by payroll
withholding. No loan in excess of 50 percent of the Participant's vested
interest under the Plan shall be made from the Plan. Loans shall not be made
available to Highly Compensated Employees in an amount greater than the amount
made available to other employees.
A loan shall not be granted unless the Participant consents in writing to the
charging of his Separate Account for unpaid principal and interest amounts in
the event the loan is declared to be in default.
12.2 - REDUCTION OF ACCOUNT UPON DISTRIBUTION
Notwithstanding any other provision of the Plan, the amount of a Participant's
Separate Account that is distributable to the Participant or his Beneficiary
under Article XIII or XV shall be reduced by the portion of his vested interest
that is held by the Plan as security for any loan outstanding to the
Participant, provided that the reduction is used to repay the loan. If
distribution is made because of the Participant's death prior to the
commencement of distribution of his Separate Account and less than 100 percent
of the Participant's vested interest in his Separate Account (determined without
regard to the preceding sentence) is payable to his surviving spouse, then the
balance of the Participant's vested interest in his Separate Account shall be
adjusted by reducing the vested account balance by the amount of the security
used to repay the loan, as provided in the preceding sentence, prior to
determining the amount of the benefit payable to the surviving spouse.
12.3 - REQUIREMENTS TO PREVENT A TAXABLE DISTRIBUTION
Notwithstanding any other provision of the Plan to the contrary, the following
terms and conditions shall apply to any loan made to a Participant under this
Article:
(a) The interest rate on any loan to a Participant shall be a reasonable
interest rate commensurate with current interest rates charged for loans
made under similar circumstances by persons in the business of lending
money.
(b) The amount of any loan to a Participant (when added to the outstanding
balance of all other loans to the Participant from the Plan or any other
plan maintained by an Employer or a Related Company) shall not exceed
the lesser of:
(i) $50,000, reduced by the excess, if any, of the highest
outstanding balance of any other loan to the Participant from the
Plan or any other plan maintained by an Employer or a Related
Company during the preceding 12-month period over the outstanding
balance of such loans on the date a loan is made hereunder; or
(ii) 50 percent of the vested portions of the Participant's Separate
Account and his vested interest under all other plans maintained
by an Employer or a Related Company.
(c) The term of any loan to a Participant shall be no greater than five
years, except in the case of a loan used to acquire any dwelling unit
which within a reasonable period of time is to be used (determined at
the time the loan is made) as a principal residence of the Participant.
(d) Except as otherwise permitted under Treasury regulations, substantially
level amortization shall be required over the term of the loan with
payments made not less frequently than quarterly.
12.4 - ADMINISTRATION OF LOAN INVESTMENT FUND
Upon approval of a loan to a Participant, the Administrator shall direct the
Trustee to transfer an amount equal to the loan amount from the Investment Funds
in which it is invested, as directed by the Administrator, to the loan
Investment Fund established in the Participant's name. Any loan approved by the
Administrator shall be made to the Participant out of the Participant's loan
Investment Fund. All principal and interest paid by the Participant on a loan
made under this Article shall be deposited to his Separate Account and shall be
allocated upon receipt among the Investment Funds in accordance with the
Participant's currently effective investment election. The balance of the
Participant's loan Investment Fund shall be decreased by the amount of principal
payments and the loan Investment Fund shall be terminated when the loan has been
repaid in full.
12.5 - DEFAULT
If a Participant fails to make or cause to be made, any payment required under
the terms of the loan within 90 days following the date on which such payment
shall become due or there is an outstanding principal balance existing on a loan
after the last scheduled repayment date, the Administrator shall direct the
Trustee to declare the loan to be in default, and the entire unpaid balance of
such loan, together with accrued interest, shall be immediately due and payable.
In any such event, if such balance and interest thereon is not then paid, the
Trustee shall charge the Separate Account of the borrower with the amount of
such balance and interest as of the earliest date a distribution may be made
from the Plan to the borrower without adversely affecting the tax qualification
of the Plan or of the cash or deferred arrangement.
12.6 - SPECIAL RULES APPLICABLE TO LOANS
Any loan made hereunder shall be subject to the following rules:
(a) Minimum Loan Amount: A Participant may not request a loan for less than
$1,000.
(b) Maximum Number of Outstanding Loans: A Participant with an outstanding
loan may not apply for another loan until the existing loan is paid in
full and may not refinance an existing loan or attain a second loan for
the purpose of paying off the existing loan. A Participant may not
apply for more than one loan during the Plan Year. The provisions of
this paragraph shall not apply to any loans made prior to the effective
date of this amendment and restatement; provided, however, that a
Participant may not apply for a new loan hereunder until all
outstanding loans made to the Participant prior to the effective date
of this amendment and restatement have been paid in full.
(c) Maximum Period for Real Estate Loans: The term of any loan to a
Participant that is used to acquire any dwelling unit which within a
reasonable period of time is to be used (determined at the time the
loan is made) as a principal residence of the Participant shall be no
greater than ten years.
(d) Pre-Payment Without Penalty: A Participant may pre-pay the balance of
any loan hereunder prior to the date it is due without penalty.
(e) Effect of Termination of Employment: Upon a Participant's termination
of employment, the balance of any outstanding loan hereunder shall
immediately become due and owing.
12.7 - LOANS GRANTED PRIOR TO AMENDMENT
Notwithstanding any other provision of this Article to the contrary, any loan
made under the provisions of the Plan as in effect prior to this amendment and
restatement shall remain outstanding until repaid in accordance with its terms
or the otherwise applicable Plan provisions.
<PAGE>
ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
13.1 - WITHDRAWALS OF ROLLOVER CONTRIBUTIONS
A Participant who is employed by an Employer or a Related Company may elect in
writing, subject to the limitations and conditions prescribed in this Article,
to make a cash withdrawal from his Rollover Contributions Sub-Account.
13.2 - WITHDRAWALS OF EMPLOYER CONTRIBUTIONS
A Participant who is employed by an Employer or a Related Company and has
attained age 59 1/2 or is determined by the Administrator to have incurred a
hardship or major financial expense as determined in this Article or been a
Participant under the Plan for 60 or more months may elect in writing, subject
to the limitations and conditions prescribed in this Article to make a cash
withdrawal from his vested interest in his Employer Contributions Sub-Account. A
Participant who is employed by an Employer or a Related Company and who is not
eligible to make a withdrawal pursuant to the preceding sentence may elect in
writing, subject to the limitations and conditions prescribed in this Article,
to make a withdrawal from his vested interest in amounts that have been credited
to his Employer Contributions Sub-Account for a period of 24 or more months. The
maximum amount that a Participant may withdraw pursuant to this Section shall be
an amount ("X") determined by the following formula:
X = P(AB + D) - D
For purposes of the formula:
P = The Participant's vested interest in his Employer Contributions
Sub-Account on the date distribution is to be made.
AB = The balance of the Participant's Employer Contributions
Sub-Account as of the Valuation Date immediately preceding the
date distribution is to be made.
D = The amount of all prior withdrawals from the Participant's
Employer Contributions Sub-Account made pursuant to this Section.
13.3 - WITHDRAWALS OF TAX-DEFERRED CONTRIBUTIONS
A Participant who is employed by an Employer or a Related Company and who has
attained age 59 1/2 or is determined by the Administrator to have incurred a
hardship as defined in this Article may elect in writing, subject to the
limitations and conditions prescribed in this Article, to make a cash withdrawal
from his Tax-Deferred Contributions Sub-Account. The maximum amount that a
Participant may withdraw pursuant to this Section because of a hardship is the
balance of his Tax-Deferred Contributions Sub-Account, exclusive of any earnings
credited to such Sub-Account as of a date that is after December 31, 1988.
13.4 - LIMITATIONS ON WITHDRAWALS OTHER THAN HARDSHIP WITHDRAWALS
Withdrawals made pursuant to this Article, other than hardship withdrawals,
shall be subject to the following conditions and limitations:
A Participant must file a written withdrawal application with the
Administrator such number of days prior to the date as of which it is to
be effective as the Administrator shall prescribe.
Withdrawals may be made effective as soon as reasonably practicable
following the Administrator's receipt of the Participant's directions.
13.5 - CONDITIONS AND LIMITATIONS ON HARDSHIP WITHDRAWALS
A Participant must file a written application for a hardship withdrawal with the
Administrator such number of days prior to the date as of which it is to be
effective as the Administrator may prescribe. Hardship withdrawals may be made
effective as soon as reasonably practicable following the Administrator's
receipt of the Participant's directions. The Administrator shall grant a
hardship withdrawal only if it determines that the withdrawal is necessary to
meet an immediate and heavy financial need of the Participant, or, if the
hardship withdrawal is being made from a Participant's Employer Contributions
Sub-Account, if it determines that the withdrawal is necessary to meet a major
financial expense.
An immediate and heavy financial need of the Participant means a financial need
on account of:
(a) expenses previously incurred by or necessary to obtain for the
Participant, the Participant's spouse, or any dependent of the
Participant (as defined in Section 152 of the Code) medical care
described in Section 213(d) of the Code;
(b) costs directly related to the purchase (excluding mortgage payments) of
a principal residence for the Participant;
(c) payment of tuition, related educational fees, and room and board
expenses for the next 12 months of post-secondary education for the
Participant, the Participant's spouse, or any dependent of the
Participant; or
(d) the need to prevent the eviction of the Participant from his principal
residence or foreclosure on the mortgage of the Participant's principal
residence.
A withdrawal shall be deemed to be necessary to satisfy an immediate and heavy
financial need of a Participant only if all of the following requirements are
satisfied:
The withdrawal is not in excess of the amount of the immediate and heavy
financial need of the Participant.
The Participant has obtained all distributions, other than hardship
distributions, and all non-taxable loans currently available under all
plans maintained by an Employer or any Related Company.
The Participant's Tax-Deferred Contributions and the Participant's
elective tax-deferred contributions and employee after-tax contributions
under all other tax-qualified plans maintained by an Employer or any
Related Company shall be suspended for at least twelve months after his
receipt of the withdrawal.
The Participant shall not make Tax-Deferred Contributions or elective
tax-deferred contributions under any other tax-qualified plan maintained
by an Employer or any Related Company for the Participant's taxable year
immediately following the taxable year of the withdrawal in excess of
the applicable limit under Section 402(g) of the Code for such next
taxable year less the amount of the Participant's Tax-Deferred
Contributions and elective tax-deferred contributions under any other
plan maintained by an Employer or any Related Company for the taxable
year of the withdrawal.
A withdrawal will be deemed necessary to meet a major financial expense if such
withdrawal is necessary to meet the expenses of education for a member of the
Participant's family or the purchase of a home and such other expenses as the
Administrator shall determine to involve a major financial expense. In making
any determination with respect to whether a withdrawal is necessary to meet a
major financial expense, the Committee shall follow uniform and
nondiscriminatory rules to be established by it and its determination shall be
final and binding.
The minimum hardship withdrawal that a Participant may make is $1,000. The
amount of a hardship withdrawal may include any amounts necessary to pay any
Federal, state, or local income taxes or penalties reasonably anticipated to
result from the distribution. A Participant shall not fail to be treated as an
Eligible Employee for purposes of applying the limitations contained in Article
VII of the Plan merely because his Tax-Deferred Contributions are suspended in
accordance with this Section.
13.6 - ORDER OF WITHDRAWAL FROM A PARTICIPANT'S SUB-ACCOUNTS
Distribution of a withdrawal amount shall be made from a Participant's
Sub-Accounts, to the extent necessary, in the order prescribed by the
Administrator, which order shall be uniform with respect to all Participants and
non-discriminatory. If the Sub-Account from which a Participant is receiving a
withdrawal is invested in more than one Investment Fund, the withdrawal shall be
charged against the Investment Funds as directed by the Administrator.
<PAGE>
ARTICLE XIV
TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
14.1 - TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
A Participant's Settlement Date shall occur on the date he terminates employment
with an Employer and all Related Companies because of death, disability,
retirement, or other termination of employment. Written notice of a
Participant's Settlement Date shall be given by the Administrator to the
Trustee.
14.2 - SEPARATE ACCOUNTING FOR NON-VESTED AMOUNTS
If as of a Participant's Settlement Date the Participant's vested interest in
his Employer Contributions Sub-Account is less than 100 percent, that portion of
his Employer Contributions Sub-Account that is not vested shall be accounted for
separately from the vested portion and shall be disposed of as provided in the
following Section. If prior to his Settlement Date such a Participant made a
withdrawal in accordance with the provisions of Article XIII, the vested portion
of his Employer Contributions Sub-Account shall be equal to the maximum
withdrawable amount as determined under Article XIII.
14.3 - DISPOSITION OF NON-VESTED AMOUNTS
That portion of a Participant's Employer Contributions Sub-Account that is not
vested upon the occurrence of his Settlement Date shall be disposed of as
follows:
(a) If the Participant has no vested interest in his Separate Account upon
the occurrence of his Settlement Date or his vested interest in his
Separate Account as of the date of distribution does not exceed $3,500
resulting in the Participant's receipt of a single sum payment of such
vested interest, the non-vested balance remaining in the Participant's
Employer Contributions Sub-Account will be forfeited and his Separate
Account closed as of (i) the Participant's Settlement Date, if the
Participant has no vested interest in his Separate Account, or (ii) the
date the single sum payment occurs.
(b) If the Participant's vested interest in his Separate Account exceeds
$3,500 and the Participant is eligible for and consents in writing to a
single sum payment of his vested interest in his Separate Account, the
non-vested balance remaining in the Participant's Employer Contributions
Sub-Account will be forfeited and his Separate Account closed as of the
date the single sum payment occurs, provided that such distribution
occurs prior to the end of the second Plan Year beginning on or after
the Participant's Settlement Date.
(c) If neither paragraph (a) nor paragraph (b) is applicable, the non-vested
portion of the Participant's Employer Contributions Sub-Account will
continue to be held in such Sub-Account and will not be forfeited until
the end of the five-year period beginning on his Settlement Date.
Whenever the non-vested portion of a Participant's Employer Contributions
Sub-Account is forfeited under the provisions of the Plan with respect to a Plan
Year, the amount of such forfeiture, as of the last day of the Plan Year, shall
be applied first against Plan expenses for the Plan Year and then against the
Employer Contribution obligations for the Plan Year of the Employer for which
the Participant last performed services as an Employee. Notwithstanding the
foregoing, however, should the amount of all such forfeitures for any Plan Year
with respect to any Employer exceed the amount of such Employer's Employer
Contribution obligation for the Plan Year, the excess amount of such forfeitures
shall be held unallocated in a suspense account established with respect to the
Employer and shall for all Plan purposes be applied against the Employer's
Employer Contribution obligations for the following Plan Year.
14.4 - RECREDITING OF FORFEITED AMOUNTS
A former Participant who forfeited the non-vested portion of his Employer
Contributions Sub-Account in accordance with the provisions of this Article and
who is reemployed by an Employer or a Related Company shall have such forfeited
amounts recredited to a new Separate Account in his name, without adjustment for
interim gains or losses experienced by the Trust, if:
(a) he returns to employment with an Employer or a Related Company before
the end of the five-year period beginning on the later of his Settlement
Date or the date he received distribution of his vested interest in his
Separate Account;
(b) he resumes employment covered under the Plan before the end of the
five-year period beginning on the date he is reemployed; and
(c) if he received distribution of his vested interest in his Separate
Account, he repays to the Plan the full amount of such distribution
before the end of the five-year period beginning on the date he is
reemployed.
Funds needed in any Plan Year to recredit the Separate Account of a Participant
with the amounts of prior forfeitures in accordance with the preceding sentence
shall come first from forfeitures that arise during such Plan Year, and then
from Trust income earned in such Plan Year, with each Trust Fund being charged
with the amount of such income proportionately, unless his Employer chooses to
make an additional Employer Contribution, and shall finally be provided by his
Employer by way of a separate Employer Contribution.
<PAGE>
ARTICLE XV
DISTRIBUTIONS
15.1 - DISTRIBUTIONS TO PARTICIPANTS
A Participant whose Settlement Date occurs shall receive distribution of his
vested interest in his Separate Account in the form provided under Article XVI
beginning as soon as reasonably practicable following his Settlement Date or the
date his application for distribution is filed with the Administrator, if later.
In addition, a Participant who continues in employment with an Employer or a
Related Company after his Normal Retirement Date may elect to receive
distribution of all or any portion of his Separate Account in the form provided
under Article XVI at any time following his Normal Retirement Date.
15.2 - DISTRIBUTIONS TO BENEFICIARIES
If a Participant dies prior to the date distribution of his vested interest in
his Separate Account begins under this Article, his Beneficiary shall receive
distribution of the Participant's vested interest in his Separate Account in the
form provided under Article XVI beginning as soon as reasonably practicable
following the date the Beneficiary's application for distribution is filed with
the Administrator. Unless distribution is to be made over the life or over a
period certain not greater than the life expectancy of the Beneficiary,
distribution of the Participant's entire vested interest shall be made to the
Beneficiary no later than the end of the fifth calendar year beginning after the
Participant's death. If distribution is to be made over the life or over a
period certain no greater than the life expectancy of the Beneficiary,
distribution shall commence no later than:
(a) If the Beneficiary is not the Participant's spouse, the end of the
first calendar year beginning after the Participant's death; or
(b) If the Beneficiary is the Participant's spouse, the later of (i) the end
of the first calendar year beginning after the Participant's death or
(ii) the end of the calendar year in which the Participant would have
attained age 70 1/2.
If distribution is to be made to a Participant's spouse, it shall be made
available within a reasonable period of time after the Participant's death that
is no less favorable than the period of time applicable to other distributions.
If a Participant dies after the date distribution of his vested interest in his
Separate Account begins under this Article, but before his entire vested
interest in his Separate Account is distributed, his Beneficiary shall receive
distribution of the remainder of the Participant's vested interest in his
Separate Account beginning as soon as reasonably practicable following the
Participant's date of death in a form that provides for distribution at least as
rapidly as under the form in which the Participant was receiving distribution.
Notwithstanding the provisions of this Section, distribution may also be made to
a Participant's Beneficiary in accordance with a valid election made by the
Participant pursuant to Section 242(b)(2) of the Tax Equity and Fiscal
Responsibility Act of 1982.
15.3 - CASH OUTS AND PARTICIPANT CONSENT
Notwithstanding any other provision of the Plan to the contrary, if a
Participant's vested interest in his Separate Account does not exceed $3,500,
distribution of such vested interest shall be made to the Participant in a
single sum payment as soon as reasonably practicable following his Settlement
Date. If a Participant's vested interest in his Separate Account is $0, he shall
be deemed to have received distribution of such vested interest as of his
Settlement Date. If a Participant's vested interest in his Separate Account
exceeds $3,500, distribution shall not commence to such Participant prior to his
Normal Retirement Date without the Participant's written consent. If at the time
of a distribution or deemed distribution to a Participant from his Separate
Account, the Participant's vested interest in his Separate Account exceeded
$3,500, then for purposes of this Section, the Participant's vested interest in
his Separate Account on any subsequent date shall be deemed to exceed $3,500.
15.4 - REQUIRED COMMENCEMENT OF DISTRIBUTION
Notwithstanding any other provision of the Plan to the contrary, distribution of
a Participant's vested interest in his Separate Account shall commence to the
Participant no later than the earlier of:
(a) 60 days after the close of the Plan Year in which (i) the Participant's
Normal Retirement Date occurs, (ii) the 10th anniversary of the year in
which he commenced participation in the Plan occurs, or (iii) his
Settlement Date occurs, whichever is latest; or
(b) the April 1 following the close of the calendar year in which he
attains age 70 1/2, whether or not his Settlement Date has occurred,
except that if a Participant attained age 70 1/2 prior to January 1,
1988, and was not a five-percent owner (as defined in Section 416 of
the Code) at any time during the five-Plan-Year period ending within
the calendar year in which he attained age 70 1/2, distribution of such
Participant's vested interest in his Separate Account shall commence no
later than the April 1 following the close of the calendar year in
which he attains age 70 1/2 or retires, whichever is later.
Distributions required to commence under this Section shall be made in the form
provided under Article XVI and in accordance with Section 401(a)(9) of the Code
and regulations issued thereunder, including the minimum distribution incidental
benefit requirements. Notwithstanding the provisions of this Section,
distribution may also be made to a Participant in accordance with a valid
election made by the Participant pursuant to Section 242(b)(2) of the Tax Equity
and Fiscal Responsibility Act of 1982.
15.5 - REEMPLOYMENT OF A PARTICIPANT
If a Participant whose Settlement Date has occurred is reemployed by an Employer
or a Related Company, he shall lose his right to any distribution or further
distributions from the Trust arising from his prior Settlement Date and his
interest in the Trust shall thereafter be treated in the same manner as that of
any other Participant whose Settlement Date has not occurred.
15.6 - RESTRICTIONS ON ALIENATION
Except as provided in Section 401(a)(13) of the Code relating to qualified
domestic relations orders and Section 1.401(a)-13(b)(2) of Treasury regulations
relating to Federal tax levies and judgments, no benefit under the Plan at any
time shall be subject in any manner to anticipation, alienation, assignment
(either at law or in equity), encumbrance, garnishment, levy, execution, or
other legal or equitable process; and no person shall have power in any manner
to anticipate, transfer, assign (either at law or in equity), alienate or
subject to attachment, garnishment, levy, execution, or other legal or equitable
process, or in any way encumber his benefits under the Plan, or any part
thereof, and any attempt to do so shall be void.
15.7 - FACILITY OF PAYMENT
If the Administrator finds that any individual to whom an amount is payable
hereunder is incapable of attending to his financial affairs because of any
mental or physical condition, including the infirmities of advanced age, such
amount (unless prior claim therefor shall have been made by a duly qualified
guardian or other legal representative) may, in the discretion of the
Administrator, be paid to another person for the use or benefit of the
individual found incapable of attending to his financial affairs or in
satisfaction of legal obligations incurred by or on behalf of such individual.
The Trustee shall make such payment only upon receipt of written instructions to
such effect from the Administrator. Any such payment shall be charged to the
Separate Account from which any such payment would otherwise have been paid to
the individual found incapable of attending to his financial affairs and shall
be a complete discharge of any liability therefor under the Plan.
15.8 - INABILITY TO LOCATE PAYEE
If any benefit becomes payable to any person, or to the executor or
administrator of any deceased person, and if that person or his executor or
administrator does not present himself to the Administrator within a reasonable
period after the Administrator mails written notice of his eligibility to
receive a distribution hereunder to his last known address and makes such other
diligent effort to locate the person as the Administrator determines, that
benefit will be forfeited. However, if the payee later files a claim for that
benefit, the benefit will be restored.
15.9 - DISTRIBUTION PURSUANT TO QUALIFIED DOMESTIC RELATIONS ORDERS
Notwithstanding any other provision of the Plan to the contrary, if a qualified
domestic relations order so provides, distribution may be made to an alternate
payee pursuant to a qualified domestic relations order, as defined in Section
414(p) of the Code, regardless of whether the Participant's Settlement Date has
occurred or whether the Participant is otherwise entitled to receive a
distribution under the Plan.
<PAGE>
ARTICLE XVI
FORM OF PAYMENT
16.1 - NORMAL FORM OF PAYMENT
Unless the Participant, or his Beneficiary, if the Participant has died, elects
the optional form of payment, distribution shall be made to the Participant, or
his Beneficiary, as the case may be, in a single sum payment. Distribution of
the fair market value of the Participant's Separate Account under either the
normal or optional forms of payment shall be made in cash or in kind, as elected
by the Participant.
16.2 - OPTIONAL FORM OF PAYMENT
A Participant, or his Beneficiary, as the case may be, may elect to receive
distribution in a series of installments over a period not exceeding the life
expectancy of the Participant, or the Participant's Beneficiary, if the
Participant has died, or a period not exceeding the joint life and last survivor
expectancy of the Participant and his Beneficiary. Each installment shall be
equal in amount except as necessary to adjust for any changes in the value of
the Participant's Separate Account. The determination of life expectancies shall
be made on the basis of the expected return multiples in Table V and VI of
Section 1.72-9 of the Treasury regulations and shall be calculated either once
at the time installment payments begin or annually for the Participant and/or
his Beneficiary, if his Beneficiary is his spouse, as determined by the
Participant at the time installment payments begin.
16.3 - CHANGE OF OPTION ELECTION
A Participant or Beneficiary who has elected the optional form of payment may
revoke or change his election at any time prior to the date as of which his
benefit commences by filing with the Administrator a written election in the
form prescribed by the Administrator.
16.4 - DIRECT ROLLOVER
Notwithstanding any other provision of the Plan to the contrary, in lieu of
receiving distribution in the form of payment provided under this Article, a
"qualified distributee" may elect in writing, in accordance with rules
prescribed by the Administrator, to have any portion or all of a distribution
made on or after January 1, 1993, that is an "eligible rollover distribution"
paid directly by the Plan to the "eligible retirement plan" designated by the
"qualified distributee"; provided, however, that this provision shall not apply
if the total distribution is less than $200 and that a "qualified distributee"
may not elect this provision with respect to a portion of a distribution that is
less than $500. Any such payment by the Plan to another "eligible retirement
plan" shall be a direct rollover. For purposes of this Section, the following
terms have the following meanings:
(a) An "eligible retirement plan" means 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 rollovers; provided, however,
that, in the case of a direct rollover by a surviving spouse, an
eligible retirement plan does not include a qualified trust described in
Section 401(a) of the Code.
(b) An "eligible rollover distribution" means any distribution of all or
any portion of the balance of a Participant's Separate Account;
provided, however, that an eligible rollover distribution does not
include: any distribution that is one of a series of substantially
equal periodic payments made not less frequently than annually for the
life or life expectancy of the qualified distributee or the joint lives
or joint life expectancies of the qualified distributee and the
qualified distributee's designated beneficiary, or for a specified
period of ten years or more; and any distribution to the extent such
distribution is required under Section 401(a)(9) of the Code.
(c) A "qualified distributee" means a Participant, his surviving spouse, or
his spouse or former spouse who is an alternate payee under a qualified
domestic relations order, as defined in Section 414(p) of the Code.
16.5 - NOTICE REGARDING FORMS OF PAYMENT
Within the 60 day period ending 30 days before the date as of which distribution
of a Participant's Separate Account commences, the Administrator shall provide
the Participant with a written explanation of his right to defer distribution
until his Normal Retirement Date, or such later date as may be provided in the
Plan, his right to make a direct rollover, and the forms of payment available
under the Plan. Distribution of the Participant's Separate Account may commence
less than 30 days after such notice is provided to the Participant if (i) the
Administrator clearly informs the Participant of his right to consider his
election of whether or not to make a direct rollover or to receive a
distribution prior to his Normal Retirement Date and his election of a form of
payment for a period of at least 30 days following his receipt of the notice and
(ii) the Participant, after receiving the notice, affirmatively elects an early
distribution.
16.6 - REEMPLOYMENT
If a Participant is reemployed by an Employer or a Related Company prior to
receiving distribution of the entire balance of his vested interest in his
Separate Account, his prior election of a form of payment hereunder shall become
ineffective.
16.7 - SECTION 242(B)(2) ELECTIONS
Notwithstanding any other provisions of this Article, distribution on behalf of
a Participant, including a five-percent owner, may be made pursuant to an
election under Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act
of 1982 and in accordance with all of the following requirements:
(a) The distribution is one which would not have disqualified the Trust
under Section 401(a)(9) of the Code as in effect prior to amendment by
the Deficit Reduction Act of 1984.
(b) The distribution is in accordance with a method of distribution elected
by the Participant whose interest in the Trust is being distributed or,
if the Participant is deceased, by a Beneficiary of such Participant.
(c) Such election was in writing, was signed by the Participant or the
Beneficiary, and was made before January 1, 1984.
(d) The Participant had accrued a benefit under the Plan as of December 31,
1983.
(e) The method of distribution elected by the Participant or the Beneficiary
specifies the time at which distribution will commence, the period over
which distribution will be made, and in the case of any distribution
upon the Participant's death, the Beneficiaries of the Participant
listed in order of priority.
A distribution upon death shall not be made under this Section unless the
information in the election contains the required information described above
with respect to the distributions to be made upon the death of the Participant.
For any distribution which commences before January 1, 1984, but continues after
December 31, 1983, the Participant or the Beneficiary to whom such distribution
is being made will be presumed to have designated the method of distribution
under which the distribution is being made, if this method of distribution was
specified in writing and the distribution satisfies the requirements in
paragraphs (a) and (e) of this Section. If an election is revoked, any
subsequent distribution will be in accordance with the other provisions of the
Plan. Any changes in the election will be considered to be a revocation of the
election. However, the mere substitution or addition of another Beneficiary (one
not designated as a Beneficiary in the election), under the election will not be
considered to be a revocation of the election, so long as such substitution or
addition does not alter the period over which distributions are to be made under
the election directly, or indirectly (for example, by altering the relevant
measuring life).
<PAGE>
ARTICLE XVII
BENEFICIARIES
17.1 - DESIGNATION OF BENEFICIARY
A married Participant's Beneficiary shall be his spouse, unless the Participant
designates a person or persons other than his spouse as Beneficiary with his
spouse's written consent. A Participant may designate a Beneficiary on the form
prescribed by the Administrator. If no Beneficiary has been designated pursuant
to the provisions of this Section, or if no Beneficiary survives the Participant
and he has no surviving spouse, then the Beneficiary under the Plan shall be the
Participant's estate. If a Beneficiary dies after becoming entitled to receive a
distribution under the Plan but before distribution is made to him in full, and
if no other Beneficiary has been designated to receive the balance of the
distribution in that event, the estate of the deceased Beneficiary shall be the
Beneficiary as to the balance of the distribution. A beneficiary designation,
and any change or revocation of a prior designation, shall not be effective
unless actually received by the Administrator prior to the death of the person
making the designation. If any person and his or her Beneficiary shall die in
circumstances resulting in doubt, as determined by the Administrator, as to
which shall have been the first to die, the person making the designation shall
be deemed to have survived the Beneficiary.
17.2 - SPOUSAL CONSENT REQUIREMENTS
Any written spousal consent given pursuant to this Article must acknowledge the
effect of the action taken and must be witnessed by a Plan representative or a
notary public. In addition, the spouse's written consent must either (i) specify
any non-spouse Beneficiary designated by the Participant and that such
Beneficiary may not be changed without written spousal consent or (ii)
acknowledge that the spouse has the right to limit consent to a specific
Beneficiary, but permit the Participant to change the designated Beneficiary
without the spouse's further consent. A Participant's spouse will be deemed to
have given written consent to the Participant's designation of Beneficiary if
the Participant establishes to the satisfaction of a Plan representative that
such consent cannot be obtained because the spouse cannot be located or because
of other circumstances set forth in Section 401(a)(11) of the Code and
regulations issued thereunder. Any written consent given or deemed to have been
given by a Participant's spouse hereunder shall be valid only with respect to
the spouse who signs the consent.
<PAGE>
ARTICLE XVIII
ADMINISTRATION
18.1 - AUTHORITY OF THE SPONSOR
The Sponsor, which shall be the administrator for purposes of ERISA and the plan
administrator for purposes of the Code, shall be responsible for the
administration of the Plan and, in addition to the powers and authorities
expressly conferred upon it in the Plan, shall have all such powers and
authorities as may be necessary to carry out the provisions of the Plan,
including the power and authority to interpret and construe the provisions of
the Plan, to make benefit determinations, and to resolve any disputes which
arise under the Plan. The Sponsor may employ such attorneys, agents, and
accountants as it may deem necessary or advisable to assist in carrying out its
duties hereunder. The Sponsor shall be a "named fiduciary" as that term is
defined in Section 402(a)(2) of ERISA. The Sponsor may:
(a) allocate any of the powers, authority, or responsibilities for the
operation and administration of the Plan (other than trustee
responsibilities as defined in Section 405(c)(3) of ERISA) among named
fiduciaries; and
(b) designate a person or persons other than a named fiduciary to carry out
any of such powers, authority, or responsibilities;
except that no allocation by the Sponsor of, or designation by the Sponsor with
respect to, any of such powers, authority, or responsibilities to another named
fiduciary or a person other than a named fiduciary shall become effective unless
such allocation or designation shall first be accepted by such named fiduciary
or other person in a writing signed by it and delivered to the Sponsor.
18.2 - ACTION OF THE SPONSOR
Any act authorized, permitted, or required to be taken under the Plan by the
Sponsor and which has not been delegated in accordance with Section 18.1, may be
taken by a majority of the members of the board of directors of the Sponsor,
either by vote at a meeting, or in writing without a meeting, or by the employee
or employees of the Sponsor designated by the board of directors to carry out
such acts on behalf of the Sponsor. All notices, advice, directions,
certifications, approvals, and instructions required or authorized to be given
by the Sponsor as under the Plan shall be in writing and signed by either (i) a
majority of the members of the board of directors of the Sponsor or by such
member or members as may be designated by an instrument in writing, signed by
all the members thereof, as having authority to execute such documents on its
behalf, or (ii) the employee or employees authorized to act for the Sponsor in
accordance with the provisions of this Section.
18.3 - CLAIMS REVIEW PROCEDURE
Whenever a claim for benefits under the Plan filed by any person (herein
referred to as the "Claimant") is denied, whether in whole or in part, the
Sponsor shall transmit a written notice of such decision to the Claimant within
90 days of the date the claim was filed or, if special circumstances require an
extension, within 180 days of such date, which notice shall be written in a
manner calculated to be understood by the Claimant and shall contain a statement
of (i) the specific reasons for the denial of the claim, (ii) specific reference
to pertinent Plan provisions on which the denial is based, and (iii) a
description of any additional material or information necessary for the Claimant
to perfect the claim and an explanation of why such information is necessary.
The notice shall also include a statement advising the Claimant that, within 60
days of the date on which he receives such notice, he may obtain review of such
decision in accordance with the procedures hereinafter set forth. Within such
60-day period, the Claimant or his authorized representative may request that
the claim denial be reviewed by filing with the Sponsor a written request
therefor, which request shall contain the following information:
(a) the date on which the Claimant's request was filed with the Sponsor;
provided, however, that the date on which the Claimant's request for
review was in fact filed with the Sponsor shall control in the event
that the date of the actual filing is later than the date stated by the
Claimant pursuant to this paragraph;
(b) the specific portions of the denial of his claim which the Claimant
requests the Sponsor to review;
(c) a statement by the Claimant setting forth the basis upon which he
believes the Sponsor should reverse the previous denial of his claim for
benefits and accept his claim as made; and
(d) any written material (offered as exhibits) which the Claimant desires
the Sponsor to examine in its consideration of his position as stated
pursuant to paragraph (c) of this Section.
Within 60 days of the date determined pursuant to paragraph (a) of this Section
or, if special circumstances require an extension, within 120 days of such date,
the Sponsor shall conduct a full and fair review of the decision denying the
Claimant's claim for benefits and shall render its written decision on review to
the Claimant. The Sponsor's decision on review shall be written in a manner
calculated to be understood by the Claimant and shall specify the reasons and
Plan provisions upon which the Sponsor's decision was based.
18.4 - QUALIFIED DOMESTIC RELATIONS ORDERS
The Sponsor shall establish reasonable procedures to determine the status of
domestic relations orders and to administer distributions under domestic
relations orders which are deemed to be qualified orders. Such procedures shall
be in writing and shall comply with the provisions of Section 414(p) of the Code
and regulations issued thereunder.
18.5 - ACTIONS BINDING
Subject to the provisions of Section 18.3, any action taken by the Sponsor which
is authorized, permitted, or required under the Plan shall be final and binding
upon the Employers, the Trustee, all persons who have or who claim an interest
under the Plan, and all third parties dealing with the Employers or the Trustee.
<PAGE>
ARTICLE XIX
AMENDMENT AND TERMINATION
19.1 - AMENDMENT
Subject to the provisions of Section 19.2, the Sponsor may at any time and from
time to time, by action of its board of directors, or such officers of the
Sponsor as are authorized by its board of directors, amend the Plan, either
prospectively or retroactively. Any such amendment shall be by written
instrument executed by the Sponsor.
19.2 - LIMITATION ON AMENDMENT
The Sponsor shall make no amendment to the Plan which shall decrease the accrued
benefit of any Participant or Beneficiary, except that nothing contained herein
shall restrict the right to amend the provisions of the Plan relating to the
administration of the Plan and Trust. Moreover, no such amendment shall be made
hereunder which shall permit any part of the Trust to revert to an Employer or
any Related Company or be used or be diverted to purposes other than the
exclusive benefit of Participants and Beneficiaries.
19.3 - TERMINATION
The Sponsor reserves the right, by action of its board of directors, to
terminate the Plan as to all Employers at any time (the effective date of such
termination being hereinafter referred to as the "termination date"). Upon any
such termination of the Plan, the following actions shall be taken for the
benefit of Participants and Beneficiaries:
(a) As of the termination date, each Investment Fund shall be valued and
all Separate Accounts and Sub-Accounts shall be adjusted in the manner
provided in Article XI, with any unallocated contributions or
forfeitures being allocated as of the termination date in the manner
otherwise provided in the Plan. The termination date shall become a
Valuation Date for purposes of Article XI. In determining the net worth
of the Trust, there shall be included as a liability such amounts as
shall be necessary to pay all expenses in connection with the
termination of the Trust and the liquidation and distribution of the
property of the Trust, as well as other expenses, whether or not
accrued, and shall include as an asset all accrued income.
(b) All Separate Accounts shall then be disposed of to or for the benefit
of each Participant or Beneficiary in accordance with the provisions of
Article XV as if the termination date were his Settlement Date;
provided, however, that notwithstanding the provisions of Article XV,
if the Plan does not offer an annuity option and if neither his
Employer nor a Related Company establishes or maintains another defined
contribution plan (other than an employee stock ownership plan as
defined in Section 4975(e)(7) of the Code), the Participant's written
consent to the commencement of distribution shall not be required
regardless of the value of the vested portions of his Separate Account.
(c) Notwithstanding the provisions of paragraph (b) of this Section, no
distribution shall be made to a Participant of any portion of the
balance of his Tax-Deferred Contributions Sub-Account prior to his
separation from service (other than a distribution made in accordance
with Article XIII or required in accordance with Section 401(a)(9) of
the Code) unless (i) neither his Employer nor a Related Company
establishes or maintains another defined contribution plan (other than
an employee stock ownership plan as defined in Section 4975(e)(7) of
the Code, a tax credit employee stock ownership plan as defined in
Section 409 of the Code, or a simplified employee pension as defined in
Section 408(k) of the Code) either at the time the Plan is terminated
or at any time during the period ending 12 months after distribution of
all assets from the Plan; provided, however, that this provision shall
not apply if fewer than two percent of the Eligible Employees under the
Plan were eligible to participate at any time in such other defined
contribution plan during the 24-month period beginning 12 months before
the Plan termination, and (ii) the distribution the Participant
receives is a "lump sum distribution" as defined in Section 402(e)(4)
of the Code, without regard to clauses (i), (ii), (iii), and (iv) of
sub-paragraph (A), sub-paragraph (B), or sub-paragraph (H) thereof.
Notwithstanding anything to the contrary contained in the Plan, upon any such
Plan termination, the vested interest of each Participant and Beneficiary in his
Employer Contributions Sub-Account shall be 100 percent; and, if there is a
partial termination of the Plan, the vested interest of each Participant and
Beneficiary who is affected by the partial termination in his Employer
Contributions Sub-Account shall be 100 percent. For purposes of the preceding
sentence only, the Plan shall be deemed to terminate automatically if there
shall be a complete discontinuance of contributions hereunder by all Employers.
19.4 - REORGANIZATION
The merger, consolidation, or liquidation of any Employer with or into any other
Employer or a Related Company shall not constitute a termination of the Plan as
to such Employer. If an Employer disposes of substantially all of the assets
used by the Employer in a trade or business or disposes of a subsidiary and in
connection therewith one or more Participants terminates employment but
continues in employment with the purchaser of the assets or with such
subsidiary, no distribution from the Plan shall be made to any such Participant
prior to his separation from service (other than a distribution made in
accordance with Article XIII or required in accordance with Section 401(a)(9) of
the Code), except that a distribution shall be permitted to be made in such a
case, subject to the Participant's consent (to the extent required by law), if
(i) the distribution would constitute a "lump sum distribution" as defined in
section 402(e)(4) of the Code, without regard to clauses (i), (ii), (iii), or
(iv) of sub-paragraph (A), sub-paragraph (B), or sub-paragraph (H) thereof, (ii)
the Employer continues to maintain the Plan after the disposition, (iii) the
purchaser does not maintain the Plan after the disposition, and (iv) the
distribution is made by the end of the second calendar year after the calendar
year in which the disposition occurred.
19.5 - WITHDRAWAL OF AN EMPLOYER
An Employer other than the Sponsor may withdraw from the Plan at any time upon
notice in writing to the Administrator (the effective date of such withdrawal
being hereinafter referred to as the "withdrawal date"), and shall thereupon
cease to be an Employer for all purposes of the Plan. An Employer shall be
deemed automatically to withdraw from the Plan in the event of its complete
discontinuance of contributions, or, subject to Section 19.4 and unless the
Sponsor otherwise directs, it ceases to be a Related Company of the Sponsor or
any other Employer. Upon the withdrawal of an Employer, the withdrawing Employer
shall determine whether a partial termination has occurred with respect to its
Employees. In the event that the withdrawing Employer determines a partial
termination has occurred, the action specified in Section 19.3 shall be taken as
of the withdrawal date, as on a termination of the Plan, but with respect only
to Participants who are employed solely by the withdrawing Employer, and who,
upon such withdrawal, are neither transferred to nor continued in employment
with any other Employer or a Related Company. The interest of any Participant
employed by the withdrawing Employer who is transferred to or continues in
employment with any other Employer or a Related Company, and the interest of any
Participant employed solely by an Employer or a Related Company other than the
withdrawing Employer, shall remain unaffected by such withdrawal; no adjustment
to his Separate Accounts shall be made by reason of the withdrawal; and he shall
continue as a Participant hereunder subject to the remaining provisions of the
Plan.
<PAGE>
ARTICLE XX
ADOPTION BY OTHER ENTITIES
20.1 - ADOPTION BY RELATED COMPANIES
A Related Company that is not an Employer may, with the consent of the Sponsor,
adopt the Plan and become an Employer hereunder by causing an appropriate
written instrument evidencing such adoption to be executed in accordance with
the requirements of its organizational authority. Any such instrument shall
specify the effective date of the adoption.
20.2 - EFFECTIVE PLAN PROVISIONS
An Employer who adopts the Plan shall be bound by the provisions of the Plan in
effect at the time of the adoption and as subsequently in effect because of any
amendment to the Plan.
<PAGE>
ARTICLE XXI
MISCELLANEOUS PROVISIONS
21.1 - NO COMMITMENT AS TO EMPLOYMENT
Nothing contained herein shall be construed as a commitment or agreement upon
the part of any person to continue his employment with an Employer or Related
Company, or as a commitment on the part of any Employer or Related Company to
continue the employment, compensation, or benefits of any person for any period.
21.2 - BENEFITS
Nothing in the Plan nor the Trust Agreement shall be construed to confer any
right or claim upon any person, firm, or corporation other than the Employers,
the Trustee, Participants, and Beneficiaries.
21.3 - NO GUARANTEES
The Employers, the Administrator, and the Trustee do not guarantee the Trust
from loss or depreciation, nor do they guarantee the payment of any amount which
may become due to any person hereunder.
21.4 - EXPENSES
The expenses of administration of the Plan, including the expenses of the
Administrator and fees of the Trustee, shall be paid from the Trust as a general
charge thereon, unless the Sponsor elects to make payment. Notwithstanding the
foregoing, the Sponsor may direct that administrative expenses that are
allocable to the Separate Account of a specific Participant shall be paid from
that Separate Account and the costs incident to the management of the assets of
an Investment Fund or to the purchase or sale of securities held in an
Investment Fund shall be paid by the Trustee from such Investment Fund.
21.5 - PRECEDENT
Except as otherwise specifically provided, no action taken in accordance with
the Plan shall be construed or relied upon as a precedent for similar action
under similar circumstances.
21.6 - DUTY TO FURNISH INFORMATION
The Employers, the Administrator, and the Trustee shall furnish to any of the
others any documents, reports, returns, statements, or other information that
the other reasonably deems necessary to perform its duties hereunder or
otherwise imposed by law.
21.7 - WITHHOLDING
The Trustee shall withhold any tax which by any present or future law is
required to be withheld, and which the Administrator notifies the Trustee in
writing is to be so withheld, from any payment to any Participant or Beneficiary
hereunder.
21.8 - MERGER, CONSOLIDATION, OR TRANSFER OF PLAN ASSETS
The Plan shall not be merged or consolidated with any other plan, nor shall any
of its assets or liabilities be transferred to another plan, unless, immediately
after such merger, consolidation, or transfer of assets or liabilities, each
Participant in the Plan would receive a benefit under the Plan which is at least
equal to the benefit he would have received immediately prior to such merger,
consolidation, or transfer of assets or liabilities (assuming in each instance
that the Plan had then terminated).
21.9 - BACK PAY AWARDS
The provisions of this Section shall apply only to an Employee or former
Employee who becomes entitled to back pay by an award or agreement of an
Employer without regard to mitigation of damages. If a person to whom this
Section applies was or would have become an Eligible Employee after such back
pay award or agreement has been effected, and if any such person who had not
previously elected to make Tax-Deferred Contributions pursuant to Section 4.1
shall within 30 days of the date he receives notice of the provisions of this
Section make an election to make Tax-Deferred Contributions in accordance with
such Section 4.1 (retroactive to any Enrollment Date as of which he was or has
become eligible to do so), then such Participant may elect that any Tax-Deferred
Contributions not previously made on his behalf but which, after application of
the foregoing provisions of this Section, would have been made under the
provisions of Article IV, shall be made out of the proceeds of such back pay
award or agreement. In addition, if any such Employee or former Employee would
have been eligible to participate in the allocation of Employer Contributions
under the provisions of Article VI for any prior Plan Year after such back pay
award or agreement has been effected, his Employer shall make an Employer
Contribution equal to the amount of the Employer Contribution which would have
been allocated to such Participant under the provisions of Article VI as in
effect during each such Plan Year. The amounts of such additional contributions
shall be credited to the Separate Account of such Participant. Any additional
contributions made by such Participant and by an Employer pursuant to this
Section shall be made in accordance with, and subject to the limitations of the
applicable provisions of Articles IV, VI, and VII.
21.10 - CONDITION ON EMPLOYER CONTRIBUTIONS
Notwithstanding anything to the contrary contained in the Plan or the Trust
Agreement, any contribution of an Employer hereunder is conditioned upon the
continued qualification of the Plan under Section 401(a) of the Code, the exempt
status of the Trust under Section 501(a) of the Code, and the deductibility of
the contribution under Section 404 of the Code. Except as otherwise provided in
this Section and Section 21.11, however, in no event shall any portion of the
property of the Trust ever revert to or otherwise inure to the benefit of an
Employer or any Related Company.
21.11 - RETURN OF CONTRIBUTIONS TO AN EMPLOYER
Notwithstanding any other provision of the Plan or the Trust Agreement to the
contrary, in the event any contribution of an Employer made hereunder:
(a) is made under a mistake of fact, or
(b) is disallowed as a deduction under Section 404 of the Code,
such contribution may be returned to the Employer within one year after the
payment of the contribution or the disallowance of the deduction to the extent
disallowed, whichever is applicable. In the event the Plan does not initially
qualify under Section 401(a) of the Code, any contribution of an Employer made
hereunder may be returned to the Employer within one year of the date of denial
of the initial qualification of the Plan, but only if an application for
determination was made within the period of time prescribed under Section
403(c)(2)(B) of ERISA.
21.12 - VALIDITY OF PLAN
The validity of the Plan shall be determined and the Plan shall be construed and
interpreted in accordance with the laws of the State or Commonwealth in which
the Sponsor has its principal place of business, except as preempted by
applicable Federal law. The invalidity or illegality of any provision of the
Plan shall not affect the legality or validity of any other part thereof.
21.13 - TRUST AGREEMENT
The Trust Agreement and the Trust maintained thereunder shall be deemed to be a
part of the Plan as if fully set forth herein and the provisions of the Trust
Agreement are hereby incorporated by reference into the Plan.
21.14 - PARTIES BOUND
The Plan shall be binding upon the Employers, all Participants and Beneficiaries
hereunder, and, as the case may be, the heirs, executors, administrators,
successors, and assigns of each of them.
21.15 - APPLICATION OF CERTAIN PLAN PROVISIONS
A Participant's Beneficiary, if the Participant has died, or alternate payee
under a qualified domestic relations order shall be treated as a Participant for
purposes of directing investments as provided in Article X. For purposes of the
general administrative provisions and limitations of the Plan, a Participant's
Beneficiary or alternate payee under a qualified domestic relations order shall
be treated as any other person entitled to receive benefits under the Plan. Upon
any termination of the Plan, any such Beneficiary or alternate payee under a
qualified domestic relations order who has an interest under the Plan at the
time of such termination, which does not cease by reason thereof, shall be
deemed to be a Participant for all purposes of the Plan.
21.16 - LEASED EMPLOYEES
Any leased employee, other than an excludable leased employee, shall be treated
as an employee of the Employer for which he performs services for all purposes
of the Plan with respect to the provisions of Sections 401(a)(3), (4), (7), and
(16), and 408(k), 410, 411, 415, and 416 of the Code; provided, however, that no
leased employee shall accrue a benefit hereunder based on service as a leased
employee except as otherwise specifically provided in the Plan. A "leased
employee" means any person who performs services for an Employer or a Related
Company (the "recipient") (other than an employee of the recipient) pursuant to
an agreement between the recipient and any other person (the "leasing
organization") on a substantially full-time basis for a period of at least one
year, provided that such services are of a type historically performed, in the
business field of the recipient, by employees. An "excludable leased employee"
means any leased employee of the recipient who is covered by a money purchase
pension plan maintained by the leasing organization which provides for (i) a
nonintegrated employer contribution on behalf of each participant in the plan
equal to at least ten percent of compensation, (ii) full and immediate vesting,
and (iii) immediate participation by employees of the leasing organization
(other than employees who perform substantially all of their services for the
leasing organization or whose compensation from the leasing organization in each
plan year during the four-year period ending with the plan year is less than
$1,000); provided, however, that leased employees do not constitute more than 20
percent of the recipient's nonhighly compensated work force. For purposes of
this Section, contributions or benefits provided to a leased employee by the
leasing organization that are attributable to services performed for the
recipient shall be treated as provided by the recipient.
21.17 - TRANSFERRED FUNDS
If funds from another qualified plan are transferred or merged into the Plan,
such funds shall be held and administered in accordance with any restrictions
applicable to them under such other plan to the extent required by law and shall
be accounted for separately to the extent necessary to accomplish the foregoing.
21.18 - VETERAN'S RIGHTS
Notwithstanding anything in the Plan to the contrary, the Plan shall be
interpreted and administered to observe all rights conferred upon veterans of
the United States armed forces pursuant to applicable federal law.
21.19 - RIGHTS UNDER THE FAMILY AND MEDICAL LEAVE ACT OF 1992
Notwithstanding anything in the Plan to the contrary, the Plan shall be
interpreted and administered to observe all rights conferred upon employees
pursuant to the federal Family and Medical Leave Act of 1992.
<PAGE>
ARTICLE XXII
TOP-HEAVY PROVISIONS
22.1 - DEFINITIONS
For purposes of this Article, the following terms shall have the following
meanings:
(a) The "compensation" of an employee means compensation as defined in
Section 415 of the Code and regulations issued thereunder. In no event,
however, shall the compensation of a Participant taken into account
under the Plan for any Plan Year exceed (1) $200,000 for Plan Years
beginning prior to January 1, 1994, or (2) $150,000 for Plan Years
beginning on or after January 1, 1994 (subject to adjustment annually
as provided in Section 401(a)(17)(B) and Section 415(d) of the Code;
provided, however, that the dollar increase in effect on January 1 of
any calendar year, if any, is effective for Plan Years beginning in
such calendar year). If the compensation of a Participant is determined
over a period of time that contains fewer than 12 calendar months, then
the annual compensation limitation described above shall be adjusted
with respect to that Participant by multiplying the annual compensation
limitation in effect for the Plan Year by a fraction the numerator of
which is the number of full months in the period and the denominator of
which is 12; provided, however, that no proration is required for a
Participant who is covered under the Plan for less than one full Plan
Year if the formula for allocations is based on Compensation for a
period of at least 12 months. In determining the compensation, for
purposes of applying the annual compensation limitation described
above, of a Participant who is a five-percent owner or one of the ten
Highly Compensated Employees receiving the greatest compensation for
the Plan Year, the compensation of the Participant's spouse and of his
lineal descendants who have not attained age 19 as of the close of the
Plan Year shall be included as compensation of the Participant for the
Plan Year. If as a result of applying the family aggregation rule
described in the preceding sentence the annual compensation limitation
would be exceeded, the limitation shall be prorated among the affected
family members in proportion to each member's compensation as
determined prior to application of the family aggregation rules.
(b) The "determination date" with respect to any Plan Year means the last
day of the preceding Plan Year, except that the determination date with
respect to the first Plan Year of the Plan, shall mean the last day of
such Plan Year.
(c) A "key employee" means any Employee or former Employee who is a key
employee pursuant to the provisions of Section 416(i)(1) of the Code
and any Beneficiary of such Employee or former Employee.
(d) A "non-key employee" means any Employee who is not a key employee.
(e) A "permissive aggregation group" means those plans included in each
Employer's required aggregation group together with any other plan or
plans of the Employer, so long as the entire group of plans would
continue to meet the requirements of Sections 401(a)(4) and 410 of the
Code.
(f) A "required aggregation group" means the group of tax-qualified plans
maintained by an Employer or a Related Company consisting of each plan
in which a key employee participates and each other plan that enables a
plan in which a key employee participates to meet the requirements of
Section 401(a)(4) or Section 410 of the Code, including any plan that
terminated within the five-year period ending on the relevant
determination date.
(g) A "super top-heavy group" with respect to a particular Plan Year means
a required or permissive aggregation group that, as of the
determination date, would qualify as a top-heavy group under the
definition in paragraph (i) of this Section with "90 percent"
substituted for "60 percent" each place where "60 percent" appears in
the definition.
(h) A "super top-heavy plan" with respect to a particular Plan Year means a
plan that, as of the determination date, would qualify as a top-heavy
plan under the definition in paragraph (j) of this Section with "90
percent" substituted for "60 percent" each place where "60 percent"
appears in the definition. A plan is also a "super top-heavy plan" if
it is part of a super top-heavy group.
(i) A "top-heavy group" with respect to a particular Plan Year means a
required or permissive aggregation group if the sum, as of the
determination date, of the present value of the cumulative accrued
benefits for key employees under all defined benefit plans included in
such group and the aggregate of the account balances of key employees
under all defined contribution plans included in such group exceeds 60
percent of a similar sum determined for all employees covered by the
plans included in such group.
(j) A "top-heavy plan" with respect to a particular Plan Year means (i), in
the case of a defined contribution plan (including any simplified
employee pension plan), a plan for which, as of the determination date,
the aggregate of the accounts (within the meaning of Section 416(g) of
the Code and the regulations and rulings thereunder) of key employees
exceeds 60 percent of the aggregate of the accounts of all participants
under the plan, with the accounts valued as of the relevant valuation
date and increased for any distribution of an account balance made in
the five-year period ending on the determination date, (ii), in the
case of a defined benefit plan, a plan for which, as of the
determination date, the present value of the cumulative accrued
benefits payable under the plan (within the meaning of Section 416(g)
of the Code and the regulations and rulings thereunder) to key
employees exceeds 60 percent of the present value of the cumulative
accrued benefits under the plan for all employees, with the present
value of accrued benefits to be determined under the accrual method
uniformly used under all plans maintained by an Employer or, if no such
method exists, under the slowest accrual method permitted under the
fractional accrual rate of Section 411(b)(1)(C) of the Code and
including the present value of any part of any accrued benefits
distributed in the five-year period ending on the determination date,
and (iii) any plan (including any simplified employee pension plan)
included in a required aggregation group that is a top-heavy group. For
purposes of this paragraph, the accounts and accrued benefits of any
employee who has not performed services for an Employer or a Related
Company during the five-year period ending on the determination date
shall be disregarded. For purposes of this paragraph, the present value
of cumulative accrued benefits under a defined benefit plan for
purposes of top-heavy determinations shall be calculated using the
actuarial assumptions otherwise employed under such plan, except that
the same actuarial assumptions shall be used for all plans within a
required or permissive aggregation group. A Participant's interest in
the Plan attributable to any Rollover Contributions, except Rollover
Contributions made from a plan maintained by an Employer or a Related
Company, shall not be considered in determining whether the Plan is
top-heavy. Notwithstanding the foregoing, if a plan is included in a
required or permissive aggregation group that is not a top-heavy group,
such plan shall not be a top-heavy plan.
(k) The "valuation date" with respect to any determination date means the
most recent Valuation Date occurring within the 12-month period ending
on the determination date.
22.2 - APPLICABILITY
Notwithstanding any other provision of the Plan to the contrary, the provisions
of this Article shall be applicable during any Plan Year in which the Plan is
determined to be a top-heavy plan as hereinafter defined. If the Plan is
determined to be a top-heavy plan and upon a subsequent determination date is
determined no longer to be a top-heavy plan, the vesting provisions of Article
VI shall again become applicable as of such subsequent determination date;
provided, however, that if the prior vesting provisions do again become
applicable, any Employee with three or more years of Vesting Service may elect
in accordance with the provisions of Article VI, to continue to have his vested
interest in his Employer Contributions Sub-Account determined in accordance with
the vesting schedule specified in Section 22.5.
22.3 - MINIMUM EMPLOYER CONTRIBUTION
If the Plan is determined to be a top-heavy plan, the Employer Contributions
allocated to the Separate Account of each non-key employee who is an Eligible
Employee and who is employed by an Employer or a Related Company on the last day
of such top-heavy Plan Year shall be no less than the lesser of (i) three
percent of his compensation or (ii) the largest percentage of compensation that
is allocated as an Employer Contribution and/or Tax-Deferred Contribution for
such Plan Year to the Separate Account of any key employee; except that, in the
event the Plan is part of a required aggregation group, and the Plan enables a
defined benefit plan included in such group to meet the requirements of Section
401(a)(4) or 410 of the Code, the minimum allocation of Employer Contributions
to each such non-key employee shall be three percent of the compensation of such
non-key employee. Any minimum allocation to a non-key employee required by this
Section shall be made without regard to any social security contribution made on
behalf of the non-key employee, his number of hours of service, his level of
compensation, or whether he declined to make elective or mandatory
contributions. Notwithstanding the minimum top-heavy allocation requirements of
this Section, if the Plan is a top-heavy plan, each non-key employee who is an
Eligible Employee and who is employed by an Employer or a Related Company on the
last day of a top-heavy Plan Year and who is also covered under any other
top-heavy plan or plans of an Employer will receive the top-heavy benefits
provided under such other plan in lieu of the minimum top-heavy allocation under
the Plan.
22.4 - ADJUSTMENTS TO SECTION 415 LIMITATIONS
If the Plan is determined to be a top-heavy plan and an Employer maintains a
defined benefit plan covering some or all of the Employees that are covered by
the Plan, the defined benefit plan fraction and the defined contribution plan
fraction, described in Article VII, shall be determined as provided in Section
415 of the Code by substituting "1.0" for "1.25" each place where "1.25"
appears, except that such substitutions shall not be applied to the Plan if (i)
the Plan is not a super top-heavy plan, (ii) the Employer Contribution for such
top-heavy Plan Year for each non-key employee who is to receive a minimum
top-heavy benefit hereunder is not less than four percent of such non-key
employee's compensation, and (iii) the minimum annual retirement benefit accrued
by a non-key employee who participates under one or more defined benefit plans
of an Employer or a Related Company for such top-heavy Plan Year is not less
than the lesser of three percent times years of service with an Employer or a
Related Company or thirty percent.
22.5 - ACCELERATED VESTING
If the Plan is determined to be a top-heavy plan, a Participant's vested
interest in his Employer Contributions Sub-Account shall be determined no less
rapidly than in accordance with the following vesting schedule:
YEARS OF VESTING SERVICE VESTED INTEREST
less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 but less than 6 80%
6 or more 100%
<PAGE>
ARTICLE XXIII
EFFECTIVE DATE
23.1 - EFFECTIVE DATE OF AMENDMENT AND RESTATEMENT
This amendment and restatement is effective as of January 1, 1997.
* * *
EXECUTED as of the 1st day of January, 1997.
WM. H. McGEE & CO., INC.
By:/s/ John P. Tynan
---------------------
Name: John P. Tynan
Title: Senior Vice President
TRUST AGREEMENT
FOR
WM. H. MCGEE & CO., INC. PROFIT SHARING PLAN
FIDELITY MANAGEMENT TRUST COMPANY, ITS AFFILIATES AND EMPLOYEES MAY NOT
PROVIDE YOU WITH LEGAL OR TAX ADVICE IN CONNECTION WITH THE EXECUTION
OF THIS DOCUMENT. IT SHOULD BE REVIEWED BY YOUR ATTORNEY AND/OR
ACCOUNTANT PRIOR TO EXECUTION.
CORPORATEplan for RETIREMENTSM
VOLUME SUBMITTER
PLAN DOCUMENT SYSTEMSTM
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; PURPOSE; RIGHTS OF
ELIGIBLE EMPLOYEES AND BENEFICIARIES
------------------------------------
1.1 - Definitions
1.2 - Purpose
1.3 - Rights of Eligible Employees and Beneficiaries
ARTICLE II
POWERS AND DUTIES OF THE TRUSTEE
--------------------------------
2.1 - Powers and Duties of Trustee
2.2 - Selection of Investment Funds
2.3 - Available Investment Funds
2.4 - Participant Direction
2.5 - Adjustment of Claims
2.6 - Voting Rights
2.7 - Participant Loans
2.8 - Registration of Securities; Nominees
2.9 - Agents, Attorneys, Actuaries, and Accountants
2.10 - Deposit of Funds
2.11 - Payment of Taxes; Indemnity
2.12 - Records and Statements
2.13 - Authority
2.14 - Court Action Not Required
2.15 - Reliance on Written Directions
2.16 - Trustee's Performance
2.17 - Counsel
2.18 - Annuity Contracts
2.19 - Sponsor Stock
ARTICLE III
PAYMENTS OUT OF THE TRUST
-------------------------
3.1 - Payments
3.2 - Compensation and Expenses
3.3 - Return of Contributions to the Sponsor
ARTICLE IV
SUCCESSION TO THE TRUSTEESHIP
-----------------------------
4.1 - Resignation of the Trustee
4.2 - Removal of the Trustee
4.3 - Appointment of a Successor Trustee
ARTICLE V
AMENDMENT
---------
5.1 - Right of Amendment
5.2 - Limitation on Amendment
ARTICLE VI
MISCELLANEOUS
-------------
6.1 - Validity of Trust Agreement
6.2 - No Guarantees
6.3 - Duty to Furnish Information
6.4 - Federal Income Tax Withholding
6.5 - Parties Bound
6.6 - Indemnification by Sponsor
6.7 - Bonding Requirements
6.8 - Separate Trust or Fund for Existing Plan Assets
<PAGE>
PREAMBLE
THIS Trust Agreement is entered into by and between Wm. H. McGee & Co., Inc.
(the "Sponsor") and Fidelity Management Trust Company, a corporation organized
and operating under the laws of the Commonwealth of Massachusetts, and
authorized to carry on a trust business (the "Trustee");
WHEREAS, the Sponsor has adopted the Wm. H. McGee & Co., Inc. Profit Sharing
Plan (the "Plan") for the benefit of eligible employees and their beneficiaries;
and
WHEREAS, the Sponsor desires to establish a trust for the exclusive benefit of
eligible employees and their beneficiaries to hold assets of the Plan; and
WHEREAS, the Trustee agrees to act as trustee of said trust; and
WHEREAS, the Sponsor and any person designated by the Sponsor pursuant to
Article XVIII of the Plan, serves as a named fiduciary of the Plan for purposes
of Section 402(a)(2) of ERISA (the "Named Fiduciary");
NOW, THEREFORE, the parties agree that effective as of January 1, 1997, the
Trustee shall hold all funds and other property from time to time contributed or
transferred to it pursuant to the provisions of the Plan, together with all the
increments, proceeds, investments and reinvestments thereof, in trust, for the
uses and purposes and upon the terms and conditions hereinafter set forth.
<PAGE>
ARTICLE I
DEFINITIONS; PURPOSE; RIGHTS OF ELIGIBLE
EMPLOYEES AND BENEFICIARIES
1.1 - DEFINITIONS
For all purposes of this Trust Agreement, the terms defined in the Plan shall
have the meanings therein set forth, unless, as the case may be, a different
meaning is clearly required by the context hereof.
1.2 - PURPOSE
The Trust is established to provide retirement and other benefits for eligible
employees and their beneficiaries. Except as provided in Section 3.3, prior to
the satisfaction of all liabilities under the Plan, no part of the Trust assets
may be applied to any purpose other than providing benefits under the Plan and
for defraying expenses of administering the Plan and the Trust.
1.3 - RIGHTS OF ELIGIBLE EMPLOYEES AND BENEFICIARIES
The rights of eligible employees and their beneficiaries shall be determined
solely under the Plan.
<PAGE>
ARTICLE II
POWERS AND DUTIES OF THE TRUSTEE
2.1 - POWERS AND DUTIES OF TRUSTEE
In the administration of the Trust, the Trustee shall have the powers and duties
set forth in this Article II, in addition to all powers and duties otherwise
expressly set forth in this Trust Agreement. Subject to the other provisions of
this Agreement, the Trustee is empowered:
(a) to invest and reinvest all or any part of Trust units or the Trust,
including both principal and income, in securities pursuant to this
Agreement;
(b) to purchase annuities and hold and retain such contract or contracts as
part of the Trust;
(c) to invest and reinvest all or any part of the Trust under an insurance
contract or contracts that contain provisions relating to a specified
rate of return on such investment;
(d) to sell, lease, exchange, or otherwise dispose of all or any part of
the Trust at such prices, upon such terms and conditions, and in such
manner as it shall determine, including the right to surrender an
annuity contract or contracts at any time held in the Trust;
(e) to exercise, buy, or sell rights of conversion or subscription;
(f) to enter into or oppose any plan of consolidation, merger,
reorganization, capital readjustment, or liquidation of any corporation
or other issuer of securities held hereunder (including any plan for
the sale, lease, or mortgage of any of its property or the adjustment
or liquidation of any of its indebtedness) and, in connection with any
such plan, to enter into any security holders' trust agreement, to
deposit securities under such agreement, and to pay assessments or
subscriptions from the other assets held hereunder;
(g) to retain in cash or in forms of investment otherwise unproductive of
income such portion of the Trust as determined by the Sponsor is
necessitated by the cash requirements of the Trust; provided, however,
that, to the maximum extent feasible, such amounts shall be held which
are productive of income but are sufficiently liquid to meet such cash
requirements;
(h) to deposit securities held hereunder in any depository;
(i) to transfer to and invest all or any part of the Trust in any
collective investment trust which constitutes an exempt trust within
the meaning of the Code and which is then maintained by a bank or trust
company, or any of its affiliates, when such bank or trust company is
acting as Trustee or agent for the Trustee; provided that the
instrument establishing such collective investment trust, as amended
from time to time, shall govern any investment therein, and is hereby
made a part of this Trust Agreement as if fully set forth herein;
provided further, that, to the extent that the Named Fiduciary selects
as an investment option the Managed Income Portfolio of the Fidelity
Group Trust for Employee Benefit Plans (the "Group Trust"), the Sponsor
hereby agrees to the terms of the Group Trust and adopts said terms as
a part of this Trust Agreement and acknowledges that it has received
from the Trustee a copy of the Group Trust, the Declaration of Separate
Fund for the Managed Income Portfolio of the Group Trust, and the
Circular for the Managed Income Portfolio;
(j) pursuant to the direction of the Administrator, to purchase and sell
interests in a registered investment company registered under the
Investment Company Act of 1940, for which the Trustee or an affiliate
of the Trustee serves as investment advisor or sub-advisor and receives
compensation from the registered investment company for its services as
investment advisor or sub-advisor, provided that the applicable
conditions of Department of Labor Transaction Exemption 77-4 are
satisfied; and
(k) to transfer to and invest all or any part of the Trust in any trust
which forms a part of a pension or profit-sharing plan of an Employer
or a Related Company qualified under the Code and which constitutes an
exempt trust within the meaning of the Code; provided that the
instrument establishing such trust, as amended from time to time, shall
govern any investment therein, and is hereby made a part of this Trust
Agreement as if fully set forth herein.
The term "securities", wherever used in this Trust Agreement, shall include
common and preferred stocks, contractual obligations of every kind, whether
secured or unsecured, equitable interests in real or personal property, and
intangible property of every description and howsoever evidenced.
2.2 - SELECTION OF INVESTMENT FUNDS
The Trustee shall have no responsibility for the selection of Investment Funds
under the Trust and shall not render investment advice to any person in
connection with the selection of such options.
2.3 - AVAILABLE INVESTMENT FUNDS
The Named Fiduciary shall direct the Trustee as to (i) the Investment Funds the
Trust shall be invested in during the Participant recordkeeping reconciliation
period, and (ii) the Investment Funds in which Plan Participants and/or Sponsor
may invest in, subject to the following limitations. The Named Fiduciary may
determine to offer as Investment Funds only (i) securities issued by the
investment companies advised by Fidelity Management and Research Company
("Mutual Funds"), (ii) notes evidencing loans to Plan Participants in accordance
with the terms of the Plan, (iii) collective investment funds maintained by the
Trustee for qualified plans, and (iv) equity securities issued by the Sponsor or
an affiliate which are publicly-traded and which are "qualifying employer
securities" within the meaning of Section 407(d)(5) of ERISA ("Sponsor Stock");
provided, however, that the Trustee shall be considered a fiduciary with
investment discretion only with respect to Plan assets that are invested in
collective investment funds maintained by the Trustee for qualified plans. The
Mutual Funds and/or collective investment funds initially selected by the Named
Fiduciary are identified in Schedule A attached hereto. The Named Fiduciary may
add additional Mutual Funds and/or collective investment funds with the consent
of the Trustee and upon mutual amendment of Schedule A of this Trust Agreement.
The Sponsor hereby acknowledges that it has received from the Trustee a copy of
the prospectus for each Mutual Fund selected by the Named Fiduciary as a Plan
Investment Fund.
2.4 - PARTICIPANT DIRECTION
Each Plan Participant shall direct the Trustee in which Investment Fund(s) to
invest the assets in the Participant's Separate Account as provided in the Plan.
Such directions may be made by Plan Participants by use of the telephone
exchange system maintained for such purposes by the Trustee or its agent, in
accordance with written telephone exchange guidelines set forth in the service
agreement between the Sponsor and Fidelity Management Trust Company (the
"Service Agreement"). In the event that the Trustee fails to receive a proper
direction, the assets shall be invested in the securities of the Mutual Fund set
forth for such purpose in the Service Agreement, until the Trustee receives a
proper direction. Additionally, in the event any assets in the Participant's
Separate Account are not subject to the Participant's investment direction, such
assets shall be invested as directed by the Sponsor in accordance with the
Service Agreement.
2.5 - ADJUSTMENT OF CLAIMS
Subject to the consent of the Sponsor, the Trustee is empowered to compromise
and adjust any and all claims, debts, or obligations in favor of or against the
Trust, whether such claims be in litigation or not, upon such terms and
conditions as it shall determine, and to reduce the rate of interest on, to
extend or otherwise modify, to foreclose upon default, or otherwise to enforce
any such claim, debt, or obligation.
2.6 - VOTING RIGHTS
At the time of mailing of notice of each annual or special stockholders' meeting
of any Mutual Fund, the Trustee shall send a copy of the notice and all proxy
solicitation materials to each Participant who has shares of the Mutual Fund
credited to the Participant's Separate Account, together with a voting direction
form for return to the Trustee or designee. The Participant shall have the right
to direct the Trustee as to the manner in which the Trustee is to vote the
shares credited to the Participant's Separate Account (both vested and
unvested), except as otherwise provided in this Section 2.6. The Trustee shall
vote the shares as directed by the Participant; provided, however, that the
Trustee may, in the absence of instructions, vote "present" for the sole purpose
of allowing such shares to be counted for establishment of a quorum at a
shareholders' meeting. The Sponsor shall have the right to direct the Trustee as
to the manner in which the Trustee is to vote the shares of the Mutual Funds in
the Trust during the Participant recordkeeping reconciliation period and any
shares credited to the Participant's Separate Account which are not subject to
Participant direction. With respect to all rights other than the right to vote,
the Trustee shall follow the directions of the Named Fiduciary. The Trustee
shall have no duty to solicit directions from Participants or the Sponsor.
2.7 - PARTICIPANT LOANS
If provided under the terms of the Plan, the Sponsor may direct the Trustee in
writing to establish a separate loan Investment Fund with respect to a
Participant and to transfer assets from any of the other Trust Funds to the
separate loan Investment Fund for the purpose of making loans to the Participant
as provided in the Plan. The Trustee shall be required to follow the directions
so given to it; provided, however, that the Trustee shall not be required to
follow any directions which would result in a breach of the Trustee's fiduciary
duties.
2.8 - REGISTRATION OF SECURITIES; NOMINEES
The Trustee is empowered to register securities in its own name, or in the name
of its nominee, without disclosing the trust, or to hold the same in bearer
form, and to take title to other property in its own name or in the name of its
nominee without disclosing the trust; provided, however, that the Trustee shall
be responsible for the acts of its nominees.
2.9 - AGENTS, ATTORNEYS, ACTUARIES, AND ACCOUNTANTS
The Trustee is empowered to employ such agents, attorneys (including attorneys
who may be of counsel for the Sponsor), actuaries, and accountants as it may
deem necessary or proper in connection with its duties hereunder, and to
determine and pay the reasonable compensation and expenses of such agents,
attorneys, actuaries, and accountants.
2.10 - DEPOSIT OF FUNDS
The Trustee is empowered to deposit funds, pending investment or distribution
thereof, in the commercial or savings department of any bank, savings and loan
association or trust company supervised by the United States or a state or
agency thereof; and it is authorized to accept such regulations covering the
withdrawal of funds so deposited as it shall deem proper. The Trustee may
deposit all or any part of the Trust, including both principal and interest, in
the banking department of the Trustee (and any of its affiliates) and of any
other fiduciary or party-in-interest with respect to the Trust; provided,
however, that the deposits bear a reasonable rate of interest and are authorized
pursuant to the provisions of Section 408 of ERISA.
2.11 - PAYMENT OF TAXES; INDEMNITY
The Trustee is empowered to pay out of the Trust, as a general charge thereon,
any and all taxes of whatsoever nature assessed on or in respect to the Trust;
provided, however, that, if the Sponsor shall notify the Trustee in writing that
in the opinion of its counsel any such tax is not lawfully assessed, the
Trustee, if so requested by the Sponsor, shall contest the validity of such tax
in any manner deemed appropriate by the Sponsor or its counsel. The word
"taxes", as used herein, shall be deemed to include any interest or penalties
assessed in respect to such taxes. Unless the Trustee first shall have been
indemnified to its satisfaction by the Sponsor, the Trustee shall not be
required to contest the validity of any tax, to institute, maintain, or defend
against any other action or proceeding, or to incur any other expense in
connection with the Trust, except to the extent that the Trust is sufficient
therefor.
2.12 - RECORDS AND STATEMENTS
The Trustee shall keep accurate records of all receipts, disbursements, and
other transactions affecting the Trust which, together with the assets
comprising the Trust and all evidences thereof, shall be available for
inspection or for the purpose of making copies or reproductions thereof by the
Sponsor or any of its duly authorized representatives. The Trustee shall render
to the Sponsor at intervals agreed to by the Sponsor and the Trustee statements
of receipts and disbursements and of all transactions during the preceding
interval affecting the Trust and a statement of all assets held in the Trust and
the investment performance of the Investment Funds.
2.13 - AUTHORITY
The Trustee is authorized to execute and deliver any and all instruments and to
perform any and all acts which may be necessary or proper to enable it to
discharge its duties under this Trust Agreement and to carry out the powers and
authority conferred upon it. The Sponsor specifically acknowledges and
authorizes that affiliates of the Trustee may act as its agent in the
performance of ministerial, non-fiduciary duties under the Trust. The expenses
and compensation of such agent shall be paid by the Trustee.
2.14 - COURT ACTION NOT REQUIRED
All the powers and authority herein conferred upon the Trustee shall be
exercised by it without the necessity of applying to any court for leave or
confirmation. No person, firm, or corporation dealing with the Trustee shall be
required to ascertain whether the Trustee shall have obtained the approval of
any court or of any person with respect to any action which it may propose to
take hereunder, but every such person, firm, or corporation shall be protected
in relying solely upon the deed, transfer, or assurance of the Trustee.
2.15 - RELIANCE ON WRITTEN DIRECTIONS
Any written direction, request, approval, or other document signed in the name
of the Sponsor or the Administrator by a duly authorized individual shall be
conclusively deemed to constitute the written direction, request, approval, or
other document of the Sponsor or the Administrator and the Trustee shall not be
liable for any loss, or by reason of any breach, arising from the direction
unless it is clear on the direction's face that the actions to be taken under
the direction would be prohibited by the fiduciary duty rules of Section 404(a)
of ERISA or would be contrary to the terms of the Plan or this Trust Agreement.
The Trustee will be entitled to rely on the latest certificate it has received
from the Sponsor or Administrator as to any person or persons authorized to act
for the Sponsor or Administrator hereunder and to sign on behalf of the Sponsor
or Administrator any directions or instructions, until it receives from the
Sponsor or Administrator written notice that such authority has been revoked.
2.16 - TRUSTEE'S PERFORMANCE
In the exercise of any of the powers and authority herein conferred upon it, the
Trustee shall adhere at all times to the fiduciary standards established by
ERISA.
2.17 - COUNSEL
The Trustee may consult with counsel selected by it, who may be of counsel for
the Sponsor, as to any matters or questions arising hereunder, and the opinion
of such counsel shall be full and complete authority and protection in respect
to any action taken, suffered, or omitted by the Trustee in good faith and in
accordance with the opinion of such counsel.
2.18 - ANNUITY CONTRACTS
Notwithstanding any other provision of this Trust Agreement or the Plan to the
contrary, the Administrator shall retain all discretionary power relating to any
annuity contract acquired by or delivered to the Trustee. As directed by the
Administrator, the Trustee will acquire, hold and dispose of annuity contracts,
deliver the purchase price, and exercise any and all rights, privileges,
options, and elections under those policies. The Trustee will be fully
discharged with respect to any policy when it is delivered to the Administrator.
2.19 - SPONSOR STOCK
Trust Investments in Sponsor Stock shall be made via the Sponsor Stock Fund (the
"Stock Fund") which shall consist of shares of Sponsor Stock and short-term
liquid investments consisting of Mutual Fund shares or commingled money market
pool units as agreed to by the Sponsor and the Trustee, necessary to satisfy the
Fund's cash needs for transfers and payments. A cash target range shall be
maintained in the Stock Fund. Such target range may be changed as agreed to in
writing by the Sponsor and the Trustee. The Trustee is responsible for ensuring
that the actual cash held in the Stock Fund falls within the agreed upon range
over time. Each participant's proportional interest in the Stock Fund shall be
measured in units of participation, rather than shares of Sponsor Stock. Such
units shall represent a proportionate interest in all assets of the Stock Fund,
which includes shares of Sponsor Stock, short-term investments and at times,
receivables for dividends and/or Sponsor Stock sold and payables for Sponsor
Stock purchased. A Net Asset Value ("NAV") per unit will be determined daily for
each cash unit outstanding of the Stock Fund. The return earned by the Stock
Fund will represent a combination of the dividends paid on the shares of Sponsor
Stock held by the Stock Fund, gains or losses realized on sales of Sponsor
Stock, appreciation or depreciation in the market price of those shares owned,
and interest on the short-term investments held by the Stock Fund. Dividends
received by the Stock Fund are reinvested in additional shares of Sponsor Stock.
Investments in Sponsor Stock shall be subject to the following limitations:
(a) ACQUISITION LIMIT. Pursuant to the Plan, the Trust may be invested in
Sponsor Stock to the extent necessary to comply with investment
directions under Section 2.4 of this Agreement.
(b) FIDUCIARY DUTY OF NAMED FIDUCIARY. The Named Fiduciary shall
continuously monitor the suitability under the fiduciary duty rules of
section 404(a)(1) of ERISA (as modified by section 404(a)(2) of ERISA)
of acquiring and holding Sponsor Stock. The Trustee shall not be liable
for any loss, or by reason of any breach, which arises from the
directions of the Named Fiduciary with respect to the acquisition and
holding of Sponsor Stock, unless it is clear on their face that the
actions to be taken under those directions would be prohibited by the
foregoing fiduciary duty rules or would be contrary to the terms of the
Plan or this Agreement.
(c) EXECUTION OF PURCHASES AND SALES. Purchases and sales of Sponsor Stock
(other than for exchanges) shall be made on the open market on the date
on which the Trustee receives from the Sponsor in good order all
information and documentation necessary to accurately effect such
purchases and sales (or, in the case of purchases, the subsequent date
on which the Trustee has received a wire transfer of the funds
necessary to make such purchases). Such general rules shall not apply
in the following circumstances:
(i) If the Trustee is unable to determine the number of shares required
to be purchased or sold on such day;
(ii) If the Trustee is unable to purchase or sell the total number
of shares required to be purchased or sold on such day as a result
of market conditions; or
(iii)If the Trustee is prohibited by the Securities and Exchange
Commission, the New York Stock Exchange, or any other regulatory
body from purchasing or selling any or all of the shares required
to be purchased or sold on such day. In the event of the
occurrence of the circumstances described in (i), (ii), or (iii)
above, the Trustee shall purchase or sell such shares as soon as
possible thereafter and shall determine the price of such
purchases or sales to be the average purchase or sales price
of all such shares purchased or sold , respectively. The
Trustee may follow directions from the Named Fiduciary to deviate
from the above purchase and sale procedures provided that such
direction is made in writing by the Named Fiduciary.
(d) PURCHASES AND SALES FROM OR TO SPONSOR. If directed by the Sponsor in
writing prior to the trading date, the Trustee may purchase or sell
Sponsor Stock from or to the Sponsor if the purchase or sale is for
adequate consideration (within the meaning of Section 3(18) of ERISA)
and no commission is charged. If Sponsor contributions or
contributions made by the Sponsor on behalf of the Participants under
the Plan are to be invested in Sponsor Stock, the Sponsor may transfer
Sponsor Stock in lieu of cash to the Trust. In either case, the number
of shares to be transferred will be determined by dividing the total
amount of Sponsor Stock to be purchased or sold by the closing price
of the Sponsor Stock on any national securities exchange on the
trading date.
(e) SECURITIES LAW REPORTS. The Named Fiduciary shall be responsible for
filing all reports required under Federal or state securities laws with
respect to the Trust's ownership of Sponsor Stock; including, without
limitation, any reports required under Section 13 or 16 of the
Securities Exchange Act of 1934 and shall immediately notify the
Trustee in writing of any requirement to stop purchases or sales of
Sponsor Stock pending the filing of any report. The Trustee shall
provide to the Named Fiduciary such information on the Trust's
ownership of Sponsor Stock as the Named Fiduciary may reasonably
request in order to comply with Federal or state securities laws.
(f) VOTING AND TENDER OFFERS. Notwithstanding any other provision of this
Agreement, the provisions of this Section shall govern the voting and
tendering of Sponsor Stock. Each Participant shall be designated a
named fiduciary under ERISA with respect to shares of Sponsor Stock
attributable to units in the Sponsor Stock Fund credited to the
Participant's Separate Account not acquired at the direction of the
Participant in accordance with Section 404(c) of ERISA. The Sponsor,
after consultation with the Trustee, shall provide and pay for all
printing, mailing, tabulation and other costs associated with the
voting and tendering of Sponsor Stock.
(i) VOTING.
(I) When the issuer of the Sponsor Stock prepares for any annual
or special meeting, the Sponsor shall notify the Trustee
thirty (30) days in advance of the intended record date and
shall cause a copy of all materials to be sent to the
Trustee. Based on these materials the Trustee shall prepare
a voting instruction form. At the time of mailing of notice
of each annual or special stockholders' meeting of the
issuer of the Sponsor Stock, the Sponsor shall cause a copy
of the notice and all proxy solicitation materials to be
sent to each Participant with an interest in Sponsor Stock
held in the Trust, together with the foregoing voting
instruction form to be returned to the Trustee or its
designee. The form shall show the proportional interest in
the number of full and fractional shares of Sponsor Stock
credited to the Participant's Sub-Accounts held in the Stock
Fund. The Sponsor shall provide the Trustee with a copy of
any materials provided to the Participants and shall (if the
mailing is not handled by the Trustee) certify that the
materials have been mailed or otherwise sent to
Participants.
(II) Each Participant with an interest in the Stock Fund shall
have the right to direct the Trustee as to the manner in
which the Trustee is to vote (including not to vote) that
number of shares of Sponsor Stock reflecting such
Participant's proportional interest in the Stock Fund (both
vested and unvested). Directions from a Participant to the
Trustee concerning the voting of Sponsor Stock shall be
communicated in writing, or by mailgram or similar means.
These directions shall be held in confidence by the Trustee
and shall not be divulged to the Sponsor, or any officer or
employee thereof, or any other person. Upon its receipt of
the directions, the Trustee shall vote the shares of Sponsor
Stock reflecting the Participant's proportional interest in
the Stock Fund as directed by the Participant. The Trustee
shall not vote shares of Sponsor Stock reflecting a
Participant's proportional interest in the Stock Fund for
which it has received no direction from the Participant.
(ii) TENDER OFFERS.
(I) Upon commencement of a tender offer for any securities held
in the Trust that are Sponsor Stock, the Sponsor shall
notify each Participant with an interest in such Sponsor
Stock of the tender offer and utilize its best efforts to
timely distribute or cause to be distributed to the
Participant the same information that is distributed to
shareholders of the issuer of Sponsor Stock in connection
with the tender offer, and, after consulting with the
Trustee, shall provide and pay for a means by which the
Participant may direct the Trustee whether or not to tender
the Sponsor Stock reflecting such Participant's proportional
interest in the Stock Fund (both vested and unvested). The
Sponsor shall provide the Trustee with a copy of any
material provided to the Participants and shall (if the
mailing is not handled by the Trustee) certify to the
Trustee that the materials have been mailed or otherwise
sent to Participants.
(II) Each Participant shall have the right to direct the Trustee
to tender or not to tender some or all of the shares of
Sponsor Stock reflecting such Participant's proportional
interest in the Stock Fund (both vested and unvested).
Directions from a Participant to the Trustee concerning the
tender of Sponsor Stock shall be communicated in writing, or
by mailgram or such similar means as is agreed upon by the
Trustee and the Sponsor under the preceding paragraph. These
directions shall be held in confidence by the Trustee and
shall not be divulged to the Sponsor, or any officer or
employee thereof, or any other person, except to the extent
that the consequences of such directions are reflected in
reports regularly communicated to any such persons in the
ordinary course of the performance of the Trustee's services
hereunder. The Trustee shall tender or not tender shares of
Sponsor Stock as directed by the Participant. The Trustee
shall not tender shares of Sponsor Stock reflecting a
Participant's proportional interest in the Stock Fund for
which it has received no direction from the Participant.
(III)A Participant who has directed the Trustee to tender some or
all of the shares of Sponsor Stock reflecting the
Participant's proportional interest in the Stock Fund may,
at any time prior to the tender offer withdrawal date,
direct the Trustee to withdraw some or all of the tendered
shares reflecting the Participant's proportional interest,
and the Trustee shall withdraw the directed number of shares
from the tender offer prior to the tender offer withdrawal
deadline. A Participant shall not be limited as to the
number of directions to tender or withdraw that the
Participant may give to the Trustee.
(IV) A direction by a Participant to the Trustee to tender shares
of Sponsor Stock reflecting the Participant's proportional
interest in the Stock Fund shall not be considered a written
election under the Plan by the Participant to withdraw, or
have distributed, any or all of his withdrawable shares. The
Trustee shall credit to each proportional interest of the
Participant from which the tendered shares were taken the
proceeds received by the Trustee in exchange for the shares
of Sponsor Stock tendered from that interest. Pending
receipt of direction (through the Administrator) from the
Participant or the Named Fiduciary, as provided in the Plan,
as to which of the remaining Investment Funds the proceeds
should be invested in, the Trustee shall invest the proceeds
in the Mutual Fund set forth for such purposes in the
Service Agreement.
(g) SHARES CREDITED. For all purposes of this Section, the number of shares
of Sponsor Stock deemed "credited" or "reflected" to a Participant's
proportional interest shall be determined as of the last proceeding
Valuation Date. The trade date is the date the transaction is valued.
(h) GENERAL. With respect to all rights other than the right to vote, the
right to tender, and the right to withdraw shares previously tendered,
in the case of Sponsor Stock credited to a Participant's proportional
interest in the Stock Fund, the Trustee shall follow the directions of
the Participant and if no such directions are received, the directions
of the Named Fiduciary. The Trustee shall have no duty to solicit
directions from Participants.
(i) CONVERSION. All provisions in this Section 2.19 shall also apply to any
securities received as a result of a conversion to Sponsor Stock.
<PAGE>
ARTICLE III
PAYMENTS OUT OF THE TRUST
3.1 - PAYMENTS
The Trustee shall make payments from the Trust to such persons in such amounts
and at such times as the Sponsor or the Administrator from time to time shall
direct in writing to be payable under the Plan.
3.2 - COMPENSATION AND EXPENSES
The Trustee shall be entitled to such reasonable compensation for its services
as the Sponsor and the Trustee from time to time shall agree, and shall be
entitled to reimbursement for all reasonable expenses incurred by the Trustee in
the administration of the Trust. All compensation, if applicable, and expenses
of administering the Plan or Trust, including fees assessed against the Plan,
the Trust, the Sponsor, or the Administrator, shall be paid out of the Trust as
a general charge thereon, unless the Sponsor elects to make payment thereof.
3.3 - RETURN OF CONTRIBUTIONS TO THE SPONSOR
Upon written notice of the Sponsor, the Trustee shall pay over to the Sponsor
the amount of any contribution (i) made under a mistake of fact, or (ii)
disallowed as a deduction contribution under Section 404 of the Code, or (iii)
with respect to which the Plan does not qualify initially under Section 401(a)
of the Code or the Trust is not exempt under Section 501(a) of the Code. In no
event shall the Trustee make such payment later than one year after (i) the
payment of the contribution, or (ii) the disallowance of the deduction to the
extent disallowed, or (iii) the date of denial of the initial qualification of
the Plan.
<PAGE>
ARTICLE IV
SUCCESSION TO THE TRUSTEESHIP
4.1 - RESIGNATION OF THE TRUSTEE
Any Trustee acting hereunder may resign at any time by giving notice in writing
to the Sponsor at least 60 days before such resignation is to become effective,
unless the Sponsor shall accept as adequate a shorter notice.
4.2 - REMOVAL OF THE TRUSTEE
The Sponsor may, with or without cause, remove any Trustee acting hereunder by
giving notice in writing to the Trustee at least 60 days before such removal is
to become effective, unless the Trustee shall accept as adequate a shorter
notice.
4.3 - APPOINTMENT OF A SUCCESSOR TRUSTEE
If for any reason a vacancy should occur in the trusteeship, a successor Trustee
shall forthwith be appointed by the Sponsor. Any successor Trustee appointed
hereunder shall execute, acknowledge, and deliver to the Sponsor an instrument
in writing accepting such appointment hereunder. Such successor Trustee
thereupon shall become vested with the same title to the property comprising the
Trust, and shall have the same powers and duties with respect thereto, as are
hereby vested in the original Trustee. The predecessor Trustee shall execute all
such instruments and perform all such other acts as the successor Trustee or
Sponsor shall reasonably request to effectuate the provisions hereof. The
successor Trustee shall have no duty to inquire into the administration of the
Trust for any period prior to its succession.
<PAGE>
ARTICLE V
AMENDMENT
5.1 - RIGHT OF AMENDMENT
The Sponsor reserves the right, at its sole discretion, from time to time to
amend the provisions of this Trust Agreement in any manner; provided, however,
that the powers, duties, and immunities of the Trustee under this Trust
Agreement shall not be substantively changed without its written approval. Any
such amendment shall be by written instrument executed by the Sponsor and
delivered to the Trustee, and may be made retroactively if in the opinion of the
Sponsor such amendment is necessary to enable the Plan and the Trust to meet the
requirements of the Code (including the regulations and rulings issued
thereunder) or the requirements of any governmental authority.
5.2 - LIMITATION ON AMENDMENT
The Sponsor shall make no amendment to this Trust Agreement that results in the
forfeiture or reduction of the accrued benefit of any Participant or
Beneficiary. Notwithstanding the preceding sentence, nothing herein contained
shall restrict the right to amend the provisions of this Trust Agreement
relating to the administration of the Plan and the Trust. Moreover, no such
amendment shall be made under this Article which shall permit any part of the
Trust to revert to the Sponsor or any Related Company or to be used for or be
diverted to purposes other than for the exclusive benefit of Participants and
Beneficiaries.
<PAGE>
ARTICLE VI
MISCELLANEOUS
6.1 - VALIDITY OF TRUST AGREEMENT
The validity of this Trust Agreement shall be determined and this Trust
Agreement shall be construed in accordance with the laws of the Commonwealth of
Massachusetts, except to the extent that they are superseded by Section 514 of
ERISA. The invalidity or illegality of any provision of this Trust Agreement
shall not affect the validity or legality of any other part hereof.
6.2 - NO GUARANTEES
Neither the Sponsor nor the Trustee guarantees the Trust from loss or
depreciation.
6.3 - DUTY TO FURNISH INFORMATION
The Administrator, the Employers, and the Trustee shall furnish to any of the
others any documents, reports, returns, statements, or other information that
such other reasonably deems necessary to perform its duties imposed under the
Plan or this Trust Agreement or otherwise imposed by law.
6.4 - FEDERAL INCOME TAX WITHHOLDING
The Trustee shall not be responsible for withholding federal and state income
tax from distributions unless the Administrator provides the Trustee with the
following information concerning each distribution:
(a) The name, address, and social security number of the Participant (and
the Participant's spouse or other Beneficiary if applicable). By
forwarding such information, the Administrator shall be deemed hereby
to have certified the accuracy of such information.
(b) A statement of the reason for the payment or distribution and
directions as to the type of distribution (e.g., eligible rollover
distribution) requested.
If the Administrator does not provide the Trustee with the above information,
the responsibility for withholding federal and state income taxes and the
reporting thereof shall remain with the Administrator.
6.5 - PARTIES BOUND
This Trust Agreement shall be binding upon the parties hereto, all Participants,
and persons claiming under or through them pursuant to the Plan, and, as the
case may be, the heirs, executors, administrators, successors, and assigns of
each of them.
6.6 - INDEMNIFICATION BY SPONSOR
The Sponsor shall indemnify and save harmless from and against any and all
liability to which the Trustee may be subjected by reason of any act or conduct
in its capacity as Trustee, including all expenses reasonably incurred in its
defense, except for losses or expenses resulting from the negligence or willful
misconduct of the Trustee or its affiliates.
6.7 - BONDING REQUIREMENTS
Every fiduciary, except a bank or an insurance company, unless exempted by ERISA
and the regulations thereunder, shall be bonded in an amount not less than ten
percent of the funds such fiduciary handles; provided, however, that the minimum
bond shall be $1,000 and the maximum bond shall be $500,000. The amount of funds
handled shall be determined at the beginning of each Plan Year by the amount of
funds handled by such person, group, or class to be covered and their
predecessors, if any, during the preceding Plan Year, or if there is no
preceding Plan Year, then by the amount of the funds to be handled during the
then current Plan Year. The bond shall provide protection to the Plan against
any loss by reason of acts of fraud or dishonesty by the fiduciary alone or in
connivance with others. The surety shall be a corporate surety company (as such
term is used in Section 412(a)(2) of ERISA), and the bond shall be in a form
approved by the Secretary of Labor. Notwithstanding anything to the contrary
contained in the Plan or this Trust Agreement, the cost of such bonds shall be
an expense of and may, at the election of the Sponsor, be paid from the Trust or
by the Sponsor.
6.8 - SEPARATE TRUST OR FUND FOR EXISTING PLAN ASSETS
With the consent of the Trustee, an Employer may maintain a trust or fund
(including a group annuity contract) under the Plan separate from the Trust Fund
to hold Plan assets acquired prior to the effective date of this Trust Agreement
which are not among the available Investment Funds provided under Section 2.3.
The duties and responsibilities of the trustee of the separate trust
(hereinafter referred to as the "trustee") shall be provided by a separate trust
agreement between the Employer and the trustee.
Notwithstanding the preceding paragraph, the Trustee or an affiliate of the
Trustee may agree in writing to provide ministerial recordkeeping service for
guaranteed investment contracts held in the separate trust or fund. Any such
guaranteed investment contract shall be valued as directed by the Employer or
the trustee.
The trustee shall be the owner of any insurance contract purchased prior to the
effective date of this Trust Agreement. Any such insurance contract must provide
that the proceeds will be payable to the trustee; provided, however, that the
trustee shall be required to pay over all proceeds of the contract to the
Participant's Beneficiary in accordance with the distribution provisions of the
Plan. Under no circumstances will the Trust Fund retain any part of the
proceeds. In the event of any conflict between the terms of the Plan and the
terms of any insurance contract held hereunder, the Plan provisions shall
control.
Any life insurance contracts held in the Trust Fund or in the separate trust
shall be subject to the provisions of Article IX of the Plan.
<PAGE>
* * *
EXECUTED as of the 1st day of January, 1997.
WM. H. MCGEE & CO., INC.
By /s/ John P. Tynan
-----------------
Title: John P. Tynan, Senior Vice President
FIDELITY MANAGEMENT TRUST COMPANY
By /s/ Eric L. Wichmann
--------------------
Title: Eric L. Wichmann, Authorized Signatory
<PAGE>
SCHEDULE A
INVESTMENT FUNDS
Participant accounts under the Trust shall be invested among the Mutual Funds or
collective investment funds listed below pursuant to Participant and/or Sponsor
directions.
FUND NAME FUND NUMBER
(1) Managed Income Portfolio 0632
(2) Intermediate Bond Fund 0032
(3) Puritan Fund 0004
(4) Magellan Fund 0021
(5) Growth & Income Portfolio 0027
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Orion Capital Corporation on Form S-8 of our report dated February 14, 1997
appearing in the Annual Report on Form 10-K of Orion Capital Corporation for the
year ended December 31, 1996 and to the reference to us under the heading
"Experts" in such Registration Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Hartford, Connecticut
January 23, 1998
